Kenneth J. Kohler, Nobles County Attorney, 912 Third Avenue, P.O. Box 607, Worthington, MN 56187 (for Appellant)

Charles L. Hawkins, 2890 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.^**

Retired judges of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.

The State of Minnesota appeals from a pretrial order suppressing respondent Jose Luis Casillas's confession. We affirm.

At the police station, Casillas was given a Miranda warning through an interpreter, and he agreed to talk with an officer. Casillas denied involvement in any sale of cocaine and indicated he wished to speak with a lawyer. The officer thereupon terminated the interview.

On December 23, 1996, Casillas was formally charged with first- and second-degree controlled substance crimes for the sales of cocaine. That same day, Casillas confessed that the cocaine found by the search warrant was his. Based on the confession, the state amended the complaint, charging Casillas with another first-degree controlled substance crime for possession.

Casillas subsequently moved to suppress the confession, arguing the police initiated contact in violation of his Miranda right to counsel. Based on the testimony of Officer Kenneth Kerkaert, the district court refused to suppress the confession. The court found that Casillas initiated contact through codefendant Martinez.

Casillas moved to re-open his motion to suppress based on new evidence. At a second hearing, Jailer Shannon Bass and Casillas testified. The district court then reversed itself and granted the motion to suppress the confession. The court found Casillas only agreed to talk to Officer Kerkaert after Kerkaert ordered Jailer Bass to place Casillas and Martinez together in violation of jail policy and only after Bass asked both if they wanted to speak with police--the answer to which came only from Martinez. The court concluded that the inescapable inference is that Martinez, not Casillas, instigated the second contact with police that produced Casillas's confession. The court concluded that

[t]he police cannot do indirectly (through a codefendant) what they cannot do directly--re-initiate contact with a defendant after that person requested counsel and before counsel was provided.

The state appeals.

In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), the United States Supreme Court declared that the Fifth Amendment creates a right to counsel in connection with custodial interrogations. Edwards v. Arizona, 451 U.S. 477, 481-82, 101 S. Ct. 1880, 1883 (1981). Once a defendant invokes the right to counsel, police may not initiate interrogation unless counsel is present or unless the defendant initiates further communication with the police. Id. at 484-85, 101 S. Ct. at 1884-85.

In this case, Casillas invoked his right to counsel at his first interrogation. The record shows codefendant Martinez then spoke with Officer Kerkaert. Kerkaert stated that Martinez told him Casillas wanted to speak with him. Casillas testified at the second omnibus hearing, however, that he never told Martinez he wanted to speak with Kerkaert. The district court concluded that, because jail policy required codefendants be separated after arrest, Casillas could not have told Martinez he wanted to speak with Kerkaert.

After speaking with Martinez, Kerkaert told Jailer Bass to bring Casillas to the holding room so Martinez could talk to Casillas. Casillas testified Martinez told him he was worried about his pregnant wife because she was not eating while in custody. Bass then asked both if they wanted to talk with Kerkaert. Bass testified Martinez said yes. Bass took that to mean both wanted to talk. Bass testified he never asked Casillas if he wanted to talk to Kerkaert. Casillas, however, on cross-examination by the court, testified he answered yes to Bass's question.

Based on the record, we cannot conclude the district court clearly and unequivocally erred in concluding the police re-initiated contact with Casillas through Martinez. Cf. Maine v. Moulton, 474 U.S., 159, 179-80, 106 S. Ct. 477, 489 (1985)

(holding police use of codefendant to elicit evidence from defendant violated Sixth Amendment right to counsel). Because of our ruling, we do not reach the issue of whether Casillas's waiver was knowing and voluntary.

Affirmed.