Robert J. VAN HOOK, Petitioner-Appellant, v. Carl S. ANDERSON, Warden, Respondent-Appellee, 488 F.3d 411

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. 428-37), delivered a separate dissenting opinion, in which MERRITT, MARTIN, DAUGHTREY, MOORE, CLAY, and GILMAN, JJ., joined. MERRITT (pp. 437-40) and MARTIN (pp. 440-41), JJ., also delivered separate dissenting opinions, with MARTIN, DAUGHTREY, MOORE, COLE, and CLAY, JJ., joining in Judge Merritt’s dissent. 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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The suspect asks for a lawyer. Under Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (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 Selfs 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 Selfs body, exposing several internal organs. At one point, he tried to pierce Selfs 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 Selfs 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. 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 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, 39 Ohio St.3d 256, 530 N.E.2d 883 (1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1578, 103 L.Ed.2d 944 (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 m 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, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). A “high measure of deference” is owed to the factual findings of state courts. Sumner v.

Mata, 455 U.S. 591, 598, 102 S.Ct. 1303, 71 L.Ed.2d 480 (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, 116 S.Ct. 457, 133 L.Ed.2d 383 (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.”). Ill 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, “[fjreedom 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, 95 S.Ct. 2525, 45 L.Ed.2d 562 (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, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (citations omitted). “[T]he advent of modern custodial police interrogation brought with it an increased concern about confessions obtained by coercion.” Id. at 434-35, 120 S.Ct. 2326 (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, 120 S.Ct. 2326 (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 interrogation 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, 108 S.Ct. 2093, 100 L.Ed.2d 704 (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, 114 S.Ct. 2350 (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, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (internal quotation marks and brackets omitted); see also North Carolina v.

Butler, 441 U.S. 369, 374, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (“Without proper safeguards the process of in-custody 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, 108 S.Ct. 2093, and “conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness,” Minnick v.

Mississippi, 498 U.S. 146, 151, 111 S.Ct. 486, 112 L.Ed.2d 489 (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, 105 S.Ct. 490 (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.

He has, therefore, waived the right to challenge this holding. Fed. R.App. P. 28; Dixon v. Ashcroft, 392 F.3d 212, 217 (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, 101 S.Ct. 1880. 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, 108 S.Ct. 2093. 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, 101 S.Ct. 1880; 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, 121 S.Ct. 1335, 149 L.Ed.2d 321 (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, 108 S.Ct. 2093 (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, 114 S.Ct. 2350 (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, 120 S.Ct. 2326. 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, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983)). There is nothing inherent in “showing] 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 eommunication.

Another way is by person-to-person-to-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.

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, 123 S.Ct. 553, 154 L.Ed.2d 455 (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. 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 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, 123 S.Ct. 271, 154 L.Ed.2d 113 (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, 120 S.Ct. 996, 145 L.Ed.2d 943 (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, 275 Ga. 129, 562 S.E.2d 180(Ga.), cert. denied, 537 U.S. 1052, 123 S.Ct. 606, 154 L.Ed.2d 528 (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 ease, 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, “[Tjhere 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, 107 S.Ct. 1931, 95 L.Ed.2d 458 (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, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (“The sole concern of the Fifth Amendment ... is governmental coercion.” (emphasis added)); see also Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) (“[T]he danger of coercion results from the interaction of custody and official interrogation.”); Michigan v.

Harvey, 494 U.S. 344, 353, 110 S.Ct. 1176, 108 L.Ed.2d 293 (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, 106 S.Ct. 1404 (“We thus hold that, if police initiate interrogation after a defendant’s assertion, at an arraignment 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, 107 S.Ct. 515 (emphasis added, internal quotation marks omitted); see also Perkins, 496 U.S. at 296-97, 110 S.Ct. 2394 (“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, 107 S.Ct. 1931 (“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, 121 S.Ct. 1335.

Both the majority and the dissent in Minnick noted the importance of admissions of guilt in our criminal-justice 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, 111 S.Ct. 486 (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, 111 S.Ct. 486 (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, 114 S.Ct. 2350 (quoting Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975)). Cf. Moran v.

Burbine, 475 U.S. 412, 424, 106 S.Ct. 1135, 89 L.Ed.2d 410 (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, 108 S.Ct. 2093 (quoting Fare v.

Michael C., 442 U.S. 707, 718, 99 S.Ct. 2560, 61 L.Ed.2d 197 (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 ): Minnick, 498 U.S. at 151, 111 S.Ct. 486 (quoting Fare, 442 U.S. at 718, 99 S.Ct. 2560); see also Roberson, 486 U.S. at 681, 108 S.Ct. 2093 (emphasizing the virtues of a bright-line rule); Smith, 469 U.S. at 94-95, 105 S.Ct. 490 (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. [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 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. 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. 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. 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 flaw” in the proposition that any suspect would actually communicate indirectly what could be communicated directly. Judge Cole’s Dis. Op. at 433. 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. 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 432. 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 434. 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 434.

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 434. 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 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, 103 S.Ct. 2830 (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 reinter-rogation 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, 103 S.Ct. 2830, 103 S.Ct. 2830 (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....”); Wemert v.

Am, 819 F.2d 613, 615 (6th Cir.1987). The symmetrical opposite of invoking the right to counsel, Judge Cole’s Dis. Op. at 434, 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, 103 S.Ct. 2830 (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 434, or otherwise “rescind[ ] th[e] request” for counsel, id. at 434. 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. 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, 103 S.Ct. 2830. 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.

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, 102 S.Ct. 1303; 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)(l)-(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 “substituye] its view of the facts for that of the [state] [e]ourt.” Wainwright v. Goode, 464 U.S. 78, 85, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983); see also Patton v.

Yount, 467 U.S. 1025, 1040, 104 S.Ct. 2885, 81 L.Ed.2d 847 (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 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.) 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. 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 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. 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, 103 S.Ct. 2830) 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, 103 S.Ct. 2830). 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. . In 1985, the officers did not have the benefit of the Supreme Court’s decision in Davis v.

United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), when the Court made clear that a suspect in custody must "unambiguously request counsel,” id. at 458, 114 S.Ct. 2350, and that "maybe I should talk to a lawyer” is not an unequivocal request, id. at 462, 114 S.Ct. 2350. 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. .

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, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). . 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. . The Supreme Court held in Dickerson that Miranda announced a “constitutional rule that Congress may not supersede legislatively.” 530 U.S. at 444, 120 S.Ct. 2326.

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, 124 S.Ct. 2620, 159 L.Ed.2d 667 (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, 123 S.Ct. 1994, 155 L.Ed.2d 984 (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 '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, 123 S.Ct. 1994 (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, 121 S.Ct. 1335 (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. . 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 three-week 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. . In Michigan v.

Jackson, the Supreme Court applied Edwards to the Sixth-Amendment context. 475 U.S. 625, 636, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). . 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 430-31, 433. 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, 103 S.Ct. 2830 (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. .

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, 110 S.Ct. 1176, by communicating through a third party, courts have no business negating that communication. .

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, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). . This is clear when, as here, the subsequent discussion between the suspect and the police is not "wholly one-sided.” Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. 1880.

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, 101 S.Ct. 1880. . Nor does our holding today ask “too much” of law enforcement. Judge Cole’s Dis. Op. at 435.

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? .

Following 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. .

There 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. . In 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.