CAAF: When a person invokes his right to counsel, a request for consent violates Edwards v. Arizona

When a person lawyers up and invokes his right to counsel, a request for consent violates Edwards v. Arizona. United States v. Hutchins, 72 M.J. 294 (C.A. A.F. June 26, 2013):

There is no disagreement between the parties that Edwards applies to the circumstances of this case. However, the parties differ as to whether NCIS or Hutchins initiated further “communication, exchanges, or conversations.” Hutchins argues that the request for consent to search was an initiation of further communication by NCIS in violation of Edwards because it was directly related to the criminal investigation and was not merely incidental to the custodial relationship, citing Bradshaw, 462 U.S. at 1044. The Government responds that, under Frazier, the request for consent to search is not an interrogation and therefore such a request did not initiate further “interrogation” as proscribed by Edwards.

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Decision

The request by NCIS to Hutchins for his consent to search his belongings reinitiated communication with Hutchins in violation of his Fifth Amendment rights as interpreted by the Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), and Oregon v. Bradshaw, 462 U.S. 1039, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983). Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed. The findings and the sentence are set aside. The record is returned to the Judge Advocate General of the Navy for referral to an appropriate convening authority who may authorize a rehearing.