RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0192p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ROBERT J. VAN HOOK,

Petitioner-Appellant,

v.

CARL S. ANDERSON, Warden,

Respondent-Appellee.

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No. 03-4207

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 94-00269—George C. Smith, District Judge.

Argued: December 6, 2006

Decided and Filed: May 24, 2007 

Before: BOGGS, Chief Judge; MERRITT, MARTIN, BATCHELDER, DAUGHTREY,

MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE,

and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Keith A. Yeazel, Columbus, Ohio, for Appellant. Diane R. Brey, OFFICE OF THE

ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee. ON BRIEF: Keith A. Yeazel,

James D. Owen, Columbus, Ohio, for Appellant. Diane R. Brey, Stephen P. Carney, Stephen E.

Maher, Charles L. Wille, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio,

for Appellee.

McKEAGUE, J., delivered the opinion of the court, in which BOGGS, C. J.,

BATCHELDER, GIBBONS, ROGERS, SUTTON, COOK, and GRIFFIN, JJ., joined. COLE, J.

(pp. 15-22), delivered a separate dissenting opinion, in which MERRITT, MARTIN,

DAUGHTREY, MOORE, CLAY, and GILMAN, JJ., joined. MERRITT (pp. 23-25) and MARTIN

(p. 26), JJ., also delivered separate dissenting opinions, with MARTIN, DAUGHTREY, MOORE,

COLE, and CLAY, JJ., joining in Judge Merritt’s dissent.

1
No. 03-4207 Van Hook v. Anderson Page 2

1

In 1985, the officers did not have the benefit of the Supreme Court’s decision in Davis v. United States, 512

U.S. 452 (1994), when the Court made clear that a suspect in custody must “unambiguously request counsel,” id. at 458,

and that “maybe I should talk to a lawyer” is not an unequivocal request, id. at 462. In 2007, Van Hook’s statement

might well not have sufficed to require that questioning be stopped. The officers did, however, understand Van Hook

to have asked for a lawyer, and stopped any further questioning of him based on his statement.

_________________

OPINION _________________

McKEAGUE, Circuit Judge. Following the arrest of a suspect, the police advise him of his

rights outlined in Miranda v. Arizona, 384 U.S. 436 (1966). The suspect asks for a lawyer. Under

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), all questioning must then stop (a) until a lawyer

has been provided, or (b) unless the suspect “himself” initiates a discussion. Later, police talk to

the suspect’s mother (or a close friend, sibling, etc.), and, based on that conversation, they believe

that the suspect now wants to talk with them without a lawyer. Are they permitted to approach the

suspect and inquire whether he now wants to talk, based solely on the discussion with the mother?

Or, rather, are they precluded from acting on that information because it was not communicated to

them directly by the suspect? Today we join several of our sister circuits in holding that the police

can make the limited inquiry without running afoul of Edwards.

I

Petitioner Robert Van Hook went to a Cincinnati bar patronized by male homosexuals in

February 1985. He met the victim, David Self, and the two left together for Self’s apartment. Once

at the apartment, and after Self approached Van Hook in a sexual manner, Van Hook strangled Self

to the point of unconsciousness. Using a paring knife from the kitchen, Van Hook repeatedly

stabbed Self in the head and abdomen. He attempted unsuccessfully to sever the head from the

body. He stabbed so violently that he created a large cavity in Self’s body, exposing several internal

organs. At one point, he tried to pierce Self’s heart. In a final act against Self, Van Hook stuffed

several items, including the paring knife, into the gaping cavity and left them there. He proceeded

to take several items from Self’s apartment and fled.

Van Hook eventually made his way to Ft. Lauderdale, Florida, where he was arrested two

months later by local police. The police read him his Miranda rights. Although initially agreeing

to talk, Van Hook told police, “[M]aybe I should have an attorney present.” JA 5462. The officers,

having understood him to be asking for a lawyer, did not further question him about the murder.1

Later that day, Cincinnati Police Detective William Davis came to Ft. Lauderdale to facilitate

Van Hook’s extradition and transportation back to Ohio. Van Hook had not yet been provided with

counsel. After talking with the suspect’s mother, Det. Davis believed that Van Hook might want

to talk to police about the murder. On first engaging Van Hook, Det. Davis discussed the matter of

extradition and confirmed that Van Hook wished to waive any objection to extradition. The

detective then told Van Hook that they “had a lot to talk about,” but that they “could not talk . . .

unless he himself wanted to make a statement.” JA 3789. “[A]t that point, [Van Hook] indicated he

had talked to his mother, and that she had told him just to tell the truth, and he wanted to make a

statement.” Id. After having his Miranda rights read to him again, and waiving them, Van Hook

gave a full and graphic confession.

A grand jury returned an indictment charging Van Hook with aggravated murder and

aggravated robbery. Prior to trial, defense counsel moved to suppress the confession. Finding that

Van Hook had invoked his right to have counsel present but then had reinitiated discussions with
No. 03-4207 Van Hook v. Anderson Page 3

police, the Ohio trial court admitted the confession. At trial, Van Hook never denied killing Self,

but instead claimed temporary insanity. A three-judge panel rejected his defense, convicted him of

aggravated murder with a death specification and aggravated robbery and sentenced him to death.

After being denied any relief in the state courts on direct appeal, see State v. Van Hook, 530

N.E.2d 883 (Ohio 1988), cert. denied, 489 U.S. 1100 (1989), and on collateral review, Van Hook

sought a writ of habeas corpus in federal district court. He raised multiple claims of error. The

district court denied the petition on all claims. On appeal, a panel of this court reversed the district

court’s judgment on Van Hook’s Fifth Amendment claim, concluding, as a matter of law, that a

suspect could not initiate discussions with police through a third party; rather, the suspect, and only

the suspect “himself,” could “initiate the conversation.” Van Hook v. Anderson, 444 F.3d 830, 836

(6th Cir. 2006) (vacated). The panel declined to address the factual question of what Van Hook’s

mother said to Det. Davis that led him to believe Van Hook might want to talk with him. Id. It

further declined to reach Van Hook’s remaining claims for relief. On the warden’s petition, the

court decided to vacate the panel’s opinion and hear the appeal en banc.

II

Van Hook sought habeas relief more than a year before the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (the

“AEDPA”). Thus, we review his petition under pre-AEDPA habeas law. Lindh v. Murphy, 521 U.S.

320, 326-27 (1997). A “high measure of deference” is owed to the factual findings of state courts.

Sumner v. Mata, 455 U.S. 591, 598 (1982) (citing the pre-AEDPA version of 28 U.S.C. § 2254(d));

see also Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999) (explaining that state court findings of

fact are presumed correct unless rebutted by clear and convincing evidence); Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir. 1989) (noting that federal courts must give “complete deference to

evidence-supported state court findings of fact”). On the other hand, we review questions of law,

as well as mixed questions of law and fact, de novo. Mapes, 171 F.3d at 413. Whether a suspect

clearly and unequivocally asked for counsel, and whether the suspect initiated discussions with

police after asking for counsel, are ultimately legal questions. United States v. Whaley, 13 F.3d 963,

966, 968 (6th Cir. 1994). The underlying questions of “what happened”—i.e., “basic, primary, or

historical facts”—are, however, findings of fact that are presumed correct unless rebutted with clear

and convincing evidence. Thompson v. Keohane, 516 U.S. 99, 110-13 (1995); cf. Whaley, 13 F.3d

at 968 (“While we accept, unless clearly erroneous, the facts that the district court found, whether

those facts together constitute an ‘initiation’ under Edwards is a legal question we review de

novo.”).

III

A

Van Hook contends that his confession to the murder of David Self should have been

suppressed under Edwards. As guaranteed by the Fifth Amendment to the federal Constitution,

“[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.

Const. amend. V. Of course, “[f]reedom of choice is not a stranger to the constitutional design of

procedural protections for a defendant in a criminal proceeding.” Faretta v. California, 422 U.S.

806, 834 n.45 (1975). A criminal suspect is free to offer a confession to authorities, subject to

special procedural protections.

“[T]he Fifth Amendment right against self-incrimination and the Due Process Clause of the

Fourteenth Amendment” require “that a confession be voluntary to be admitted into evidence.”

Dickerson v. United States, 530 U.S. 428, 433 (2000) (citations omitted). “[T]he advent of modern

custodial police interrogation brought with it an increased concern about confessions obtained by
No. 03-4207 Van Hook v. Anderson Page 4

2

An interrogation is defined as an exchange between police and a suspect in custody “reasonably likely to evoke

an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 301 n.7 (1980).

3

See, e.g., Appellant’s Final Brief at 39 (“The discrete issue is whether Van Hook actually initiated contact with

CPD Officers through the use of a non-attorney third-party agent, his mother, prior to his confession, in conformance

with the constitutional rules enunciated in Edwards v. Arizona.”). Nowhere in his final brief, reply brief, or supplemental

brief does Van Hook argue that his waiver of the rights to silence and to counsel was not knowing or intelligent under

the totality of the circumstances.

coercion.” Id. at 434-35 (citation omitted). To address this concern, the Supreme Court “laid down

concrete constitutional guidelines for law enforcement agencies and courts to follow,” id. at 435

(internal quotation marks omitted), including the procedures announced in Miranda and extended

in Edwards.

The rule of Edwards—a suspect who is in custody and has asked for a lawyer must not be

subject to further interrogation2 until a lawyer has been provided or unless the suspect initiates a

discussion—is “a corollary to Miranda’s admonition that if the individual states that he wants an

attorney, the interrogation must cease until an attorney is present.” Arizona v. Roberson, 486 U.S.

675, 680 (1988) (internal quotation marks and brackets omitted). It “is designed to prevent police

from badgering a defendant into waiving his previously asserted Miranda rights.” Davis, 512 U.S.

at 458 (internal quotation marks omitted). “In the absence of such a bright-line prohibition, the

authorities through ‘badgering’ or ‘overreaching’—explicit or subtle, deliberate or

unintentional—might otherwise wear down the accused and persuade him to incriminate himself.”

Smith v. Illinois, 469 U.S. 91, 98 (1984) (internal quotation marks and brackets omitted); see also

North Carolina v. Butler, 441 U.S. 370, 374 (1979) (“Without proper safeguards the process of incustody interrogation of persons suspected or accused of crime contains inherently compelling

pressures which work to undermine the individual’s will to resist and to compel him to speak where

he would not otherwise do so freely.”). Moreover, the rule provides “clear and unequivocal

guidelines to the law enforcement profession,” Roberson, 486 U.S. at 682, and “conserves judicial

resources which would otherwise be expended in making difficult determinations of voluntariness,”

Minnick v. Mississippi, 498 U.S. 146, 151 (1990). 

