United States v. Derrick Lee ( 2022 )


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  •                         NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued December 14, 2021
    Decided January 21, 2022
    Before
    DIANE S. SYKES, Chief Judge
    DAVID F. HAMILTON, Circuit Judge
    AMY J. ST. EVE, Circuit Judge
    No. 21-2216
    UNITED STATES OF AMERICA,                      Appeal from the United States District
    Plaintiff-Appellee,                       Court for the Northern District of
    Indiana, South Bend Division.
    v.                                       No. 3:19-CR-052 JD-MGG
    DERRICK T. LEE,                                Jon E. DeGuilio,
    Defendant-Appellant.                      Chief Judge.
    ORDER
    Derrick Lee, who pleaded guilty to discharging a firearm in furtherance of an
    attempted armed robbery, 
    18 U.S.C. § 924
    (c), appeals the district court’s denial of his
    motion to suppress his inculpatory statements. He argues that law-enforcement officers
    improperly continued questioning him after he invoked his right to counsel or, at least,
    failed to clarify his wishes. The judge was correct that Lee never unambiguously
    requested an attorney and nothing required the officers to ask clarifying questions, so
    we affirm.
    No. 21-2216                                                                              Page 2
    In 2019 Lee attempted an armed robbery. He posed as a female sex worker in an
    online advertisement and lured a victim to a house in South Bend, Indiana, under
    pretenses of meeting for sex. When the victim arrived, Lee pointed a handgun at him
    and ordered him to give up “all he’s got.” The victim drew his own handgun, and the
    two exchanged fire, with Lee striking the victim in the knee. Both fled the scene. The
    police later found another victim whom Lee had robbed under similar circumstances.
    A few months later, police officers arrested Lee for an unrelated offense. A police
    detective and an FBI agent questioned him in an interview room at the police station. At
    one point they began asking about the attempted robbery, and Lee considered whether
    he needed a lawyer:
    LEE: Do I need a lawyer or something?
    AGENT: That’s totally up to you my friend … [,] totally up to you.
    LEE: Before I get to even try and talk to you, do I need a lawyer?
    AGENT: Totally up to you.
    LEE: Would it be best?
    AGENT: Totally up to you. I can’t give you any advice on that and they
    tell us we can’t give you any advice on that. I’d like to see you get through
    this.
    LEE: I’d like to see me get through this fast.
    ….
    LEE: I feel like I should have a lawyer, but I feel like when y’all leave here
    this is gonna go in your ball park, even if I say I want a lawyer. It is, ain’t
    it?
    AGENT: We’re going to keep plugging away. And I’m gonna probably
    find some more victims.
    After this exchange Lee admitted to being present at the scene and shooting the victim
    he had lured there, though he said it was in self-defense.
    After Lee was charged with Hobbs Act robbery, 
    18 U.S.C. § 1951
    ; possessing a
    firearm as a felon, 
    id.
     § 922(g); and discharging a firearm to further a violent crime, id.
    § 924(c), he moved to suppress his admissions. He argued that when he said, “Do I need
    a lawyer?” and “I feel like I should have a lawyer,” he unambiguously requested an
    attorney, and so questioning should have stopped. Lee added that the officers should
    No. 21-2216                                                                         Page 3
    have asked follow-up questions if they were not sure whether he was invoking his right
    to counsel.
    After hearing argument on the motion, a magistrate judge recommended against
    suppression. The magistrate judge concluded that none of Lee’s statements were
    unequivocal requests for a lawyer and that Lee’s questions about whether he needed an
    attorney did not show a “certain and present desire” to consult with counsel. But the
    magistrate acknowledged that whether “I feel like I should have a lawyer” sufficed was
    a closer call. And when considered in context (“I feel like I should have a lawyer, but I
    feel like when y’all leave here this is gonna go in your ball park, even if I say I want a
    lawyer”), the phrase reflected indecision. Finally, the magistrate judge noted that
    although the Supreme Court in Davis v. United States, 
    512 U.S. 452
    , 461–62 (1994),
    recognized that it is “good police practice” for officers to clarify whether suspects who
    make ambiguous statements wish to invoke their right to counsel, it explicitly declined
    to adopt a rule requiring them to do so.
