Edwards violation

Charles O'Hara won in State v. Morales, No. 96,621 (Kan. App. Aug. 10, 2007) (unpublished), reversing a Lyon County drug conviction based on Edwards violation. Officers arrested Mr. Morales after a controlled buy. After providing Miranda warnings, Mr. Morales invoked his right to counsel.

[The detective] said if Morales wanted to talk with them, he would need to contact his attorney or initiate contact from the jail. Morales was then handcuffed. Both detectives said Morales spoke English and had no difficulty understanding and communicating with them.While walking Morales to the jail which was a distance of 400 to 500 feet away, [the detective] told Morales that the possible penalty he would receive for selling narcotics within 1,000 feet of a school was 54 months in jail. Morales testified at the suppression hearing that he was told it would be 10 to 15 years. Morales never asked about the penalty nor did he initiate any conversation with the detectives on the way to jail. When they entered the jail, the detectives' weapons were secured and while holding onto his arms and walking Morales down a hallway, Morales said he did not want to go to jail. [The detective] said there was not much he could do about it and he could not talk with Morales because he had asked for an attorney. Morales then said he no longer wanted an attorney.

The state argued that the detective's comments were not interrogation, but the COA disagreed:

Was it “interrogation” or was it just “harmless conversation”? The trial judge who heard the one detective say that he told Morales about the penalties to inform him, not to scare him, nevertheless, specifically held in his written findings that the detectives' conversation “was made in part with the hope of gaining incriminating statements from the defendant.”It is clear that Morales never asked what the penalties were for the crimes with which he was expected to be charged.We hold that Morales did not “initiate” the conversations after he asserted his right to counsel. Conversations designed to obtain additional information and incriminating statements from Morales amount to coercive conduct.

A common sense result--if officers affirmatively make the situation so coercive that a suspect "initiates" some more contact, that should not be treated as "initiation" for Edwards purposes.

[Update: the state did not file a PR and the mandate issued on September 13, 2007].