United States v. Casey Hunter , 708 F.3d 938 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1751
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
C ASEY D ARREL H UNTER,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 4:11-cr-40055—Michael M. Mihm, Judge.
A RGUED N OVEMBER 27, 2012—D ECIDED F EBRUARY 28, 2013
Before F LAUM and T INDER, Circuit Judges, and T HARP,
District Judge. Œ
T INDER, Circuit Judge. The United States brings
this interlocutory appeal from a district court order sup-
pressing statements made by the defendant, Casey
Darrel Hunter, to two law enforcement officers who
Œ
The Honorable John J. Tharp, Jr. United States District Judge
for the Northern District of Illinois, sitting by designation.
2 No. 12-1751
were interrogating him. The district court granted
Hunter’s motion to suppress because it found that
Hunter had unambiguously invoked his right to
counsel before the interrogation with these officers had
begun. We agree with the district court that Hunter
had unambiguously and unequivocally invoked his
right to counsel, and therefore, all questioning by law
enforcement officers should have ceased under Edwards
v. Arizona, 451 U.S. 477, 484-85 (1981). Because the two
officers here interrogated Hunter after he had unambigu-
ously invoked his right to counsel, Hunter’s statements
during the interrogation are not admissible.
I
On the afternoon of May 3, 2010, Rock Island Police
Officers Timothy Muehler and Jeff Key stopped a pickup
truck after they witnessed the two occupants ap-
parently engaging in a drug deal. Shortly after the truck
stopped, the defendant, Hunter, fled from the passenger
seat of the truck with something resembling a gun in
his hand. Officer Muehler ordered Hunter to stop
running, but Hunter continued to run. The officers
then heard a gunshot. Officer Muehler immediately
fired three shots at Hunter, striking him once in the left
buttock and once in the foot. Hunter fell to the ground
and was handcuffed. Police recovered a six-shot .38
revolver from the ground close to Hunter. The revolver
had one spent shell casing in the cylinder.
Police arranged to have Hunter transported to Trinity
Medical Center via ambulance so that he could receive
No. 12-1751 3
treatment for his gunshot wounds. Rock Island Police
Detective Gene Karzin, who had arrived at the scene
shortly after the shooting, agreed to accompany Hunter
in the ambulance and to “babysit” Hunter in the emer-
gency room until the investigating officers arrived.
Hunter was handcuffed to the hospital gurney at all
times while receiving medical treatment. Although
Hunter’s injuries were not life-threatening, Hunter told
the emergency room staff that his pain registered at a
“ten out of ten,” and as a result, doctors administered
morphine, fentanyl, and other narcotics to Hunter in
the emergency room. Still, the nurse who had treated
Hunter testified that he had remained “alert and ori-
ented” throughout his time in the emergency room.
(The district judge found that Hunter’s alertness and
capability of making a knowing and voluntary waiver
of his rights were not affected by either his injuries or
his treatment. That finding is not implicated in this ap-
peal.) While Hunter was receiving treatment, Detective
Karzin sat silently in the room until Hunter initiated
the following interaction (as recounted by Detective
Karzin’s testimony):
Q. Mr. Hunter asked if there were officers in the
room, and you identified yourself?
A. Correct.
Q. Okay. At that point is when you advised him of
his Miranda rights?
A. Correct.
Q. And after you advised Mr. Hunter of his
Miranda rights, what did he say?
4 No. 12-1751
A. . . . one of the questions he asked me is what he
was charged with. . . . He told me that he under-
stood his rights. Then I asked him what occurred
today. He said he didn’t know. I asked him if he
was willing to speak with me about the incident.
He stated that he was willing to talk to me, but
he just wanted a minute to think. At that point
then he asked me what his charges were. . . .
I walked out of the room because I didn’t know
at this point, and I talked to Sergeant Chadwick
who, I believe, was waiting in the hallway
out there. The only thing Sergeant Chadwick
indicated to me was that they had found a gun
at the scene. . . . So, I walked back in, told
Mr. Hunter, I said, Well, they found a gun at the
scene. Mr. Hunter then responded to me, So, you
have me for being a felon in possession of a fire-
arm? I indicated to Mr. Hunter that I believed
that that was the case, as at that point I didn’t
know of any additional charges. . . . After that, at
that point he asked to make some—several
phone calls for him.
Q. And what specifically did the defendant say?
A. Best I can recollect, he said, Hey, can you call
my mother and my father? I said, Okay. Do you
have numbers for them—names and numbers?
And he provided me the names and numbers.
And then he says, Can you call my attorney? Told
me Mr. Schultz was his attorney. Hospital person-
nel were still working on him. They were doing
No. 12-1751 5
their thing. I asked him—after that, I asked him,
What do you want me to tell these people? He
stated, Tell them that I’ve been shot.
Detective Karzin never made any “attempt to contact
Attorney Herbert Schultz,” even though Schultz was
a well-known criminal defense attorney with whom
Karzin had worked on several previous cases. Instead,
he waited for Illinois State Police Investigator Dyan
Morrisey and Milan Police Detective Chris George, who
were assigned to investigate the case, to arrive at the
emergency room. At that time, Karzin “indicated to
Investigator Morrisey and George the information that
[Hunter] provided and that he requested, that we
contact three individuals and inform them that he had
been shot.” Morrisey and George did not remember
Karzin telling them to call Schultz, so without any
further action, they entered Hunter’s hospital room and
began interrogating him less than two hours after he
had been shot.
Investigator Morrisey and Detective George began
the interrogation by reading Hunter his full Miranda
rights from a pre-printed card. Hunter did not ask
Morrisey and George to call his attorney, nor did Hunter
mention his earlier request that Karzin call his attorney.
However, Hunter did ask Morrisey and George, “Do
you know my attorney, Herb Schultz?” Morrisey and
George did not view Hunter’s question as an invocation
of the right to counsel, and proceeded with their ques-
tioning. During the interrogation that followed, Hunter
made incriminating statements, including an admission
6 No. 12-1751
that he was in the pickup truck because “he was
actually making a gun transaction with [the driver,]
Buddy.”
Hunter’s incriminating statements to Morrisey and
George combined with the evidence found at the scene
of the shooting led to Hunter’s indictment on June 22,
2011 for being a felon in possession of a firearm, in vio-
lation of 18 U.S.C. §§ 922(g), 924(a)(2). Soon after his in-
dictment, Hunter filed a motion to suppress his state-
ments to Morrisey and George, claiming that he had
“clearly and unequivocally invoked his right to counsel
under Miranda by telling Detective Karzin, immediately
upon receiving the Miranda admonishments, ‘to call my
mother, my father, and my lawyer, Herb Schultz.’ ”
Hunter argued that because he had made a clear and
unequivocal request for counsel to Detective Karzin, he
should have never been subject to Morrisey and George’s
subsequent interrogation.
The district court agreed with Hunter, finding “no
reasonable dispute” that Hunter’s question, “Can you
call my attorney?” was an unambiguous invocation of
his right to counsel. The district court further rejected
the government’s argument that Hunter’s request
should be interpreted in light of his subsequent behavior:
The government argues that, in telling his at-
torney that he has been shot, he is not invoking
his Miranda rights. This argument fails, because
once he stated that he wanted them to call his
attorney, he had invoked his Miranda rights, and
once done, the police could not go on to question
No. 12-1751 7
him without a clear indication from him that
he did not wish to have an attorney present.
As a result, the district court granted Hunter’s motion to
suppress his statements to Investigator Morrisey and
Detective George on January 27, 2012.
