Gordon Plugh thought it was over. Judge Charles Siragusa in the Western District of New York suppressed his statements and the Second Circuit affirmed. That’s pretty much the end of the story. But not this time.
The ruling seemed clear enough, that Plugh’s refusal to sign the waiver of rights form after his arrest for kiddie porn was an unequivocal invocation of his Miranda rights. No means no, you know? But then the Supremes decided Berghuis v. Thompkins, holding the silence is no longer golden.
As the government’s behest, the court revisited its affirmation of Judge Siragusa’s suppression, and, gasp, Plugh’s world shifted.
Specifically, the Plugh I majority concluded that the defendant’s “unequivocal refus[al] to sign the waiver [of rights] form” was itself sufficient to invoke those rights, id., thus rejecting application of the standard set forth in Davis v. United States, 512 U.S. 452 (1994), whereby a defendant must “unambiguously” invoke his rights in order to cut off questioning, Plugh I, 576 F.3d at 142-43. As the Plugh I majority reasoned, “Davis does not instruct courts on how to analyze an initial invocation of one’s Fifth Amendment rights following the Miranda warnings” but is instead limited to cases where a defendant attempts to “subsequently invoke previously waived Fifth Amendment rights.” Id. at 143.
Shortly thereafter, while this case was pending before the district court, the Supreme Court announced its opinion in Berghuis v. Thompkins, –U.S.–, 130 S. Ct. 2250 (2010). There, the Court clarified that the Davis “unambiguous” statement standard does control a court’s analysis of an initial invocation of both the right to remain silent and the right to counsel, id. at 2259-60, and it further held, on the facts of that case, that the defendant’s conduct, which included a refusal to sign an advice-of-rights form, did not amount to an “unambiguous” invocation of those rights sufficient to cut off further questioning by law enforcement officials, id. at 2256, 2260.
If this seems a bit much to follow, here’s the TL;dr version: Unequivocal isn’t unambiguous. In a sense, you can’t quite blame the Circuit, where the opinion by Judge Debra Ann Livingston adopts one of the most absurd 5-4 rulings to ever parse American rhetoric. Of course, to get there, the Circuit could have just said “no,” whatever that means these days, or focused instead on the factual disparities of the case before them from the Berghuis decision.
Having made the choice of revisiting its earlier decision, the court started from a curious position, set forth in footnote 3:
Because we revisit the district court’s order of suppression, in doing so, we review its factual findings for clear error and in the light most favorable to the government. We review questions of law de novo.
Wait a sec. The government lost in the district court, lost on appeal, lost again in the district court in seeking reconsideration and was now back to the Circuit for the second time, and the Court’s review compels them to consider the facts “in the light most favorable to the government?” Win, lose or draw, the government gets the benefit of the doubt?
The upshot of the opinion is that Plugh’s unequivocal negative response to signing away his rights is not the unambiguous equivalent of an affirmative unequivocal invocation of rights. In other words, just because he refused to waive his rights doesn’t mean he invoked them. He was in Miranda rights purgatory, and as footnote 3 tells us, a draw goes to the government.
What’s learned from this decision, as well as Berghuis itself, is that there is no substitute for the utterance of the magic mantra:
I do not want to answer questions.
I want to speak with my attorney.
Forget nuance or politeness. Forget trying to fudge the line between getting your face smashed by the agent who doesn’t think well of your assertion of rights that will make his life more difficult. Either get the words out of your mouth exactly as shown or kiss it good-bye.
The only remaining problem, of course, is when the defendant says precisely what he’s supposed to say in order to invoke his rights, and the agents testifies that it never happened. There’s no camera recording the invocation, nor witnesses who aren’t wearing shields or cuffs. It’s the word of the creepy, evil defendant that he said the magic words versus the word of the hero, honest, law enforcement agent who protects us from terrorists and saves babies who says he didn’t.
But then, that’s always the case, isn’t it? There’s absolutely nothing ambiguous about it.