Must South Carolina officers add a separate warning that an arrested person can stop answering questions at any time?

Plain-English summary

The South Carolina Sheriffs' Association reported that some magistrates were dismissing driving under the influence cases because officers had not expressly told arrestees they could end questioning at any time. The Attorney General concluded that no separate fifth Miranda warning was required. In his view, the required warning about the right to remain silent conveyed the ability to stop answering, and failure to add that exact wording did not itself justify dismissal.

The letter examined the South Carolina Court of Appeals' wording in State v. Kennedy. It regarded the extra warning language there as dicta, and noted that the state Supreme Court's later review did not prescribe it. The opinion also quoted the U.S. Supreme Court's four-warning description in Dickerson v. United States and discussed decisions from other jurisdictions. It addressed the warning's wording, not whether officers could continue questioning after someone actually invoked a right.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG require officers to say a suspect may end questioning at any time? A: No. The opinion said a separate statement was unnecessary because the right-to-remain-silent warning incorporated that ability.

Q: Could a DUI case be dismissed just because an officer omitted that extra sentence? A: The Attorney General said omission of the supposed fifth warning would not itself be a basis for dismissing a case.

Q: Did the opinion say police may ignore a suspect's decision to stop answering? A: No. The letter described the right to cut off questioning and the requirement that an invocation be honored; its conclusion concerned whether officers had to state that right separately.

Background and statutory framework

The requester asked how to read the Court of Appeals' 1996 Kennedy language alongside the ordinary Miranda warnings. The opinion distinguished a suspect's substantive right to terminate interrogation from a requirement to recite a fifth verbal warning. It relied on the later state Supreme Court review, subsequent South Carolina decisions, Dickerson, and opinions from other jurisdictions in reaching its 2009 conclusion.

Citations and references

Cases discussed: State v. Kennedy, 325 S.C. 295, 479 S.E.2d 838 (Ct. App. 1996), affirmed as modified at 333 S.C. 426, 510 S.E.2d 714 (1998); Dickerson v. United States, 530 U.S. 428 (2000).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-4-2009-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/moore-j-b-os-8761-6-4-09-miranda-warnings.pdf

Original opinion text

H ENRY M CMASTER
ATrORNEY G ENERAL

June4, 2009

Jeffrey B. Moore, Executive Director
South Carolina Sheriffs' Association
112 Westpark Boulevard
Columbia, South Carolina 29210-3 856
Dear Mr. Moore:

In a letter to this office you indicated that certain magistrates are dismissing driving under the influence cases because they have been convinced by the defendant's attorney that their client's constitutional rights have been violated. You stated that the apparent violation is the alleged failure of the arresting officer to proper!y Mirandize the defendant-driver at the point of aITest. You stated that
[i]t has long been accepted that there are essentially four elements to the Miranda warning: I . You have the right to remain silent. 2. Anything you say can and will be used against you. 3. You have the right to an attorney, and 4. If you can't afford an attorney, one will be appointed on your behalf. Apparently, as the result of a 1997 Court of Appeals case, State v. Kennedy, a fifth "right" must be included in the Miranda warning. This "fifth right" is that you have the "right" to initiate the right to remain silent at any time. Referencing such, you have questioned "does law enforcement have the new responsibility of including this ' new fifth right' when Mirandizing a person being arrested, and should such a case be dismissed in the absence of this... ( claimed right)? Admittedly, in State v. Kennedy, 325 S.C. 295, 479 S.E.2d 838 (Ct. App. 1996), ajf'd as modified, 333 S.C. 426, 510 S.E.2d 714 (1998), the Court of Appeals stated the following:

Miranda Warnings
A suspect in custody may not be subjected to interrogation unless he is informed that: he has the right to remain silent; anything he says can be used against him in a court oflaw; he has a right to the presence of an attorney; if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires; and he has R EMBERT c. DENNTS Burr.DING

