Sunday, August 21st, 2011

Reversal of Fortune

United States v. Plugh, No. 10-2815-cr (2d Cir. August 8, 2011) (Jacobs, Livingston, CJJ, Rakoff, DJ)

This about-face arises from a supervening Supreme Court decision.

In its original opinion in this case, a divided panel held that the defendant had successfully invoked his Miranda rights by declining to sign a waiver-of-rights form. See “Car, Men, Miranda,” posted July 31, 2009. The circuit affirmed, on a government appeal, suppression of the defendant’s statements, viewing the case as an application of Davis v. United States, 512 U.S. 452 (1994), which held that a suspect must “unambiguously” invoke his Miranda rights to cut off questioning.

But a 2010 case, Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), held that the Davis “unambiguous” standard should control not just the “cut-off,” but also the initial invocation of the rights. There, Court found that the suspect’s refusal to sign was not an “unambiguous” invocation of his rights.

Viewing this as an “intervening change in the law” that “compels a different outcome” on the facts of the case, the court “reconsidered the district court’s order of suppression” and vacated it.

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