County District Court No. 12CR2114 Honorable Robert L.
Cynthia H. Coffman, Attorney General, Gabriel P. Olivares,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Katherine
Brien, Deputy State Public Defender, Denver, Colorado, for
1 In Edwards v. Arizona, 451 U.S. 477, 484-85
(1981), the United States Supreme Court held that after a
suspect invokes his right to counsel during custodial
interrogation, the police may not subject him to further
interrogation unless he "himself initiates further
communication, exchanges, or conversations with the
2 This case presents the question of whether a suspect who
has so invoked his Fifth Amendment right to counsel may
reinitiate communication with the police through an agent,
here, the suspect's wife, or whether reinitiation can
occur only by direct contact between the suspect and the
police. No Colorado appellate court has addressed this issue.
3 Following the lead of every federal and state appellate
court that has decided this question to date, we hold that
reinitiation may occur through an agent, but we also conclude
that the police must have a reasonable belief that the
suspect has, in fact, requested the agent to reinitiate
contact between the suspect and the police.
4 Because the record here supports a finding that the police
had a reasonable belief that defendant, Ryan Matthew Cardman,
requested his wife to reinitiate contact with the police on
his behalf after he had invoked his right to counsel, we
discern no constitutional error in admitting his inculpatory
statements. Because we further conclude that defendant waived
his claim of voluntariness at the suppression hearing, and
discern no error in the trial court's admission of
certain statements, we affirm.
5 Defendant was convicted by a jury of multiple counts of
sexual assault on a child and sentenced to concurrent
indeterminate sentences of twelve years to life in prison.
6 When the victim was seven, she and her mother moved in with
defendant, her mother's then-boyfriend. The victim and
her mother lived with defendant for about a year, and then
the victim's mother became involved with another man,
whom she later married.
7 Several years later, the victim told her stepfather that
defendant had sexually assaulted her multiple times when she
lived with him. After the police were contacted, a forensic
interview of the victim was conducted. During her
video-recorded forensic interview, which was admitted at
trial, the victim alleged numerous instances of sexual
contact between her and defendant. The victim also testified
at trial that defendant had sexually assaulted her on
8 The police executed a search warrant on defendant's
home. They informed him the search was related to their
suspicion of inappropriate activity on the Internet. During
the search, they recovered a weapon.
9 Defendant was arrested on the charge of possession of a
weapon by a previous offender. He promptly exercised his
rights to remain silent and to counsel, and the police ceased
questioning. But two days later, a police detective conducted
another interview of defendant. An audio recording of
defendant's second police interview was admitted at
trial. In the interview, after initially denying any improper
sexual contact with the victim, defendant admitted to three
instances of sexual contact.
10 Before trial, defense counsel moved to suppress
defendant's inculpatory statements on the basis that
defendant had invoked his right to counsel and had never
reinitiated discussions with the police. The trial court
denied the motion after a suppression hearing, finding that
after the first interview but before the second interview,
defendant had communicated to the police through his wife a
general willingness to talk about the investigation.
11 On appeal, defendant contends the trial court erred by (1)
denying his motion to suppress on the grounds that he
reinitiated communication with the police; (2) failing to sua
sponte hold a hearing on the voluntariness of his confession;
and (3) admitting statements made by the detective.
Third-Party Reinitiation Under Miranda and
12 Defendant contends the district court erred by not
suppressing statements he made during his second custodial
interrogation because he had previously invoked his right to
counsel and did not himself reinitiate communication with the
police. The People respond that defendant
reinitiated contact with the police by directing a third
party to reinitiate the communication. We agree with the
Standard of Review
13 Review of a trial court's decision whether to suppress
a defendant's statements presents a mixed question of law
and fact. People v. Kutlak, 2016 CO 1, ¶ 13. We
defer to the court's findings of historical fact if they
are supported by sufficient evidence in the record,
People v. Rivas, 13 P.3d 315, 320 (Colo. 2000), but
we review de novo the court's ultimate legal conclusion -
its application of legal standards to the facts of the case,
id.; see also People v. Bonilla-Barraza,
209 P.3d 1090, 1094 (Colo. 2009). In this respect, whether
the facts found by the trial court show a reinitiation by
defendant of police discussions under Edwards is a
legal question that we review de novo. See, e.g.,
Holman v. Kemna, 212 F.3d 413, 417 (8th Cir. 2000).
In conducting this review, we may look only at the evidence
presented at the suppression hearing. People v.
