Chapter 44: Miranda Invocations

[1] USSC: Moran v.
Burbine (1986) 475 US 412, 433, fn.4 ["the privilege
against compulsory self-incrimination is, by hypothesis, a
personal one that can only be invoked by the individual whose
testimony is being compelled"]. CAL: P v.
Beltran (1999) 75 CA4 425, 430 ["The [Fifth Amendment]
right is a personal one which must be invoked by the individual
whose testimony is being compelled, and there is no agency theory
under which Beltran's attorney could invoke that personal right on
his behalf."]; P v. Avila (1999) 75 CA4 416,
422-24 [invocation by suspect's attorney invalid]; P v.
Calderon (1997) 54 CA4 766, 770-71 [invocation made by
public defender investigator was ineffective]. OTHER:
US v. Ricker (8C 2020) 983 F3 987, 993 [adult suspect told
officers that his father wanted an attorney to be present; not an
invocation]; US v. Medunjanin (2C 2014) 752 F3 576, 587
[suspect's attorney could not invoke the suspect's
Miranda rights].

[2] CAL: P v. Duff (2014) 58 C4
527, 553 [because the suspect's reference to a lawyer occurred
before he waived his rights, "the rules respecting pre-Miranda
waiver invocations of the right to counsel apply"];
P v. Williams (2010) 49 C4 405, 428 [Davis applied
to "a postwaiver invocation"];. 9th CIR:
US v. Rodriguez (9C 2008) 518 F3 1072, 1078-79 ["the 'clear
statement' rule of Davis addresses only the scope of
invocations of Miranda rights in a post-waiver context"];
US v. Cheely (9C 1994) 36 F3 1439, 1448 ["In contrast to
Cheely who unequivocally refused to waive his right to counsel,
Davis unequivocally waived his right and then, after a period of
questioning, equivocated"].

[3] USSC: Davis v. US (1994) 512
US 452, 461 ["after a knowing and voluntary waiver of the
Miranda rights, law enforcement officers may continue
questioning until and unless the suspect clearly requests an
attorney"]. CAL: P v. Krebs (2019) 8 C5 265, 313
["Because defendant had previously waived his rights, a subsequent
invocation must be unambiguous to be effective."];
P v. Sanchez (2019) 7 C5 14, 49 [when a "defendant has
waived his Miranda rights and agreed to talk with police,
any subsequent invocation must be unequivocal and unambiguous,"
edited]; P v. Stitely (2005) 35 C4 514, 535 ["In order to
invoke the Fifth Amendment privilege after it has been waived, and
in order to halt police questioning after it has begun, the
suspect must unambiguously assert his right to silence or
counsel."]; P v. Gonzalez (2005) 34 C4 1111, 1125 [the test
is "whether, in light of the circumstances, a reasonable officer
would have understood a defendant's reference to an attorney to be
an unequivocal and unambiguous request for counsel"];
P v. Nelson (2012) 53 C4 367, 377 ["a postwaiver invocation
determination contemplates reference to a reasonable officer's
understanding of a suspect's statement"];
P v. Cunningham (2001) 25 C4 926, 993 ["The suspect must
unambiguously request counsel."]. 9th CIR:
Clark v. Murphy (9C 2003) 331 F3 1062, 1070 ["unless the
accused makes an unambiguous request for counsel, the authorities
are free to continue questioning"].

[4] USSC:
McNeil v. Wisconsin (1991) 501 US 171, 182, fn.3 ["We have
in fact never held that a person can invoke his
Miranda rights anticipatorily"]. CAL:
P v. Calderon (1997) 54 CA4 766, 770 [court notes the
Supreme Court's "antipathy towards the anticipatory invocation of
the Miranda rights"]. OTHER: US v. Rambo (10C 2004)
365 F3 906, 909 ["For the protections of Miranda to apply,
custodial interrogation must be imminent or presently
occurring."]; US v. LaGrone (7C 1994) 43 F3 332, 339 ["in
order for a defendant to invoke his Miranda rights the
authorities must be conducting interrogation, or interrogation
must be imminent"].

[5] OTHER: US v. Abdallah (4C
2018) 911 F3 201, 212 ["the government cites no case—nor have we
found any such case—holding that defendants must wait until the
completion of Miranda warnings prior to invocation."].

[6] USSC: Davis v. US (1994) 512
US 452, 459 ["Invocation of the Miranda right to counsel
requires, at a minimum, some statement that can reasonably be
construed to be an expression of a desire for the assistance of an
attorney. But if a suspect makes a reference to an attorney that
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, our precedents do not
require the cessation of questioning."]. NOTE: This rule
applies to invocations of the right to remain silent and the right
to counsel. See P v. Nelson (2012) 53 C4 367, ["The
requirement of an unambiguous and unequivocal assertion likewise
applies to a suspect's invocation of the right to silence."];
P v. Martinez (2010) 47 C4 911, 947 ["we have also applied
Davis's articulation standard to ambiguous statements made
in the context of suspect's invocation of the right to remain
silent"].