    Over Lee’s objection, the district judge adopted the magistrate judge’s
    recommendation and denied the motion. Lee then conditionally pleaded guilty to the
    § 924(c) charge in a plea agreement that preserved the right to appeal the denial of the
    suppression motion.
    The facts—including that Lee was a suspect under custodial interrogation at the
    time in question—are not disputed, so we review the denial of Lee’s motion de novo.
    See United States v. Hunter, 
    708 F.3d 938
    , 942 (7th Cir. 2013). On appeal Lee first repeats
    his argument that he unambiguously invoked his right to counsel. When a suspect
    clearly asserts that right, all questioning must stop, and any admissions obtained after
    that point must be suppressed. See Edwards v. Arizona, 
    451 U.S. 477
    , 484–85, 487 (1981).
    A statement is sufficient if it shows “a certain and present desire to consult with
    counsel.” Hunter, 708 F.3d at 942. But if the suspect makes an “ambiguous or equivocal”
    reference to an attorney and a reasonable officer would conclude only that the suspect
    might be invoking the right to counsel, questioning can continue. See Davis, 
    512 U.S. at 459
    .
    The district judge was correct that none of Lee’s statements were unambiguous
    requests for counsel. Lee first contends that his question “Do I need a lawyer?” is
    analogous to “Can I have a lawyer?”—a request that we deemed to be an unambiguous
    invocation in United States v. Lee, 
    413 F.3d 622
    , 626 (7th Cir. 2005). (That case involved a
    different defendant also named Lee.) But we rejected the same argument in United States
    No. 21-2216                                                                        Page 4
    v. Wysinger, 
    683 F.3d 784
    , 795 (7th Cir. 2012). We explained that “‘Do I need a lawyer?’ is
    a substantively different question than ‘Can I have a lawyer?,’” with the former
    suggesting only that the speaker is “contemplating whether he is in need of the services
    of a lawyer” and thus not clearly requesting counsel. 
    Id.
     Next, there is no unambiguous
    request in the other statement Lee cites, especially in its entirety: “I feel like I should
    have a lawyer, but I feel like when y’all leave here this is gonna go in your ball park,
    even if I say I want a lawyer.” See United States v. Hampton, 
    675 F.3d 720
    , 728 (7th Cir.
    2012) (“I felt like it should have been an attorney here” was ambiguous in the context of
    the suspect’s equivocations). We have noted that using hedging language such as “but”
    is a sign that a suspect was not clearly invoking the right to counsel, 
    id. at 727
    , and we
    have distinguished ambiguous language like “should” or “might” from clear language
    like “can,” Hunter, 708 F.3d at 943–44. Further, the clause “even if I say I want a lawyer”
    would allow a reasonable officer to believe that Lee had not yet asked for an attorney.
    Lee argues in the alternative that our precedent requires officers to ask clarifying
    questions in response to ambiguous references to an attorney and that the officers’
    failure to do so here demands suppression. He is mistaken. As the district judge pointed
    out, the Supreme Court in Davis expressly declined to adopt such a rule, 
    512 U.S. at
    461–62, and we have repeatedly emphasized—including in the very case that Lee relies
    on, Lee, 
    413 F.3d at
    625—that this practice is encouraged but not required. See also
    Hampton, 
    675 F.3d at 728
    ; United States v. Shabaz, 
    579 F.3d 815
    , 818 (7th Cir. 2009).
    Because Lee does not accurately state our precedent, he necessarily does not provide a
    “compelling reason” for overturning it. Wilson v. Cook County, 
    937 F.3d 1028
    , 1035
    (7th Cir. 2019).
    AFFIRMED