B 

The rule of Edwards embodies two independent inquiries:

First, courts must determine whether the accused actually invoked his right to

counsel. . . . Second, if the accused invoked his right to counsel, courts may admit

his responses to further questioning only on finding that he (a) initiated further

discussions with the police, and (b) knowingly and intelligently waived the right he

had invoked.

Smith, 469 U.S. at 95 (citations omitted). On the first inquiry, we agree with the district court and

find no error in the conclusion of the Ohio courts that Van Hook asked for the presence of a lawyer,

especially in light of the police officers’ statements that they understood him to have asked for a

lawyer, and their cessation of any further questioning. See Abela v. Martin, 380 F.3d 915, 926 (6th

Cir. 2004) (explaining that courts can consider the “surrounding circumstances” of a request,

including the response of the officers, to “confirm that a reasonable officer would understand [the

suspect’s] statement to be a clear request for counsel”). As to the latter part of the second inquiry,

whether Van Hook’s waiver of his rights and confession in response to questioning were knowing

and intelligent, the district court concluded that they were under the totality of the circumstances.

On appeal, Van Hook has not contested the district court’s ruling in this regard.3

 He has, therefore,

waived the right to challenge this holding. Fed. R. App. P. 28; Dixon v. Ashcroft, 392 F.3d 212, 217
No. 03-4207 Van Hook v. Anderson Page 5

4

The Supreme Court held in Dickerson that Miranda announced a “constitutional rule that Congress may not

supersede legislatively.” 530 U.S. at 444. Since that decision, there has been considerable disagreement over whether

the Court intended to repudiate its earlier descriptions of Miranda as a “prophylactic rule” by adopting the “constitutional

rule” description, or whether, instead, the two concepts are reconcilable. Compare United States v. Patane, 542 U.S. 630,

636 (2004) (“[T]he Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination

Clause.”) (Thomas, J., announcing the judgment of the Court and an opinion joined by Chief Justice Rehnquist and

Justice Scalia), Chavez v. Martinez, 538 U.S. 760, 770 (2003) (“In the Fifth Amendment context, we have created

prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause.”)

(Thomas, J., announcing the judgment of the Court and an opinion joined by Chief Justice Rehnquist and Justices

O’Connor and Scalia), and Hannon v. Sanner, 441 F.3d 635, 637 (8th Cir. 2006) (“The Court defined Miranda as a

‘constitutional decision’ announcing a ‘constitutional rule,’ but never described the Miranda safeguards as a

(6th Cir. 2004). It follows that Van Hook’s waiver of his rights to silence and to counsel has been

finally determined to have been knowing and intelligent. That question is not before us on appeal.

Thus, we are left to consider the gravamen of Van Hook’s Edwards claim: whether he initiated

further discussions with the police. 

It is undisputed by the parties, and confirmed by the record, that Van Hook did not directly

approach the police to discuss the murder. “[W]hen an accused has invoked his right to have

counsel present during custodial interrogation, a valid waiver of that right cannot be established by

showing only that he responded to further police-initiated custodial interrogation even if he has been

advised of his rights.” Edwards, 451 U.S. at 484. If a discussion comes at the behest of the police

after the right to counsel has been invoked, it is presumed coercive. Roberson, 486 U.S. at 685-86.

If all the record showed was Det. Davis—unprompted—initiated the discussion, the confession

would likely have to be suppressed. Edwards, 451 U.S. at 484-85; Whaley, 13 F.3d at 967. 

The record, however, shows more.

C

The facts in this case require us to resolve first the legal question whether a suspect can

initiate discussions with police through a third party. The petitioner argues, under a plain reading

of Edwards, that only the suspect “himself” can communicate a willingness and a desire to talk with

the police (i.e., from the suspect’s lips to the police’s ears). We disagree.

There is no sound justification for reading the statement from Edwards that the suspect

“himself” must initiate a discussion to imply the suspect, and only the suspect, can inform the police

he wants to talk. The Supreme Court did not command in Edwards that a suspect must directly

inform the police he wants to talk, as opposed to informing them through a third party. The

propriety of communication through a third party was not before the Court in Edwards, nor has the

Court taken up the issue since that decision. “Constitutional rights are not defined by inferences

from opinions which did not address the question at issue.” Texas v. Cobb, 532 U.S. 162, 169

(2001).

While Edwards set out the general rule, the Court has, when faced with circumstances not

addressed in that original decision, both extended the rule, see, e.g., Roberson, 486 U.S. at 687-88

(concluding that Edwards applies when a police-initiated interrogation following a suspect’s request

for counsel occurs in the context of a separate investigation), and restricted it, see, e.g., Davis, 512

U.S. at 459-60 (concluding that Edwards does not apply when a suspect fails to unambiguously ask

for a lawyer). As the Court explained in Dickerson, such refinement in the face of new

circumstances is entirely appropriate: “No court laying down a general rule can possibly foresee the

various circumstances in which counsel will seek to apply it, and the sort of modifications

represented by [cases extending and restricting Miranda] are as much a normal part of constitutional

law as the original decision.” 530 U.S. at 441.4

 
No. 03-4207 Van Hook v. Anderson Page 6

‘constitutional right’ equivalent to the Fifth Amendment itself. We thus view Dickerson as maintaining the status quo

of the Miranda doctrine . . . .”), with Chavez, 538 U.S. at 788 n.3 (Stevens, J., dissenting) (arguing that “the Court

disavowed the ‘prophylactic’ characterization of Miranda” in Dickerson), Burgess v. Dretke, 350 F.3d 461, 468-69 (5th

Cir. 2003) (“In Dickerson v. United States, the Supreme Court changed its approach to Miranda and held that Miranda

is a ‘constitutional decision’ rather than a mere ‘prophylactic’ requirement.”), and United States v. Talley, 275 F.3d 560,

564 (6th Cir. 2001) (describing the Dickerson decision as holding “that the right to a Miranda warning is constitutionally

based, rather than ‘prophylactic’”).

We decline to wade into the turbulent waters surrounding whether Edwards is also a “constitutional rule” and,

if so, whether the Supreme Court’s descriptions of the rule as a prophylactic should be jettisoned. See, e.g., Cobb, 532

U.S. at 175 (post-Dickerson description of Edwards as a “preventative rule”) (Kennedy, J., concurring). As explained

in Dickerson, even constitutional rules announced by the Court are subject to subsequent refinement.

5

Van Hook argues his interrogation was unconstitutional under Whaley. The facts of that case are, however,

distinguishable. In Whaley, after the defendant arguably initiated a discussion with an ATF agent, “nothing happened

for three weeks.” 13 F.3d at 968. The court found that given the defendant “did nothing else during the succeeding threeweek period, his actions certainly do not show a willingness and a desire to speak generally about his case.” Id. In other

words, the defendant’s communication which arguably showed a willingness and a desire to talk had grown stale by the

time the police acted on it. In the present case, it is undisputed Van Hook met with Cincinnati police the same day he

was arrested—the same day he talked to his mother and decided to talk with police. Infra § III.E.

6

In Michigan v. Jackson, the Supreme Court applied Edwards to the Sixth-Amendment context. 475 U.S. 625,

636 (1986).

In determining how the general rule of Edwards applies to third-party communications, we

begin with our standard for determining when a suspect initiates a discussion. In Whaley, this court

held, “[A]n Edwards initiation occurs when, without influence by the authorities, the suspect shows

a willingness and a desire to talk generally about his case.” 13 F.3d at 967 (reconciling the plurality

and dissenting opinions in Oregon v. Bradshaw, 462 U.S. 1039 (1983)). There is nothing inherent

in “show[ing] a willingness and a desire” that restricts it to direct communication only. To show

something means to manifest, demonstrate, or communicate something. One way to show or

demonstrate something is by person-to-person communication. Another way is by person-to-personto-person communication. While the latter indirect communication may give rise to a question about

the accuracy of the received message, any such question is alleviated when the ultimate recipient

can ask the original declarant whether the received message is accurate. Thus, a suspect could,

consistent with Whaley, communicate a willingness and a desire to talk with police through a third

person. Whether the communication is direct or indirect is immaterial—what is important is the

impetus for discussion comes from the suspect himself.5

We next consider how other courts have treated third-party communications. Van Hook has

pointed to no decision where a court has concluded that a suspect cannot, as a matter of law, initiate

a discussion with police through a third party. In fact, the decisions addressing this issue, while few

in number, all support the validity of third-party communications. In Owens v. Bowersox, the police

had arrested the defendant for murder and counsel had been appointed. 290 F.3d 960, 962 (8th Cir.),

cert. denied, 537 U.S. 1035 (2002). After his arraignment, a police detective picked up the

defendant’s mother and brought her to the police station. Id. During the drive, the mother told the

detective that she talked to her son on the phone and persuaded him to tell the police the truth. Id.

Once at the station, the detective told the defendant that he had been informed by the defendant’s

mother that he wanted to talk to police. Id. The defendant confirmed that the information was

correct. Id. Before questioning, the detective read the Miranda rights to the defendant a second

time. Id. The defendant confessed and was convicted of first-degree murder. Id. at 961.

On appeal, the Eighth Circuit considered whether the defendant’s confession was obtained

in violation of his Sixth Amendment right to counsel.6 The state court had earlier found that the

defendant did not contact the police himself nor did he ask his mother to have the police contact him.

Nevertheless, the state court concluded that the initiation came from the defendant through his
No. 03-4207 Van Hook v. Anderson Page 7

mother. The Eighth Circuit agreed there was no constitutional violation:

Although the state’s position undoubtedly would be stronger if [the defendant]

himself had contacted the police, we do not believe that it was unreasonable for the

state court to hold that a defendant may “evince” a willingness and desire to discuss

the crime by communicating with the police through a third party, especially a close

relative. See Holman [v. Kemna], 212 F.3d [413,] 416, 419-20 [(8th Cir. 2000)]

(defendant initiated contact with police by asking stepfather to have deputy come to

prison to take his confession). Nor do we believe that relief under § 2254 may be

granted to [the defendant] based on his failure to ask his mother specifically to send

a police officer to the jail. Presuming, as the state court found, that [the defendant]

told his mother that he wanted or was willing to talk to the police, we conclude that

the state court’s determination that Mr. Owens was the impetus behind the contact

and thereby “initiated” the interrogation was not objectively unreasonable.

Id. at 963-64. The court denied the defendant’s petition for habeas relief.