[7] QUOTE FROM:
P v. Sauceda-Contreras (2012) 55 C4 203, 218 [court notes
that the Ninth Circuit has said that a remark is ambiguous if it
was "reasonably open to more than one interpretation is
ambiguous"]. 9th CIR: US v. Rodriguez (9C 2008) 518
F3 1072, 1080, fn.3 [Ambiguity means admitting more than one
interpretation or reference or having a double meaning or
reference."].

[8] QUOTE FROM:
P v. Johnson (2019) 32 CA5 26, 55. USSC:
Davis v. US (1994) 512 US 452, 459 ["But if a suspect makes
a reference to an attorney that 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, our precedents do not require the cessation of
questioning."]. CAL: P v. Stitely (2005) 35 C4 514,
535 ["It is not enough for a reasonable police officer to
understand that the suspect might be invoking his rights."].

[9] USSC: Davis v. US (1994) 512
US 452, 459 [invocation would not occur if "a reasonable officer
in light of the circumstances would have understood only that the
suspect might be invoking"]. CAL:
P v. Cunningham (2015) 61 C4 609, 646 [a suspect "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."];
P v. Sauceda-Contreras (2012) 55 C4 203, 217-18 [the
standard "is an objective one that asks what a reasonable officer
would have understood the nature of the suspect's request to be
under all the circumstances"]; P v. Williams (2010)
49 C4 405, 428 ["the question of ambiguity in an asserted
invocation must include a consideration of the communicative
aspect of the invocation—what would a listener understand
to be the defendant's meaning"]; P v. Gonzalez (2005) 34 C4
1111, 1125 [invocation results if "a reasonable officer would have
understood a defendant's reference to an attorney to be an
unequivocal and unambiguous request for counsel"];
P v. Nelson (2012) 53 C4 367, 377 ["the suspect's
subjective desire for counsel is not relevant"].

[10] USSC:
J.D.B. v. North Carolina (2011) 564 US 261, 271 ["The test
involves no consideration of the actual mindset of the particular
suspect subjected to police questioning.];
Stansbury v. California (1994) 511 us 318, 323 [

[11] USSC: Connecticut
v. Barrett (1987) 479 US 523, 528 ["Nothing in our
decisions or in the rationale of Miranda, requires
authorities to ignore the tenor or sense of a defendant's response
to these warnings."]. CAL: P v. Ramirez (2022) 13 C5
997, 1104 [suspect's saying "I don't have nothing else to say to
you guys" was not an invocation but merely a response to the
officers' informing him that they would leave him alone for a
while to think things over]; P v.
Scott (2011) 52 C4 452, 482 [the statement was not an
invocation "in context"]; P v. Bacon (2010)
50 C4 1082, 1107 [considering "the totality of this exchange];
P v. Williams (2010) 49 C4 405, 429 ["In certain
situations, words that would be plain if taken literally actually
may be equivocal [when considered in context]."]; P v.
Thompson (1990) 50 C3 134, 166 [in context, the statement
was "only an explanation of why he was willing to proceed without
counsel"]; P v. Peracchi (2001) 86 CA4 353, 359-60
["the words used must be considered in context."]. OTHER:
US v. Hampton (7C 2012) 675 F3 720, 727 ["the
"analysis does not end with words alone; we also consider the
circumstances in which the statement was made," edited].

[12] USSC:
Smith v. Illinois (1984) 469 US 91, 99 ["[an accused's
postrequest responses to further interrogation may not be used to
cast retrospective doubt on the clarity of the initial request
itself"]. CAL: P v. Henderson (2020) 9 C5 1013,
1025; P v. Nelson (2012) 53 C4 367, 385 ["a finding of a
sufficiently clear invocation cannot be predicated upon unrelated
discussions of events that occurred after the statement was
made"]. OTHER: US v. Hampton (7C 2012) 675 F3 720,
726-27 ["But a request for counsel, unequivocal when made, cannot
be rendered equivocal by continued questioning."].

[13] CAL: P v. Clark (1993) 5 C4
950, 990-91 [a review of an audio recording of the statement,
"including the tone and inflections of defendant's voice, reveals
that defendant's questions were rhetorical in nature and linked to
his repeated explanation of the reasoning behind the waiver of his
rights"]; P v. Davis (2009) 46 C4 539, 588 [a videotape
demonstrated that Davis was simply "employing his own technique by
standing up and issuing a challenge to his questioners"].