A month later, the government filed a motion asking
the district court to reconsider its January 27, 2012 order
suppressing Hunter’s statements. The government em-
phasized that Edwards did “not require police officers
to cease all conversation or communication with a de-
fendant once a defendant requests counsel; rather, it
requires that interrogation cease.” Detective Karzin’s
question, “What do you want me to tell these people?” did
not amount to interrogation, the government argued,
because it “was not reasonably likely to elicit an incrimi-
nating response.” Consequently, the government as-
serted that consideration of Hunter’s response, “Tell
them that I’ve been shot,” was appropriate when deter-
mining whether Hunter unambiguously invoked his
right to counsel.
Once again, the district court rejected the govern-
ment’s argument. On February 28, 2012, the district court
denied the government’s motion to reconsider, finding
that “What do you want me to tell these people?”
amounted to interrogation. The court reasoned, “[W]hat
answer could [Hunter] give that—other than perhaps
the one he did—that would not be incriminatory? Or . . .
what would this detective . . . have expected that this
guy was going to say to that question?” After the district
court held for a second time that it would suppress
8 No. 12-1751
Hunter’s statements to Investigator Morrisey and
Detective George, the government filed this timely inter-
locutory appeal. On appeal, we review the district
court’s decision on Hunter’s motion to suppress
“de novo . . . , but we review all findings of historical
fact and credibility determination deferentially, under
the clear error standard.” United States v. Johnson, 170
F.3d 708, 712-13 (7th Cir. 1999).
II
Whether the district court correctly granted Hunter’s
motion to suppress hinges on whether Hunter’s request,
“Can you call my attorney?” was an unambiguous in-
vocation of his right to counsel. If Hunter’s request
was unambiguous, then the U.S. Supreme Court’s holding
in Edwards, 451 U.S. at 484-85, controls: an “accused, . . .
having expressed his desire to deal with the police only
through counsel, is not subject to further interrogation
by the authorities until counsel has been made available
to him, unless the accused himself initiates further com-
munication, exchanges, or conversations with the po-
lice.” In contrast, if Hunter’s request was ambiguous,
then the Court’s holding in Davis v. United States, 512
U.S. 452, 452 (1994) controls: “if a reference is ambiguous
or equivocal in that a reasonable officer in light of the
circumstances would have understood only that the
suspect might be invoking the right to counsel, Edwards
does not require that officers stop questioning the suspect.”
Once a court decides whether a defendant’s request for
counsel is ambiguous, the analysis is simple. Unfortu-
No. 12-1751 9
nately, in most cases—as in the case presently on ap-
peal—the difficult decision is whether the defendant’s
request for counsel was ambiguous. Connecticut v.
Barrett, 479 U.S. 523, 529 (1987) offers some guidance,
requiring courts to evaluate a defendant’s request “as
ordinary people would understand” it, and “to give
a broad, rather than a narrow, interpretation to a defen-
dant’s request for counsel.” Even more helpful is
the guidance provided by reviewing the facts of previous
cases that have come before both the Supreme Court
and our court. We turn to a review of those cases now.
III
Both the Supreme Court and our court have found
statements indicating a certain and present desire to
consult with counsel enough to invoke a defendant’s
right to counsel under Miranda v. Arizona, 384 U.S. 436, 444-
45 (1966). For example, in Edwards, 451 U.S. at 479, the
defendant, Robert Edwards, was in the middle of a
police interrogation when he stated, “I want an attorney
before making a deal.” The Supreme Court held that
Edwards’s statement unambiguously “expressed his
desire to deal with the police only through counsel,” and
as a result, Edwards’s subsequent confession was inad-
missible (since the confession was the result of con-
tinued police questioning without an attorney). Id. at 484-
85. Similarly, in Smith v. Illinois, 469 U.S. 91, 97 (1984),
police asked the defendant, Steven Smith, if he would
like to have an attorney present during questioning, and
he replied, “Uh, yeah, I’d like to do that.” Instead of
10 No. 12-1751
ceasing their interrogation after Smith requested an
attorney, however, the police continued questioning
Smith, and Smith confessed to armed robbery. The Su-
preme Court held that Smith’s confession was inadmis-
sible because “with the possible exception of the word
‘uh’ the defendant’s statement in this case was neither
indecisive nor ambiguous.” Id. (citations omitted).
Following the direction of Edwards and Smith, our
court has found statements indicating a certain and
present desire to consult with counsel sufficient to
invoke a defendant’s right to counsel. For instance, in
United States v. Lee, 413 F.3d 622, 625 (7th Cir. 2005), the
defendant, Kenneth Lee, appealed his conviction of
drug possession with intent to distribute based on the
district court’s admission of his confession after he al-
legedly invoked his right to counsel. The police had
obtained a search warrant for Lee’s apartment, and
during the search, two police officers took Lee to a bath-
room to explain the warrant to him. The officers then
read Lee his Miranda rights and asked if Lee was willing
to talk to them. Lee responded, “Can I have a lawyer?”
Id. at 624. Our court found that Lee’s request constituted
an unambiguous request for an attorney, comparing
Lee’s statement to similar statements found by other
circuits to be unequivocal. See, e.g., Cannady v. Dugger,
931 F.2d 752, 755 (11th Cir. 1991) (“I think I should call
my lawyer.”); Robinson v. Borg, 918 F.2d 1387, 1391 (9th
Cir. 1990) (“I have to get me a good lawyer, man. Can
I make a phone call?”); Smith v. Endell, 860 F.2d 1528,
1529 (9th Cir. 1988) (“Can I talk to a lawyer? At this point,
I think maybe you’re looking at me as a suspect, and
No. 12-1751 11
I should talk to a lawyer. Are you looking at me as a
suspect?”).
Most recently, our court found an even less direct
statement by a defendant enough to constitute an unam-
biguous invocation of the right to counsel. In United
States v. Wysinger, 683 F.3d 784, 790-91 (7th Cir. 2012),
the defendant, John Wysinger, appealed his conviction
of conspiracy to distribute and possess cocaine, based
on the district court’s admission of his videotaped inter-
rogation by Drug Enforcement Administration (DEA)
agents into evidence, despite the fact that Wysinger
allegedly invoked his right to counsel. During Wysinger’s
interrogation, he had the following exchange with
DEA agents:
Rehg: Well, tell us what has been going on. Maybe
that’s the best way to start.
Wysinger: I mean, do you think I should have
a lawyer? At this point?
Rehg: That is up to you. . . . I read you your rights.
If you want an attorney, by all means, get one. Ok?
Wysinger: I mean, but can I call one now? That’s
what I’m saying.
Id. at 790. Our court found that Wysinger’s statements
were enough to constitute an unambiguous invocation
of the right to counsel. We acknowledged that “ ‘I mean,
do you think I should have a lawyer?’ . . . [did] not consti-
tute an unequivocal request for counsel.” Id. at 795. None-
theless, we believed that “Wysinger’s very next sentence
clarified the request and removed all doubt as to his
12 No. 12-1751
meaning. . . . ‘I mean, but can I call one now? That’s what
I’m saying,’ . . . in context, was an unequivocal request
for counsel that no reasonable officer could interpret
otherwise.” Id. at 795-96.
In light of Lee and Wysinger, the text of Hunter’s
request to Detective Karzin appears to be an unambig-
uous request for counsel. Hunter’s request, “Can you call
my attorney?” sounds remarkably similar to the defen-
dant’s request in Lee, “Can I have a lawyer?” which we
found sufficient to invoke the right to counsel. 413 F.3d
at 626. Furthermore, Hunter’s request sounds more
certain and more definitive than the statement that we
found sufficient in Wysinger, “I mean, but can I call one
now?” 683 F.3d at 795. Indeed, comparing the text of the
three requests side-by-side reveals several similarities
in Hunter’s, Lee’s, and Wysinger’s requests. All three de-
fendants asked questions of a police officer who had
previously read the defendants their Miranda rights.
