After a suspect effectively invokes his Miranda right to counsel, the police may not reinitiate a custodial interrogation until either counsel has been made available or fourteen days has passed.1 This rule is designed to prevent police from harassing or badgering a suspect.2 Since this rule was created, courts have been tasked with deciding what conduct by the police or the suspect constitutes reinitiation. Reinitiation by the suspect occurs when the state objectively perceives a suspect’s desire to “open up a more generalized discussion relating directly or indirectly to the investigation.”3 In Oregon v. Bradshaw, while being transferred, the defendant asked a police officer, “Well, what is going to happen to me now?”4 The Supreme Court held this to be reinitiation by the defendant.5 However, when a suspect answers police’s questions, this is not reinitiation by the suspect.6 If the suspect does not personally reinitiate, then any interrogation within fourteen days by the police is in violation of the suspect’s Miranda rights. Incidental police conduct does not qualify as interrogation. For example, in Fox v. Ward the court held that the officers had not reinitiated questioning by handing their business cards to the suspect.7 In Edwards v. Arizona, the police reinitiated contact by asking the suspect questions about the crime.8
In State v. Yonkman, the Arizona Supreme Court assumed that the defendant, Yonkman, originally had invoked his Miranda right to counsel during an initial police visit. Then, after Yonkman’s wife initiated a phone conversation with a detective, Yonkman called the detective to set up a meeting, so the issue before the Court was who reinitiated contact: Yonkman, when he called the detective, or the detective, when he spoke to Yonkman’s wife. This raised the issue of whether the police can reinitiate contact with a suspect through a third party.9 The Court held that in this case, the police officer did not reinitiate contact, but avoided directly addressing whether a police officer is capable of reinitiating contact with a suspect through a third person.10 After State v. Yonkman, it appears that to reinitiate through communication with a third person, the officer’s conduct must include overt coercion, with an explicit direction to the third person to communicate information that would prompt the suspect to contact the police.
On March 27, 2010, Yonkman’s wife, Kelly, called the police and reported that Yonkman had sexually molested her daughter.11 As a result of this phone call, a police officer went to Yonkman’s home.12 Yonkman returned home,13 then the officer read Yonkman his Miranda rights, Yonkman requested counsel, and the officer stopped questioning immediately.14
A few days after the officer’s visit, Kelly called Detective Rivera to tell him that her daughter had recanted the accusations.15 Rivera informed her that Yonkman could come to the station and take a polygraph test “if he wanted to,” which would allow Rivera to close the investigation.16 He did not explicitly ask her to relay this information to Yonkman, but rather told Kelly how Yonkman could close the investigation.17 After Kelly said that she would in fact relay the information to Yonkman, he gave Kelly his contact information specifically for her to provide it to Yonkman.18
A few hours after Kelly’s phone call with Rivera, Yonkman called the officer and scheduled a meeting.19 Rivera informed Yonkman that if he came to the station, he would not be under arrest and could leave at any time.20 Rivera informed him that his prior Miranda warnings would remain in effect.21 Yonkman scheduled this meeting for April 1st.22
Yonkman arrived at the police station forty minutes early, and Rivera reminded him that even though the door of the interview room locked automatically, he was free to leave because he was not under arrest.23 According to the defense, Yonkman then asked if he would get an attorney if he requested one.24 Rivera told him no, because they would have to wait for the lawyer before he could question him.25 Rivera reread Yonkman his Miranda rights, and he consented to questioning.26 Thirty minutes into the meeting, he confessed to sexually molesting his wife’s daughter.27
Yonkman moved to suppress his confession, based on Edwards v. Arizona.28 Yonkman claimed his confession and his Miranda waiver were involuntary.29 The Superior Court of Pima County found that the confession was admissible because Yonkman reinitiated contact.30 The case proceeded to trial and the jury found Yonkman guilty of one count of sexual abuse and one count of sexual conduct with a minor.31 On appeal, the Arizona Court of Appeals found that Yonkman only reinitiated in response to Rivera’s suggestion (as communicated through Kelly) that he come to the station in order to close the case. The Arizona Supreme Court reversed and held that Kelly and Rivera’s conversation did not constitute reinitiation, and the trial court “properly found that Yonkman re-initiated contact.”32
