Opinion of the Court
After our original decision in this case, United States v. Goodson,
As directed by the Supreme Court, we have now reevaluated the case in light of the Smith decision. Also, we have considered subsequent decisions of this Court which involve the applicability of Edwards v. Arizona,
Gоodson initially was apprehended by Sergeant Faron Slye, who had arrived at the crime scene to assist another military policeman in apprehending nine soldiers suspected of possessing illegal drugs. Appellant was then taken to the military police investigators’ offices for “processing.” Almost immediately hе voiced a request for an attorney; but, in response, Slye stated “that all” he was going to do was read him his rights аnd fill out a field interview sheet. Slye then recorded certain information about Goodson on the field-interview worksheet; and again appellant asked to see a lawyer. Slye told him that the request had been rеferred to the investigator on duty, MPI Allinder.
These events occurred about 2:30 a.m. on February 28, 1981; but because therе were a large number of suspects, appellant waited until about noon before Allinder interviewed him. Mеanwhile, about daybreak,
When Allinder finally interviewed appellаnt, he used an Army Form 3881 (Rights Warning Procedure/Waiver Certificate) to advise Goodson of his rights. Thereupon, appellant waived his right to remain silent and to have counsel present and made a statement admitting abuse оf a controlled substance. Appellant did not ask Allinder if he could see an attorney or mention that рreviously he had asked for a lawyer. At trial, Goodson testified that, when he was interviewed by Allinder, he had not requеsted an attorney because he did not believe that he would be able to speak with one “[b]ecause it was already denied to me, two or three times.”
When this Court made its original decision, the lead opiniоn took the position that Goodson’s various requests for an attorney — made prior to his interview by MPI Allinder — were inoperative to bring Edwards v. Arizona, supra, into play. Upon reexamining the facts, we now are persuaded that this opinion gave excessive weight to subsequent events and too little weight to the close relationship betweеn the events that occurred before Goodson requested counsel and the interview which took place later that day. Implicit in Sergeant Slye’s action advising appellant of his rights and preparing the field-interview sheet was a determination that appellant was a suspect and would be interviewed cоncerning the drug offenses. Goodson was in custody and had addressed three requests for counsel to the person in apparent authority.
Under these circumstances, it is artificial to draw a distinction between the formal interview with Allinder and these events which led up to it. Even if under some other cirсumstances a request for counsel made prior to the commencement of interrogation might not bring Edwards v. Arizona, supra, into play, we have no doubt that here appellant’s requests had this effect.
When Goodson was interviewed by MPI Allinder, he did not request a lawyer or mention his earlier request for an attorney. However, as the Supreme Court has made clear in Smith v. Illinois, supra, this later conduct did not render ambiguous or inoperative the original request for counsel. Instead, once that request had been made, it retained its effect, until the suspect “initiated” a discussion of the offense as to which he was being interviewed. See Oregon v. Bradshaw,
When this case was originally considered, appellate government counsel urged us to hold that any error in admitting appellant’s statement to Allinder was harmless because subsequently he confessed to his company commander, Captain Fox, after receiving appropriate warnings of his rights. Captain Fox testified that, although she was aware that appellant had been apprehended, she did not know that he had made a statement or asked for an аttorney. Because the Court of Military Review did not determine whether the statement to Captain Fox might be admitted despite the inadmissibility of the statement given to MPI Allinder,
Notes
. Slye testified that he informed Allinder of appеllant’s request, but Allinder stated that he did not remember being so advised. We need not resolve this difference because it is clear that Allinder had been up for a considerable period of time and may either not have heard Slye’s remark or have forgotten it.
. Cf. Oregon v. Elstad,
. See also United States v. Reeves,