Instead of using a word like “should” or “might,” which
would suggest that the defendants were still undecided
about whether they wanted a lawyer, all three defen-
dants used the word “can.” The defendants’ choice of
the word “can,” by definition, means that they were
inquiring into their present ability to be “able to” obtain
a lawyer or to “have the opportunity or possibility
to” obtain a lawyer. Can, O XFORD D ICTIONARIES P RO
O NLINE ,http://english.oxforddictionaries.com/definition/
can?region=us&rskey=OBo6rG&result=1 (last visited
Feb. 26, 2013). In sum, given the text of the previous
statements that our circuit has found sufficient to invoke
the right to counsel, the text of Hunter’s request was
No. 12-1751 13
sufficient to have put a reasonable officer on notice
that Hunter was invoking his right to counsel.
IV
Comparing the text of Hunter’s request, “Can you call
my attorney?” to the requests of defendants that the
Supreme Court and our court have found insufficient to
invoke the right counsel strengthens our conclusion
that Hunter’s request was sufficient. In Davis, 512
U.S. at 455, the defendant, Robert Davis, was being ques-
tioned by investigators when he remarked, “Maybe I
should talk to a lawyer.” Investigators followed up on
Davis’s remark by asking him if he wanted a lawyer.
Davis replied, “No, I’m not asking for a lawyer.” Id. The
Supreme Court held that Davis had not invoked his
right to counsel, and consequently, all subsequent state-
ments to investigators were admissible. Id. at 462; cf.
United States v. Zamora, 222 F.3d 756, 761 (10th Cir. 2000)
(“[I]f that’s the case, then—then I might want to talk to
an attorney.”).
Similarly, in United States v. Shabaz, 579 F.3d 815, 818
(7th Cir. 2009), the defendant, Samuel Shabaz, asked an
FBI Agent, “[A]m I going to be able to get an attorney?”
as they entered an interview room (before any interroga-
tion had begun). The agent did not respond to the ques-
tion and left Shabaz alone in the interview room for a
few minutes. Upon re-entering the room, the agent read
Shabaz his Miranda rights; Shabaz expressly waived
these rights and proceeded to confess to bank robbery.
Here, our court found that Shabaz’s statement did “not
14 No. 12-1751
clearly imply ‘a present desire to consult with counsel.’ . . .
The words . . . did not unambiguously indicate to
Agent Watson that Shabaz was right then asking for an
attorney.” Id. at 819 (citation omitted). Thus, our court
found that the district court had properly admitted
Shabaz’s confession. Id.In the present case, the text of Hunter’s statement is
more definitive than the statements by the defendants
in both Davis and Shabaz, and as a result, is readily dis-
tinguishable. As discussed in the previous section,
Hunter used the decisive word “can” when he asked De-
tective Karzin to call his attorney. In contrast, the de-
fendant in Davis used the indecisive words “maybe” and
“should.” “Maybe” means only “perhaps” or “possibly,”
while “should” is “used to . . . ask advice or sugges-
tions.” Maybe, O XFORD D ICTIONARIES P RO O NLINE,http://
english.oxforddictionaries.com/definition/maybe?region=
us (last visited Feb. 26, 2013); Should, O XFORD D ICTIONARIES
P RO O NLINE , http://english.oxforddictionaries.com/
definition/should?region=us (last visited Feb. 26, 2013). In
other words, the text of Davis’s statement indicates that
he was undecided whether he wanted an attorney present.
Shabaz’s statement was more decisive than Davis’s, but
it still lacked the “present desire to consult with counsel”
seen in Hunter’s statement. Shabaz, 579 F.3d at 819. Shabaz
asked if he was “going to be able to get an attorney.” Id.“Going to” is a form of the future tense; Shabaz’s verb
choice indicates a possible desire to obtain an attorney in
the future, not presently. Go, O XFORD D ICTIONARIES P RO
O NLINE, http://english.oxforddictionaries.com/definition/
No. 12-1751 15
go?region=us&rskey=rZWvP5&result=1#m_en_us125125
2.023 (last visited Feb. 26, 2013). Another notable distinc-
tion is that Shabaz’s statement came before his inter-
rogation had begun. Hunter’s statement, in contrast,
came after Detective Karzin asked Hunter “if he was
willing to speak . . . about the incident.” All in all, the
text of Davis’s and Shabaz’s statements lack the indicia
of a certain and present desire to consult with counsel
seen in the text of Hunter’s request.
V
In addition to the actual text of Hunter’s statement,
“Can you call my attorney?” both sides urge our court
to consider the context of Hunter’s statement in order to
determine whether it was ambiguous. Hunter asks us
to consider what happened prior to Hunter asking Detec-
tive Karzin to call his attorney. Hunter was handcuffed
to a hospital gurney. After he had been read his Miranda
rights by a police detective, he told the detective that
he wanted “a minute to think” before he talked about
the shooting. The detective then told Hunter that police
had found a gun at the scene, which Hunter interpreted
to mean that he was facing the serious charge of being a
felon in possession of a firearm. In the context of these
prior events, Hunter argues that his request, “Can you
call my attorney?” constituted an unambiguous invoca-
tion of his right to counsel. On the other hand, the gov-
ernment asks us to consider what happened subsequent
to Hunter asking Detective Karzin to call his attorney.
Hunter only requested that Karzin tell his attorney he
16 No. 12-1751
had been shot—and Hunter never repeated his request
for an attorney during Morrisey and George’s ensuing
interrogation. In the context of these subsequent events,
the government argues that Hunter’s request was, at
best, an ambiguous request of his right to counsel.
In order to determine whether it is appropriate to
consider the context prior or subsequent to Hunter’s
request, we turn to Smith, 469 U.S. at 98, for guidance:
Where nothing about the request for counsel or
the circumstances leading up to the request would
render it ambiguous, all questioning must cease.
In these circumstances, an accused’s subsequent
statements are relevant only to the question
whether the accused waived the right he had
invoked. Invocation and waiver are entirely dis-
tinct inquiries, and the two must not be blurred
by merging them together.
Smith confirms that courts should only consider prior
context when determining whether a defendant unam-
biguously invoked his right to counsel. (The government
does not contend that Hunter’s comment, “Tell them
that I’ve been shot,” constitutes waiver of an invocation
of the right to counsel, and rightly so.)
Following the Supreme Court’s directive in Smith, we
have often looked to prior context when determining
whether a defendant unambiguously invoked his right
to counsel. For example, in Lord v. Duckworth, 29 F.3d
1216, 1218 (7th Cir. 1994), we looked to the events prior
to the defendant’s statement in order to determine that
the statement was ambiguous. The defendant in that
No. 12-1751 17
case, Charles Lord, sought habeas corpus review of his
Indiana state murder conviction based on, among other
things, the admission of evidence at trial that came from
a police interrogation after Lord allegedly requested
counsel. While still a suspect in the murder case, Lord
had given an eighty-minute-long statement to police
about the murder, “including incriminating admissions.
When the statement was completed, Lord agreed to
assist the police in finding the gun that was used in
the crime.” Id. Only then did Lord state to the police
officer, “I can’t afford a lawyer but is there anyway
I can get one?” Id. Out of context, the text of Lord’s state-
ment might have been enough to invoke the right to
counsel. But in context—particularly in light of Lord’s
complete cooperation with authorities before requesting
an attorney—we concluded that “Lord’s statement
lacked the clear implication of a present desire to
consult with counsel.” Id. at 1221.