The Court’s opinion indicated that there was little guidance regarding whether a police officer can reinitiate contact through a third person.33 However, it discussed Van Hook v. Anderson, a Sixth Circuit Court of Appeals case that addressed the issue of whether a suspect can reinitiate through a third person.34 In Van Hook, the court held there was no distinction between direct communications and communications from third parties, thus a suspect who has invoked his right to counsel can indirectly reinitiate discussions with police through a third party.35
The Arizona Supreme Court further stated that many jurisdictions have held that the police’s actions must rise to the level of interrogation of the suspect to constitute reinitiating.36 Even jurisdictions that do not require the officer’s conduct to amount to full interrogation to find the existence of initiation still find that incidental police contacts do not constitute initiation.37
The Court did not explicitly answer the question of whether a police officer can reinitiate contact through a third person, implicitly leaving open this issue to be directly addressed in the future. Instead, it held that police did not reinitiate contact in this instance, stressing that the officer “merely answered a telephone call,” and even that he “likely had a professional duty to speak with Yonkman’s wife regarding the alleged recantation.”38 The Court stated that Rivera “neither asked to speak to Yonkman nor suggested that Kelly have Yonkman call him.”39 Because of these facts, the Court found that this call did not rise to the coercive conduct that Edwards seeks to prevent.40 The Court also pointed out that because the interview occurred a few days after the phone call, Yonkman had time to reflect on his decision to be interviewed.41 The Court held that the reinitiation occurred when Yonkman contacted Rivera to set up their in-station meeting.42
The officer’s conduct appears to be the controlling fact in Yonkman, not the fact that he was speaking to a third party. While it is arguable that the officer should have known, or at the very least could have hoped, that the information he was communicating to Kelly would prompt Yonkman to come in for a polygraph test, the Court stressed that the officer did not ask nor suggest that Kelly communicate anything to Yonkman. The Court found that Rivera’s conversation with Yonkman’s wife was not coercive, leading the reader to intuit that the holding may have been different if Rivera had been coercive with Kelly, even though he was not speaking to Yonkman directly.43
This decision reaffirms the idea that incidental police conduct does not constitute reinitiating.44 While the officer’s conduct did not rise to the level necessary to constitute reinitiation in this case, the possibility of reinitiation of contact by police through communications with a third party is left open. The Court’s favorable mention of Van Hook suggests that it agrees a police officer is capable of reinitiating contact through a third party, and that Rivera’s conduct was just not coercive enough to do so. If a suspect can reinitiate contact through a third person, it follows that the police can also initiate contact through a third person. There is essentially no difference between a suspect using a third party and the police using a third party. Either way, the intended purpose of the communication is to begin a discussion about the case. However, the Court’s reasoning sets a high bar for the defense to prove that the conduct reached the level necessary to constitute reinitiation. It appears that to reinitiate contact through communication with a third person, the officer’s conduct must rise to the level of overt coercion, with an explicit direction to the third person to communicate information that would prompt the suspect to contact the police.
1 Maryland v. Shatzer, 559 U.S. 98, 110 (2010).
2 State v. Yonkman, 231 Ariz. 496, 498 ¶ 8 (2013).
3 Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983).
4 Id. at 1042.
5 Id. at 1045.
6 See Edwards v. Arizona, 451 U.S. 477, 487 (1981) (holding that suspect’s answers to the officer’s questions did not qualify as reinitiation).
7 Fox v. Ward, 200 F.3d 1286, 1297–98 (2000).
8 Edwards, 451 U.S. 477, 487 (1981).
9 Id. at 498 ¶ 9.
10 See id. at 499 ¶ 15.
11 Id. at 497 ¶ 2.
15 Id. at 497 ¶ 3.
17 Id. The Court did not question this supposed procedure, concerning the need for a polygraph test to close the investigation.
18 State v. Yonkman, 229 Ariz. 291, 293 (Ct. App. 2012), review granted (Dec. 4, 2012), vacated, 231 Ariz. 496 (2013).
19 Yonkman, 231 Ariz. at 497 ¶ 3.
23 Id. at 497 ¶ 4.
24 Brief for Defendant at 3, State v. Yonkman, 231 Ariz. 496 (2013) (No. 2 CA-CR 2010-0338) (citing the Record on Appeal at 34).
26 Yonkman, 231 Ariz. at 497 ¶ 4.
28 101 S.Ct. 1880, 1885 (1981) (holding that after a suspect originally invoked his right to counsel, answering police-initiated questions was not enough to reinitiate contact).
29 Yonkman, 231 Ariz. at 497 ¶ 5.
31 Id. at 497 ¶ 6.
32 Yonkman, 231 Ariz. At 499 ¶¶ 15–16.
33 488 F.3d 411 (6th Cir. 2007).
34 See Yonkman, 231 Ariz. at 498 ¶ 11.
35 Van Hook, 488 5.3d at 417.
36 Id. at 498 ¶ 13.
37 Id. at 499 ¶ 14.
38 Id. at 499 ¶ 15.
41 Id. at 499 ¶ 16.
44 See e.g., Fox v. Ward, 200 F.3d 1286, 1297–98 (2000) (holding that handing business cards did not qualify as reinitiating).