Police Interrogation After Initial Court Appearance & Appointment of Counsel Did Not Violate Either Sixth Amendment or Professional Conduct Rules

State v. Ware, Minn.Ct.App., 12/8/2014.  Mr. Ware’s girlfriend called the police to report that Mr. Ware  had assaulted her.  The investigator assigned to the case got to work on it the next day and four days after that he sent a recommendation to the prosecutor that Mr. Ware be charged.  Meantime,  Mr. Ware kept pestering the police department with phone calls in which he said that he wanted to come in and talk.  Mr. Ware finally just went down to the police station where officers promptly arrested him.

The prosecutor filed a criminal complaint, Mr. Ware made his initial appearance on that Complaint, and the court appointed him a lawyer.  Two days later, the investigator showed up at the jail to interrogate Mr. Ware.  Mr. Ware listened through the Miranda warning, signed the waiver and then made lots of admissions.  He did not tell the investigator that he either had an attorney or wanted the attorney to be present.  The investigator made no effort to determine whether Mr. Ware had already been arraigned on the criminal complaint and had counsel appointed.  Rather, he chose to believe, because it was most convenient, that Mr. Ware was in jail on a probation violation.  A riff on The Ostrich Instruction.

Mr. Ware moved to suppress his statement to the investigator because the investigator had not first contacted defense counsel and because he should have known that Mr. Ware was represented.  The trial court concluded that the prosecutor had been totally out of the loop and that it was “questionable” whether the investigator knew that Mr. Ware was represented.  The trial court denied the suppression motion.

And the court of appeals affirms.  A defendant, the court says, may waive the right to counsel whether or not he is already represented by counsel.  If the state proves that the waiver was valid – that is, it was a knowing, intelligent and voluntary act – then the statement is admissible.

Mr. Ware also complained that the investigator’s interrogation violated a rule of professional conduct that prohibits an attorney from interviewing a represented defendant without opposing counsel’s presence or consent.  There was no proof that the prosecutor had any contact with Mr. Ware without defense counsel’s presence or consent.  So, to come within this rule of professional conduct, the prosecutor either had to have ordered or ratified the interrogation.  Because the prosecutor had no knowledge of the interview until it was concluded he neither ordered nor ratified the interrogation.