I am writing an article for our Legal Bulletin that goes to all our officers. A question has come up regarding the meaning of "a break in custody" as the Supreme Court used it in the Shatzer case. The Court took several paragraphs to discuss how the fact that Shatzer was in prison after a conviction constituted a break in custody because he was in a routine, good have visitors and make phone calls, etc., and because the investigators could not change the terms of his detention.

But what about the suspect who is arrested, is magistrated and appointed an attorney by the magistrate, and then remains in county jail either because he can't afford to post the bond or because he was denied bail. If 14 days elapses, does this count as a "break in custody"? If the suspect didn't invoke his 5th Amendment right to counsel when arrested but only refused to talk to police, but then asked for an attorney at magistration, does the 14 day rule apply if officers want to attempt to queestion the suspect again?

If you don't want to post a response, feel free to email me at janette.ansolabehere<SPAM>.txdps.state.tx.us

I want to give the officers some level of black and white advice, but it's so early that there are no court opinions applying Shatzer. I will say that the last line of the article will advise officers to contact their DA if they are unsure about what to do.

Janette A

No doubt Shatzer serves to restrict the scope of the Edwards presumption. But I no longer believe it is as broad an opinion as when I first read it. It simply declined to expand the eternal Edwards' presumption beyond the three cases to which the Court has already applied it and, otherwise, has established a 14 day presumption if there is a break in custody.

Justice Scalia specifically noted the distinction you raise when he recognized that Shatzer is "unlike what happened in these three cases," meaning Edwards, Roberson, and Minnick. See also fn 5. (The 3 cases in which the SCOTUS has applied Edwards) Later, he went on to note the "stark contrast" between the two situations. This language indicates, to me at least, that Scalia carved out from Shatzer suspects "whose continued detention as suspects rest[s] with those controlling their interrogation", or, in other words, those subject to "Miranda custody." In sum, Edwards continues to apply to Edwards, Roberson, and Minnick situations but will not be expanded to the Shatzer situation--where the 14 day rule prevails.

If you have been trying to keep up, I apologize for rewriting this so many times, I seem to be having a bad-articulation day. And, I have reread this case so many times, I may now be off the wall. What do others think?

With a suspect in "Miranda custody" the only way to obtain the benefit of the 14-day-presumption is to release the suspect back to his life before--whether in the free world or as an inmate--for 14 days before reinitiating custodial interrogation again.

[This message was edited by John A. Stride on 03-19-10 at .]

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It also seems that with "Miranda custody" the only way to get a break-in custody sufficient to obtain the benefit of the 14-day-presumption is to release the suspect back to his life in the free world for 14 days.

[This message was edited by John A. Stride on 03-18-10 at .]

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This is specifically how I read this decision as well. Seems to build in a necessity of "catch and release" for lack of a better analogy. Shatzer's relase just happened to be back to prison where he was no longer in "miranda custody" of the interviewing agency.

If Shatzer had been released from custody and re-approached when still not in custody for anything, then Miranda would not have applied and Edwards would not have been an issue and the number of days would not have to be 14.

For an example, see People v. Storm, 52 P.3d 52. Defendant requested counsel during custodial interrogation. Cops got confession anyway. Prosecutor rejected charges, told police to release defendant and re-interrogate him noncustodially after 3 days. They did. Defendant confessed. California Supreme Court says Miranda didn't apply and confession admissible.