• PoS"r O FFlCE Box 11549 •

COLUMBIA, SC 292 l J-1549

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TELEPHONE 803-734-3970

• FACSIMILE 803-253-6283

Mr. Moore
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June 4, 2009

the right to terminate the interrogation at any time and not to answer any further questions ... .It is sufficient if the warnings reasonably convey to a suspect his rights as required by Miranda ... A "talismanic incantation" is not required. (emphasis added). 325 S.C. at 303. One of the issues before the Court was whether Kennedy's statement was taken in violation of his right to counsel. While the Court of Appeals determined that under the facts before the Court, Kennedy did not invoke his right to counsel, the State Supreme Court on review held that Kennedy " .. .invoked his right to counsel and the Court of Appeals erred in concluding otherwise." 333 S.C. at 430. 1 It appears that highlighted portion of the Court of Appeals decision in Kennedy, supra, is merely dicta stated in light of the factual issue before the Court. I have been unable to find any similar "holding", i.e., the "right to terminate the interrogation at any time and not to answer any further questions", in any other South Carolina case. The State Supreme Court did not specify such a specific warning in its review in Kennedy, supra. Two subsequent decisions of the Court of Appeals also failed to specify such a warning as being included in the recitation ofthe rights required by Miranda. Indeed, in its decision in State v. Kirton, 381 S.C. 7, 671 S.E.2d 107 (Ct.App. 2008), the Court of Appeals, citing Kennedy, supra, stated that

[t]he well-known Miranda rights are that the accused must be informed of: the right to remain silent; any statement made may be used as evidence against him or her; and the right to the presence of an attorney. State v. Lynch, 375 S.C. 628, 633 n. 5, 654 S.E.2d 292, 295 n. 5 (Ct.App. 2007) (citing State v. Kennedy, 325 S.C. 295, 303, 479 S.E.2d 838, 842 (Ct.App. 1996), aff'd as modified, 333 S.C. 426, 510 S.E.2d 714 (1998)). 381 S.C. at 41. Also, the United States Supreme Court in its decision in Dickerson v. United States, 530 U.S. 428 (2000) stated that In Miranda, we noted that the advent of modem custodial police interrogation brought with it an increased concern about confessions obtained by coercion. FNl 384 U.S., at 445-458, 86 S.Ct. 1602. Because custodial police interrogation, by its very nature, isolates and pressures the individual, we stated that "[ e]ven without

1

The Court stated, however, that" ... we agree with the Court ofAppeals' conclusion that even if this were a proper invocation of the right to counsel, petitioner waived this right when he initiated further discussions." The Court noted further that "[o ]nee an accused requests counsel, police interrogation must cease unless the accused himself 'initiates further communication, exchanges, or conversations with the police." 333 S.C. at 430-431.

Mr. Moore
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employing brutality, the 'third degree' or [other] specific stratagems, ... custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals." Id., at 455, 86 S.Ct. 1602. We concluded that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be "accorded his privilege under the Fifth Amendment ... not to be compelled to incriminate himself." Id., at 439, 86 S.Ct. 1602. Accordingly, we laid down "concrete constitutional guidelines for law enforcement agencies and courts to follow." Id., at 442, 86 S.Ct. 1602. Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as " Miranda rights") are: a suspect "has the right to remain silent. that anything he says can be used against him in a court oflaw, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Id., at 479, 86 S.Ct. 1602. 530 U.S. at 434-435. It appears that "the right to terminate the interrogation at any time and not to answer any

further questions" set forth by the Court of Appeals in Kennedy should be read in association with the prescribed warning required to be given of the "right to remain silent." As further explained by the Court of Appeals in Kennedy,
[a] reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt "fully effective means ... to notify the person of his right to silence and to assure that the exercise of the right will be scrupulously honored .... " The critical safeguard identified in the passage at issue is a person's "right to cut off questioning." Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his "right to cut off questioning" was "scrupulously honored." .. .If an accused requests counsel after receiving Miranda warnings, he should not be subjected to further interrogation outside counsel's presence unless the accused initiates further communication with law enforcement officers. 325 S.C. at 308.