Gomez-Garcia, 224 P.3d 1019, 1022 (Colo.App. 2009).
Reinitiation of Contact with the Police
14 Pursuant to the Fifth Amendment of the United States
Constitution and Miranda v. Arizona, 384 U.S. 436,
474 (1966), once a defendant who is in custody requests
counsel, all police-initiated interrogation must cease until
he has consulted an attorney.
15 But "[a] suspect's request for the assistance of
counsel is not irrevocable." People v.
Martinez, 789 P.2d 420, 422 (Colo. 1990). In
Edwards, the Supreme Court held that a suspect who
has invoked his right to counsel must not be "subject to
further interrogation by the authorities until counsel has
been made available to him, unless the accused himself
initiates further communication, exchanges, or conversations
with the police." 451 U.S. at 484-85; see
Martinez, 789 P.2d at 422.
16 In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the
Court attempted to explain when a suspect
"initiates" contact with the police within the
meaning of Edwards. A plurality of four justices
held that a defendant reinitiates communication with the
police where his comments "evince a willingness and a
desire for a generalized discussion about the
investigation" and are not "merely a necessary
inquiry arising out of the incidents of the custodial
relationship." Id. at 1045-46; see
Martinez, 789 P.2d at 422; People v.
Pierson, 670 P.2d 770, 775 (Colo. 1983).
17 According to the plurality, some inquiries,
such as a request for a drink of water or a request to use a
telephone . . . are so routine that they cannot be fairly
said to represent a desire on the part of an accused to open
up a more generalized discussion relating directly or
indirectly to the investigation. Such inquiries or
statements, by either an accused or a police officer,
relating to routine incidents of the custodial relationship,
will not generally "initiate" a conversation in the
sense in which that word was used in Edwards.
Bradshaw, 462 U.S. at 1045.
18 However, the Bradshaw plurality held the suspect
had reinitiated further conversation by asking an officer,
"Well, what is going to happen to me now?" because
that question, "[a]lthough ambiguous, . . . evinced a
willingness and a desire for a generalized discussion about
the investigation; it was not merely a necessary inquiry
arising out of the incidents of the custodial relationship.
It could reasonably have been interpreted by the officer as
relating generally to the investigation." Id.
19 The dissenting justices agreed that "to constitute
'initiation' under Edwards, an accused's
inquiry must demonstrate a desire to discuss the subject
matter of the criminal investigation."
Bradshaw, 462 U.S. at 1055 (Marshall, J.,
dissenting). The dissent, however, disagreed with the
plurality's application because, in its opinion, the
suspect's "question [could not] be considered
'initiation' of a conversation about the subject
matter of the criminal investigation, " but rather
expressed merely a desire "to find out where the police
were going to take him." Id. at 1055-56.
20 The Colorado Supreme Court has applied the
Bradshaw plurality's test to determine whether a
suspect has reinitiated communication with the police,
holding that "an accused must first initiate the
conversation with the police and by his comments must
'evince a willingness and a desire for a generalized
discussion about the investigation, ' and not merely
question the reasons for custody." Martinez,
789 P.2d at 422 (alteration in original) (quoting
Bradshaw, 462 U.S. at 1045-46).
21 The determination of whether a defendant's
communication constitutes reinitiation with the police must
be "based on the totality of the circumstances of the
case, 'including the background, experience and conduct
of the accused.'" People v. Redgebol, 184
P.3d 86, 99 (Colo. 2008) (quoting Martinez, 789 P.2d
22 Neither the United States Supreme Court nor the Colorado
Supreme Court has addressed whether a suspect can reinitiate
contact with the police under Edwards through a
third party. Nonetheless, other courts have addressed the
issue and "all support the validity of third-party
communications." Van Hook v. Anderson, 488 F.3d
411, 419 (6th Cir. 2007); see Henness v. Bagley, 644
F.3d 308 (6th Cir. 2011); Owens v. Bowersox, 290
F.3d 960 (8th Cir. 2002); United States v. Michaud,
268 F.3d 728 (9th Cir. 2001); Holman, 212 F.3d 413;
United States v. Gonzalez, 183 F.3d 1315 (11th Cir.
1999); United States v. Murphy, 133 F.Supp.3d 1306
(D. Kan. 2015); Ex parte Williams, 31 So.3d 670
(Ala. 2007); Killingsworth v. State, 82 So.3d 716
(Ala.Crim.App.2009), rev'd on other grounds sub nom.
