The defendant in this case (Potter) sought to have statements suppressed as a result of a Miranda violation when the officers continued questioning him after he invoked the right to counsel. Potter asserted that since he “mentioned an attorney” and asked if he needed one, that he effectively invoked the right to counsel.

The Sixth Circuit did not agree.  In an outstanding recital of the right to counsel and effective invocation of that right, the court noted that the Fifth Amendment gives an individual the right not to “be compelled in any criminal case to be a witness against himself.”  In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court safeguarded this right by requiring officers who interrogate individuals in police custody to remind them that they have a right to remain silent and a right to have an attorney present during questioning. Once a person invokes the right to counsel under a Miranda Warning, officers must immediately cease all questioning. (See Edwards v. Arizona, 451 U.S. 477 (1981)). To compel officers to end questioning under this right, a “suspect must unambiguously request counsel.” (See Davis v. United States, 512 U.S. 452 (1994)).  So “ambiguous or equivocal” requests for an attorney do not put reasonable officers on notice that the interrogation must stop.  The court held that nothing in these facts shows that Potter unambiguously requested counsel. “The mere mention of an attorney does not cut it… Nor does a question about having an attorney.”  Accordingly, the court ruled that the defendant did not effectively invoke the right to counsel and the continued questioning was lawful.

Editor’s Note:  The Fourth Amendment is our “bread and butter” as LEOs and we spend a lot of time reviewing cases involving search and seizure issues. But interrogations and interviews are also a very key part of investigating criminal activity, so it is good to review a Fifth Amendment case involving Miranda issues every once in a while. This is a great case to review regarding issues of invocation as well as reapproaches after one or both of the Miranda rights are invoked. Regarding reapproaches, Potter actually told the officers at one point that he didn’t want to talk to them (effectively invoking the right to remain silent). The officers stopped questioning, but Potter re-initiated contact the next day. Regarding invoking the right to counsel, the circuits are split as to exactly what is required to effectively invoke the right to counsel. The court provides a number of examples of these differences on page 6 of the opinion that are worth a read!  Post-Miranda invocations and reapproaches can be tricky (especially when you throw in the Sixth Amendment right to counsel). Criminal Investigators need to master this area of the law in order to ensure confessions and statements against interests can be used in criminal proceedings.

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