Other courts have also addressed the issue and likewise concluded a third party may

communicate a suspect’s desire to initiate a discussion. See, e.g., United States v. Michaud, 268 F.3d

728, 737-38 (9th Cir. 2001) (on direct appeal, finding that officers had the right to inquire whether

a suspect was reinitiating communication when her cell-mate told a deputy she wanted to talk), cert.

denied, 537 U.S. 867 (2002); United States v. Gonzalez, 183 F.3d 1315, 1323-24 (11th Cir. 1999)

(on direct appeal, holding that the suspect initiated discussions with police through his wife), cert.

denied, 528 U.S. 1144 (2000), overruled on other grounds, United States v. Diaz, 248 F.3d 1065

(11th Cir. 2001); United States v. Gaddy, 894 F.2d 1307, 1310-11 (11th Cir. 1990) (on direct appeal,

holding that the suspect initiated discussions with police through his aunt). The Georgia Supreme

Court faced an analogous situation in Harvell v. State, 562 S.E.2d 180 (Ga.), cert. denied, 537 U.S.

1052 (2002). In that case, the defendant’s mother told a police officer that her son was willing to

make a statement. Id. at 182. The officer asked the defendant if this was true, and the defendant

confirmed that it was. Id. The defendant was later convicted based on statements he made during

the subsequent questioning. Id. On appeal, the Georgia Supreme Court held that the officer did not

improperly reinitiate questioning and affirmed the conviction. Id. at 182-83.

In the instant case, a majority of the Ohio Supreme Court held that a suspect can initiate a

discussion with police indirectly through a third party. Van Hook, 530 N.E.2d at 884, 887-88.

Tellingly, even the dissenting Justices noted, “[T]here seems to be no reason why a defendant in

custody could not initiate contact with the police through a third party.” Id. at 894 (Wright, J., joined

by Brown, J., dissenting). They dissented, rather, based on what they deemed an insufficient factual

record. Id.

As these decisions illustrate, permitting a suspect to communicate a willingness and a desire

to talk through a third party is consistent with the interest protected by Edwards. “[T]he purpose

behind . . . Miranda and Edwards” is to “prevent[] government officials from using the coercive

nature of confinement to extract confessions that would not be given in an unrestrained

environment.” Arizona v. Mauro, 481 U.S. 520, 529-30 (1987). It is the possibility of “badgering”

and “overreaching” by police—i.e., government coercion—that Edwards is designed to guard

against. Colorado v. Connelly, 479 U.S. 157, 170 (1986) (“The sole concern of the Fifth Amendment

. . . is governmental coercion.” (emphasis added)); see also Illinois v. Perkins, 496 U.S. 292, 297

(1990) (“[T]he danger of coercion results from the interaction of custody and official

interrogation.”); Michigan v. Harvey, 494 U.S. 344, 353 (1990) (“Both Jackson and Edwards

establish prophylactic rules that render some otherwise valid waivers of constitutional rights invalid

when they result from police-initiated interrogation.” (emphasis added)); Jackson, 475 U.S. at 636

(“We thus hold that, if police initiate interrogation after a defendant’s assertion, at an arraignment
No. 03-4207 Van Hook v. Anderson Page 8

or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that

police-initiated interrogation is invalid.”). This court explicitly stated this in Whaley: “[T]he whole

point of Edwards is to prevent officials from badgering defendants into waiving their asserted right

to counsel through repeated questioning.” 13 F.3d at 968 (emphasis added).

If we were to prohibit a suspect from initiating a discussion with the police through a

third-party, we would be crafting an artificial rule not required by the Constitution, as well as

imposing an undue burden on our criminal-justice system. As the Supreme Court has recognized,

“[T]he Fifth Amendment privilege is not concerned with moral and psychological pressures to

confess emanating from sources other than official coercion.” Connelly, 479 U.S. at 170 (emphasis

added, internal quotation marks omitted); see also Perkins, 496 U.S. at 296-97 (“There is no

empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers

will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient

treatment should he confess.”). Suspects have no constitutional protection against friends or family

members who convince them to talk with police. Mauro, 481 U.S. at 528 (“We doubt that a suspect,

told by officers that his wife will be allowed to speak to him, would feel that he was being coerced

to incriminate himself in any way.”); Snethen v. Nix, 885 F.2d 456, 457-60 (8th Cir. 1989) (finding

no interrogation when a suspect’s mother gained access to him by telling officers “if [my son] did

this, he will tell me,” and exhorted her son to confess so her other son would not be unjustly

punished); Plazinich v. Lynaugh, 843 F.2d 836, 838-39 (5th Cir. 1988) (rejecting “an interpretation

of Edwards’ prophylactic rule that is divorced from the context of badgering police conduct from

which the rule sprang”). The Constitution clearly forbids officials from using their “power of the

sword” to coerce a suspect into making self-incriminating statements; it provides no similar

protection against third-party cajoling, pleading, or threatening. 

Moreover, as the Court has also recognized, “[T]he Constitution does not negate society’s

interest in the ability of police to talk to witnesses and suspects.” Cobb, 532 U.S. at 171-72. Both

the majority and the dissent in Minnick noted the importance of admissions of guilt in our criminaljustice system: “Both waiver of rights and admission of guilt are consistent with the affirmation of

individual responsibility that is a principle of the criminal justice system.” 498 U.S. at 155

(Kennedy, J., writing for the majority); “Admissions of guilt . . . are more than merely desirable;

they are essential to society’s compelling interest in finding, convicting, and punishing those who

violate the law.” Id. at 161 (Scalia, J., dissenting) (internal quotation marks omitted). The goal of

our criminal-justice system—bringing criminals to justice—and the role of police-suspect

discussions in meeting this goal are important considerations in deciding how to apply the general

rule of Edwards. Courts must not create “‘wholly irrational obstacles to legitimate police

investigative activity.’” Davis, 512 U.S. at 460 (quoting Michigan v. Mosley, 423 U.S. 96, 102

(1975)). Cf. Moran v. Burbine, 475 U.S. 412, 424 (1986) (“Because the proposed modification [by

the defendant] ignores the underlying purposes of the Miranda rules and because we think that the

decision as written strikes the proper balance between society’s legitimate law enforcement interests

and the protection of the defendant’s Fifth Amendment rights, we decline the invitation to further

extend Miranda’s reach.”).

As for the benefits of a “‘relatively rigid’” rule, Roberson, 486 U.S. at 681 (quoting Fare v.

Michael C., 442 U.S. 707, 718 (1979)), recognizing initiation of discussions through third-party

communications does not unduly dilute those benefits. All parties involved benefit to some extent

from Miranda (and its corollary, Edwards):

[It] has the virtue of informing police and prosecutors with specificity as to what they

may do in conducting custodial interrogation, and of informing courts under what

circumstances statements obtained during such interrogation are not admissible.

This gain in specificity, which benefits the accused and the State alike, has been

thought to outweigh the burdens that the decision in Miranda imposes on law
No. 03-4207 Van Hook v. Anderson Page 9

7

Judge Cole principally relies on the advantages of “bright,” “rigid” lines to justify a rule prohibiting

communication through a third party. See Judge Cole’s Dis. Op. at 16-17, 19-20. We whole-heartedly agree that bright,

rigid lines in the law further many laudable interests. Yet, in creating the rule of Edwards, the Supreme Court could not

expect that application of the rule would always and forever be mechanical and void of judgment. The Supreme Court,

this circuit, and other courts have recognized whether a suspect has initiated a discussion can, in some instances, be a

close call. See, e.g., Bradshaw, 462 U.S. at 1045-46 (describing the suspect’s question as “ambiguous”); Whaley, 13 F.3d

at 966 (acknowledging some initiations will “present . . . difficult question[s]”). When drawing a bright line, a court

cannot hope to eliminate each and every close call, but rather only to minimize them.

8

It is the wrong question because the Fifth Amendment right against self-incrimination, the Due Process Clause

of the Fourteenth Amendment, and the Edwards rule are not principally requirements foisted upon individuals, but rather

restrictions imposed upon federal, state and local governments. The danger lies in government coercion, not a suspect’s

free choice. This distinction leads to a clear answer to the question—if a suspect chooses to “exercis[e] his free will,”

Harvey, 494 U.S. at 353, by communicating through a third party, courts have no business negating that communication.

enforcement agencies and the courts by requiring the suppression of trustworthy and

highly probative evidence even though the confession might be voluntary under

traditional Fifth Amendment analysis.

Minnick, 498 U.S. at 151 (quoting Fare, 442 U.S. at 718); see also Roberson, 486 U.S. at 681

(emphasizing the virtues of a bright-line rule); Smith, 469 U.S. at 94-95 (same). With third-party

communications, the police are still prohibited from reinitiating questioning, and the impetus for

reinitiation must still come from the suspect. The virtue of specifically identifying rights and duties

is preserved: “police and prosecutors” still know “what they may do in conducting custodial

interrogation” under Edwards—interrogate a suspect unless and until the suspect asks for a lawyer,

and then not interrogate the suspect unless the suspect initiates a discussion (and waives the right

to counsel); and “courts” still know “under what circumstances statements obtained during such

interrogation are not admissible”—when the discussions are initiated by police. These players must

simply bear in mind what is grasped by common sense and what has been the consistent rule of the

post-Edwards case law—initiation can be communicated directly by the suspect or indirectly by the

suspect through a third party.

Although determining whether a suspect in fact initiated a discussion through a third party

uses more judicial resources than a rule strictly forbidding such communications, the impact is

minimal. As the paucity of cases addressing this issue suggests, see supra, this circumstance is the

exception, not the norm. Moreover, if any institution has the specialized expertise to resolve,

efficiently and effectively, this type of factual question, it is a trial court.7

One might ask why third-party communications should be permitted when a suspect could

just communicate directly with the police. But that is the wrong question.8

 Rather, one should ask,

why not? Initiation of a discussion through a third party does not contravene Edwards or its

progeny. It is consistent with the purpose of Edwards—to protect against government coercion—as

well as with our standard for determining whether a suspect has initiated a discussion. It furthers

the interest in permitting suspects to talk with the police and advances the investigation for truth.

It does not erode a suspect’s protection against official coercion because the police must confirm

whether the third-party communication is accurate before beginning any discussion or questioning.

For these reasons, we conclude that a suspect can initiate a discussion with police through the

communication of a third party.

D

Before reaching the question of whether Van Hook did, in fact, initiate a discussion, we

briefly address a few of the arguments made in the dissenting opinions on the purely legal question

of initiation under Edwards. In his dissenting opinion, Judge Cole argues that we ignore a “logical
No. 03-4207 Van Hook v. Anderson Page 10

9

Of course, from an empirical standpoint, courts may come across this circumstance only infrequently. This

could explain the small number of decisions addressing the issue and could also belie the apocalyptic assertion that we

are “eviscerating Edwards” today. Cf. Oregon v. Elstad, 470 U.S. 298, 318 n.5 (1985). 

flaw” in the proposition that any suspect would actually communicate indirectly what could be

communicated directly. Judge Cole’s Dis. Op. at 16. According to the dissent, the suspect “does a

strange thing” if he tells someone like his mother that he wants to talk, rather than telling “the

police” directly. Id. There is, however, nothing illogical or strange about it.

