by David Kim

The Supreme Judicial Court of Maine held that waiver of the privilege against compelled self-­incrimination under article I, section 6 of the Maine Constitution must be “clear and unequivocal,” and under this standard, the defendant did not waive his privilege because his responses during the Miranda advisement were ambiguous and required clarification by law enforcement before questioning could proceed, which did not occur.

Background

On June 11, 2020, Maine Drug Enforcement Agency (“MDEA”) agents, acting on a tip from a confidential source at a Hampden vehicle rental facility, suspected Calvin Vandine of drug trafficking based on his pattern of renting vehicles for short periods while driving hundreds of miles. Agent Patricia McLaughlin, familiar with Vandine’s drug use and associations, corroborated the tip through police databases and learned that Vandine had returned a rental vehicle and departed with a companion matching the description of a known drug trafficker. Corporal Thomas Fiske stopped Vandine’s vehicle near Edinburg at McLaughlin’s request. The passenger, who initially identified himself as Kyle Bouchard but was later recognized as Derric McLain, possessed a container of methylenedioxyamphetamine, and a hypodermic needle was visible in the console. A search of the vehicle yielded 94 grams of fentanyl. McLain had outstanding arrest warrants, including for drug trafficking. The stop lasted approximately 28 minutes.

McLain and Vandine were arrested and transported to the Penobscot County Jail. There, MDEA Agent Paul Gauvin advised McLain of his Miranda rights, which McLain acknowledged understanding. When asked if he wished to answer questions, McLain replied, “Depends on the questions,” and inquired, “Is there a lawyer here?” The agents responded no and, without further clarification, proceeded to question McLain about his drug use and the events of that day. McLain again stated, “That depends, obviously,” but answered the questions posed.

McLain moved to suppress evidence from the traffic stop and his custodial statements. The suppression court denied the motion in full, concluding that the stop was supported by reasonable articulable suspicion of drug activity and not unreasonably prolonged and that McLain had waived his privilege against self-­incrimination through a selective waiver. After a jury trial, McLain was convicted of aggravated drug trafficking and violation of a condition of release. McLain timely appealed.

Analysis

The Court began its analysis by affirming the suppression court’s denial of the motion as to the traffic stop and search. It concluded that law enforcement possessed reasonable articulable suspicion of drug trafficking sufficient to justify both initiating and prolonging the stop for approximately 28 minutes, based on the totality of corroborated facts, including Vandine’s rental patterns, drug history, associations, and companion, imputed collectively to the officers. The duration was reasonable to allow the lead investigator’s arrival and did not ripen into a de facto arrest.

The Court then turned to the privilege against compelled self-­incrimination issue. Article I, section 6 of the Maine Constitution provides that “[i]n all criminal prosecutions, … [t]he accused shall not be compelled to furnish or give evidence against himself or herself….” Me. Const. art. I, § 6. In interpreting this provision, the Maine Supreme Court applies a primacy approach, analyzing state constitutional claims before federal ones because federal decisions establish only a constitutional minimum. Athayde; State v. Caouette, 446 A.2d 1120 (Me. 1982) (“[F]ederal decisions do not serve to establish the complete statement of controlling law but rather to delineate a constitutional minimum or universal mandate for the federal control of every State.”); see Oregon v. Hass, 420 U.S. 714 (1975) (“[A] State is free as a matter of its own law to impose greater restrictions on police activity than those [the United States Supreme Court] holds to be necessary upon federal constitutional standards.”). Consequently, the Court analyzed McLain’s claim under the Maine Constitution, i.e., the primacy approach.

The Court had to resolve the following specific issue: “whether a waiver of constitutional rights after law enforcement’s recitation of warnings concerning the rights or after an invocation of such rights must be explicit before a law enforcement officer may interrogate a suspect in custody.” In fact, the Maine Supreme Court has not ruled on whether a recitation of rights must be provided prior to a custodial interrogation under the Maine Constitution nor has it addressed the issue of to what extent a waiver or invocation must be explicit in connection with a custodial interrogation. See State v. Athayde, 277 A.3d 387 (Me. 2022). However, the Court noted that case law “provides helpful guidance.”