Prior context of the defendant’s statement also formed
the basis of our decision in United States v. Hampton,
675 F.3d 720, 727-28 (7th Cir. 2012). In that case, the
defendant, Deandre Hampton, could not decide whether
he wanted counsel. First, he signed a Miranda waver;
almost immediately, he “changed his mind and invoked
his right to counsel, which was honored[, and] ques-
tioning immediately ceased.” Id. at 727. Soon after,
Hampton told his cell guard that “he wanted to proceed
without counsel.” Id. The questioning police officers
administered new Miranda warnings, and one officer
asked Hampton specifically if he wanted a lawyer.
Hampton responded, “Yeah, I do, but you . . . .” Id.18 No. 12-1751
Hampton then fell silent and asked the police “how the
presence of an attorney would affect his situation.” Id.
at 728. The police attempted to respond to this question,
at which point Hampton began trying to “fish . . . for a
deal” while making incriminating statements. Id. In
this context, our court found that the statement, “Yeah,
I do, but you . . . .” was ambiguous, and Hampton had
not invoked his right to counsel. While the text, “Yeah,
I do,” on its own would suggest that Hampton was in-
voking his right to counsel, we found that Hampton’s
use of the “hedge word ‘but’ ” in the same sentence in-
dicated “only that Hampton might want an attorney
present,” and consequently, Hampton’s request was
ambiguous. Id. at 727. Moreover, we found that consid-
eration of the prior context supported our close
textual reading of “Yeah, I do, but you . . .” as an ambig-
uous statement. Throughout his previous dealings with
police, Hampton had vacillated back and forth between
wanting counsel and not wanting counsel; reading
Hampton’s statement in light of this prior context
made “Yeah, I do, but you . . .” appear to be more of
the same indecision.
Like Hampton, we find that considering the prior
context of Hunter’s statement in the present case sup-
ports our close textual reading of Hunter’s statement
in Sections III and IV. In those sections, we noted that
Hunter used decisive language like the word “can”—as
opposed to indecisive words like “should”—indicating
that Hunter’s request, “Can you call my attorney?” was
inherently unambiguous. Hunter’s request becomes
particularly unambiguous when read in light of what
No. 12-1751 19
had occurred previously. Hunter asked Detective Karzin,
“Can you call my attorney?” only after he had been
arrested, handcuffed to a hospital gurney, read his
Miranda rights, and asked if he wanted to speak to a
police detective. Moreover, Hunter’s request to Detec-
tive Karzin followed his statement that he wanted “a
minute to think” before he talked about the shooting
and came on the heels of his inquiry whether police
had him for being a felon in possession of a firearm.
With everything that happened prior to Hunter asking
Detective Karzin to call his attorney, the context lends
further support to our conclusion that Hunter’s request
for counsel was unambiguous.
VI
At oral argument, the government suggested that a
ruling adverse to its position might discourage police
officers from asking suspects “open-ended, benign, legiti-
mate, clarifying” questions in the future. The govern-
ment contends that its law enforcement officers want
to follow the advice of the Supreme Court in Davis, which
encourages (but does not require) “officers to clarify
whether a suspect making an ambiguous statement
really wants an attorney.” Davis, 512 U.S. at 453. The
government believes that the only way that its law en-
forcement officers will heed the Supreme Court’s ad-
vice in Davis is by allowing officers to ask any number
of clarifying questions like the one Detective Karzin
asked Hunter, as long as these questions do not attempt
to “undercut” the suspect or “to get [the suspect] to
change his mind.”
20 No. 12-1751
Like the Supreme Court in Davis, we also want to
encourage officers to clarify whether a suspect wants
an attorney, but only if the suspect makes an ambiguous
statement. If the suspect makes an unambiguous re-
quest for an attorney, then there should be no need for
clarification. Indeed, allowing police officers to con-
tinue asking questions—no matter how “benign” or “open-
ended”—after a suspect unambiguously requests an at-
torney could indirectly undercut the suspect and eventu-
ally cause the suspect to question his initial, unambig-
uous request for an attorney.
As the district court found, there is no evidence here
that Detective Karzin acted in bad faith or had any in-
tention of undercutting Hunter when he asked the fol-
lowup question, “What do you want me to tell these
people?” But no matter how benign his intentions, Detec-
tive Karzin’s follow-up question was an invitation
to disaster. Hunter could have easily responded to De-
tective Karzin’s question with an incriminating state-
ment such as, “Tell them I fired a gun at a police officer.”
(Fortunately for Hunter, his actual response, “Tell them
I’ve been shot,” was not incriminating.) It is for this
reason that the district court asked the government,
“[W]hat answer could [Hunter] give that—other than
perhaps the one he did—that would not be incrimina-
tory? . . . [W]hat would this detective . . . have expected
that [Hunter] was going to say to that question?” Any
question that is “reasonably likely to elicit an incrim-
inating response” and asked by a police officer after a
suspect has unambiguously invoked his right to
No. 12-1751 21
counsel constitutes prohibited interrogation. Rhode Island
v. Innis, 446 U.S. 291, 300-01 (1980).1 The district court
1
The dissent relies heavily on Innis, 446 U.S. at 298-304, finding
it dispositive as to whether Detective Karzin’s follow-up
question to Hunter constituted prohibited police interroga-
tion. The facts in Innis are so different from the case at hand
that we do not find it particularly illuminating. Innis clarified
that “not . . . all statements obtained by the police after a
person has been taken into custody are to be considered the
product of interrogation.” Id. at 300. Instead, only the state-
ments obtained by police “from a person in custody . . . sub-
jected to either express questioning or its functional equiva-
lent” are the product of interrogation. Id. at 300-01. According
to the Court, the defendant in Innis was not subjected to
express questioning or its functional equivalent when he
made incriminating statements to the police. Id. at 301-04. But
the defendant in Innis made his incriminating statements
under completely different circumstances than the defendant
in the instant case. In Innis, police never spoke directly to the
defendant after he invoked his right to counsel. Instead, the
defendant overheard the conversation between two police
officers while riding in the back of a patrol car and interrupted
their conversation with incriminating information. Id. at 294-
96. Contrast Hunter’s situation, in which Detective Karzin not
only spoke directly to Hunter—but expressly questioned
him—when he asked, “What do you want me to tell these
people?”
Nor does the dissent gain any ground by relying on the
“direct questioning” language of United States v. Briggs, 273
F.3d 737, 740 (7th Cir. 2001). Although Briggs held that not
all direct questioning by police constitutes impermissible
“interrogation,” again, the facts of Briggs are so different from
(continued...)
22 No. 12-1751
concluded, as we conclude, that Detective Karzin’s state-
ment was “reasonably likely to elicit an incriminating
response”—whether Detective Karzin intended it to
do so or not.
Not only was Detective Karzin’s follow-up question
reasonably likely to elicit an incriminating response, but
it was also wholly unnecessary. Hunter had just been
shot, arrested, handcuffed to a hospital gurney, and read
his Miranda rights by a police detective. Why else
would Hunter have wanted to call his well-known
criminal defense attorney other than to invoke his right
to counsel? Even assuming Detective Karzin did not
intend his question to undercut Hunter’s request for
counsel, given the circumstances, Hunter could have
viewed Detective Karzin’s follow-up question as an
indirect way of undercutting his request for counsel. It is
precisely for this reason that the Supreme Court held
1
(...continued)
the case at hand that we do not find it helpful. In Briggs, the
defendant told police officers, “[I]t doesn’t matter anyway. I’m
going to die,” after invoking his right to counsel. Id. at 739.