[14] CAL: P v. Carey (1986) 183
CA3 99, 103 ["The 'clarification rule' requires ambiguity as a
precedent which is not here present."]; P v. Harris (1989)
211 CA3 640, 649 ["But here there was nothing ambiguous about
appellant's initial assertion of his right to remain silent. Thus,
there was nothing for Sgt. Ward to clarify"]. 9th CIR:
Anderson v. Terhune (9C 2008) 516 F3 781, 788
["the officer decided to 'play dumb,' hoping to keep Anderson
talking"; "Where the initial request to stop the questioning is
clear, the police may not create ambiguity in a defendant's desire
by continuing to question him about it."].

[15] CAL: P v.
Lispier (1992) 4 CA4 1317, 1322 ["We hold that a general
Miranda invocation is not the specific expression of the
exercise of the right to counsel under Miranda"].

[16] EXAMPLES: The following are
examples of remarks that were deemed to constitute unambiguous
invocations of the right to remain silent:

• When an officer asked defendant if he would waive his
rights, he said "No, not about a robbery/murder."
P v. Case (2018) 5 C5 1, 21 ["defendant was asked whether
he would talk to the detectives and answered no. This seems clear
enough."].

• Defendant, a 17-year old suspect in two gang related
shootings, repeatedly asked if he could go home now.
P v. Villasenor (2015) 242 CA4 42, 65 ["Here, defendant
told Detective Sample to take him home 13 times within a matter of
14 minutes"].

• I don't want to answer any more questions.
In re Z.A. (2012) 207 CA4 1401, 1412

• I don't want to discuss it right now.
P v. Peracchi (2001) 86 CA4 353, 361.
ALSO SEE: P v. Superior Court (Corbett) (2017) 8 CA5
670, 680 ["I don't want to talk about [the crime]."].

• I don't want to talk to you. I'm not going to sign
anything.
US v. DeMarce (8C 2009) 564 F3 989, 994.

• I plead the Fifth. Anderson v.
Terhune (9C 2008) 516 F3 781, 784 ["It is rare for the
courts to see such a pristine invocation of the Fifth Amendment"].

• I'll take the Fifth. I don't want to talk.
In re Johnny V. (1978) 85 CA3 120, 133.

• Officer: Having these rights in mind, do you want to talk
to me now? Suspect: I ain't got nothin' to say. Officer: Is that,
you don't know what to say or you'll answer some questions of
mine? Suspect: I ain't got nothin' to say at all. Court: "How many
times must a defendant exclaim, 'I ain't got nothin' to say' to
invoke his privilege to remain silent." P v.
Carey (1986) 183 CA3 99, 105. Also see
In re Albert R. (1980) 112 CA3 783, 790.

• Officer: Do you want to talk to me about this stuff?
Suspect: No. Court: "Rambo's refusal to discuss the robberies was
a clear and unambiguous invocation of his right to remain silent."
US v. Rambo (10C 2004) 365 F3 906.

[17] EXAMPLES: The following are
examples of remarks that merely constituted reluctance to speak
with officers:

• Suspect said "Do you mind if I go back to my cell and think
about tonight and talk to you guys tomorrow."
P v. Hoyt (2020) 8 C5 892, 932-33.

• Suspect requested a break from questioning to "let me
think"].
P v. Krebs (2019) 8 C5 265, 313 ["Defendant did not invoke
his right to silence by merely saying nothing for 15 minutes while
[the officer] talked"].

• Suspect not saying anything for 15 minutes.
P v. Krebs (2019) 8 C5 265 ["Defendant did not invoke his
right to silence by merely saying nothing for 15 minutes while
[the officer] talked"].

• Suspect: "Why would I want to talk to you about
something that occurred back [in 1979 or 1980]?"].
P v. Parker (2017) 2 C5 1184, 1216-17.

• Suspect: "I don't know what to do… I want to
help you guys, I want you guys to find him, but I don't want to
incriminate myself." P v. McCurdy (2014) 59 C4 1063,
1089-90.

• Suspect: "I can't talk no more.
P v. McCurdy (2014) 59 C4 1063, 1090.

• Suspect: "I want to go home." ["Simpson's repeated
statements that he wished to go home were not unambiguous
invocations of his right to remain silent. The prospect of going
home would naturally be of great interest to any suspect
undergoing interrogation, but like the Eleventh Circuit, we are
not persuaded that a statement about wanting to go home evidences
a refusal to talk further."]. US v. Simpson (8C 2022) 44 F4
1093, 1097.

• Suspect: I don't know if I wanna talk anymore since
it's someone killed. P v. Wash (1993) 6 C4 215, 238-39
["defendant's statement here does not amount to even an equivocal
assertion of his right to remain silent. Defendant expressed
uncertainty as to whether he wished to continue"]. Also see
P v. Scott (2011) 52 C4 452, 482 [the statement "appears to
be simply a repeated refusal to admit his guilt"];
P v. Ashmus (1991) 54 C3 932, 970 [in context, the
suspect's statement "now I ain't saying no more" was an attempt
"to alter the course of the questioning. But he did not attempt to
stop it altogether"]; US v. Rodriguez (9C
2008) 518 F3 1072, 107 [when asked if he wanted to waive his
rights, the suspect respond, "I'm good for tonight"].

