Radovsky v. State

Eldridge, J., delivered the opinion of the Court. The petitioner in this case, Ken S. Radovsky, was convicted of two counts of burglary and one count of theft. The evidence at trial included inculpatory statements and actions by him during two days of custodial interrogation by the police. The interrogation of the petitioner occurred subsequent to his request for counsel and outside of counsel’s presence.

We issued a writ of certiorari in this case to determine whether Radovsky’s federal constitutional right to have counsel present during the interrogation was violated. On September 15, 1980, Radovsky was arrested by the Montgomery County police in connection with the police’s investigation of a series of burglaries, and he was charged with being a rogue and vagabond. 1 Upon being advised of his Miranda rights, 2 he refused to waive them. Radovsky was taken before a District Court Commissioner at approximately 3:00 a.m. on September 16, 1980. As he was unable to post the bond set by the Commissioner, Radovsky was placed in the Montgomery County Detention Center. ³⁸⁸ , On the evening of September 16th, the police obtained a warrant for Radovsky’s arrest on the charge of attempted burglary, and, at approximately 3:00 p.m. on September 17th, he was transported from the detention center to the Rockville police station where he was formally arrested on the attempted burglary charge.

At the time, the arresting officer, Terry Judith, advised Radovsky of his Miranda rights. The accused refused to waive these rights, as well as the right to prompt presentment before a District Court Commissioner. In addition, Radovsky specifically requested the assistance of counsel; however, he was unable to contact his attorney after repeated attempts over the next two days. Although Officer Judith stated that he did not "question” Radovsky after the request for counsel, the officer testified that, after the request for counsel, he told Radovsky that he "was investigating numerous burglaries,” and "I told him that I believed he was involved in more than just what I had him for there at the time.” Following the arrest on the attempted burglary charge and Radovsky’s request for counsel, Officer Judith telephoned the "Crimes Against Property Unit” of the Montgomery County Police Department and spoke with Detective Gary Rademaker, informing Rademaker of the accused’s arrest and Judith’s suspicions that Radovsky was involved in other Montgomery County burglaries.

Officer Judith also told Detective Rademaker that Radovsky wished to remain silent. Judith asked Rademaker to come to the Rockville police station for the purpose of questioning Radovsky. At approximately 6:00 p.m.' on September 17th, three hours after the arrest for attempted burglary, Detectives Rademaker and Donald Deaton arrived at the Rockville police station where they conferred with Judith. According to Detective Rademaker’s testimony, Officer Judith at that time "indicated [that] Mr. Radovsky attempted to call an attorney several times, and [that] he could not reach him.” After conferring with Officer Judith, Detectives Rademaker and Deaton approached Radovsky who was ³⁸⁹ handcuffed to a table in the interrogation room of the police station.

Detective Deaton described the encounter as follows (emphasis added): "We approached Mr. Radovsky and we identified ourselves as detectives from Crimes Against Property and basically stated to him that he knew why he was there, and we wanted to talk to him about any involvement that he might have.” "At that time, we related to him that if he didn’t want to talk to us, we would leave . . . .” Detective Rademaker’s testimony, to the same effect, was as follows (emphasis added): "Q. ... Specifically, when you went into the room where Mr. Radovsky was seated, handcuffed to the table, who spoke to him first, you or Deaton?” "A. I believe I did.” "A. I asked how he was and I indicated that he had not changed in appearance for the last five years. I asked about his father and how things were going.” "Q. Why did you do that? What was your purpose in doing that?” "A. To make for a relaxed situation.” "Q. In the hope you could get him to speak to you and tell you about criminal involvement?” "A. So we could set the content of the interview in a relaxed state.” "Q. Did you then unhandcuff him?” "A. I don’t recall whether I did or not.” ³⁹⁰ "A. I asked him if he wanted to talk to us about his involvement in burglaries and that we certainly weren’t going to beat him or anything else.

If he wanted to talk with us, that was great, and if not, we were going to leave.” Later Detective Rademaker reiterated: "We had said that we understood he was in a jam about some burglaries and peeping tom charges; would he like to talk to us about them. If he did not wish to talk to us, we would leave.” In response, Radovsky indicated to the detectives that he would talk to them. Radovsky then signed a form waiving his right to have counsel present, to remain silent and to an immediate appearance before a commissioner. According to the detectives’ testimony, they then began to interrogate the accused about unsolved Montgomery County burglaries in general, not having any particular burglaries in mind.

During the course of interrogation, Radovsky made inculpatory statements about his involvement in several burglaries and stated that some of the property from these burglaries was in his apartment. After signing a consent to search form, Rodovsky accompanied Deaton, Rademaker and Judith to his apartment where various articles of property were identified, removed and transported to the police headquarters. The police officers then drove the accused around Montgomery County, asking him to identify the residences from which the property had come. Later in the evening of September 17th, between 11:00 p.m. and midnight, Radovsky was taken before a District Court Commissioner on the attempted burglary charge for which he had been arrested earlier that day.

On September 18th, Radovsky was again interrogated by Judith and Rademaker while riding throughout the county in a police car, and again he identified residences from which he had taken property. They also returned to Radovsky’s apartment where he identified additional articles of stolen property. ³⁹¹ Radovsky was eventually charged with burglary and related offenses in six individual cases. Prior to the date set for trial, he moved to suppress all of his incriminating statements and all of the physical evidence seized by the police. In support of this motion, he argued that the interrogation by the police on September 17th violated his constitutional right to have counsel present during interrogation.