Concerned for his mental state and physical well-being, the
police responded by asking the defendant what he meant by
that statement. Id. We held the police’s question did not consti-
tute impermissible interrogation because it was not “rea-
sonably likely to elicit an incriminating response.” Id. at 741(quoting Innis, 446 U.S. at 301-02). Contrast Detective Karzin’s
question, which could have invited any number of incrim-
inating responses by Hunter about his involvement in the
gun incident with Rock Island police.
No. 12-1751 23
in Smith, “Where nothing about the request for counsel
or the circumstances leading up to the request would
render it ambiguous, all questioning must cease.” 469
U.S. at 98 (emphasis added).
VII
Given the decisive language and the prior context
of Hunter’s request to Detective Karzin, we find that
Hunter’s request, “Can you call my attorney?” was an
unambiguous and unequivocal request for counsel.
Consequently, under Smith, 469 U.S. at 98, all questioning
by Detective Karzin should have ceased as soon as
Hunter made this request. Because questioning did not
cease, however, it would be inappropriate under
Edwards, 451 U.S. at 484-85, for the court to consider
Hunter’s subsequent statements to Detective Karzin,
Investigator Morrisey, and Detective George for any
purpose. As a result, we A FFIRM the decision of the
district court to suppress Hunter’s subsequent state-
ments, including the incriminating statements that
Hunter made to Investigator Morrisey and Detec-
tive George.
24 No. 12-1751
T HARP, District Judge, dissenting. This is a case in which
the Court affirms the suppression of custodial state-
ments made by a defendant who did not invoke his
right to counsel and where the police conduct on
which suppression was premised did not constitute
interrogation but rather attempted to facilitate the
suspect’s desire to communicate with counsel. This
result turns Miranda’s prophylactic rules inside out, and
I therefore respectfully dissent.
I.
The facts are generally not in dispute but bear further
review. After being shot while fleeing from police, Hunter
was taken to the hospital, accompanied by Detective
Gene Karzin. At the hospital, while medical personnel
attended to Hunter, Karzin sat quietly in the room. Only
when Hunter asked if a police officer was present
did Karzin speak to Hunter; at that point, he identified
himself and advised Hunter of his rights.1 Hunter indi-
cated that he understood his rights and asked Karzin
1
The district court found that Karzin neglected to advise
Hunter that he had the right to have counsel appointed if he
could not afford an attorney, but Hunter does not argue that
the omission of that portion of the Miranda warning is
relevant to the question of whether his statements should be
suppressed. Indeed, it is Hunter’s reference to an attorney
who was already representing him (albeit in connection
with other charges) that creates the issue at bar, not that
Hunter wanted, but was not advised of his right to, ap-
pointed counsel.
No. 12-1751 25
what he was charged with. Karzin asked whether
Hunter was willing to talk to him about what hap-
pened, and Hunter said that he was willing to talk to
Karzin, but just wanted a minute to think. 2 Detective
Karzin, who did not know the facts relating to
Hunter’s shooting and arrest, asked a police officer in
the hallway about Hunter’s situation and was advised
only that police had found a gun at the scene. Karzin
then relayed this information to Hunter, who responded
not by invoking his right to remain silent, or requesting
counsel, but by saying, “So you have me for being a
felon in possession of a firearm?” Detective Karzin af-
2
The district court’s account of Detective Karzin’s testimony
on this point appears to be mistaken in one respect. The
district court recalled Detective Karzin as testifying that, after
indicating that he was willing to talk to Karzin, Hunter “almost
immediately said, ‘But I want to think about this.’ ” (Tr. 182).
In fact, Karzin testified only that Hunter said “he just wanted
a minute to think.” (Tr. 19). Karzin’s report similarly indicates
that Hunter said only that he wanted a minute to think
before talking to Karzin, not that he wanted to think about
whether or not to speak to Karzin. The two statements are
not the same; the statement Hunter actually made (suggesting
only that Hunter wanted to collect his thoughts before talking
to the officer) was not at all inconsistent with his statement
that he was willing to speak to Karzin, while the version on
which the district court premised its ruling suggests that
Hunter had never affirmatively acknowledged his willingness
to talk to Karzin. Thus, the district court’s imprecise recollec-
tion of this testimony may well have influenced its assessment
of Hunter’s request as an invocation of his right to counsel.
26 No. 12-1751
firmed that appeared to be the case, and also testified
that Hunter appeared to be relieved that was the charge
he was facing. (Tr. at 25:7-11). Hunter next asked Karzin
if he would call his mother, his father, and his attorney,
and provided the numbers for his parents but not his
attorney. Karzin posed a single follow-up question to
this request, asking Hunter what he wanted Karzin to
tell “these people.” Hunter did not respond that he
wanted Karzin to tell the lawyer that Hunter wanted
to consult with him; he had the same message for the
lawyer that he had for his parents: “Tell them that
I’ve been shot.”
After this exchange, Hunter was taken for a CAT
scan, during which he asked a technician whether De-
tective Karzin was still in the room. Understanding
Hunter to be asking to speak with Karzin, the technician
advised Hunter that he would be able to talk to the
police after the CAT scan had been completed. As Hunter
was wheeled back on a gurney to the initial treatment
room, he continued to ask if Karzin was present. At that
point, other investigators (Dyan Morrisey and Chris
George) assigned to the case had arrived at the hospital
and took over for Detective Karzin. Before leaving the hos-
pital, Karzin introduced them to Hunter. Karzin also told
the new arrivals that Hunter had asked him to call his
parents and Herbert Schultz, his attorney, and to tell them
that he had been shot. Before they questioned Hunter,
Morrisey and George subsequently advised Hunter of his
Miranda rights (as had Karzin), and Hunter made the
incriminating statements that he later sought to suppress.
Hunter never asked Morrissey or George whether any-
No. 12-1751 27
one had contacted his parents or his attorney, nor did
he indicate in any way that he wished to consult with
an attorney, even though he asked the investigators
whether they knew Schultz.
II.
To invoke the Miranda right to counsel, “the suspect
must unambiguously request counsel.” Davis v. United
States, 512 U.S. 452, 459 (1994). The majority views
Hunter’s request that Karzin call his attorney to be an
unambiguous request for counsel, but in so concluding
I believe that the majority gives insufficient weight to
the factual context—both before and after this statement
was made—necessary to evaluate the import of the sus-
pect’s reference to his attorney.
The majority bases its opinion almost entirely on
Hunter’s use of a single word: “can.” By using the word
“can,” the majority concludes, Hunter was “inquiring into
[his] present ability to be ‘able to’ obtain a lawyer or to
‘have the opportunity or possibility to’ obtain a lawyer.”
Slip Op. at 12. I do not dispute the majority’s definition,
but as an initial matter it is far from clear that an
inquiry into one’s present ability to obtain a lawyer
constitutes an unambiguous statement of one’s desire
to consult with an attorney. Ability is not a synonym
of desire; viewed in isolation, “can I have a lawyer”
does not necessarily mean the same thing as “I want a
lawyer.” It might, but that question cannot be answered
simply by consulting a dictionary. The majority cites
several cases in which this Circuit has treated references
28 No. 12-1751
to counsel using the word “can” as an invocation of the
right to counsel, and I agree, based on the facts of
those cases, that the defendant was invoking the right
to counsel. Other cases, however, demonstrate that a
suspect’s use of “can” does not always constitute an
unequivocal invocation of the right to counsel. Lord v.
