Clarifying ambiguous requests to remain silent and/or requests for a lawyer are good police practices but not required

Facts

13 year-old Amy is Jessica Orr’s aunt’s daughter, but Amy has lived with Orr since her birth due to her mother’s death. Amy is a special needs child and has ADHD. In 2016, Jessica Orr walked down the street to pick up her children, who had been playing in the neighbor’s pool. As Orr approached the house, she claims that she saw Amy with Johnny Saddler.

Orr stated, “Her pants were down. His pants were down. Her shirt was up. He was not patting, he was fondling her breast, and his other hands was inside her pants.” The neighbor Tommy Shelton was present at the pool, but he did not witness the alleged incident. Orr brought her children back home and called the police.

The responding officer was told by Saddler’s probation officer to arrest Saddler. After a few days, Saddler was interviewed by Investigator Mary Hudgins and Lieutenant Tony Cooper. Hudgins advised Saddler of his Miranda rights, and Saddler indicated that he understood them. Hudgins then read the waiver-of-rights form to Saddler and asked if he was willing to talk to her. Saddler signed the waiver-of-rights form and agreed to speak with the investigators.

During the interview, Saddler first claimed that he never touched any of the children. Saddler claimed that Orr was yelling as she approached and that she called him a sex offender. However, Saddler eventually changed his story after further questioning. Saddler stated, “I’m gonna leave it right there and let the courts decide. I didn’t but I did it. I gotta leave it, I gotta leave it at that.”

Saddler claims that his statement was an attempt to invoke his right to remain silent and his right to counsel. However, Saddler continued answering questions. When asked about his previous conviction for fondling, Saddler claimed that he had touched the victim in the previous case because “she was maturing and she was already, ah, she was flirty.” When asked about the incident with Amy, Saddler admitted that after Amy rubbed his head, “I touched her. I pushed her away. I did touch her. And I touched her up here.”

Saddler continued, “Sure, I wanted to touch it … You know? I wanted to touch her, so I pushed her away by touching her tits.” Cooper asked, “Your intent was to feel her but make it look like you were pushing her,” and Saddler answered, “yeah.” Saddler later explained, “young girls are just, they amaze me … when they begin to mature … I have that desire to want to touch them, but not interact in any other kind of way. I don’t want to have sex with them or nothing like that.”

The only other adult present, Tommy Shelton, did not have a clear view of the alleged incident. Shelton testified that he did not believe the incident occurred. Shelton further testified that he was unaware that Saddler had confessed.

Saddler was convicted of unlawful touching of a child and sentenced to life. On appeal, he argued he requested to remain silent. MSC affirmed.

Analysis

Saddler claimed in his motion to suppress and here that his statement, “I’m gonna leave it right there and let the courts decide. I didn’t but I did it. I gotta leave it, I gotta leave it,” was an invocation of his right to remain silent. The statement, while possibly an ambiguous attempt to invoke his right to remain silent, was not an unequivocal and unambiguous assertion of his rights.

Saddler argues that Holland v. State, 587 So. 2d 848 (Miss. 1991), should apply, with respect to ambiguous references to the right to remain silent. Holland said that if a defendant makes equivocal or ambiguous utterances which could be interpreted as an invocation, then the trend is to require cessation of interrogation except for strictly limited inquiry for clarification purposes.

However, the statement was clarified in Chamberlin, when the MSC held:

This court previously has held that if an officer understands only that the suspect might be invoking the right to counsel, an officer must cease interrogation, except for inquiries made to clarify the defendant’s request (See Holland). The U.S. Supreme Court declined to require such a procedure but noted in Davis v. United States, 512 U.S. 452 (1994), that where the officers followed the same procedure as adopted by this court, such a procedure is “good police practice for the interviewing officers.” (Davis holds that the right to counsel can only be legally asserted by an unambiguous or unequivocal request for counsel.)

In Moore, we held that Mississippi law is well established, in cases involving the invocation of the right to counsel, that an interviewing officer may clarify an ambiguous invocation. Today, we extend this same analysis to cases involving the invocation of the right to remain silent.

Holland does not apply in this case. The court has since adopted the position taken in Davis that clarifying questions are not required when a suspect ambiguously asserts their rights.

In Barnes, we said that pursuant to Davis, Barnes failed to make an unambiguous, unequivocal request for an attorney, and the officer had no obligation to stop questioning her.

In Franklin, we stated, never has this court held that the Mississippi Constitution provides greater protection than the U.S. Constitution to criminal suspects who invoke the right of counsel during custodial interrogations. The court in Franklin held that Mississippi does not require the officer to ask clarifying questions after ambiguous utterances.

While cases such as a Holland and Moore have stated that it is good police practice for officers to ask clarifying questions, Franklin and Barnes held that such clarifying questions are not required.

Saddler’s statement was not an explicit invocation of his right to remain silent. Further, even if the statement was an ambiguous assertion of his right to remain silent, the officer was not required to ask clarifying questions. Based on the highly deferential standard of review, the trial judge did not commit manifest error when he denied Saddler’s motion to suppress.

Thoughts

For a long time, the rules for law enforcement regarding ambiguous requests to remain silent and/or to invoke counsel was unclear in Mississippi. That is no longer the case. Mississippi now follows U.S. Supreme Court cases Davis (invoking counsel) and Berghuis (remaining silent) which say that the subject must use unambiguous assertions for silence or invocation. If they fail to do that, police are not required to ask clarifying questions as to their intent. However, it remains good police practice to clarify.

 

https://courts.ms.gov/Images/Opinions/CO144219.pdf