Ex parte Killingsworth, 82 So.3d 761 (Ala. 2010);
State v. Yonkman, 297 P.3d 902 (Ariz. 2013);
Dixon v. State, 751 S.E.2d 69 (Ga. 2013);
Harvell v. State, 562 S.E.2d 180 (Ga. 2002); In
re Tracy B., 704 S.E.2d 71 (S.C. Ct. App.
23 The leading case on this issue, and the one relied on by
the trial court in its suppression order, is Van
Hook, 488 F.3d 411, a split en banc decision of the
Sixth Circuit. See, e.g., United States v.
Santistevan, 701 F.3d 1289, 1296 (10th Cir. 2012)
(Tymkovich, J., dissenting) (stating that Van Hook
contains "[t]he most elaborate discussion" of
24 In Van Hook, 488 F.3d at 418, eight of the
fifteen judges constituting the en banc court held that under
Edwards and Bradshaw, whether the
suspect's communication to the police "is direct or
indirect is immaterial - what is important is [that] the
impetus for discussion comes from the suspect himself."
There, the court ruled that the defendant had reinitiated
contact with the police via his mother because (1) the
detective spoke to the defendant's mother, who told the
detective she had spoken with her son; (2) "based on
that discussion, [the detective] thought that [the defendant]
might want to talk to him"; (3) the detective contacted
the defendant and told him he had talked with the
defendant's mother; and (4) the defendant confirmed to
the detective that he had talked with his mother and wanted
to make a statement. Id. at 426.
25 The Van Hook majority explained that
"permitting a suspect to communicate a willingness and a
desire to talk through a third party is consistent with the
interest protected by Edwards, " which is
preventing the police from "badgering defendants into
waiving their asserted right to counsel through repeated
questioning." Id. at 420 (citation omitted).
Prohibiting a suspect from initiating discussions with the
police through a third party would create "an artificial
rule" not required by the Fifth Amendment, which is
"not concerned with moral and psychological pressures to
confess emanating from sources other than official
coercion, " such as pressure from "friends or
family members who convince [suspects] to talk with the
police." Id. at 420-21 (citation omitted).
26 Noting the "importance of admissions of guilt in our
criminal-justice system, " the majority emphasized that
"[c]ourts must not create 'wholly irrational
obstacles to legitimate police investigative
activity.'" Id. at 421 (quoting Davis
v. United States, 512 U.S. 452, 460 (1994)).
27 Like Van Hook, decisions from other jurisdictions
have held that allowing reinitiation through a third party
does not violate Edwards because "the police
are still prohibited from reinitiating questioning, and the
impetus for reinitiation must still come from [the
suspect]." Williams, 31 So.3d at 683; see
also Michaud, 268 F.3d at 737 ("Edwards
and its progeny establish a clear line preventing police
initiation. By the same token, however, these cases recognize
that the [suspect] may change [his] mind and initiate
communication. It is a factual question whether that is what
28 The seven dissenting judges in Van Hook would
have held that only the suspect's (or his attorney's)
direct communication with the police may reinitiate
discussions after he has invoked his right to counsel. 488
F.3d at 428 (Cole, J., dissenting). The dissent argued that
"[i]n addition to eviscerating Edwards, the
majority's holding deviates from the clear import of the
. . . Court's jurisprudence on custodial
interrogations" by "endors[ing] the
counter-intuitive proposition that we may treat a suspect as
willing to talk to the police despite his silence to the
police." Id. at 429-30.
29 The dissent also noted that because a suspect cannot
invoke his right to counsel through a third party and "a
proper initiation . . . is indispensable to finding a valid
waiver" of the right to counsel, the majority's
holding created a "paradox": "[a] third party
who could not invoke the [suspect's] right to counsel may
nonetheless play a crucial role in bringing about the waiver
of that right." Id. at 435.
30 The Van Hook dissent further emphasized that the
majority's holding eroded the "'bright-line'
quality of the Edwards rule" that the Court has
cited as one of its chief benefits: "[t]he merits of the
Edwards decision . . . lies in the clarity of its
command and the certainty of its application."
Id. at 430-32 (alteration in original) (quoting
Minnick v. Mississippi, 498 U.S. 146, 151 (1990)).
According to the dissent, because of the potential
uncertainty and complexity in determining whether a third
party's communication to the police constitutes a
reinitiation by the suspect, the "hallmark
'clarity' and 'certainty of  application'
of the Edwards rule [would] be lost" under the
majority's rule. Id. at 432, 434-35 (alteration
in original) (quoting Minnick, 498 U.S. at 151).