Duckworth, 29 F.3d 1216 (7th Cir. 1994), illustrates the
point perfectly. In Lord, this Court held that a suspect’s
statement to police that “I can’t afford a lawyer, but
is there any way I can get one?” was not sufficiently
clear to constitute an invocation of the right to counsel,
holding that the statement “lacked the clear implication
of a present desire to consult with counsel.” Id. at 1221 (em-
phasis added). See also, e.g., Dormire v. Wilkinson, 249
F.3d 801, 805 (8th Cir. 2001) (“ ‘Could I call my lawyer’
was not an unambiguous request for counsel.”); United
States v. Dixon, No. 8:10-cr-135-T-30MAP, 2010 WL 5209359,
*4 (M.D. Fla. Nov. 18, 2010) (“Can I have my lawyer
here while we talk” ambiguous as to ability or desire);
United States v. Cook, No. 07-CR-6195 CJS, 2008 WL 728883,
*14 (W.D.N.Y. Mar. 17, 2008) (suspect’s question if
he would be able to call attorney not an unambiguous
invocation of right to counsel); United States v. Eastman,
256 F. Supp. 2d 1012, 1019 n.6 (D.S.D. 2003) (“Can I have
a lawyer” held not to be an unambiguous invocation
of right to counsel). If, as the majority maintains, “can
I have a lawyer” is an unambiguous invocation of the
right to counsel, how can so many courts—including
this one—have found equivalent statements to be am-
biguous?
No. 12-1751 29
The answer is context. As this Court has repeatedly
emphasized, we do not give talismanic import to the
words used by a suspect; the analysis of whether a
suspect has unambiguously invoked the right to counsel
“does not end with words alone; . . . we also consider
the circumstances in which the statement was made.”
United States v. Hampton, 675 F.3d 720, 727 (7th Cir.
2012) (quoting United States v. Shabaz, 579 F.3d 815, 819
(7th Cir. 2009)). The majority opinion, however, devotes
just two sentences to the assessment of the context in
which Hunter’s request was made. Slip Op. at 19. The
first notes that Hunter asked Karzin to call his attorney
“only after he had been arrested, handcuffed to a
hospital gurney, read his Miranda rights, and asked if
he wanted to speak to a police detective.” That a
suspect was questioned in custody, however, says only
that Miranda applies (absent custodial interrogation, it
does not); the facts that establish that precondition
shine no light on whether the suspect unambiguously
invoked his right to counsel. The second appears to
characterize Hunter’s statement that he wanted “a
minute to think” before talking about the incident as
uncertainty about whether to talk to Karzin. See Slip Op.
at 19 and supra note 2. The uncontroverted evidence,
however, is that Hunter told Karzin that he was willing
to talk to him. Hunter did not say that he wanted a
minute to think before deciding whether to talk to
Karzin—rather, he initiated the dialog with Karzin in
the first place. The record before us provides no basis to
infer that Hunter’s statement that he wanted to think
a minute must, or should, be interpreted as a qualifica-
30 No. 12-1751
tion on his willingness to talk to Karzin—particularly
when he proceeded to do so.
Even if one accepts that “can you call my lawyer,”
standing alone, constitutes an unambiguous invocation
of the right to counsel, when, as here, that statement is
made after a suspect has sought out a police officer,
agreed to talk to him, and after he has made incrim-
inating statements to the police officer, there is at the
very least a tension between these actions and the
reference to counsel that reflects ambiguity in the
suspect’s intentions and warrants clarification. For that
reason, this Court has confirmed more than once that
a suspect’s equivocation about whether or not to speak
to police following Miranda warnings introduces an
element of ambiguity into the analysis of what might
otherwise be deemed an adequate invocation of counsel.
See, e.g., Hampton, 675 F.3d at 727 (suspect’s prior agree-
ment to talk to police a factor bearing on meaning of
his purported invocations of counsel); Lord, 29 F.3d at
1221 (“is there any way I can get [a lawyer]” held am-
biguous in light of prior incriminating statements made
by suspect).
The ambiguity arising from Hunter’s mixed signals
(accepting, arguendo, that Hunter intended to invoke his
right to counsel when he asked Karzin to call Schultz)
is compounded by the fact—which the majority opinion
does not discuss—that Hunter did not ask Karzin to
call just his lawyer; his request came on the heels of his
request that Karzin call both of his parents as well. Stand
in Detective Karzin’s shoes at that point: Hunter had
No. 12-1751 31
sought Karzin out, agreed to talk, made incriminating
statements, and then asked the detective to call his
mother, father, and attorney. In that context, is it
perfectly clear that Hunter wanted Karzin to call
Schultz because he did not want to talk any further with
Karzin? Other courts have found ambiguity in re-
quests to call both parent and attorney—see, e.g., Jones v.
McNeil, No. 3:07-cv-146-J-32, 2010 WL 893816, *9 (M.D.
Fla. Mar. 9, 2010) (suspect’s statement that he wanted
to speak “to his mother, his attorney, and [a detective]”
did not unambiguously invoke right to counsel); Glover
v. Portuondo, No. 96 Civ. 7616(JGK), 1999 WL 349936, *3,
*5 (S.D.N.Y. May 28, 1999) (suspect stopped interroga-
tion to request lawyer via a friend, and then through
mother; statements made after detective asked for
phone numbers and while dialing not suppressed). What
makes Hunter’s multifaceted request any clearer?
The majority asks, “Why else would Hunter have
wanted to call his well-known criminal defense attorney
other than to invoke his right to counsel?” Slip Op. at 22.
That is a curious rhetorical question, since there was
another reason (to “tell them I’ve been shot”), but
Hunter could have intended any number of other
messages as well. Perhaps he was going to miss an ap-
pointment with Schultz; or wanted Schultz to talk with
his parents about a retainer (see, e.g., Flamer v. Delaware,
68 F.3d 710, 716, 725 (3d Cir. 1995) (suspect’s request
to call mother in order to retain family’s counsel “failed
to meet the requisite level of clarity” to constitute an
unambiguous invocation of counsel), cert. denied, 516
32 No. 12-1751
U.S. 1088 (1996)); or to let Schultz know that he should
start negotiating a plea bargain (see, e.g., United States
v. Jardina, 747 F.2d 945, 949 (5th Cir. 1984)). Who knows?
We don’t, and Karzin didn’t either. The point is that
there are reasonable explanations for the request other
than a desire to obtain legal advice before speaking
further with the police—indeed, the possibilities just
set forth seem more likely than the reason that Hunter
actually gave. The fact that we could not have predicted
Hunter’s actual response to Karzin’s question only con-
firms that there are also many possibilities that would
not even occur to us. That is precisely why the Supreme
Court held in Davis that it is the suspect’s burden to
make an unambiguous assertion of the right to counsel:
to avoid forcing police officers “to make difficult judg-
ment calls about whether the suspect in fact wants a
lawyer even though he has not said so, with the threat
of suppression if they guess wrong.” 512 U.S. at 461.
In the context of this case, Detective Karzin couldn’t
know why Hunter wanted to talk to Schultz until he
asked a simple question to clarify Hunter’s ambiguous
and open-ended request.
That is exactly what both the Supreme Court and this
Court have repeatedly told police to do. In Davis, the
Supreme Court advised police to seek clarification of a
suspect’s intentions at the time of the request in order
to avoid “judicial second-guessing” about whether the
suspect intended to invoke his right to counsel or not.
