Edwards Rule Break In Custody
California court in In re Bonnie H. described the break in custody rule using the proviso that release not be pretextual, there was no claim of a pretextual break of custody in that case and we did not review the basis for that requirement.
Since we find, contrary to the ruling of the trial court that appellant was in custody during the November 19 interrogation and since a claim exists his release was pretextual, we now must examine the applicability, if any, of the pretextual break in custody proviso.
Doing so, we hold the proviso is without support and we reject it. We do so because the proviso is unrelated to and does not advance the policy basis that supports the requirements both for the giving of Miranda rights and the prohibition against attempts at the re-initiation of interrogation of those in custody who have invoked their rights.
The reason for both rules is the inherently coercive nature of custody.
The policy basis for the break in custody exception to the Edwards rule is that release dissipates that coercive element and allows the suspect to seek legal or other counsel.
If the basis for the break in custody exception is the impact of release on the suspect's psyche, then the motivation for that release is of no consequence. (See Levy, Non continuous Custody and the Miranda-Edwards Rule: Break in Custody Severs Safeguards, supra, 20 New Eng. J. on Crim. & Civ. Confinement at pp. 584-587.)
Neither can a tactical decision to release a suspect who has invoked be described as an improper attempt to overcome rights.
Miranda rights exist only in the context of a custodial interrogation and the Edwards rule exists only during continuous custody.
That the police believe a release may make a later confession more likely is not an abuse of, or an attempt to avoid, any right.
As long as the reinitiated contact complies with Miranda, i.e., if the renewed contact is a custodial interrogation, there must be an admonition and waiver, and the tactics employed by the police are not badgering or harassing, there is no impropriety in releasing a suspect with the intent to later contact him with the hope of reinitiating interrogation.