31 We believe the majority's analysis in Van
Hook (and the other federal and state cases) holding
that, at least under some circumstances, reinitiation may
occur through a third party is compelling, and we apply that
32 In so doing, we reject defendant's argument that the
Court's language that reinitiation occurs only if
"the [suspect] himself initiates further
communication, exchanges, or conversations with the police,
" Edwards, 451 U.S. at 485 (emphasis added),
means literally that only the suspect may communicate to the
police that he wants to talk.
33 The Court in Edwards attempted to ensure that any
statement made by a suspect during custodial interrogation
was "not the result of coercive pressures" by
"prevent[ing] police from badgering [the suspect] into
waiving his previously asserted Miranda
rights." Minnick, 498 U.S. at 150-51 (citation
omitted); see also Van Hook, 488 F.3d at 420.
Edwards is based on the presumption that after a
suspect's invocation of the right to counsel, "any
subsequent waiver that has come at the authorities'
behest, and not at the suspect's own instigation, is
itself the product of the 'inherently compelling
pressures' [of custody and interrogation] and not the
purely voluntary choice of the suspect." Maryland v.
Shatzer, 559 U.S. 98, 104-05 (2010) (citation omitted).
34 But if a suspect reinitiates discussions with the police
by asking a third party to inform the police that he wants to
talk, there is no reason to assume that his subsequent waiver
of the right to counsel was the result of coercive pressures
or the badgering of the police. Under these circumstances,
the suspect "evince[s] a willingness and a desire for a
generalized discussion about the investigation, "
Martinez, 789 P.2d at 422 (citation omitted), and
subsequent police interrogation does not violate
35 Nonetheless, not all third-party communications to the
police regarding whether the suspect will talk to them
constitute "reinitiation" under Edwards.
The Van Hook majority, 488 F.3d at 424-25, held that
reinitiation of police discussions through a third party
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."
36 We believe we can maintain Edwards'
"'clear and unequivocal' guidelines to the law
enforcement profession, " Minnick, 498 U.S. at
151 (citation omitted), by applying a reasonableness standard
to the Van Hook majority's test for third-party
reinitiation. Because "[t]he reasonableness standard
provides law enforcement with a well-defined, common sense
rule, " the Court frequently applies the concept of a
"reasonable police officer" in its Fifth Amendment
jurisprudence. People v. Arroya, 988 P.2d 1124, 1131
(Colo. 1999) (citing Davis, 512 U.S. at 461).
37 For instance, the Court held in Davis that to
invoke the right to counsel during custodial interrogation, 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." 512 U.S. at
459 (emphasis added). The Court explained that "[t]o
avoid difficulties of proof and to provide guidance to
officers conducting interrogations, this is an objective
inquiry." Id. at 458-59.
38 Using this familiar "objective standard of a
reasonable police officer under the circumstances"
concept, Arroya, 988 P.2d at 1131, in conjunction
with the Sixth Circuit's concept of "a sufficient
basis for believing [the] validity" of the third
party's communication to the police, Van Hook,
488 F.3d at 425, provides the protection necessary to avoid
any evisceration of Edwards.
39 We thus hold that to establish that a suspect has
reinitiated discussions with the police after previously
invoking his right to counsel, the prosecution must show that
(1) the police reasonably believed that the suspect directed
a third party to inform them that he wanted to have "a
generalized discussion about the investigation, "
Martinez, 789 P.2d at 422 (citation omitted); and
(2) the police confirmed with the suspect that he had so
40 Both prongs of this test must be proven to establish
reinitiation. If the prosecution does not sufficiently
establish the first prong, the fact that the suspect may have
agreed to talk to a police officer after the officer
"confirmed" the suspect's willingness to talk
does not cure this failure. Once the police contact the
suspect, some of the protection of Edwards is
already lost. Without sufficient reinitiation by the suspect,
we cannot assume that the suspect's ultimate agreement to
talk to the police is voluntary and not the result of the
police "tak[ing] advantage of the mounting coercive
pressures of 'prolonged police custody' by repeatedly
attempting to question a suspect who previously requested
counsel until the suspect is 'badgered into
submission.'" Shatzer, 559 U.S. at 105
41 Regarding the third party's representations of the
content of the suspect's communication with the third
party, the prosecution must establish that the suspect's
"comments . . . 'evince[d] a willingness and a
desire for a generalized discussion [with the police] about
the investigation.'" Martinez, 789 P.2d at
422 (quoting Bradshaw, 462 U.S. at 1045-46).