Davis, 512 U.S. at 461 (police have no obligation to
clarify an equivocal or ambiguous reference to counsel,
No. 12-1751 33
but “it will often be good police practice . . . to clarify
whether or not [the suspect] actually wants an attor-
ney”). This Circuit has time and again reinforced that
message. See, e.g., United States v. Wysinger, 683 F.3d
784, 795 (7th Cir. 2012) (“we encourage law enforce-
ment officers to heed the Supreme Court’s suggestion
in Davis”); United States v. Lee, 413 F.3d 622, 626-27 (7th
Cir. 2005) (“We highly encourage police to follow the
advice offered by the Supreme Court and take the time
to clarify such issues at the time of interrogation
rather than in after-the-fact arguments before the
courts.”). Detective Karzin followed this advice—but
still cannot escape “judicial second guessing.”
Because Detective Karzin asked an utterly benign
question in response to Hunter’s request, it is clear
that Hunter did not intend to invoke his right to coun-
sel. Hunter responded not by saying, “Tell my lawyer I’d
like him to come to the hospital to consult before I talk to
you any further,” but by asking the detective to tell both
his parents and the attorney the very same thing: “Tell
them I’ve been shot.” 3 As the government made the
3
Hunter’s subsequent conduct reinforces the point. While a
CAT scan was being taken, Hunter affirmatively asked again
if Karzin was present, only to be told by medical staff
(who clearly understood his question to indicate that he
wanted to talk to Karzin) that he would be able to talk to the
police after the CAT scan procedure had been completed. And,
of course, we know that Hunter, before talking to other detec-
tives, did not (as one would expect had he intended to invoke
his right to counsel) inquire about the status of his request
(continued...)
34 No. 12-1751
point at oral argument, if Hunter had asked Karzin, “Can
you call my parents and lawyer and tell them I’ve been
shot,” it is difficult to imagine that anyone would
have construed Hunter’s question as an invocation of
the right to counsel. Certainly it would not have been
an unambiguous invocation of that right.4
Citing Smith v. Illinois, 469 U.S. 91 (1984), the majority
maintains that Hunter’s response cannot be considered
(...continued)
that Karzin call Schultz and did not invoke his right to counsel
when other detectives again provided Miranda warnings
before they attempted to interview Hunter. Instead, consistent
with his earlier statement to Karzin that he was willing to talk
to the police, he voluntarily answered their questions. This
Court has repeatedly held that the fact that a suspect “did not
pursue the matter any further” after an initial inquiry about
counsel is an important factor in assessing whether that
inquiry constituted an invocation of counsel. Shabaz, 579 F.3d
at 819 (quoting Lord, 29 F.3d at 1221). See also, e.g., United
States v. Walker, 272 F.3d 407, 413-14 (7th Cir. 2001) (suspect’s
ambiguous statement interpreted in light of his later agree-
ment that police could “go ahead” with their questioning).
4
The district court agreed that Hunter’s reference to counsel
was ambiguous when viewed in the context of his statement,
“Tell them I’ve been shot.” Tr. 184. Indeed, the district court
criticized Karzin for not asking additional follow-up questions.
See Tr. 184-85 (“Now, if the officer had said at that time, Well
now wait a minute. You said you wanted to talk—you wanted
me to call Herb Schultz. What does that mean? Do you want
to talk to us without talking to him? . . . In other words, some
clarification of that ambiguity that was created by the officer’s
question, not by the defendant’s original statement.”).
No. 12-1751 35
because it came after he had unambiguously invoked
his right to counsel. Slip Op. at 16 (“courts should only
consider prior context when determining whether a defen-
dant unambiguously invoked his right to counsel”) (em-
phasis added). As discussed above, viewed in context
Hunter’s reference to counsel was not unambiguous, but
even putting that disagreement aside, the majority’s
reliance on Smith as justification for ignoring Hunter’s
response to Karzin’s statement remains misplaced.
Neither Smith nor any other opinion of the Supreme
Court or this Court holds that police may say nothing
more to a suspect once he has invoked his right to
counsel (even unambiguously). Smith (and Edwards, on
which it builds) bars only further “interrogation” after
the invocation of counsel. See Smith, 469 U.S. at 91(“Under Miranda and Edwards, . . . an accused’s postre-
quest responses to further interrogation may not be used
to cast doubt on the clarity of his initial request for coun-
sel.”); id. at 100 (“We hold only that . . . an accused’s
postrequest responses to further interrogation may not be
used to cast doubt on the clarity of the initial request
itself.”) (some emphasis added); Edwards v. Arizona, 451
U.S. 477, 484 (1981) (when an accused has “expressed
his desire to deal with the police only through
counsel, [he is] not subject to further interrogation until
counsel has been made available”) (emphasis added).
Neither case bars consideration of post-request statements
that are not the product of interrogation, and for good
reason: the Supreme Court held in Rhode Island v. Innis, 446
U.S. 291 (1980), that absent “interrogation,” Miranda
imposes no impediment to the use of a suspect’s state-
36 No. 12-1751
ments. Id. at 299-300 (“not . . . all statements obtained by
the police after a person has been taken into custody are
to be considered the product of interrogation”). See also
Edwards, 451 U.S. at 485 (Innis established that “[a]bsent
[custodial] interrogation, there would have been no
infringement of the right [to counsel] that Edwards in-
voked”).
In holding that Smith precludes consideration of
Hunter’s response to Karzin’s question in assessing
whether Hunter was invoking his right to counsel, then,
the majority reads Smith too broadly. Innis teaches that
the timing of a suspect’s statement is not the focus of
the prophylactic rules of Miranda and Edwards, but the
nature of the conduct that elicited it: “the issue . . . is
whether the respondent was ‘interrogated’ by the police
officers in violation of the respondent’s . . . right to
remain silent until he had consulted with a lawyer.”
Innis, 446 U.S. at 298. And “interrogation” encompasses
only “words or actions on the part of the police (other than
those normally attendant to arrest and custody) that
the police should know are reasonably likely to elicit
an incriminating response from the suspect.” Id. at 301.5
5
Smith, which was animated by the need to prevent “the
authorities through badgering or overreaching—explicit or
subtle, deliberate or unintentional [from wearing] down the
accused and persuad[ing] him to incriminate himself not
withstanding his earlier request for counsel’s assistance,” 469
U.S. at 95 (internal citations omitted), is not inconsistent.
There, the Supreme Court concluded that there was “subse-
(continued...)
No. 12-1751 37
The district court recognized that its inquiry should
turn on whether Karzin’s question “would reasonably be
intended or anticipated to lead to some incriminating
response.” Reh’g Tr. at 18. That is the right question, but
I respectfully submit that the district court reached the
wrong answer. Detective Karzin did not “interrogate”
Hunter by responding to a question that Hunter posed.
Relying on Innis, this Court has previously observed
that a “police officer’s response to a direct inquiry by
the defendant does not constitute ‘interrogation.’ ” United
States v. Briggs, 273 F.3d 737, 740 (7th Cir. 2001). See also
United States v. Hendrix, 509 F.3d 362, 374 (7th Cir. 2007)
(same, citing Briggs, 273 F.3d at 740). And in holding
that a police officer’s direct question to a suspect about
what he meant when he said he was “going to die,” we
acknowledged in Briggs what Innis made clear: “not all
direct questions [posed by police to a suspect] constitute
‘interrogation.’ Only questions that are ‘reasonably
likely to elicit an incriminating response from the sus-
pect’ are improper.” 273 F.3d at 741 (quoting Innis,
(...continued)
quent interrogation” by the police following an unequivocal
invocation of the right to counsel that included, among other
things, misstatements that suggested to the suspect that he
“had to” talk to police. Id. at 99 & n.8. The concerns that ani-
mated the Supreme Court’s opinion in Smith do not exist
where, as here, police do not interrogate—that is, where they
do not engage in conduct that is reasonably likely to elicit
incriminating statements.