Mr. Moore
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As to other courts' constructions ofMiranda, in United States v. Brown, 100 Fed. Appx. 769, 2004 WL 1240897 (10th Cir. 2004), the Tenth Circuit Court of Appeals stated that the defendant's
... claim the Miranda warning was inadequate for failing to inform Mr. Brown he could discontinue the interview at any time and/or ask for a lawyer at any time ... must fail. Here Detective Andrews explicitly informed Mr. Brown of his right to remain silent and his right to the presence of an attorney during any questioning. These advisements adequately advised Mr. Brown of his right to refuse to answer questions and/or refuse to answer questions until represented by an attorney in light of the fact Mr. Brown does not contend he sought to terminate questioning at any point during the interview. There is no requirement a suspect be informed he or she may terminate questioning at any time .... and "warnings that convey the substance of the suspect's rights are sufficient. (emphasis added). 100 Fed. Appx. at 772-773. In its decision in Jomolla v. State, 990 So.2d 1234 at 1240 (D.Ct.App.Fla, 2008), the Florida court referenced the decision in Everette v. State, 893 So.2d 1278 (Fla. 2004) stating that
... the Florida Supreme Court found that Miranda only requires law enforcement to issue four warnings prior to initiating custodial interrogation: (1) that the individual has the right to remain silent, (2) that anything the person says may be used in court, (3) that the individual has the right to have an attorney present during questioning, and (4) that if the individual cannot afford an attorney, one will be appointed for him before questioning. See also: Gillis v. State, 930 So.2d 802 at 806 (D.Ct.App.Fla, 2006) (" ... we conclude that, because the Miranda form used informs the accused that he/she does not have to answer any questions posed by the officer, implicit in this warning is the fact that the accused may invoke his right to remain silent at any time during the interrogation or to terminate further questioning during the interrogation.) In State v. Blank, 955 So.2d 90 at 110 (La. 2007), the Louisiana Supreme Court stated that

[a]lthough Miranda zealously protects the right of an arrestee to terminate custodial interrogation at any point he chooses, ... and the police must scrupulously honor the assertion of that right, ...Miranda did not expressly require that advice as a subpart of the broader advisement with respect to the right to remain silent.. .. Further, the right to remain silent embodies the right to terminate questioning. It is the tool by which

Mr. Moore
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June 4, 2009

a suspect can control the time of questioning, the topics discussed, and duration of the session. In its decision in State v. Foust, 823 N.E.2d 836 at 853-854 (2004), the Ohio Supreme Court indicated that
[t ]he Supreme Court has never insisted that Miranda warnings be given in the exact form described in that decision. Instead, the court has stated that " 'the "rigidity" of Miranda [does not] exten[ d] to the precise formulation of the warnings given a criminal defendant,' and that 'no talismanic incantation [is] required to satisfy its strictures.'" Duckworth v. Eagan (1989), 492 U.S. 195, 202-203, 109 S.Ct. 2875, 106 L.Ed.2d 166, quoting California v. Prysock(1981), 453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696. "Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably 'conve[y] to [a suspect] his rights as required by Miranda.' "Duckworthat203, 109 S.Ct. 2875, 106L.Ed.2d166, quoting Prysock at 361, 101S.Ct.2806, 69 L.Ed.2d 696. Police do not have to provide additional warnings to a suspect beyond what Miranda requires. Indeed, in State v. Edwards (1976), 49 Ohio St.2d 31, 39-41, 3 0.0.3d 18, 358 N.E.2d 1051, we found thatMiranda warnings were adequate even though the defendant was not explicitly asked whether he wanted an attorney. Similarly, in State v. Dailey (1990), 53 Ohio St.3d 88, 90-91, 559 N.E.2d 459, Miranda warnings were deemed adequate even though they did not explicitly refer to "appointment of counsel." Federal courts have also rejected challenges to the adequacy of Miranda warnings based on the absence of additional warnings. See, e.g., United States v. Ricks (C.A.6, 1993), 989 F.2d 501, unpublished opinion, 1993 WL 78781 (suspect need not be informed that he has the right to stop answering questions at any time); United States v. Lares-Valdez (C.A.9, 1991), 939 F.2d 688 (suspect need not be advised of the right to have questioning stopped at any time, of the option to answer some questions but not others, or that some questions may call for incriminating responses); United States v. Caldwell (C.A.8, 1992), 954 F.2d 496, 501-504 (suspect need not be explicitly advised of his right to counsel before and during questioning); United States v. DiGiacomo (C.A.10, 1978), 579 F.2d 1211, 1214 (no express requirement under Miranda to advise suspects of the right to terminate questioning). Consistent with the above, in the opinion of this office, there is no "fifth right" imposed on law enforcement to specifically instruct a suspect in custody that the suspect has the "right" to

Mr. Moore
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terminate the interrogation at any time and not to answer any further questions. Such "right" is incorporated by the required instruction that the suspect has the right to remain silent. The failure to specifically provide this "fifth right" would not serve as the basis to have a case dismissed. With kind regards, I am, Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General