First, as we noted earlier, the issue of initiation through a third party has been addressed by

courts in the past. Thus, strictly speaking, there is no logical, a priori flaw in recognizing that a

suspect might choose to initiate through a third person—it has happened before.9

Furthermore, suggesting that it would be strange for a suspect to choose to initiate through

a third party ignores the realities of many (if not most) detention centers. “The police” is not a

monolith. Detectives and investigating officers do not typically act as guards roaming all day the

areas directly adjacent to holding cells. If a suspect wants to initiate a discussion with an

investigating officer, the suspect will frequently have to tell someone other than that officer. Of

course, the suspect could just tell the nearest guard, who could then pass along the message to the

investigating officer.

Yet, when a suspect talks with a guard or some other non-investigative member of the police

and that person believes that the suspect wants to waive his right to counsel and so informs the

investigating officer, the officer can be faced with similar “‘lost in translation’ problems” as those

identified by the dissent. Judge Cole’s Dis. Op. at 18. For example, what if a suspect “speculate[s]”

in front of a guard “about whether making a statement would ameliorate his situation”? Id. What

if the guard then tells the officer this? Might not the officer want “to verify that a conversation

between the suspect” and the guard “actually occurred”? Id. at 20. Might not the officer want to

“prob[e]” the guard “about exactly what the suspect said” before launching into an interrogation?

Id. Isn’t there a danger a guard could “misinterpret[]” or in fact “ignore[]” what the suspect said or

intended? Id. at 19. Restricting a suspect’s freedom to communicate through a third party would

not eliminate the practical risk of translation problems, regardless of the guard’s role as part of “the

police.”

This leads to a further flaw in the dissent’s reasoning. Is it really irrational to believe a

suspect could decide to ask his mother (or some other third party) to tell the investigating officer that

he wants to talk, rather than telling the nearest guard? From the suspect’s perspective, who more

likely has his best interests in mind—his mother or the guard? From the suspect’s perspective, who

more likely does he trust—his mother or the guard? From the suspect’s perspective, who is more

likely to keep his desire to talk secret from another co-suspect in the next jail cell—his mother or

the guard? There are a host of reasons why a suspect could rationally choose to initiate through a

third party rather than with a guard. In the end, the pertinent question is not why a suspect would

ask a third party rather than a guard to contact the investigating officer, but whether the suspect did

so.

Next, it is asserted by the dissent that we create a “glaring asymmetry” with our decision

today. Id. at 20. The asymmetry purportedly stems from a comparison of the right to invoke

counsel, which cannot be made by a third person on behalf of a suspect, with our holding that a

suspect can use a third party to initiate a discussion with the police. The existence of an asymmetry,

however, is illusory—only by conflating initiation and waiver can one be imagined.

As we have explained, supra § III.B, there exist multiple steps to a valid waiver of the right

to counsel, not just a showing of initiation by the suspect under Edwards. United States v. Ware, 338
No. 03-4207 Van Hook v. Anderson Page 11

10This is clear when, as here, the subsequent discussion between the suspect and the police is not “wholly onesided.” Edwards, 451 U.S. at 486 n.9. In the rare event when a suspect does offer the police an unprompted, monologue

confession, there is no Edwards problem because “[a]bsent . . . interrogation, there would have been no infringement

of the right that [the suspect] invoked and there would be no occasion to determine whether there had been a valid

waiver.” Id. at 486.

11Nor does our holding today ask “too much” of law enforcement. Judge Cole’s Dis. Op. at 20. Determining

whether a suspect has knowingly and intelligently waived the rights to counsel and to remain silent under the totality

of the circumstances can present questions much more daunting than those necessary in assessing the likely validity of

a suspect’s message from a third party. For example, what words must a suspect use to show that he is aware of the

consequences of relinquishing his rights? What words must a suspect use to show that he is aware of the nature of the

rights he is relinquishing? Is there a basis to believe the suspect does not understand his rights?

F.3d 476, 481 (6th Cir. 2003) (“Although [the suspect] initiated the conversation, it is still necessary

to determine whether he validly waived his rights to counsel and to remain silent.”); see also

Bradshaw, 462 U.S. at 1044-46 (plurality) (“But even if a conversation taking place after the

accused has ‘expressed his desire to deal with the police only through counsel,’ is initiated by the

accused, where reinterrogation follows, the burden remains upon the prosecution to show that

subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during

the interrogation.”), 1054 n.2 (dissent) (“If an accused has himself initiated further communication

with the police, it is still necessary to establish as a separate matter the existence of a knowing and

intelligent waiver . . . .”); Wernert v. Arn, 819 F.2d 613, 615 (6th Cir. 1987).10 The symmetrical

opposite of invoking the right to counsel, Judge Cole’s Dis. Op. at 20, is not initiating a discussion

but rather waiving the right to counsel.

While a suspect’s initiation might lead to a valid waiver of the right to counsel, it is not itself

sufficient. Before the police can actually begin to interrogate a suspect after he has initiated, they

must ensure that the suspect is knowingly and intelligently waiving the right to counsel under the

totality of the circumstances. See supra § III.B. It is “wrong” to “think[] that an ‘initiation’ of a

conversation or discussion by an accused not only satisfied the Edwards rule, but ex proprio vigore

sufficed to show a waiver of the previously asserted right to counsel. The inquiries are separate, and

clarity of application is not gained by melding them together.” Bradshaw, 462 U.S. at 1045

(plurality). Simply put, nothing in our decision today permits the police to begin interrogating a

criminal suspect simply by learning from a third party that the suspect is willing to waive the

previously invoked right to counsel. Nor do we hold that a third party has the authority to somehow

“bring[] about the waiver of that right,” Judge Cole’s Dis. Op. at 20, or otherwise “rescind[] th[e]

request” for counsel, id. at 21. When the police receive information that a suspect wants to talk;

when there is a sufficient basis for believing its validity; and when the police confirm with the

suspect the validity of that information, we conclude that the suspect has adequately evinced a

willingness and a desire to talk with them. Whether the suspect knowingly and intelligently waives

his right to counsel is a separate question—a question, it bears repeating, we are not asked to answer

today.11

Finally, we are urged today to devise a special set of rules governing initiation by a suspect

through a third party. We decline the invitation. First, and most importantly, our judicial role is to

rule on the case before us, not a hypothetical one that could come before us in the future.

Furthermore, as the plurality in Bradshaw recognized, there is little wisdom in “build[ing] a

superstructure of legal refinements around the word ‘initiate.’” Bradshaw, 462 U.S. at 1045.

Caution is especially apt where, as here, we have little from the text of the Constitution from which

to draw such a set of rules. We leave to another day any further refinement of our holding which

may be necessitated by a different set of facts than those presented here.
No. 03-4207 Van Hook v. Anderson Page 12

E

Having concluded that a suspect can initiate a discussion with police through the

communication of a third party, we must take up the question whether Van Hook actually initiated

a discussion with police through his mother. “Whether a suspect has [initiated a discussion] . . . can

occasionally present a difficult question.” Whaley, 13 F.3d at 966. In answering this question, we

remain mindful of our limited role as a federal court reviewing the factual findings of a state trial

or appellate court. See 28 U.S.C. § 2254(d) (pre-AEDPA); Sumner, 455 U.S. at 598; Mapes, 171

F.3d at 413; Lundy, 888 F.2d at 469. Although the prosecution had the burden of proof to show

initiation at the suppression hearing, we presume on habeas review that the factual findings of the

state courts are correct, and can set those findings aside only if the petitioner meets one of the eight

conditions spelled out in 28 U.S.C. § 2254(d)(1)-(8) (pre-AEDPA). Specifically, subsection (8)

states such findings are presumed correct unless they are “not fairly supported by the record” “as

a whole.” Moreover, when two different “conclusions find fair support in the record,” a federal

court may not “substitut[e] its view of the facts for that of the [state] [c]ourt.” Wainwright v. Goode, 464 U.S. 78, 85 (1983); see also Patton v. Yount, 467 U.S. 1025, 1040 (1984) (explaining that even

when “the cold record arouses some concern,” a federal court may not overturn the factual findings

of a state court on habeas review).

Although the record is voluminous, the key parts of the record for our purpose are Van

Hook’s taped statement and the suppression hearing testimony of Det. Davis. Review of these

confirms the following: Van Hook talked with his mother after his request for a lawyer but before

he met with Det. Davis, JA 5209 (from Van Hook’s statement); she told him to cooperate and tell

the truth, id. (from Van Hook’s statement); he decided to talk with police based on the talk with his

mother, JA 5208-09 (from Van Hook’s statement); Det. Davis spoke with Van Hook’s mother before

traveling to Florida, JA 3790 (from Det. Davis’s testimony); she told him that she had spoken with

her son, id. (from Det. Davis’s testimony); based on that discussion, Det. Davis thought that Van

Hook might want to talk to him, id. (from Det. Davis’s testimony); Det. Davis told Van Hook that

he had talked with his mother, JA 3783 (from Det. Davis’s testimony); Van Hook confirmed to Det.

Davis that he had talked with his mother and wanted to make a statement, id. (from Det. Davis’s

testimony); Det. Davis read Van Hook his Miranda rights, JA 5207-08 (from Van Hook’s

statement); Van Hook stated that he wanted to waive these rights, id. (from Van Hook’s statement);

and Van Hook confirmed to Det. Davis that he changed his mind after talking with his mother, JA

5209 (from Van Hook’s statement). Van Hook raises no claim of error as to these matters.

He does, however, take issue with two related findings of the Ohio Supreme Court, namely

(1) that Det. Davis spoke with Van Hook’s mother after her son was arrested and asked for counsel,

and (2) that she specifically informed Det. Davis that her son wanted to talk with him. On these two

issues, the state court concluded:

As previously indicated, Detective Davis’s belief that appellant would want to talk

to him occurred after and because of what appellant’s mother had said to him. In the

context of this conversation, both appellant and Detective Davis predicated their

conversation upon what had been spoken with appellant’s mother. It is most clear

that appellant had agreed to act upon his mother’s advice “to tell the truth” and thus

to “make a statement.” Obviously, this was the subject of appellant’s conversation

with his mother, and he communicated his agreement to do so to her. That this had

been communicated to Detective Davis is quite apparent from the context in which

the detective utilized the fact of his conversation with appellant’s mother, i.e., as a

basis for inquiring whether appellant indeed wished to make a statement. It would

have had little meaning, particularly in light of appellant’s response, unless both men

understood that appellant’s desire to make a voluntary statement had been

communicated to Detective Davis through appellant’s mother. . . . Our conclusion
No. 03-4207 Van Hook v. Anderson Page 13

12Following is the relevant excerpt from Det. Davis’s testimony:

Q. -- and the reason --. Had you had communication with Mr. VanHook’s mother

before going to Florida?

