Police May Re-interview Following a Break in Custody – State v. Wessells

[07/09/09 – 11:06 am] This morning’s Appellate Division decision in State v. Wessells involves a situation where the defendant was arrested on a traffic warrant and was questioned by the police about a multiple homicide during his detention. At some point in the interview, the defendant invoked his right to counsel and the questioning ceased. Thereafter, the defendant posted bail on the traffic warrant and was released. Within days, the police uncovered additional evidence linking the defendant to the homicides. As a result, nine days after his release, the defendant was again arrested, only this time he was charged with homicide offenses. Despite the prior invocation of his right to counsel, the police attempted to question the defendant once again. This time, the defendant waived his right to remain silent and to have an attorney present. He thereafter provided incriminating admissions to the police.

The defendant sought to suppress his incriminating statements based upon his prior request to remain silent and have attorney. He based his argument upon the so-called “Edwards Rule” which holds that an accused who has expressed his desire to deal with

the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. Edwards v. Arizona, 451 U.S. 477 (1981). The rule is intended to prevent the police from badgering a suspect who is in custody. However, the Edwards Rule does not speak to a situation, as occurred here, where there has been a substantial break in custody.

The Appellate Division ruled that in New Jersey, a person who has asserted the right to counsel during a police custodial interrogation and is subsequently released may be interrogated again if the break in custody afforded a reasonable opportunity to consult an attorney. Moreover, in order to determine whether the break in custody was perpetrated by the police in bad faith, the Court indicated that New Jersey will adopt a totality-of-the-circumstances test.

Download a copy of State v. Wessells.

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