He further argued that his statutory right of prompt presentment before a commissioner, pursuant to Maryland District Rule 723 a, was violated. Following testimony and arguments at the suppression hearing, the judge ruled that the delay in presenting Radovsky to a commissioner after his arrest on the 17th was impermissible .under Maryland District Rule 723 a. Consequently, the judge suppressed all statements made by the defendant and all evidence seized prior to his appearance before a commissioner on the evening of September 17th. The judge ruled, however, that the evidence seized and statements made on September 18th, subsequent to his appearance before a commissioner, should not be excluded from trial.

At trial Radovsky renewed his motion to suppress all of his incriminating statements and the physical evidence seized by the police, but the trial judge overruled the motion, refusing to disturb the ruling at the prior suppression hearing. Following a nonjury trial, the defendant was convicted on two counts of burglary and one count of theft, and he was sentenced to eight years imprisonment. Radovsky appealed to the Court of Special Appeals which affirmed the conviction in an unreported opinion. Radovsky then filed a petition for a writ of certiorari, which we granted.

He argues that after he had requested the assistance of counsel, the police improperly initiated custodial interrogation, thus resulting in a violation of his constitutional right to have counsel during interrogation. Consequently, according to Radovsky, the incriminating statements and evidence obtained after the request for counsel should not have been admitted at the trial. Reliance is ³⁹² placed on Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), and Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Alternatively, Radovsky argues that the inculpatory statements and evidence obtained from him after September 17th should have been suppressed because they were the fruit of a detention in violation of Maryland District Rule 723 a.

Because we shall hold that the defendant’s right to have counsel during interrogation was violated, under the principles of Edwards and Miranda , and thus all evidence obtained from Radovsky subsequent to his request for counsel should have been suppressed, it is unnecessary for us to address Radovsky’s argument based on Maryland District Rule 723 a. In arguing that there was no violation of Radovsky’s right to have counsel during interrogation, the State concedes that Radovsky, after he invoked his right to counsel, did not initiate renewed contact with the police, and that it was the police who initiated further questioning about the accused’s "involvement in burglaries.” Nevertheless, the State argues that the Supreme Court cases do not establish a per se rule precluding police initiated interrogation after an arrestee has expressed a desire to have counsel present. Instead, the State contends, the question is whether the arrestee, after invoking his right to counsel, thereafter waives that right. Whether there is a waiver, according to the State, depends upon all of the facts and circumstances surrounding the case.

In arguing that Radovsky waived his right to have counsel present at interrogation, the State chiefly relies upon his signing a waiver form after Detectives Rademaker and Deaton initiated further communication. The State, attempting to minimize the fact that the police initiated this further communication, asserts that the questioning by the two detectives related to different crimes than the attempted burglary for which Radovsky had been arrested, and that the questioning related to crimes "for which he was not even a suspect” (State’s brief, p. 8). As support for its argument, the State relies upon Justice Powell’s concurring opinion in ³⁹³ Edwards v. Arizona, 451 U.S. at 488-492 , and upon Michigan v. Mosley, 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975). The opinions of the Supreme Court from Miranda until the present, however, demonstrate that the State’s argument is untenable.

In Miranda v. Arizona, supra, the Supreme Court held that under the Fifth and Fourteenth Amendments, the prosecution generally may not introduce at trial statements made by the defendant, which stem from custodial interrogation of the defendant, unless certain procedural safeguards are employed. The procedural safeguards are that, prior to questioning, the defendant must be advised that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of counsel. The Court pointed out that these rights may be waived if the waiver is voluntary, knowing and intelligent. The Court then set forth an important caveat: if the defendant indicates in any manner that he wants the presence of an attorney, all questioning must cease.

The Court thus stated ( 384 U.S. at 444-445 , emphasis supplied): "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.” In Michigan v. Mosley, supra, 423 U.S. 96 , upon which the State relies, the defendant was arrested for robbery, given his Miranda warnings, and chose to remain silent, at which ³⁹⁴ time the interrogation ceased.

Later, he was questioned by another police officer, at a different location, about an unrelated murder. On this occasion he was again given Miranda warnings, and he chose not to remain silent. During this questioning the accused made inculpatory statements which were later used to convict him of murder. The Court held that the principles of Miranda v. Arizona were not violated by admission of the statements, because the authorities "resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.” 423 U.S. at 106 .

Significantly, however, the Supreme Court distinguished the case before it from the situation where an arrestee indicated a desire to consult with a lawyer. The Court stated in Mosley (id. at 101 n. 7): "The present case does not involve the procedures to be followed if the person in custody asks to consult with a lawyer, since Mosley made no such request at any time. Those procedures are detailed in the Miranda opinion as follows: 'If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.

If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.’ ... Id, at 474.” Later, in Fare v. Michael C., 442 U.S. 707 , 99 S.Ct. 2560 , 61 L.Ed.2d 197 (1979), the Court reaffirmed and explained the per se prohibition against "all” interrogation after an arrestee has requested counsel ( 442 U.S. at 719 , emphasis added): ³⁹⁵ "The rule in Miranda , however, was based on this Court’s perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Because of this special ability of the lawyer to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary process, the Court found that 'the right