42 The evidence at the suppression hearing consisted of
testimony by the detective who conducted both interviews with
defendant. The detective testified that after the
victim's forensic interview, the police obtained a search
warrant for defendant's house and informed defendant
during the search that the warrant was based on some
suspicions that he had engaged in inappropriate activity or
conduct on the Internet. During the execution of the warrant,
the police found a handgun. Because defendant had a prior
felony conviction, the detective asked defendant and his wife
to come to the police station to discuss the gun.
43 The detective testified that the nature of the interview
with defendant at the police station was, "[i]nitially,
to discuss the finding of the weapon and him being a previous
offender." He advised defendant of his Miranda
rights, and defendant said that he understood them. He then
asked defendant if he wished to talk to him, and defendant
replied that he did not. Defendant then requested counsel and
the interview ended, at which point defendant was arrested
and taken into custody on the weapon offense.
44 Regarding the events that led up to the interview two days
later at the jail, the detective testified that a Department
of Human Services (DHS) caseworker had been in contact with
defendant's wife regarding interviewing the couple's
children. The detective testified that he had learned from
the caseworker that "[defendant] and [defendant's
wife] had questions." According to the detective's
testimony, he called defendant's wife, and "[i]n
conjunction with that phone call, he learned that both
[defendant] and [defendant's wife] had questions about
45 At the suppression hearing, the following colloquy between
the prosecutor and the detective occurred:
Q. [Prosecutor:] Okay. So I want to talk to you, then, about
the conversation that you had with [defendant's wife]
where she's indicating that [defendant and his wife] had
some questions. What did she say to you to indicate that
there were some additional questions about the investigation?
A. [Detective:] It was centered around the basis for the
police department and DHS still being involved with them and
the children and the reasons behind forensic interviews and
justifications for that.
Q. And how did [defendant's wife] indicate to you that
[defendant] wanted to speak to you as well about these
A. I don't recall her exact words, but I had the
understanding that she had been in conver --she had been in
contact with [defendant]. And [the DHS caseworker] advised me
that they - [both defendant and his wife] had questions about
the investigation and the reasons why we were still involved
specifically with the children.
. . .
Q. So the information that you had received was that
[defendant's wife] had been in contact with [defendant]
and that they had some questions about -- both of them
separately had some questions about what was going on with
the investigation with regard to the children; is that
46 On cross-examination, the detective confirmed he had
received the information from not only the caseworker but
also defendant's wife: "Q[:] [At] [s]ome point you
receive information, between June 6th and June 8th, from --
directly from [defendant's wife] or through a third party
that [defendant] wanted to -- was willing to speak to you
about some questions he had? A[:] Both."
47 The detective testified consistently on this point,
stating during redirect examination that he made defendant
aware, during the first interview, "that there was some
interest in an Internet investigation or something related to
the Internet." The following then took place:
Q. And it was after that time and after he had that awareness
or you had made those statements that you received
information that he wanted to speak with you?
Q. And that information, again, came from [defendant's
48 In our view, the detective had a reasonable basis for
believing that defendant had directed his wife (and also the
caseworker) to inform the detective that defendant wanted to
have a generalized discussion about the investigation. He
knew that defendant and defendant's wife were married,
had previously been in contact with both of them, and
understood that they had been in contact with one another
after the first interview. The detective's testimony was
clear that defendant's wife informed him that defendant
had questions about the investigation. Further, the detective
knew the DHS caseworker had also been in contact with
defendant after the first interview, and she also informed
him that both defendant and his wife had questions about the
49 Turning to the second step - whether the police confirmed
the information with the suspect - the detective testified
that after learning that defendant had questions about the
investigation, he called defendant at the jail and confirmed
that defendant indeed desired to speak with him:
Q. And when you made a phone call to talk to him, your
testimony previously was you said you received information
that he wanted to speak with you?
Q. And he confirmed that that was, in fact, the case?
. . .
Q. But you initiated that contact because [defendant's
wife] said, "He wants to talk to you"?
50 We conclude that defendant "adequately evinced a
willingness and a desire to" reinitiate communication
with the police through a third party because the detective
received information that defendant had questions about the
investigation, there was a reasonable basis for believing the
validity of that information, and the detective ...