A. Yes, sir.

Q. And, had she indicated to you that she had talked to Mr. VanHook?

A. She had.

Q. And did she indicate to you anything that Mr. VanHook had told her?

[Defense counsel]: To which I object.

THE COURT: Objection will be sustained.

Q. After speaking with Mrs. VanHook, did you think that Robert VanHook might want

to talk to you?

[Defense counsel]: To which I object.

THE COURT: Overruled. you may answer that.

A. Yes, I did.

Q. And why was that?

[Defense counsel]: To which I object.

THE COURT: Just a moment. Objection overruled.

A. She had told me -- 

THE COURT: Just a moment, sir.

A. I’m sorry.

THE COURT: My apologies. I sustained the objection rather than overruled.

Pardon me.

JA 3790-91. Defense counsel’s objections were presumably grounded on hearsay concerns. Hearsay, however, is

admissible in a suppression hearing under Ohio Rules of Evidence 101(C)(1) and 104(A). Van Hook, 530 N.E.2d at 893.

13There are two other alternatives: (3) the two spoke after Van Hook’s arrest, but not about her son wanting

to talk with the police; or (4) the two never spoke. Alternative (3) contradicts Van Hook’s own position that the two did

not speak after his arrest. As for Alternative (4), Van Hook concedes that the two had spoken on numerous occasions

before his arrest.

is further strengthened by the clarity with which appellant expressed his resolve to

speak with police and his explanation that it was based upon discussions which he

initiated with his mother. Furthermore, the decision to speak apparently had been

reached earlier in the day, and thus well before he met with Detective Davis.

Van Hook, 530 N.E.2d at 887-88 (emphasis added).

We find no basis in the record to disturb these findings. Van Hook is correct that there is no

direct evidence of when precisely Det. Davis spoke with his mother, or what precisely she said to

him. (The line of questioning that could have provided the evidence was erroneously cut off by the

trial judge at defense counsel’s behest.12) Yet, the circumstantial evidence certainly supports the

finding of the Ohio Supreme Court. Det. Davis testified that he spoke with Van Hook’s mother

before leaving for Florida and that, after their conversation, he believed her son might want to talk

with him. If Van Hook’s mother did not speak with Det. Davis after the arrest and tell him

something that led the detective to believe her son might want to talk, there are two possible

alternatives: (1) they spoke before his arrest about his wanting to talk with the police; or (2) they

spoke before his arrest, but not about anything which would have led the detective to believe that

her son might want to talk with the police—i.e., the detective testified falsely.13 As to the former

alternative, it strains credulity to suggest that Van Hook’s mother informed the detective that her son

might be willing to talk with the police before he was actually apprehended. Van Hook was, after

all, actively fleeing from authorities until his arrest. As to the latter alternative, Van Hook has not

shown by clear and convincing evidence that Det. Davis testified falsely. While the prosecution did

have the burden of proof, any successful attack on Det. Davis’s veracity could have been based on

supporting testimony by the other parties to the conversation. For instance, Van Hook could have

provided direct evidence that his mother did not tell the detective anything that would have led the
No. 03-4207 Van Hook v. Anderson Page 14

14In his dissent, Judge Merritt likewise focuses on the lack of evidence establishing precisely when Det. Davis

and Van Hook’s mother spoke. Yet, viewing the record as a whole, there is absolutely no question Van Hook talked with

his mother and, based on that conversation, changed his mind and wanted to talk with the police without a lawyer. On

the most vital issue before us, the record is clear: prior to Det. Davis’s arrival, Van Hook had formed a willingness and

a desire to talk with the police without a lawyer.

detective to believe he wanted to talk by simply having her testify. Similarly, Van Hook himself

could have testified at the suppression hearing (without jeopardizing his trial right to silence) and

contradicted the detective’s testimony. Yet, neither his mother nor Van Hook himself testified at

the hearing. Review of the record confirms that the most plausible factual inference consistent with

the record is the one made by the Ohio Supreme Court, and that inference is certainly not

“unsupported” by the record nor has it been refuted by clear and convincing evidence.14

As to the particulars of the discussion between the mother and Det. Davis, the state court’s

conclusion that the content is nonetheless clear is also fairly supported by the record. Given the

realities of the custodial relationship, it is inevitable that the police will sometimes receive

information from a suspect or a third party which might evince a willingness and a desire to talk by

the suspect. For example, they may hear something like “Well, what is going to happen to me

now?” (said by the suspect in Bradshaw, 462 U.S. at 1045) or that a suspect “needed to talk to

somebody about a murder” (said by the cellmate of the suspect in Michaud, 268 F.3d at 735). In this

type of situation, the police may “inquire whether [the suspect] was re-initiating communication.”

Michaud, 268 F.3d at 735-36 (citing Bradshaw, 462 U.S. at 1045-46). Det. Davis testified that,

based on what the mother told him, he believed her son might want to talk to police. This was

enough to justify a limited inquiry to confirm or disaffirm that belief.

For these reasons, we find no clear error in the Ohio courts’ factual findings. Upon

subjecting these findings and the other, undisputed facts outlined above to our legal standard for

initiation, we conclude Van Hook did initiate a discussion with the police.

IV

The Constitution protects a suspect from official coercion—it does not protect a suspect from

himself or his mother. Van Hook asked for a lawyer but later changed his mind and wanted to talk

with the police, as he had the right to do. Whether he then directly told the police himself that he

changed his mind or instead indirectly communicated it through his mother and subsequently

confirmed it himself is of no constitutional moment. We AFFIRM the district court’s denial of

habeas relief to Van Hook on the claim that his statement should have been suppressed.

Van Hook has raised several other claims of error which were not addressed by the original

panel of this court. We return those claims to the panel for review and decision.
No. 03-4207 Van Hook v. Anderson Page 15

_________________

DISSENT _________________

R. GUY COLE, JR., Circuit Judge, dissenting. The Court today adopts the position that lawenforcement officers may renew contact with criminal suspects upon learning from third parties that

the suspects are willing to waive their previously invoked right to counsel. In so holding, the

majority concludes that neither reason nor established case law require suspects—who, by

definition, are in jail surrounded at all times by law-enforcement personnel—to directly

communicate to police their wish to waive their previously invoked constitutional rights. The

Supreme Court has instructed us that we must view custodial waivers of rights with a high degree

of suspicion. In my view, we must be doubly skeptical of a waiver of rights effected through the

backdoor of a purported third-party agent, especially when all the suspect has to do is proclaim to

the nearest guard, “I want to talk.”

Because I believe that only the suspect or his attorney may initiate discussions with the

police (defined broadly to include other corrections officers) after a suspect has invoked his right

to counsel, I respectfully dissent. Further, even assuming that third-party initiations are permissible,

I disagree with the majority’s conclusion that the record in this case establishes that Van Hook

reinitiated communication with the police through his mother.

I.

A.

Edwards v. Arizona, 451 U.S. 477 (1981), creates the brightest of bright-line rules: If a

suspect invokes his constitutional right to counsel, the police must immediately terminate their

questioning. The interrogation may be renewed only if the suspect “himself” initiates further

conversation “with the police.” Id. at 485. There is no doubt that police officers who ask a suspect

hours or days after the suspect invoked his right to counsel whether he was now ready to talk would

be guilty of the very “badgering” that Edwards proscribes. Oregon v. Bradshaw, 462 U.S. 1039,

1044 (1983); see also United States v. Johnson, 400 F.3d 187, 193-94 (4th Cir. 2005), cert. denied, 546 U.S. 886 (2005) (holding that police violated Edwards where an officer re-entered the

interrogation room forty minutes after the suspect requested a lawyer to see if the suspect would

waive his rights). Indeed, even if the police have reason to believe that a suspect is ready to waive

his previously invoked rights, the police are prohibited from initiating contact with him. See United

States v. Rodriguez, 993 F.2d 1170, 1174 (5th Cir. 1993) (concluding that the police improperly

renewed questioning of the suspect where a co-defendant contacted the police to say that “they”

wanted to speak but it was not clear to whom “they” referred); Desire v. Attorney Gen. of Cal., 969

F.2d 802, 804-05 (9th Cir. 1992) (holding that the police wrongly initiated contact where the officer

overheard a conversation between the suspect and his co-defendant and in response, asked the

suspect whether he “wanted to talk about anything”). Nonetheless, the majority holds that the police

may do this very thing—ask a suspect whether he wants to talk after a suspect has invoked his right

to counsel—without offending Edwards, so long as the police learn from a third party that the

suspect is willing to submit to their questioning.

At first blush, there does not appear to be anything extraordinary or untoward about

authorizing police to renew custodial interrogations when third parties, such as family or friends,

tell the police that the suspect is prepared to answer questions without the assistance of counsel. But

here we must pause and review what we know. The suspect has been taken into custody and has

been read his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). He has

terminated law enforcement’s questioning by unambiguously invoking his right to counsel. He has

preserved that right by maintaining his silence. At some point, according to the majority, the suspect
No. 03-4207 Van Hook v. Anderson Page 16

changes his mind, perhaps while conferring with a family member or friend, and decides that he will

waive his right to counsel after all. So committed to reversing course and so desirous of speaking

is the suspect, that he does a strange thing: He does not tell the people that he wants to talk to, i.e.,

the police, that he wants to talk to them. He tells someone else, someone who is not a police officer.

The majority overlooks this logical flaw. Rather than concluding, as Edwards commands,

that if a suspect genuinely wishes to waive his previously invoked right to counsel and answer law

enforcement’s questions, the suspect will so inform the police directly, the majority endorses the

counter-intuitive proposition that we may treat a suspect as willing to talk to the police despite his

silence to the police. United States v. Michaud, 268 F.3d 728, 741 (9th Cir. 2001) (Reinhardt, J.

dissenting) (“The whole point of Edwards is that a suspect who has invoked her right to counsel may

remain silent, and may not be questioned unless she breaks that silence . . .”). 

In addition to eviscerating Edwards, the majority’s holding deviates from the clear import

of the Supreme Court’s jurisprudence on custodial interrogations. It is to that I now turn.

B.

As the majority correctly explains, Miranda and its “corollary,” Edwards, have dual

purposes, including safeguarding a suspect’s exercise of his constitutional rights in the face of the

state’s disproportionate power and providing clear guidance to law enforcement in how to handle

custodial interrogations. Arizona v. Roberson, 486 U.S. 675, 680 (1988) (describing Edwards as a

“corollary” to Miranda). The majority further acknowledges that the Supreme Court has praised

the “relativ[e] rigid[ity]” and “clear and unequivocal” nature of the Miranda and Edwards rules as

one of their chief benefits. Fare v. Michael C., 442 U.S. 707, 718 (1979); Roberson, 486 U.S. at

682. Indeed, “[t]he merit of the Edwards decision,” according to the Supreme Court, “lies in the

clarity of its command and the certainty of its application.” Minnick v. Mississippi, 498 U.S. 146,

151 (1990); Roberson, 486 U.S. at 680 (“As we have stressed on numerous occasions, one of the

principal advantages of Miranda is the ease and clarity of its application.”) (internal quotation marks

and citation omitted).