38 No. 12-1751
446 U.S. at 301-02).6
Though it agrees that Hunter’s response to Karzin’s
question was not incriminating, the majority maintains
that the question was “an invitation to disaster,” Slip Op.
at 20, because Hunter “could have easily responded . . .
with an incriminating statement.” But the interrogation
test is not whether it is possible that a suspect might in-
criminate himself, but whether it is reasonably likely
that he would do so in response to the police conduct.
To take the view that Karzin’s question was rea-
sonably likely to elicit an incriminating response, one
would have to believe it likely that Hunter would
confess while simultaneously telling the police he would
not talk without a lawyer. That counterintuitive premise
is the sole justification the majority offers for its view
that Karzin’s single question constituted “interrogation.”
The majority does not tell us why it is likely that Hunter,
in the course of invoking his right to counsel, would
tell Karzin that he had shot a police officer, and
6
The majority notes, Slip Op. at 21, n.1, that the facts of Innis
itself are different than those in this case, but that says nothing
about the relevance of the test that Innis established to assess
whether police conduct constitutes interrogation. The majority
does not question the relevance or continuing vitality of the
Innis test. And in any event, the majority’s view that Karzin’s
express question to Hunter distinguishes this case from Innis
cannot be reconciled with this Court’s holding in Briggs,
where this Court expressly rejected the notion that where a
police officer asks a suspect a direct question, there is neces-
sarily interrogation.
No. 12-1751 39
I cannot fault Detective Karzin for the evident deficit in
his imagination in failing to anticipate that remote pos-
sibility. The majority’s scenario is implausible and in-
dulging such fanciful scenarios, in my view, turns the
Innis test into one that requires police to refrain from
all conduct that does not foreclose the possibility of
eliciting an incriminating response.
That approach is inconsistent not just with Innis, but
with the myriad cases in which this Court has held that
Innis permits conduct far more provocative than Detec-
tive Karzin’s single question in response to Hunter’s
inquiry. Karzin’s response to Hunter pales in sig-
nificance to police dialog with custodial suspects that
this Court has held not to rise to the level of interroga-
tion. See, e.g., United States v. Johnson, 680 F.3d 966, 977
(7th Cir. 2012) (presenting or reciting the evidence
against a suspect does not constitute interrogation, and
citing cases from this and other circuits supporting that
proposition); United States v. Knope, 655 F.3d 647, 652
(7th Cir. 2011) (administrative questions—e.g., address of
residence—do not constitute interrogation even where
they lead to discovery of incriminating evidence);
Hendrix, 509 F.3d at 374 (officer’s dialog with suspect
about what had been found during execution of search
warrant “may have aroused [suspect’s] curiosity”, but did
not constitute interrogation); United States v. Shlater, 85
F.3d 1251, 1256 (7th Cir. 1996) (requests for consent to
search do not constitute interrogation under Innis stan-
dard). And if, as this Court held in Briggs, a police
officer can directly question a suspect about what he
meant when he said he was “going to die” did not consti-
40 No. 12-1751
tute interrogation under Innis, it is difficult to fathom
how an officer’s innocuous response to a question posed
by the suspect, such as “what do you want me to tell
these people?” could be deemed to undercut the right
to counsel.
It cannot—and this Court’s recent decision in
Hampton proves the point. In Hampton—which also hap-
pened to involve a defendant who “was arrested for
unlawfully possessing a firearm as a felon after he dis-
carded a loaded handgun during a foot chase with
police”—this Court held that officers “did not violate
the Miranda/Edwards rule,” 675 F.3d at 723, by asking ques-
tions to clarify the suspect’s intent to invoke counsel,
even assuming that his request for counsel was unambiguous.
Id. at 728. The questions police posed there following
the invocation of counsel, we held, did not undercut
the prophylactic safeguards Miranda and Edwards
imposed because they did not constitute “an interroga-
tion at all.” We found them instead to be “just what
the Supreme Court recommends that officers do in this
situation.” Id. at 728. Because “no interrogation oc-
curred” when the officers attempted to clarify the
suspect’s intent, the Court considered the suspect’s
further statements regarding his intention in assessing
whether or not he had invoked his right to counsel—
and concluded that he had not. Id. at 728-29.
The same rationale explains why this Court, in Lee,
admonished police to ask clarifying questions in the
context of a case in which the suspect’s reference to an
attorney came in the form of a question (“Can I have an
No. 12-1751 41
attorney?”) that the majority now says is so unambiguous
as to permit no follow up at all—even follow-up that
would be necessary to facilitate the suspect’s communica-
tion with counsel. See 413 F.3d at 626-27 (following
that question, police should have either halted interroga-
tion or obtained further clarification of the suspect’s
intent to invoke counsel).
In the absence of interrogation, there is no reason or
basis to exclude Hunter’s response to Karzin’s question
from the assessment of whether Hunter’s request that
Karzin call Schultz should be construed as an invocation
of counsel.7 Though the majority says that Karzin’s ques-
tion was “wholly unnecessary,” even if that were the
test (and, again, it is not), the question was anything but:
to carry out Hunter’s request, Karzin had to know
what Hunter wanted him to say. That is true even if
Hunter had been invoking counsel in asking Karzin to
make the call; indeed, it is arguably even more important
in that context that the law enforcement official relay
the right message. Why should a police officer’s attempt
to accurately relay a message from a suspect to his
lawyer be impermissible? Would we rather they guess?
These questions highlight what, in my view, is most
problematic about suppressing Hunter’s subsequent
7
The majority notes (Slip Op. at 16) that the government does
not contend that Hunter’s response to Karzin’s question
constitutes a waiver of an invocation of the right to counsel.
That is correct, but beside the point. Hunter didn’t waive
his right to counsel after invoking it; as his response confirms,
he didn’t invoke the right in the first place.
42 No. 12-1751
statements: Detective Karzin’s question, by its express
terms, was far more likely to facilitate Hunter’s com-
munication with counsel than to obstruct it. The
Supreme Court instituted the requirement of providing
prophylactic Miranda warnings to protect, among other
things, a suspect’s Fifth Amendment right to counsel.
See Berghuis v. Thompkins, ___ U.S. ___, ___ , 130 S. Ct. 2250,
2261 (2010) (“The main purpose of Miranda is to ensure
that an accused is advised of and understands the right
to remain silent and the right to counsel,” citing Davis,
512 U.S. at 460). If, as the majority posits, Hunter’s
request must be regarded as an expression of his desire
to consult with counsel, then delivering the substance
of his message to counsel plainly promotes and enhances
the suspect’s exercise of that right. Karzin’s inquiry
explicitly sought to do just that. The troubling irony in
the majority’s opinion, then, is that it turns Miranda
inside out, penalizing police for attempting to facilitate
communication with counsel rather than encouraging
them to do so. Surely we want police officers to relay
messages to counsel when a suspect is unable to make
the call themselves? But why, in light of this opinion,
would they ever agree to do so?
III.
At oral argument, the government’s counsel asked:
What is it about the facts of this case that offends our
Constitutional sensibilities? When a defendant plainly
has not invoked his right to counsel and the govern-
ment did nothing that was intended, or likely, to under-
No. 12-1751 43
mine that right, I do not find anything that offends my
Constitutional sensibilities. By contrast, a rule that sup-
presses evidence is “justified only by reference to its
prophylactic purpose.” Connecticut v. Barrett, 479 U.S.
523, 528 (1987). When application of a prophylactic rule
would diminish, rather than enhance, the constitutional
rights the rule is intended to protect, I cannot endorse
that result. I therefore respectfully dissent.
2-28-13