Maine Precedent

Maine precedent requires that waivers of constitutional rights be voluntary, knowing, and intelligent, with every reasonable presumption against waiver. State v. Watson, 900 A.2d 702 (Me. 2006). The privilege against compelled self-­incrimination requires exclusion of custodial statements unless the suspect freely and knowingly chooses to provide self-­incriminating utterances. State v. Collins, 297 A.2d 620 (Me. 1972). Although the Maine Supreme Court has not ruled on how explicit a waiver or invocation of the privilege must be, the Court stated that precedent in “other contexts is illuminating.”

Generally, invocations need not be explicit. For example, a grand jury witness effectively invoked the privilege by refusing to answer questions without explicitly stating reliance on it. Gendron v. Burnham, 82 A.2d 773 (Me. 1951). In rejecting a claim of a waiver of First Amendment rights, the Maine Supreme Court instructed that while it “is well settled that a party may waive its constitutional rights, … that waiver must be clear and unequivocal.” Verizon New Eng., Inc. v. Pub. Utils. Comm’n, 866 A.2d 844 (Me. 2005). The Court explained that relevant precedent “suggests that invocations of a constitutional right need not be explicit before interrogators must stop to clarify whether suspects are in fact waiving or invoking their constitutional rights.”

History and Common Law

Lacking definitive guidance from constitutional text or precedent, the Court examined the historical roots of the state’s privilege against compelled self-­incrimination, which pre-­dated the 1820 state Constitution and derived from common law principles. State v. Gilman, 51 Me. 206 (1862) (“That no one is bound to accuse or betray himself”). Article I, section 6 of the Maine Constitution is understood to have “crystallized into [an] absolute guarant[ee]” of this common law right. Gendron. Historically, the privilege was recognized when defendants were not allowed to testify at trial and questioning was conducted by magistrates, who would warn suspects to ensure statements were voluntary. Gilman. The Court stated that the privilege’s practical significance increased when Maine became the first jurisdiction to grant defendants the right to testify. P.L. 1859, ch. 104; see State v. Bartlett, 55 Me. 200 (1867). The Legislature later expanded the right to explicitly bar comment on a defendant’s silence. P.L. 1879, ch. 92.

The Court explained that the privilege reflects a “high priority commitment” to the principle that a person’s testimonial self-­condemnation is excluded “unless” the privilege is “freely and knowingly” waived, ensuring self-­incriminating statements are truly voluntary. Consequently, the Maine Constitution is held to provide greater protection against self-­incrimination than the U.S. Constitution, according to the Court. Specifically, Collins rejected the federal standard of voluntariness in Lego v. Twomey, 404 U.S. 477 (1972), and held that the prosecution must prove beyond a reasonable doubt that a confession is voluntary under the Maine Constitution. The Court stated that this elevated standard stems from concentrating on the “primacy of the value” of safeguarding “the right of an individual … not to be compelled to condemn himself by his own utterances,” a value “endowed with the highest priority by being embodied in a constitutional guarantee.” Collins; State v. Akers, 259 A.3d 127 (Me. 2021). Thus, this history reinforces the necessity of reciting rights and obtaining a clear waiver of the privilege before a suspect is interrogated, according to the Court.

Economic and Sociological Considerations

The Court then stated that in analyzing the scope of constitutional protection, courts must consider public policy and resolution of values at stake. Winchester v. State, 291 A.3d 707 (Me. 2023). The Court cited sociological research that demonstrates individuals under custodial interrogation often express their rights through ambiguous speech patterns, such as asking about a right, using indirect or tentative language (modal verbs), or hedging, due to feeling intimidated or powerless. This nonstandard or equivocal communication is more common among individuals with lower socioeconomic status, juveniles, people of color, immigrants, or women. As recognized in Davis v. United States, 512 U.S. 452 (1994) (Souter, J., dissenting), social science confirms that intimidated individuals are more likely to speak equivocally when clear assertion is intended. This body of research compels the conclusion that courts cannot assume an ambiguous response is not an assertion of the privilege, the Court declared. Allowing interrogation to continue without clarifying a suspect’s intent contradicts natural human behavior and jeopardizes constitutional rights. Therefore, the Court determined that this policy analysis strongly supports requiring an explicit waiver and mandating that police stop to clarify if a suspect ambiguously waives or invokes the privilege.

