What is the test for waiving a suspect's right to remain silent?

California, United States of America


The following excerpt is from People v. Lopez, E052294 (Cal. App. 2012):

If a suspect indicates in any manner, at any time before or during questioning, that he wishes to remain silent, interrogation must cease. (Miranda, supra, 384 U.S. at pp. 473-474. Once a suspect invokes his rights, that decision must be "'scrupulously honored.'" (People v. Peracchi (2001) 86 Cal.App.4th 353, 360 (Peracchi).)

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"[N]o particular form of words or conduct is necessary on the part of a suspect in order to invoke his or her right to remain silent [citation], and the suspect may invoke this right by any words or conduct reasonably inconsistent with a present willingness to discuss the case freely and completely. [Citation.]" (Crittenden, supra, 9 Cal.4th at p. 129.) However, if the suspect's invocation of his rights is ambiguous, "the police may continue questioning for the limited purpose of clarifying whether he or she is waiving or invoking those rights." (Peracchi, supra, 86 Cal.App.4th at p. 360, fn. omitted; see also People v. Williams (2010) 49 Cal.4th 405, 427-428 [citing with approval United States v. Rodriguez (9th Cir.2008) 518 F.3d 1072, 1080, which held that with respect to waivers at the commencement of interrogation, officers should clarify a defendant's ambiguous statements].) We evaluate objectively, from the point of view of the interrogating officer, whether a suspect's response to an admonition was ambiguous. (People v. Williams, supra, at p. 428.)

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