Although the majority pays lip service to these precepts, it never comes to terms with their

central place in the Supreme Court’s custodial-interrogation jurisprudence. Coursing unmistakably

through the Court’s doctrine is the insistence that the relationship between a criminal suspect and

his official interrogator be governed by “bright-line” rules that precisely spell out the rights and

duties of both parties. Roberson, 486 U.S. at 681 (“We have repeatedly emphasized the virtues of

a bright-line rule in cases following Edwards as well as Miranda.”); Minnick, 498 U.S. at 151

(“Edwards . . . implements the protections of Miranda in practical and straightforward terms.”). The

Supreme Court has determined that in this area of the law, neither suspect, nor police officer, nor

the public at large, is well served by rules that tolerate ambiguity or require nuanced

decisionmaking. The Court’s unflagging commitment to “clarity” is motivated by the recognition

that the coercive setting of custodial interrogation is ready-made for the infringement, whether

intentional or inadvertent, of constitutional protections, such that suspects must be plainly advised

of their rights so they may act on them. See Dickerson v. United States, 530 U.S. 428, 435 (2000)

(“Because custodial police interrogation, by its very nature, isolates and pressures the individual,

we stated that ‘even without 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.’”) (quoting Miranda, 384 U.S. at 455); Bradshaw, 462 U.S. at 1044 (describing

Edwards as a “prophylactic rule” intended “to protect an accused in police custody from being

badgered by police officers”). Furthermore, law enforcement must be advised about the limits of

its authority, so that it is not subjected to judicial second-guessing as to its methods, or burdened by

undue complexity in the discharge of its investigatory work. Davis v. United States, 512 U.S. 452,

461 (1994) (describing Edwards as providing “a bright line that can be applied by officers in the real
No. 03-4207 Van Hook v. Anderson Page 17

world of investigation and interrogation . . .”); Fare, 442 U.S. at 718 (stating that the “relatively

rigid requirement that interrogation must cease upon the accused’s request for an attorney . . . has

the virtue of informing police and prosecutors with specificity as to what they may do in conducting

custodial interrogation . . .”); Miranda, 384 U.S. at 441-42 (describing one of the purposes of the

decision as providing “concrete constitutional guidelines for law enforcement agencies and courts

to follow”).

The Supreme Court has steadfastly guarded the “bright-line” quality of the Edwards rule.

The Court has applied Edwards to new factual scenarios where it deemed doing so necessary to

uphold the rule’s essential clarity, but has resisted applying Edwards where the result would be to

muddy its dictates. Several cases illustrate the point.

In Minnick, the Court addressed whether Edwards is satisfied where the suspect has invoked

his right to counsel and has been afforded an opportunity to consult with his lawyer prior to

interrogation, but the lawyer is not physically present during the interrogation. The Court concluded

that the ability to consult was insufficient to allow interrogation, in part because such an exception

“would undermine the advantages flowing from Edwards’ ‘clear and unequivocal’ character.” 498

U.S. at 154. Suspects’ rights would be jeopardized because the quality of consultations would vary

widely, ranging from “a telephone call to say that the attorney is en route, to a hurried interchange

between the attorney and client in a detention facility corridor, to a lengthy in-person conference in

which the attorney gives full and adequate advice . . . .” Id. at 155. Further, approving a

consultation-only rule would entail unnecessary trouble for law-enforcement personnel: “[E]ven

with the necessary scope of consultation settled, the officials in charge of the case would have to

confirm the occurrence and, possibly, the extent of consultation to determine whether further

interrogation is permissible.” Id.

In Davis, the Court’s decision was influenced in part by a desire to maintain the “clarity and

ease of application” of the Edwards rule. 512 U.S. at 461. There, the Court held that a suspect’s

request for counsel must be unambiguous to trigger law enforcement’s duty to terminate

questioning. Id. at 459. The Court refused to require police to cease interrogation upon a suspect’s

ambiguous request for counsel because to do so would force police officers “to make difficult

judgment calls about whether the suspect in fact wants a lawyer even though he has not said so, with

the threat of suppression if they guess wrong.” Id. at 461; see also Moran v. Burbine, 475 U.S. 412,

425 (1986) (upholding a suspect’s waiver of his rights where law enforcement failed to tell him that

his lawyer attempted to reach him, because not upholding the waiver would “mudd[y] Miranda’s

otherwise relatively clear waters” and “spawn” a host of legal questions).

Perhaps most telling is the Court’s recent decision in Dickerson, reaffirming Miranda. The

Dickerson Court confronted the question of whether Miranda had to yield to a Congressional statute

that dispensed with Miranda’s required warnings by instead embodying a totality-of-thecircumstances test for assessing the voluntariness of a criminal defendant’s confession. Dickerson, 530 U.S. at 428. In declining to overrule Miranda, the Court held that the popularly known “Miranda rights” had been broadly embedded in society. Id. at 443-44. In addition, Miranda

constituted a rule that could be more easily administered by law enforcement, compared to the one

enacted by Congress: “[E]xperience suggests that the totality-of-the-circumstances test which [the

statute] seeks to revive is more difficult than Miranda for law enforcement officers to conform to,

and for courts to apply in a consistent manner.” Id. at 444.

Thus, it is evident that the Supreme Court regards clarity and ease of application as necessary

features of any legal rule governing custodial interrogations and that the Court eschews proposed

modifications that fail this test.
No. 03-4207 Van Hook v. Anderson Page 18

C.

To hold as the majority does today, that a suspect may re-initiate interrogation through a

third party, contravenes the reasoning of the Supreme Court’s custodial-interrogation jurisprudence

by inviting the very uncertainty and complexity into the circumstances surrounding a suspect’s

waiver of his rights that the Court has sought to banish. This uncertainty and complexity ensnares

both the suspect and the law-enforcement officers in charge of his case.

First, the majority’s interpretation of Edwards allows the police to approach a suspect even

when the suspect does not initiate further communication through a third party. While in custody,

a suspect may have occasion to confer with family, friends, or other third parties. The suspect will

have no reason to know that he could be opening himself up to renewed police contact if the third

party misconstrues or ignores what he says and tells the police that the suspect is prepared to waive

his right to counsel and talk with them. It does not take much imagination to realize the “lost in

translation” problems that inhere, in the majority’s preferred locution, in “person-to-person-toperson” communications. Maj. Op. at 6.

For example, during conversations with third parties, the suspect might equivocate in his

decision not to speak with the police, might speculate about whether making a statement would

ameliorate his situation, and might even express agreement with advice encouraging him to tell the

police what he knows. Even though such statements reveal no more than the suspect’s current

mental state, and hardly constitute a request for the police to re-start their interrogation, they could

easily be passed on to the police, or interpreted by the police, as declarations of the suspect’s desire

to talk. Similarly, third parties’ communications with the police may be colored by their own views

as to what is in the suspect’s best interests, and may not accurately reflect the suspect’s own

intentions on how to proceed.

The majority’s reliance on cases from the Eighth, Ninth, and Eleventh Circuits upholding

third-party initiations as permissible under Edwards only serves to illustrate the danger of such a

rule. In Owens v. Bowersox, 290 F.3d 960 (8th Cir. 2002), United States v. Gonzalez, 183 F.3d 1315

(11th Cir. 1999), and United States v. Gaddy, 894 F.2d 1307 (11th Cir. 1990), there was no evidence

about what the suspect said to the third party to make the latter believe that the suspect wanted to

talk, nor was there any discussion of the accuracy and reliability of the third party’s representations

to the police. In Michaud, there was no evidence that the defendant told her cellmate that she

wanted to talk to the police; the cellmate apparently concluded on her own that Michaud “needed

to talk to somebody” as a result of Michaud’s distraught state, and further concluded that a police

officer was the necessary “somebody.” Michaud, 268 F.3d at 739-40 (Reinhardt, J. dissenting).

While acknowledging the potential for errors in the transmission of information from the

suspect to a third party to the police, the majority minimizes this concern by arguing that even if a

suspect tells the police that he wants to talk, the corrections officer with whom the suspect initiates

communication will seldom be the investigating officer assigned to his case. The majority therefore

reasons that a suspect’s desire to talk will almost invariably travel through a third party, namely, a

third-party corrections officer. I agree. The majority is quite right when it says that “[d]etectives

and investigating officers do not typically act as guards roaming all day the areas directly adjacent

to holding cells.” Maj. Op. at 10.

Where I part company with the majority is in its assumption that a suspect’s communication

to a law-enforcement officer, even one that is not assigned to his case, counts as an initiation through

a third party. It makes no sense to say that a third-party corrections officer and a third-party family

member, friend, or cell-mate are the same thing for purposes of applying Edwards. Indeed, a

corrections officer is not a “third party” at all.
No. 03-4207 Van Hook v. Anderson Page 19

It goes without saying that the relationship between the suspect and the police—defined

broadly to include corrections personnel beyond just the investigating officer—is adversarial. Is it

possible, as the majority muses, that a suspect might make statements to a prison guard that the

guard misinterprets as “evinc[ing] a willingness and a desire for a generalized discussion about the

investigation”? Bradshaw, 462 U.S. at 1045-46. Of course. But that is the risk the suspect takes

when he voluntarily chooses to discuss his case with a law-enforcement officer. Such a situation

does not involve a “third party” in the relevant sense because the suspect “himself” has initiated

communication “with the police,” even if he has not initiated communication directly with the

investigating officer responsible for his case, which Edwards, on its face, does not require. For these

reasons, the majority misses the mark when it contends that a suspect might prefer to initiate

communication through his mother, rather than through his prison guard, because “[f]rom the

suspect’s perspective,” his mother is the more trustworthy party. A suspect who tells his guard that

he wants to talk is not initiating communication to the police “through” anyone; he is speaking

directly to them. 

As we have seen, the majority is not interested in examining the nature of the communication

between the suspect and the third party, nor is it troubled by the way in which a suspect’s intentions

could be misinterpreted or ignored by a third party. Instead, the majority contends that any concerns

about the accuracy of the communication from the suspect to the third party to the police can be

easily put to rest by having the police confirm the suspect’s “willingness and desire” to talk before

renewing their interrogation. Bradshaw, 462 U.S. at 1045-46 (holding that an initiation occurs when

a suspect makes a statement that evinces “a willingness and a desire for a generalized discussion

about the investigation”); United States v. Whaley, 13 F.3d 963, 966 (6th Cir. 1994).

