Soto, Raymond ( 2021 )


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  •               IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    NOS. PD-1119-20, PD-1120-20, & PD-1121-20
    THE STATE OF TEXAS
    v.
    RAYMOND SOTO, Appellee
    DISSENT TO REFUSAL TO GRANT
    STATE’S PETITION FOR DISCRETIONARY REVIEW
    FROM THE FOURTH COURT OF APPEALS
    BEXAR COUNTY
    K ELLER, P.J., filed a dissenting opinion.
    The courts below concluded that an arrested suspect’s question, “Can I call my lawyer, sir?”
    was an unambiguous assertion of his Fifth Amendment right to counsel (to consult an attorney prior
    to or during interrogation). I am unaware of any case law from this Court supporting this conclusion,
    and I am not at all sure that it is correct. Because the issue here is one of importance that the lower
    courts need guidance on, I would grant review.
    An apartment manager called the police because boxes smelling of marijuana, addressed to
    Appellee’s apartment number, had been delivered to the office. Police came to the location, waited
    SOTO DISSENT — 2
    for Appellee to pick up the boxes, and as he was carrying them away, asked him why he was picking
    them up. Appellee said they were not his. Appellee was then placed under arrest for possession of
    marijuana. After a search incident to arrest, Appellee asked, “Can I talk to my lawyer, sir?” The
    detective responded, “Well — you can do that — if I take you to jail. You will be given a phone call
    at that time. That’s just how the procedure works so — we don’t stop and I give you a phone and
    say ‘Call him right now.’ That’s not how it goes. But yes, you get a call.” This interaction was
    recorded on a bodycam video, and according to a finding made by the trial court, the officer chuckled
    as he answered Appellee’s question.
    In a motion to suppress, Appellee contended that the officer illegally searched the boxes, that
    this allegedly illegal search led to an interrogation, and that the interrogation formed the basis for a
    search warrant for Appellee’s apartment that led to the discovery of more contraband.1 The trial
    court concluded that the search of the boxes was not illegal because Appellee had no expectation of
    privacy in them. But the trial court raised an additional issue, not raised by Appellee: whether
    Appellee had asserted his Fifth Amendment right to counsel. The trial court concluded that
    Appellee’s question to the officer was a “clear invocation” and suppressed the evidence obtained in
    the search of the apartment.2
    The court of appeals concluded that the Appellee’s question was an unambiguous assertion
    of his Fifth Amendment right to counsel because he “did not equivocate in his desire to call his lawyer
    1
    The officer described the contraband in the apartment as “hash” and further described that
    as an oil derivative of marijuana.
    2
    The trial court appears to have not considered the caselaw that a Miranda violation is not
    a proper basis for suppressing physical evidence discovered as a result of the interrogation. See Wells
    v. State, 
    611 S.W.3d 396
    , 406 (Tex. Crim. App. 2020). The State does not raise this issue in its
    petition.
    SOTO DISSENT — 3
    by prefacing the request with ‘maybe’ and he was not vague about who he wished to call.”3 The
    appellate court stated that the trial court assessed Appellee’s “demeanor and tone of voice on the
    bodycam video” within the context of the surrounding circumstances.4 The court of appeals
    specifically disagreed with the State’s contention that Appellee’s question was about “whether an
    opportunity to call a lawyer existed”5 because he had just been arrested and was being subjected to
    custodial interrogation.6
    To be effective for Fifth Amendment purposes, an assertion of the right to counsel in
    connection with interrogation must be unambiguous.7 The State contends that the court of appeals’s
    analysis has created a sizable “gray area” between what is an “assertion” and what is not. Citing
    Pecina v. State, the State points out that there are multiple possible reasons for asking for an attorney
    after being arrested.8 The State makes some good points.
    And as discussed above, the court of appeals cited the trial court’s ability to look at demeanor
    and tone on a video. Although the circumstances leading up to a defendant’s statement regarding
    3
    State v. Soto, Nos. 04-19-00427-CR, 04-19-00428-CR, & 04-19-00429-CR, 
    2020 Tex. App. LEXIS 8458
    , *10 (Tex. App.—San Antonio October 28, 2020).
    4
    Id. at *10.
    5
    Id. at *13.
    6
    Id. at *13-14.
    7
    Davis v. United States, 
    512 U.S. 452
    , 459-60 (1994) (“the suspect must unambiguously
    request counsel . . . ‘a statement either is such an assertion of the right to counsel or it is not’ . . . he
    must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer
    in the circumstances would understand the statement to be a request for an attorney” and “the police
    must respect a suspect’s wishes regarding his right to have an attorney present during custodial
    interrogation.”).
    8
    See Pecina v. State, 
    361 S.W.3d 68
    , 78 (Tex. Crim. App. 2012).
    SOTO DISSENT — 4
    counsel are sometimes relevant, relying on ineffable factors such as demeanor and tone would seem
    to be a bridge too far, turning a bright-line inquiry based on the language the suspect uses into an
    ambiguous inquiry into his possible intent.
    More importantly, we have previously surveyed a number of cases from various jurisdictions
    dealing with whether a given statement qualifies as an unambiguous assertion, both pro and con, and
    Appellee’s question does not neatly line up with any of the ones discussed.9
    Moreover, a “can I call my lawyer” question seems common enough upon arrest that this
    Court should clarify the legal significance of that question under that circumstance. The fact that the
    trial court reached out and decided the issue without any prompting from the defendant also suggests
    that this issue is important enough for us to provide guidance on. Because the Court chooses not to
    address the issue, I respectfully dissent.
    Filed: April 14, 2021
    Publish
    9
    See Davis v. State, 
    313 S.W.3d 317
    , 339-41 (Tex. Crim. App. 2010). Perhaps the closest
    is one from the Ninth Circuit, holding the following to be an unambiguous assertion: “Can I talk to
    a lawyer? At this point, I think maybe you’re looking at me as a suspect, and I should talk to a
    lawyer. Are you looking at me as a suspect?” 
    Id. at 340
     (quoting from Smith v. Endell, 
    860 F.2d 1528
    , 1529 (9th Cir. 1988)). The question in the Ninth Circuit case seems more related to
    interrogation than Appellee’s question, and in any event, the Ninth Circuit is not binding authority.
    

Document Info

Docket Number: PD-1120-20

Filed Date: 4/14/2021

Precedential Status: Precedential

Modified Date: 4/19/2021