Precedents From Other Jurisdictions

Finally, the Court examined precedents from other jurisdictions. It noted that the U.S. Supreme Court established Fifth Amendment safeguards to protect the privilege against compelled self-­incrimination during custodial interrogation, requiring that suspects be informed of their rights, including the separate right to counsel during questioning. Miranda v. Arizona, 384 U.S. 436 (1966); Florida v. Powell, 559 U.S. 50 (2010); see State v. Figueroa, 146 A.3d 427 (Me. 2016). The U.S. Supreme Court originally held that if a suspect “indicates in any manner” a wish to remain silent, interrogation must cease. Miranda. Under federal law, the prosecution must establish a knowing, intelligent, and voluntary waiver of Miranda rights by a preponderance of the evidence. State v. Coombs, 704 A.2d 387 (Me. 1998).

Over time, the U.S. Supreme Court eroded its original Miranda standards regarding the invocation and waiver of the privilege against compelled self-­incrimination. The shift began with ambiguous invocations of the right to counsel. In Davis, the Supreme Court concluded that if a suspect’s request for counsel is ambiguous, subsequent statements are still admissible because police are under no obligation to stop questioning. The Davis Court reasoned that mandating a clarification requirement would undermine “effective law enforcement.” While acknowledging that clarifying an ambiguous request is “good police practice,” Davis deemed it not constitutionally required.

This narrowing of protections continued in Berghuis v. Thompkins, 560 U.S. 370 (2010), in which the Supreme Court extended the “unambiguous” requirement to the right to remain silent. In a major shift from earlier precedent, Thompkins concluded that a defendant’s silence could amount to an implied waiver of the right, reasoning that there is “no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel.” Consequently, federal law under Thompkins no longer requires an explicit and unambiguous waiver before interrogation can begin. Instead, a suspect who wishes to invoke the right to remain silent must do so unambiguously. This modification was justified by the Thompkins Court as necessary to avoid placing a “significant burden on society’s interest in prosecuting criminal activity.”

The Court noted that the Justices dissenting from the majority opinions in Davis and Thompkins criticized the requirement for suspects to invoke Miranda rights unambiguously, arguing the rule fails to provide a bright line for police. They noted that the majority’s standard leads to judicial “second-­guessing” over whether an invocation was clear or ambiguous, a problem police could easily resolve by simply stopping to clarify the suspect’s intent.

Specifically, in his concurring opinion in Davis, Justice Souter warned that allowing interrogation to continue after an attempted, but ambiguous, invocation risks leading a suspect to view further objection “as futile,” compelling a confession as the only way to end the questioning. In her dissenting opinion in Thompkins, Justice Sotomayor argued that deeming a suspect’s silence to constitute an implied waiver of the right to remain silent is inconsistent with precedent and undermines the core purpose of the Miranda warnings. Finally, addressing the majority’s concern that requiring explicit invocation would burden effective law enforcement, Justice Sotomayor countered that “our system of justice is not founded on a fear that a suspect will exercise his rights.”

The Court then examined cases from other states. Several of them interpret their constitutions as requiring more robust protection than the federal standard, mandating that if a suspect makes an ambiguous or equivocal attempt to invoke the privilege, police must stop and clarify the suspect’s intent before continuing custodial interrogation. See, e.g., State v. Hoey, 881 P.2d 504 (Haw. 1994); State v. Risk, 598 N.W.2d 642 (Minn. 1999); Downey v. State, 144 So.3d 146 (Miss. 2014); State v. Charboneau, 913 P.2d 308 (Or. 1996); Steckel v. State, 711 A.2d 5 (Del. 1998); Commonwealth v. Clarke, 960 N.E.2d 306 (Mass. 2012). For example, Hawaii’s rule requires police either to cease questioning or to seek non-­substantive clarification upon an ambiguous request, ceasing all questioning if the right is then unequivocally invoked. Hoey. Similarly, the Massachusetts Supreme Judicial Court expressly rejected the Thompkins standard, stating that requiring “utmost clarity” places “too great a burden on the exercise of a fundamental constitutional right.” Clarke.

