UNITED STATES OF AMERICA v. NADER ABDALLAH
US Court of Appeals for the Fourth Circuit, Wynn, December 18, 2018,
Custodial Interrogation – A suspect invoked his Miranda rights when he interrupted advisement of his rights and said that he “wasn’t going to say anything at all.”

Facts:
In 2015, Abdallah was arrested for CDS and firearm charges. At the district, Special Agent Lewis of DHS and investigators from two other agencies were present and “chose not to record the interrogation.”
At trial, SA Lewis testified that when he began reading Abdallah his Miranda rights, Abdallah interrupted him to say that he “wasn’t going to say anything at all.” SA Lewis told Abdallah to “just let me finish your Warning first.” The Miranda rights were read once again and this time Abdallah waived his rights, then gave several inculpatory statements.
SA Lewis wrote a report after the interrogation. He then e-mailed the draft to the other two investigators and made “some modifications” based on their feedback. SA Lewis testified at both the grand jury and suppression hearing, but gave slightly different explanations regarding Abdallah’s testimony. Moreover, notes taken by another investigator at the interrogation said that “Miranda from DHS form-understood” and then Abdallah was “not going to say anything at all.” There was nothing in the notes about the interruption.
Because of the discrepancies, Abdallah requested that the judge order that the e-mails between the officers related to the case be turned over to him.
The trial judge denied this request for internal e-mail and allowed the interrogation into evidence. Abdallah was subsequently convicted.
Abdallah then appealed, arguing that he invoked Miranda when he interrupted his advisement to tell officers that he “wasn’t going to say anything,” and the officers violated Miranda by continuing to interrogate him. He also argued that he should have been able to receive e-mails sent between the officers.

Held: The Fourth Circuit found that Abdallah invoked Miranda during the warnings and that the officers should have stopped the interrogation there. It also held that Abdallah was entitled to have the judge review the e-mails.

Miranda – A suspect who is under arrest (or the equivalent) must be read his Miranda rights and voluntarily waive them prior to interrogation.

Miranda – If a suspect indicates “in any manner” that he wants an attorney or wants to remain silent, “the interrogation must cease” immediately.

Miranda – A Miranda invocation must be “unambiguous” in that a “reasonable police officer under the circumstances would have understood the suspect intended to invoke his Fifth Amendment rights.”

From the Case: “Defendant’s statement that he ‘wasn’t going to say anything at all’ was a clear invocation of the right to remain silent” and should have ended the interrogation.

Miranda – Whether or not a statement is ambiguous is judged by what the suspect already said, not what happens afterwards.

From the Case: The trial court found Abdallah’s statement that he “wasn’t going to say anything at all” ambiguous because Abdallah “voluntarily waived his Miranda rights minutes later…” However, the 4th Circuit found that the trial court “erred by relying upon these post-request facts to cast ambiguity on Defendant’s otherwise unambiguous request to remain silent.”

Miranda – Miranda cannot be invoked outside of the context of an interrogation

Miranda – Reading Miranda is within the context of an interrogation; a defendant doesn’t have to wait for the Miranda warnings to be complete before invoking his right to remain silent

Miranda – Right to an Attorney – If a suspect invokes his right to an attorney, no further questioning can occur until the suspect’s attorney is present (it doesn’t matter whether or not the suspect spoke with an attorney; the attorney has to be present to reinitiate questioning) or the suspect reinitiates questioning on his own.

Miranda – Right to Remain Silent – If a suspect invokes his right to remain silent, questioning must immediately stop. Unlike the request for an attorney, questioning doesn’t have to stop forever as long as the invocation is “fully respected.”

Miranda – Right to Remain Silent – In deciding whether a suspect’s rights have been fully respected after invoking his right to remain silent, a court may consider:
– Was the suspect properly mirandized at the first interrogation?
– Did police immediately stop the interrogation when the suspect invoked his right to remain silent?
– Did police wait a “significant period of time” before resuming questioning?
– Did police re-mirandize the suspect before the second interrogation?
– Was the second interrogation restricted to a crime that had not
been a subject of the earlier interrogation (when the suspect invoked)?

Miranda – Police Initiated Questioning – Questioning resumes whenever officers engage in either:
(1) “express questioning” (asking a question directly related to the crime)
or (2) by “words or actions” which “the police should know are reasonably likely to elicit an incriminating response.”

Miranda – Asking “do you even know why you’re under arrest?” is reasonably likely to elicit an incriminating response.

Practice Note: While asking a suspect if he knows why he’s under arrest can count as interrogation, informing him of the charges against him as part of the booking/arrest process will generally not be considered interrogation (and thus falls outside of the Miranda requirement).

From the Case: Abdallah “invoked his right to remain silent” while being read his Miranda rights, at which point “all questioning should have ceased. Because Defendant’s request was ignored, and questioning continued, Defendant’s right was not scrupulously honored, and Defendant’s subsequent statements are therefore inadmissible” at trial.

Discovery – A defendant is entitled to have the judge conduct a private review of confidential material if he makes a “plausible showing” that the confidential material is exculpatory

From the Case: “Based upon: (1) the inconsistencies that existed between Inspector Sylvester’s contemporaneous handwritten notes and Agent Lewis’s final report, (2) the inconsistencies in Agent Lewis’s grand jury testimony and suppression hearing testimony, and (3) Agent Lewis’s own testimony that there were “some modifications” over the course of the drafting exchange, it is plausible that an in camera review of the specific drafting exchange would reveal evidence that was materially favorable to Defendant’s challenge of when Miranda warnings were given. The district court thus erred in failing to conduct an in camera review.”

Practice Note: It is crucial that all statements with a suspect be recorded in some fashion. Not recording a statement will leave you open to allegations of misconduct and allows a defendant to question your credibility.

Practice Note: Recognize that internal communication (particularly e-mail and memos) can be subject to discovery under certain situations. Keep your communication professional and realize that a judge or jury could end up reading what you write.