The Volokh Conspiracy - "The Constitution Does Not Protect a Suspect From Himself or His Mother":

The U.S. Court of Appeals for the Sixth Circuit ruled 7-6, en banc, in Van Hook v. Anderson, that a criminal suspect who has invoked his constitutional right to counsel may reinitiate communication with police through a trusted third-party. Judge McKeague's opinion for the majority summarizes

Following the arrest of a suspect, the police advise him of his rights outlined in Miranda v. Arizona. The suspect asks for a lawyer. Under Edwards v. Arizona, all questioning must then stop (a) until a lawyer has been provided, or (b) unless the suspect "himself" initiates a discussion. Later, police talk to the suspect's mother (or a close friend, sibling, etc.), and, based on that conversation, they believe that the suspect now wants to talk with them without a lawyer. Are they permitted to approach the suspect and inquire whether he now wants to talk, based solely on the discussion with the mother? Or, rather, are they precluded from acting on that information because it was not communicated to them directly by the suspect? Today we join several of our sister circuits in holding that the police can make the limited inquiry without running afoul of Edwards.

In the case at hand, the police claim they were told by the suspect's mother that he wanted to talk to police after all, despite his earlier request for a lawyer. The police asked the suspect if this was the case and, after re-Mirandizing him, obtained his confession to a grisly murder.

Judges Cole, Merritt and Martin each authored a dissent. Judge Cole's begins:

The Court today adopts the position that law enforcement officers may renew contact with criminal suspects upon learning from third parties that the suspects are willing to waive their previously invoked right to counsel. In so holding, the majority concludes that neither reason nor established case law require suspects—who, by definition, are in jail surrounded at all times by law-enforcement personnel—to directly communicate to police their wish to waive their previously invoked constitutional rights. The Supreme Court has instructed us that we must view custodial waivers of rights with a high degree of suspicion. In my view, we must be doubly skeptical of a waiver of rights effected through the backdoor of a purported third-party agent, especially when all the suspect has to do is proclaim to the nearest guard, "I want to talk."

	[Jonathan Adler, May 24, 2007 at 11:04pm] Trackbacks "The Constitution Does Not Protect a Suspect From Himself or His Mother": The U.S. Court of Appeals for the Sixth Circuit ruled 7-6, en banc, in Van Hook v. Anderson, that a criminal suspect who has invoked his constitutional right to counsel may reinitiate communication with police through a trusted third-party. Judge McKeague's opinion for the majority summarizes Following the arrest of a suspect, the police advise him of his rights outlined in Miranda v. Arizona. The suspect asks for a lawyer. Under Edwards v. Arizona, all questioning must then stop (a) until a lawyer has been provided, or (b) unless the suspect "himself" initiates a discussion. Later, police talk to the suspect's mother (or a close friend, sibling, etc.), and, based on that conversation, they believe that the suspect now wants to talk with them without a lawyer. Are they permitted to approach the suspect and inquire whether he now wants to talk, based solely on the discussion with the mother? Or, rather, are they precluded from acting on that information because it was not communicated to them directly by the suspect? Today we join several of our sister circuits in holding that the police can make the limited inquiry without running afoul of Edwards. In the case at hand, the police claim they were told by the suspect's mother that he wanted to talk to police after all, despite his earlier request for a lawyer. The police asked the suspect if this was the case and, after re-Mirandizing him, obtained his confession to a grisly murder. Judges Cole, Merritt and Martin each authored a dissent. Judge Cole's begins: The Court today adopts the position that law enforcement officers may renew contact with criminal suspects upon learning from third parties that the suspects are willing to waive their previously invoked right to counsel. In so holding, the majority concludes that neither reason nor established case law require suspects—who, by definition, are in jail surrounded at all times by law-enforcement personnel—to directly communicate to police their wish to waive their previously invoked constitutional rights. The Supreme Court has instructed us that we must view custodial waivers of rights with a high degree of suspicion. In my view, we must be doubly skeptical of a waiver of rights effected through the backdoor of a purported third-party agent, especially when all the suspect has to do is proclaim to the nearest guard, "I want to talk."