The Court Announces
Waiver Rule in Maine

After the foregoing examination of precedent from other jurisdictions, the Court announced: “We hold that someone in custody must actually waive the privilege against self-­incrimination in order for an interrogation to occur or continue.” It provided the following guidance:

We do not specify that the waiver be given orally or in writing, but we require that it be clear and unequivocal, like we require for all waivers of constitutional rights. If the waiver of the privilege is ambiguous, an officer must, before any questioning, stop to clarify whether the individual is in fact waiving the privilege against self-­incrimination. If, after a suspect waives the privilege against self-­incrimination, there is any ambiguous invocation of the privilege, including the attendant right to counsel, the officer must stop any questioning and clarify whether the individual is attempting to invoke the privilege against self-­incrimination. If the privilege is being invoked, questioning must cease.

The Court criticized the federal Thompkins approach as prioritizing obtaining evidence over ensuring a truly knowing, voluntary, and intelligent waiver. This is inconsistent with Maine’s longstanding commitment to preserving the privilege against self-­incrimination, even at the cost of highly probative evidence, the Court reasoned. Collins. Allowing continued questioning after an ambiguous invocation does not provide a bright line for police, but instead subjects the process to increased judicial “second-­guessing.” On the other hand, requiring clarification ensures that suspects can actually exercise their article I, section 6 privilege without being presumed to waive it for failing to “utter magic words.” The Court determined that a rule requiring an explicit waiver and mandating that an interrogator stop to clarify an ambiguous invocation aligns with state precedent and sociological research and prevents disadvantage to “the most vulnerable of our citizens.”

Application to Current Case

Applying its newly established waiver framework, the Court examined the interrogation transcript to determine whether McLain waived or invoked his constitutional privilege against compelled self-­incrimination under Maine law. The parties agreed that McLain was subjected to custodial interrogation, making his statements admissible only if he validly waived the privilege and did not subsequently invoke his right to counsel.

The Court stated that the relevant exchange began when McLain was asked if he wanted to answer questions, to which he responded, “Depends on the questions.” He immediately followed this with the question, “Is there a lawyer here?” After being told “No” by the officers, McLain asked about the nature of the questions. Following a discussion of the charges, an agent again asked if McLain wanted to answer questions, and he gave a similar response: “That depends, obviously.” The agents then continued the interrogation, and McLain answered their questions.

The suppression court erred by finding a “selective waiver” (answering some questions but not others) based on federal law from United States v. Eaton, 890 F.2d 511 (1st Cir. 1989). The Court explained that reliance on Eaton was misplaced because the defendant in Eaton did not assert or even equivocally assert a right to counsel.

In contrast to Eaton, the Court determined that McLain did not clearly waive his privilege. His initial response, “it depends,” was ambiguous. Although an agent attempted to clarify by asking for a “Yes or no?” answer, McLain never gave an affirmative expression of waiver. Importantly, McLain’s question, “Is there a lawyer here?” demonstrated an attempt to invoke his right to counsel as part of his privilege against compelled self-­incrimination. The Court explained that this question “eliminates any doubt” that his prior statement of “it depends” was a waiver. It was not.

Under article I, section 6 of the Maine Constitution, once the right was ambiguously invoked, the officers “should have stopped and clarified” how McLain wished to proceed, according to the Court. Because the officers failed to obtain a clear and unambiguous waiver of the right to remain silent, the subsequent interrogation violated McLain’s constitutional privilege.

McLain acknowledged understanding each Miranda right but never affirmatively waived any of them. His responses indicated conditional willingness at best. The suppression court’s reliance on a “selective waiver” was erroneous because the cited federal authority involved no assertion of counsel. Eaton. The Court ruled that McLain’s question about a lawyer eliminated any inference of waiver and triggered a duty to clarify, which the agents ignored by immediately questioning him. Thus, the Court concluded that McLain’s conduct did not indicate a knowing, intelligent, and voluntary waiver, and the agents’ failure to cease or clarify violated article I, section 6 of the Maine Constitution, requiring the suppression of his custodial statements.

Conclusion

Accordingly, the Court vacated the judgment of conviction, vacated in part the order denying the motion to suppress, and remanded for further proceedings consistent with its opinion. See: State v. McLain, 2025 ME 87 (2025).

Editor’s note: Anyone interested in the issue of waiver of the privilege against compelled self-­incrimination is encouraged to read the Court’s full opinion.   

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