From Lyle Denniston over at SCOTUSBLOG

Tuesday, May 26th, 2009 10:09 am | Lyle Denniston

Splitting 5-4, the Supreme Court on Tuesday overruled its 23-year-old ruling in Michigan v. Jackson on the rights of a criminal suspect in police custody who has asked for a lawyer.  The Court did so in Montejo v. Louisiana (07-1529), in an opinion written by Justice Antonin Scalia.  After Scalia announced the decision, Justice John Paul Stevens spoke orally for the dissenters — a somewhat unusual gesture.  Stevens was the author of the 1986 decision that was cast aside; he was the only member of the Court then who is still sitting.

The Court had signaled in late March that it was considering overruling the Jackson decision, a decision designed to assure that the right to a lawyer is not lost during police questioning of a suspect they are holding, resulting in a confession to the crime.  The Court ruled there that, once a suspect has claimed the right to a lawyer, any later waiver of that right during questioning would be invalid, unless the suspect initiated communcation with the officers.  Among others calling for it to be overruled was U.S. Solicitor General Elena Kagan, who argued it was no longer necessary to protect the rights of those in police custody.

The Court, in a separate decision Tuesday, ruled unanimously that using a cellphone to make a purchase of a drug when the crime would be only a misdemeanor does not “facilitate” a felony distribution crime. Justice David H. Souter wrote the opinion in Abuelhawa v. U.S. (08-192).