According to the majority then, once the police have learned from a third party that a suspect

wishes to waive his rights and talk, the police may resume contact with the suspect to verify the third

party’s representation. The majority fails to explicate the content of this “limited inquiry” that law

enforcement may conduct. More importantly, the majority turns the Edwards rule on its head by

holding that a suspect initiates communication with the police only after the police ask him if he

wants to talk: An initiation occurs “[w]hen the police receive information that a suspect wants to

talk; when there is a sufficient basis for believing its validity; and when the police confirm with the

suspect the validity of that information.” Maj. Op. at 21-22 (emphasis added). As explained above,

the police cannot approach a suspect to discuss the case unless an initiation by the suspect has

already occurred. Oregon, 462 U.S. at 1039; Johnson, 400 F.3d at 187. It is the suspect’s initiation

that gives the police license to ask him if he is prepared to waive his rights and answer questions;

police contact prior to an initiation, or for purposes of sparking an initiation, is a clear violation of

Edwards. Thus, contrary to the majority’s assertion, the better reasoned view is that a third-party

initiation occurs, if at all, when the third party conveys to the police the suspect’s alleged desire to

talk without the aid of counsel.

Here we encounter the second layer of uncertainty and complexity that plagues third-party

initiations, this time for law enforcement. The majority says that the police will have to have “a

sufficient basis for believing” the third party’s representations before they may resume contact with

the suspect. We are left to guess about what constitutes a “sufficient basis,” and so are the police.

Even though the Court’s opinion lands law enforcement on uncertain terrain, the majority chooses

not to spell out any rule to guide police conduct in responding to an alleged third-party initiation.

Of course, any attempt to do so immediately runs afoul of the Supreme Court’s admonition that the

rules governing custodial interrogation should not put law-enforcement officers in the position of

making “difficult judgment calls.” Davis, 512 U.S. at 461. But that is exactly what will happen.

To overcome the “heavy” presumption against a custodial suspect’s waiver of his rights,

Moran, 475 U.S. at 450-51 (Stevens, J. dissenting), the prosecution will have to show that the police

had a reasonable and good-faith basis for believing that the suspect communicated an intention to
No. 03-4207 Van Hook v. Anderson Page 20

talk through the third party. This, in turn, will compel the police to verify that a conversation

between the suspect and the third party actually occurred, and to assess the credibility and

motivations of the third party. In addition, the police will have to examine the reliability of the

purported waiver by probing the third party about exactly what the suspect said and in so doing,

exercise their discretion in deciding whether the suspect’s statements sufficiently express a

“willingness and desire” to talk such that police may approach him. Among the more obvious

questions that the majority’s opinion will relegate to police officers include: Who may be regarded

as a proper third party agent? What words must a suspect use to show that he is prepared to waive

his rights? Is it enough for the suspect to agree with a third party’s recommendation that he talk, or

must he affirmatively say that he “will” talk? What if the suspect says he will talk but never

instructs the third party to so advise the police?

The Supreme Court instructed us in Davis that it is asking too much of law-enforcement

officers to require them to assess whether a suspect is invoking his right to counsel even when the

suspect is in the presence of police officers who can directly observe him and hear his statements

first-hand. If that is the case, then I fail to see how it is not asking too much of law enforcement to

assess a suspect’s intention to waive his rights where that purported intention is not communicated

openly to the police, but is relayed through a third party.

Ultimately, of course, the complicated questions surrounding third-party initiations will end

up in the courts. To sort out the mess, courts will be compelled on a case-by-case basis to develop

new standards for adjudicating the propriety of third-party initiations. In the end, we can safely

conclude that the hallmark “clarity” and “certainty of [] application” of the Edwards rule will be lost.

Minnick, 498 U.S. at 151.

D.

Finally, it cannot be ignored that the majority’s opinion creates a glaring asymmetry in the

law of custodial interrogations. A suspect cannot invoke his right to counsel through a third party.

It would be impossible for a suspect to satisfy Davis’s “unambiguous” requirement for invoking the

right to counsel without the suspect himself telling the police that he wants a lawyer. Davis, 512

U.S. at 459 (stating that a suspect “must articulate his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances would understand the statement to be

a request for an attorney”). Moreover, the Supreme Court has held that a suspect’s own lawyer

cannot protect his right to counsel for him. Moran, 475 U.S. at 425 (holding that the police were

not required to refrain from questioning the suspect, even where the suspect’s attorney contacted the

police to ensure that he would not be questioned outside the presence of counsel, because the suspect

himself did not tell the police that he wanted a lawyer).

Here, the majority adopts the opposite approach: A third party who could not invoke the

accused’s right to counsel may nonetheless play a crucial role in bringing about the waiver of that

right. It makes no sense to apply different standards to the invocation of constitutional rights and

the waiver of those same rights. Nonetheless, such is the paradox the majority has wrought.

The majority rejects this characterization on the grounds that “[t]he symmetrical opposite

of ‘invoking the right to counsel,’ is not initiating a discussion but rather waiving the right to

counsel.” Maj. Op. at 21 (emphasis in the original) (internal citation omitted). True, initiation

alone does not amount to a waiver that enables the police to re-start their questioning. A suspect

must both initiate communication with the police and knowingly and intelligently waive his right

to counsel. Although initiation and waiver are separate inquiries, a proper initiation (i.e., where the

suspect initiates a dialogue with the police in which he expresses “a willingness and a desire for a

generalized discussion about the investigation”) is indispensable to finding a valid waiver. Edwards, 451 U.S. at 486, n. 9 (stating that the validity of the waiver depends on whether it was knowing and
No. 03-4207 Van Hook v. Anderson Page 21

intelligent under the totality of the circumstances, “including the necessary fact that the accused, not

the police, reopened the dialogue with the authorities”). Indeed, a knowing and intelligent waiver

will not cure an improper initiation, i.e., an initiation at the behest of the police. As the Supreme

Court stated in McNeil v. Wisconsin, 501 U.S. 171, 177 (1991), “[i]f the police do subsequently

initiate an encounter in the absence of counsel . . ., the suspect’s statements are presumed

involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect

executes a waiver and his statements would be considered voluntary under traditional standards.”

Thus, because initiation remains bound up with the suspect’s waiver, and because the

majority holds that the initiation can occur through a third party, the majority’s opinion does indeed

give third parties an authority to act on the suspect’s behalf in bringing about the waiver of his

constitutional rights that those same third parties are not accorded when it comes to invoking the

suspect’s rights in the first place. Under the majority’s holding, the police may renew contact with

a suspect based on a third party’s representations that the suspect wants to talk without the aid of

counsel. In contrast, the police need not terminate their questioning based on a third party’s

representations that the suspect wants a lawyer. If the law demands that the suspect act on his own

in requesting a lawyer, then I cannot fathom why he is any less competent to act on his own in

rescinding that request, the necessary first step of which is initiating communication with the police.

II.

Having explained why allowing third-party initiations constitutes a departure from Edwards

and the Supreme Court’s custodial-interrogation jurisprudence generally, I turn now to the question

of whether, even if Edwards did not prohibit third-party initiations, there is sufficient evidence to

conclude that Van Hook initiated communication with the police through his mother.

The majority correctly notes that on habeas review, we presume that the factual findings of

the Ohio Supreme Court are correct. We may set aside those findings only if one of the eight

exceptions in 28 U.S.C. § 2254(d)(1)-(8) (the pre-AEDPA statute that governs our review) is

satisfied. Van Hook argues that subsection (8) applies because the record does not support the Ohio

Supreme Court’s factual determination that he initiated communication with the police through his

mother. I agree.

When Van Hook was apprehended by the Florida authorities on April 1, 1985, he invoked

his right to counsel. That same day, the Florida police officers alerted Cincinnati Detective William

Davis, who was in charge of the investigation into Self’s murder, that they had taken Van Hook into

custody. Detective Davis and his Homicide Squad colleague, Kerry Rowland, immediately flew to

Fort Lauderdale and went straight to the Broward County jail. There is no dispute that before he

began his interrogation, Detective Davis knew that (1) Van Hook had invoked his right to counsel,

(2) Van Hook himself did not contact either Cincinnati or Florida law-enforcement personnel to tell

them that he wanted to talk, and (3) Van Hook did not ask anyone else to contact Detective Davis

on his behalf to ask Detective Davis to come to the Florida jail. Despite these uncontroverted facts,

the majority concludes that it was entirely consistent with Edwards for Detective Davis to have

arranged for Van Hook’s transfer to an interrogation room at the Florida jail, and once there, to have

advised Van Hook that he and Detective Rowland “had a lot to talk to him about.” No Edwards

violation occurred, according to the majority, because on the day he flew to Fort Lauderdale,

Detective Davis spoke to Van Hook’s mother, who said something that made Detective Davis

believe that Van Hook wished to speak with him.

Here the problems with third-party initiations discussed in Part I come alive. All the record

establishes is that Detective Davis believed, after talking with Van Hook’s mother, that Van Hook

was willing to make a statement. We do not know what Van Hook’s mother said to Davis that

convinced Davis that Van Hook wanted to talk. We do not know, for instance, whether Van Hook’s
No. 03-4207 Van Hook v. Anderson Page 22

mother suggested to Davis that Van Hook would talk because (1) she had urged Van Hook to

cooperate with the police, (2) her familiarity with her son and his mental state led her to believe that

he wanted to talk, or (3) Van Hook unambiguously told her that he wanted to confess. Van Hook’s

mother may have misconstrued his comments, she may have been speaking out of her own

subjective beliefs and motivations, or she may have accurately reported Van Hook’s statements,

which may or may not have been sufficient to show Van Hook’s “willingness and [] desire for a

generalized discussion about the investigation.” Bradshaw, 462 U.S. at 1045-46. The point is that

we do not know because the record is silent on these issues.

Similarly, we do not know what Van Hook said to his mother that prompted her to tell

Detective Davis whatever she told him. Although Van Hook told Detective Davis in the Florida

interrogation room, “I talked to my Mom today an’ she jus’ told me, you know, be cooperative an’

jus’ tell the truth,” this statement tells us only what Van Hook’s mother recommended that he do.

It in no way establishes that Van Hook told his mother that he wanted to talk with the police, nor

does it establish that he asked his mother to inform the police of his desire to talk.

The faulty factfinding of the Ohio Supreme Court in concluding that the record supported

the proposition that Van Hook initiated communication through his mother did not go unnoticed by

the dissenting members of that court. Justice Wright aptly summarized his colleagues’ reasoning:

There is not a scintilla of evidence in the record to show that the appellant initiated

further discussion. The court justifies its holding by drawing one inference from

another. It infers that the appellant initiated further discussion from the inference

about what appellant’s mother supposedly stated to Officer Davis. This is guesswork

about facts which are not in the record. Such inference building undermines the

constitutional foundations upon which Bradshaw, Fields, and Edwards . . . are built.

