Chatty Suspect Didn't Clearly Invoke Right to Counsel

Eight years ago, there was a serial killer at large in our hometown. The first thing we learned about serial killers is that everyone is an expert on serial killers.

We know that serial killers are usually white, male, and between the ages of 20 and 40. We know that they prefer victims of the same race. We know this because we learned it watching Silence of the Lambs. Thank you Dr. Lecter.

The average citizen is similarly savvy when it comes to Miranda warnings, thanks to Law & Order. But while every viewer is a Miranda expert, the show ultimately gives lay people a false sense of security that they invoke the right to counsel by merely uttering the word "lawyer."

The Fifth Circuit Court of Appeals reminded us this week that the right to counsel is not so easily invoked when the word "lawyer" is just one among many words rolling off a talkative suspect's tongue.

A day after Miguel Carrillo was arrested for possession of methamphetamine with intent to distribute, he had a lengthy, recorded interview with two detectives, during which he confessed.

Before trial, Carrillo filed a motion to suppress the recording, arguing that his confession was obtained in violation of his right to counsel; the district court denied his request, and the Fifth Circuit Court of Appeals affirmed that decision.

Carrillo's suppression request relied on three comments he made during that interview:

• I wish I had a lawyer right here.
• I wanted to see if we could push this to where I could get my lawyer.
• I wanted to see if you could work with me and push this deal to where I can get a lawyer and just sit down and talk about it.

While these comments, viewed in isolation, appear to constitute a clear invocation of Carrillo's right to have counsel present, the entire context in which Carrillo made the comments supported the district court's conclusion that a reasonable police officer would not have understood that Carrillo wanted to stop talking with the police without an attorney present. Thus the Fifth Circuit concluded that the district court did not err by denying Carrillo's motion to suppress.

"Lawyer" is not the safe word that stops all the action in police questioning. Instead, as the Fifth Circuit Court of Appeals ruled this week, a suspect must specifically ask for an attorney, and invoke his right to remain silent.

It's worth noting that Carrillo's confession came during a second round of questioning; the day of his arrest, Carrillo specifically asked for an attorney, and all questioning stopped. The second round of questioning occurred after Carrillo left a phone message for the detectives indicating that he wanted to talk to them.

What can you do to help your clients avoid a similar fate? Clearly, advise your client not to speak to police unless they have an attorney present.

Related Resources:

• U.S. v. Miguel Carrillo (FindLaw's CaseLaw)
• Right to Counsel Must be Clear, 9th Circuit Court of Appeals Says (FindLaw's Ninth Circuit blog)
• The Miranda Right to Counsel Shrinks at the Supreme Court (FindLaw)
• Seventh Circuit Denies Motion to Suppress Waiver of Waiver (FindLaw's Seventh Circuit blog)