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Media > Newsletters > Law Enforcement Bulletin > February 2016 > Bachynski v. Stewart, 2015 U.S. App. Lexis 22492 (6th Circuit)

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Bachynski v. Stewart, 2015 U.S. App. Lexis 22492 (6th Circuit)

Question: Can an arrested suspect who invokes right to counsel later waive that right while speaking to officers assisting the suspect in contacting an attorney?

Quick Answer: Yes. The right may later be waived as long as the suspect reinitiates discussion about the suspect’s case and police secure a subsequent waiver.

Facts: Bachynski was arrested for three murders. After being taken to the police station detectives read her Miranda warnings and she requested an attorney. About 30 minutes after being returned to her cell, detectives realized she did not have the tools to contact an attorney and offered to call her family or provide a phone book for her. At this point Bachynski said she wanted to change her mind and speak with the detectives. She was read and waived her Miranda rights again and provided a full confession. On appeal, the 6th Circuit noted that “…suspects who invoke their Miranda rights remain free to change their minds. When the suspect initiates a case related discussion, the right to have a lawyer present can be waived.” The Court noted that officers attempt to facilitate the exercise of her right to an attorney by providing her with tools to do so is counterintuitive to the notion this was a ruse to get her to waive her rights.

Keep in Mind: When a suspect unambiguously invokes right to counsel, officers must scrupulously honor such a request. Any later case-related discussions must be initiated by the suspect and officers must secure a valid waiver prior to questioning.