Ohio v. Van Hook, 530 N.E.2d 883, 894 (1988) (Wright, J., dissenting).

I believe that the Ohio Supreme Court’s factual finding is not entitled to any deference from

this Court because the evidence is not sufficient to show that Van Hook initiated communication

with the police through his mother. Accordingly, I would grant Van Hook’s petition for habeas

relief. 

III.

In holding that custodial suspects may initiate communication with the police through a third

party other than his attorney, the majority today repudiates the only interpretation of Edwards that

is consistent with the Supreme Court’s custodial-interrogation jurisprudence. Applying its new rule,

the majority infers, based on evidence that is not in the record, that Van Hook initiated

communication with the police through his mother. Because I believe that the majority’s

endorsement of third-party initiations impermissibly heightens the risk of constitutional error, and

that such an error has occurred in this case, I respectfully dissent. 
No. 03-4207 Van Hook v. Anderson Page 23

_________________

DISSENT _________________

MERRITT, Circuit Judge, dissenting. Judge Cole’s opinion convinces me that once the

accused has invoked his right to counsel, as here, the police may no longer interrogate him unless

he either reinitiates interrogation himself directly or reinitiates interrogation through the counsel he

has requested. After the accused has requested counsel, the police should not be able to importune

him through relatives, friends, fellow inmates, prison guards or the press to subject himself to further

interrogation. The Supreme Court has been strict in its enforcement of the Edwards rule. 

Even if we permitted third party initiation, the State — at a minimum — would have to prove

that (1) after invoking his right, the accused himself initiated contact on his own through a third

person, (2) the third person contacted the police after the accused invoked his right, and (3) the

waiver of the previously invoked right did not arise because the police encouraged the third person

to convince the accused to break his silence and confess without counsel. The State has proved none

of these elements in this case. There is no basis in the record before us for concluding (1) that Van

Hook asked his mother to have the police contact him after he invoked his right, (2) that Van Hook’s

mother told the police that Van Hook had changed his mind after invoking his right and now wanted

to talk, or (3) that the claimed waiver did not involve police efforts to get Van Hook’s mother to

convince him to talk to them.

Detective Davis himself testified that neither Van Hook himself nor any third person on

behalf of Van Hook had asked for renewed police contact:

Q. And did you receive any information, either in your phone conversation with

Detective Moody or upon your arrival in Ft. Lauderdale indicating that Mr. VanHook

desired to talk to you?

A. No.

Q. So it’s fair to say that when you arrived in Ft. Lauderdale, all you knew at

that point was that Mr. Vanhook was in custody, is that correct?

A. Correct.

. . . .

Q. But you knew when you went into that interview room that he had in fact

requested to speak to an attorney, or indicated he would like to have an attorney

present before speaking with members of law enforcement, is that correct?

A. Yes, I was advised of that earlier by phone.

Q. When you left Cincinnati for Ft. Lauderdale, you knew that Mr. VanHook

had indicated that he did not wish to speak with police officers until after he had

consulted with an attorney, is that accurate?

A. I knew that he did not want to talk to police officers at that time. At the time

of his arrest.

Q. And at 9:35 [P.M.] on that April 1st then you advised him of his rights?
No. 03-4207 Van Hook v. Anderson Page 24

A. Correct.

Q. And this is after you advised him that you had a lot to talk about, he indicated

he had talked with his mother, and that he wished to talk to you at that time?

A. Yes, sir.

Q. And it’s your testimony today that he didn’t call or he didn’t have anybody

call you and say to come to the jail when you arrived in Ft. Lauderdale, that he

wanted to talk with you?

A. That’s correct.

(Emphasis added, App. 370-81, 3784, 3785-86.)

Detective Davis had several telephone and in-person conversations with Van Hook’s mother

while Van Hook was on the lam in Florida. It may be that Detective Davis told Van Hook’s mother

before the police found and arrested Van Hook that she should get Van Hook to turn himself in and

confess his crime. And it may be that when she talked to her son before and after he was arrested,

that she told him that Davis wanted to talk to him and that he should “tell the truth.” But there is

nothing in the record at all to suggest that after invoking his rights Van Hook reinitiated contact with

police through his mother. Detective Davis’ testimony is to the contrary. There is no fact or

reasonable inference from a fact that Van Hook’s mother even talked to the police after Van Hook

invoked his right to counsel.

The majority opinion appears to claim that all of the Ohio Supreme Court conclusions are

factual findings to which we are obligated to defer under § 2254(d)(8), title 28 (pre-AEDPA). This

rendition of our standard of review does away with the normal rule that the application of a

constitutional rule or standard to the facts is a mixed question of law and fact calling for de novo

review. See, e.g., Brown v. Allen, 344 U.S. 443, 507 (1953) (“Thus, so-called mixed questions or

the application of constitutional principles to the facts as found leave the duty of adjudication with

the federal judge”); Miller v. Fenton, 474 U.S. 104, 115 (1985) (“For several reasons we think it

would be inappropriate to abandon the court’s longstanding position that the ultimate question of

admissibility of a confession merits treatment as a legal inquiry requiring plenary federal review”).

This same standard of review is used in many other areas of constitutional review of state action.

See, e.g., Bose Corp. v. Consumers Union, 466 U.S. 485, 508 n. 27 (1984) (“The simple fact is that

First Amendment questions of ‘constitutional fact’ compel this Court’s de novo review”); Adams

v. Turner, 44 U.S. 590, 600 (Brandeis, J., dissenting); (“Ex facto jus oritur [the law arises out of the

fact]. That ancient rule must prevail in order that we may have a system of living law.”).

When we look at the record as a whole, including the police records showing contacts

between Cincinnati police and Van Hook’s family, and apply the constitutional rule to the facts, it

is clear that there was no contact between Cincinnati police and Van Hook’s mother or family on

the day of Van Hook’s arrest, or any reinitiation by Van Hook through anyone else.

Counsel for Van Hook reports in his brief pages 10-11 an “exhaustive examination” of police

records of all contacts with Van Hook’s family during their successful efforts to find him and have

him arrested in Florida:

An exhaustive examination of the Cincinnati Police Department’s file on

Robert Van Hook reveals no mention is made in 776 pages of police records, reports,

and notes (contained in the joint appendix) to any conversation between Van Hook’s

mother and police between the time Van Hook requested counsel and police

reinitiated interrogation in violation of Edwards. (Police Records, Apx. Vol. 14-15,
No. 03-4207 Van Hook v. Anderson Page 25

pp. 4780-5554).

The records of the Cincinnati Police Department detail conversations with

Van Hook’s mother on seven separate occasions: (1) Officer Davis has Detective

Weber call Van Hook’s mother on 2/26/85 (Id. at Vol. 14, pp. 4897, 5171);

(2) Officer Davis has Detective Weber call Van Hook’s mother on 3/5/85 (Id. at

4914); (3) Officer Davis has Michael Ramsey call Van Hook’s mother on 3/5/85

(Id.); (4) Van Hook’s mother calls Detective Weber on 3/11/85 (Id. at 4919, 5174);

(5) Officers Hennekes, Davis, and Rowland speak with Van Hook’s mother at her

house on 3/13/85 (Id. at 4922-24); (6) Officers Hennekes and Davis return to Van

Hook’s mother’s house and put tracer on her phone on 3/14/85 (Id. at 4928); and

(7) Officer Hennekes receives a call from Van Hook’s mother on 3/21/85 (Id. at

4935).

The Cincinnati police file indicates a subpoena was issued for Van Hook’s

mother’s phone records 3/7/85 (Id. at 4917). And Van Hook’s mother’s phone

records are included in the police file as well. (Id. at Vol. 15, pp. 5348-55). The file

also includes references to phone calls with Van Hook’s step-mother 3/6/85 (Id. at

Vol. 14, pp. 4930-31). Van Hook’s father 3/7/85 (Id. at 4931), and van Hook’s

uncles 3/7/85 (Id. at 4916). Yet, conspicuously absent from the 776 page file of the

Cincinnati Police Department is any mention of a conversation with Van Hook’s

mother on the day of his arrest.

The majority does not even mention these records, Detective Davis’ testimony or their effect on the

State’s claim that Van Hook reinitiated contact with the police through his mother. The majority’s

treatment of the case does not fall within any bright line rule based on Edwards, nor the more

general Edwards standard that we “should indulge every reasonable presumption against waiver of

fundamental constitutional rights” and that “doubts must be resolved in favor of protecting the

constitutional claim,” and that “it is the State that has the burden of establishing a valid waiver.”

Michigan v. Jackson, supra, 475 U.S. 625, 633 (1986), a case applying the reasoning of Edwards. The majority refuses to apply this standard or observe the admonition of the Supreme Court in

Michigan v. Mosley, 423 U.S. 96, 110 fn. 2 (1975):

[T]he reason to keep the lines of communication between the authorities and the

accused open when the accused has chosen to make his own decisions are not present

when he indicates instead that he wishes legal advice with respect thereto. The

authorities may then communicate with him through an attorney. More to the point,

the accused having expressed his own view that he is not competent to deal with the

authorities without legal advice, a later decision at the authorities’ insistence to make

a statement without counsel’s presence may properly be viewed with skepticism.
No. 03-4207 Van Hook v. Anderson Page 26

_________________

DISSENT _________________

BOYCE F. MARTIN, JR., Circuit Judge, dissenting. I join the well-reasoned dissents of

Judges Merritt and Cole. Both properly highlight the fundamental tenet of Edwards v. Arizona: that

once a suspect asserts his right to counsel, he cannot be subject to further interrogation “until

counsel has been made available to him, unless the accused himself initiates further communication,

exchanges, or conversations with the police.” 451 U.S. 477, 484-85 (1981) (emphasis added). 

I fully agree with the majority that when faced with an issue or set of circumstances that the

Supreme Court did not address in its original decision, we may modify, extend, or restrict its ruling.

I disagree with the majority, however, in its position that we may modify a ruling where the

Supreme Court has already provided explicit language to guide us. And Edwards clearly explains

that any re-initiation must be communicated by “the accused” to “the police.” 

To the extent that the majority’s holding could be a defensible interpretation of Edwards, any

arguments in its favor are completely undermined by the fact that its ruling is utterly impractical.

The majority fails to provide a workable rule of uniform application. The test set forth by Judge

Merritt in his dissent provides much more practical guidance for future panels of this Court and

district courts faced with the issue of third party initiation. There is no reason why this test cannot

at least inform future adjudication of cases involving this issue. Judge Cole’s concern for the

distinct probability of a suspect’s communications to third parties becoming “lost in translation”

further underscores the impracticality of today’s decision. The Court’s ruling does not merely

amount to further erosion of Miranda, but the creation of a legal framework that is doomed to breed

uncertainty and confusion.

For these reasons, I respectfully dissent.