I AM INVOKING MY RIGHT TO REMAIN SILENT

I AM INVOKING MY RIGHT TO REMAIN SILENT

UNDER BOTH THE FIFTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AND

ARTICLE 1, SECTION 9 OF THE

WASHINGTON STATE CONSTITUTION

AND DEMAND THE PRESENCE OF COUNSEL!

State v. Creach, 77 Wn.2d 194, 461 P.2d 329 (1969), State v. Cloud, 7 Wn.App. 211 (1972) and State v. Wethered, 110 Wn.2d 466, 755 P.2d 797 (1988) are the three leading Washington cases that indicates when a police officer is required to warn an individual of his Miranda rights:

“. . . once an investigating officer has probable cause to believe that the person confronted has committed an offense, the officer cannot be expected to permit the suspect to leave his presence. At that point, interrogation becomes custodial and the suspect must be warned of his rights.” See also State v. Tetzlaff, 75 Wn.2d 663 (April 10, 1969); Heinemann v. Whitman Cy., 105 Wn.2d 796, 806, 718 P.2d 789 (1986).” State v. Hensler, 109 Wn.2d 357, 745 P.2d 34 (November, 1987).

“Miranda has been interpreted to mean that, if the facts and circumstances are such that a reasonable man, innocent of any crime, would believe he is in custody or that his freedom of action has been restricted in any significant way, no further questioning may take place in the absence of the warnings. Cf. State v. Creach, 77 Wn.2d 194, 461 P.2d 329 (1969).” State v. Dennis, 16 Wn.App. 417 at 421.

In State v. Adams, 76 Wn.2d 650, 458 P.2d 558 (1969), the court quotes from Miranda, supra, at page 473:

“The individual indicates in any manner at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person who revokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has once been invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”

State v. Easter, 130 Wn.2d 228 (1996) holds that my Right to Remain silent exists prior to you cops asking me any questions and says:

“The Fifth Amendment applies before the defendant is in custody or is the subject of suspicion or investigation. The right can be asserted in any investigatory or adjudicatory proceeding. Easter, at page 238.

“Once the defendant exerts his right to remain silent, interrogation must cease.” State v. Coles, 28 Wn.App. 563 (1981). “After a person has exercised a right to remain silent or has asked for an attorney, the interrogation must cease until an attorney is present. The accused right to cut off questioning must be scrupulously honored.” State v. Collins, 30 Wn.App. 1 (1981).

State v. Lavaris, 99 Wn.2d 851, 664 P.2d 1234 (1983) mandates a rule that, to quote a defendant’s statement of the issue, whenever a law officer obtains incriminating statements from a suspect by improperly interrogating the suspect without first advising him of Miranda warnings, any incriminating statements obtained after a subsequent advisement of the Miranda warning is presumed tainted by the improper pre-Miranda statements, especially when the two interrogations are close together in time and place. In United States ex rel. Russo v. New Jersey, 351 F.2d 429 (3rd Cir. 1965), the court held that answers to questions put in absence of counsel to a person arrested but not yet indicted cannot be admitted into evidence, although the suspect does not request counsel and his statements are voluntary, if the court finds that the investigation has focused on him and he has not specifically waived his rights to counsel. Likewise, State v. Wethered, 110 Wn.2d 466, 755 P.2d 797 (1988) held that non-verbal statements made in response to custodial interrogations are “testimonial” and must be suppressed absent proper warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) and a waiver of the constitutional right to remain silent and the Wethered Court quoting from People v. Speller, 121 Misc.2d 354, 467 N.Y.S.2d 806 (1983) stated:

“An admission, in addition to being oral, may take the form of any act on defendant’s part which tends to convey thought processes.” Speller, supra, at 355.

State v. Hilliard, 89 Wn.2d 430 573 P.2d 22 (1978) stated that once Miranda applies, that:

“A heavy burden rests upon the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to appointed counsel.” Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966).