Police in Maine can no longer guess if someone has waived their constitutional rights

By Marie Weidmayer, Bangor Daily News Staff

Police in Maine must be sure someone has waived their constitutional rights to a lawyer before continuing to question them, the state’s highest court ruled.

The ruling stems from a drug trafficking case in Penobscot County in 2020. Derric McLain was arrested and convicted of aggravated drug trafficking and violating conditions of release, but that conviction was overturned by the Maine Supreme Judicial Court, setting a new statewide precedent.

Police cannot continue questioning someone if their decision to waive their right to legal counsel was “ambiguous,” according to unanimous ruling from the supreme court justices. The court heard the case in 2022, before issuing the ruling this week. McLain has been in prison since 2021.

Under the Maine Constitution, people have a right against self-incrimination and are supposed to be informed about their right to legal counsel. The supreme court’s ruling gives people in Maine more protections for their civil rights, McLain’s attorney Hunter Tzovarras said.

In the case that led to the decision, McLain was read his Miranda rights by Maine Drug Enforcement Agency Agent Paul Gauvin, who then asked McLain if he wished to answer questions at the time. McLain said it “depends on the questions,” the 40-page opinion said.

Gauvin said it was a yes or no question and McLain asked if there was a lawyer at the Penobscot County Jail, where he was being held. There was not a lawyer there, said Gauvin and John Knappe, who is now Penobscot County Sheriff Office’s chief deputy.

McLain then asked what questions the men wanted to ask and they said it was about drug trafficking and six warrants for McLain, but they did not know details about the warrants, the opinion said. When asked again if he wanted to answer questions, McLain said it depends.

“Gauvin and Knappe did not clarify any further but immediately asked McLain about his heroin use and the details of that day’s drug run,” the opinion said.

Lower courts did not suppress the statements McLain made and found he had waived his right against self-incrimination. 

McLain retained his right against self-incrimination when he asked “Is there a lawyer here?” the justices said. 

Someone can waive their right to legal counsel but then ask, either “ambiguously or equivocally” for a lawyer while being interrogated in custody. If that happens, police “must either cease questioning or clarify the request to determine whether the individual is invoking the right to remain silent,” the ruling said.

McLain’s attorney, Tzovarras said the ruling gives Maine a higher standard in requiring police to be sure someone has waived their right to a lawyer. It also stops a prosecutor from using any incriminating statements the person made if it’s unclear whether they waived their rights.

Further questioning after an “ambiguous waiver,” of legal counsel creates an issue with second-guessing in hindsight, the opinion said.

“In practice, police can, and now in Maine must, simply clarify an ambiguous waiver instead of making a wrong guess,” the ruling said.

Maine’s highest court has previously said there is a distinction between someone who is uninformed of their constitutional rights and someone who fully understands they do not have a legal obligation to give evidence against themself. 

This is the first time the court addressed a person waiving or invoking their right to a lawyer during an in-custody interrogation.

The court has previously had “a strong commitment to ensuring that rights under the Maine Constitution are protected,” according to the opinion. It went on to say a waiver of legal counsel must be “voluntary, knowing and intelligent.”. 

Research shows people may use more ambiguous language when they feel intimidated or powerless, as may happen in an interrogation, the opinion said, citing at least six studies and opinions.

“Allowing interrogation to continue without clarifying a suspect’s intent contradicts natural human behavior and puts an individual’s constitutional rights at risk,” the opinion said.

The court said a waiver can be either spoken or in writing. It must be “clear and unequivocal, like we require for all waivers of constitutional rights,” the opinion said.

The U.S. Supreme Court has eroded the standards around when a person has waived a right to legal counsel, Maine’s justices said in the ruling. The federal court found statements made after a person ambiguously invokes their right to counsel can still be used. 

The federal court also said it was “good police practice” to clarify if the person was invoking their right to counsel, but imposing an obligation to stop questioning someone would undermine “the need for effective law enforcement,” the Maine opinion said.

“We have long held that the Maine Constitution provides greater protection against self-incrimination than that of the United States Constitution,” the opinion said.

The Office of the Maine Attorney General, which represented the state in the case, declined to comment.

The American Civil Liberties Union of Maine called it “landmark ruling” that strengthens people’s rights.

“Our rights are only meaningful if we can exercise them,” said Carol Garvan, legal director for the ACLU of Maine. 

“Though federal courts may continue eroding some of our most basic rights, it is essential that state courts embrace state constitutions to uphold our fundamental rights and freedoms,” she said.