• Officer: Would you like to quit [the interview] now?
Suspect: (Nods affirmatively) P v.
Carr (1972) 8 C3 287, 297 ["highly equivocal"].

• Officer: Can you tell us what happened?
Suspect: I can't. P v. Montano (1991) 226 CA3
914, 93 ["That response does not amount to an invocation."].

• Officer: Okay, we're talking deadly serious stuff
here partner. We're through bantering around. You've got to think
what's best for me. Now what do these guys know and what don't
they know. If they got enough to do me, what's my best thing to
do. What's best for me. Suspect: I don't know what you, I
don't want to talk about this. You all are getting me confused. I
don't even know what you're talking about. You're making me
nervous here telling me I done something I ain't done. Kill
somebody, come on, give me a break. P v.
Musselwhite (1998) 17 C4 1216, 1238-40 ["something less"
than an invocation].

• Officer: How did that [robbery-murder] go down?

Suspect: Well, I did it all. It was self-defense.

Officer: Well, I know it, but what happened?

Suspect: Do I gotta still tell you after I admit it?
P v. Hayes (1985) 38 C3 780, 786 ["taken in context
defendant's remark meant that although he was willing to confess
to the crimes he was uncomfortable about going into their details.
Such reluctance is an understandable reaction to a confession of
multiple robbery-murder, and does not rise to the level of an
implied assertion of the defendant's constitutional right to cut
off questioning"].

• Officer: What did you see when you saw the
[murdered] cashier? Suspect: Do I have to talk about this
right now? Officer: Yeah, I'm afraid you have to.
P v. Castille (2005) 129 CA4 863, 885 [suspect
"merely demonstrated his discomfort with the particular question
about seeing the body of the clerk, who had been shot in the head
with a large-caliber slug"].

• Suspect: "I think it's about time for me to stop
talking." P v. Stitely (2005) 35 C4 514, 535 [under
the circumstances, the remark "expressed apparent frustration but
did not end the interview"].

• Suspect: "That's all I can tell you," "What else can
I say?" P v. Martinez (2010) 47 C4 911, 949-50;
In re Joe R. (1980) 27 C3 496, 516 [suspect was essentially
saying, "That's my story and I'm gonna stick with it"].
OTHER: US v. Ferrer-Montoya (8C 2007) 483 F3 565,
569.

• Suspect said little or nothing: The suspect listened
to officers but did not participate in the interview.
P v. Krebs (2019) 8 C5 265, 313 ["Defendant did not invoke
his right to silence by merely saying nothing for 15 minutes while
[the officer] talked"]; Berghuis v. Thompkins (2010) 560 US
370, 375, 381 [an implied waiver resulted even though the
defendant was "largely silent during the interrogation which
lasted about three hours"]; Salinas v. Texas (2013) 570 US
178, 188 [commenting on Berghuis, the Court noted that "we
held in the closely related context of post-Miranda silence
that a defendant failed to invoke the privilege when he refused to
respond to police questioning for 2 hours and 45 minutes"].

• Suspect requested a recess: P v. Nelson (2012) 53 C4 367, 383 [suspect asked for "a
few minutes to myself" and for time to "be alone until my family
gets here."].

[18] EXAMPLES: The following are
examples of expressions of frustration that did not constitute an
invocation:

• Suspect: "I don't have nothing else to say to you
guys." P v. Ramirez (2022) 13 C5 997, 1105 ["Defendant had
repeatedly denied involvement in the crimes, the officers had
accused him of lying, and they had invited him to 'rethink
everything.' His response could reasonably be construed as an
affirmation of his statements and a declaration that he had
nothing more to add, rather than an assertion of the right to
silence."]

• Suspect: "I'll tell you something right now. You're
scaring the living shit out of me. I'm not going to talk. You have
got the shit scared out of me," and, "I'm not saying shit to you
no more, man. You, nothing personal man, but I don't like you.
You're scaring the living shit out of me. ... That's it. I shut
up." Court: "We conclude that the statements reflect only
momentary frustration and animosity toward [officer] Cromwell. It
is evident that defendant believed Cromwell was misconstruing
defendant's statements." P v. Jennings (1988) 46 C3 963,
978-79.

• Suspect: "You're gonna try to con… now I
ain't saying no more." P v. Ashmus (1991) 54 C3 932, 970
["He evidently sought to alter the course of the questioning. But
he did not attempt to stop it altogether."].

• Officer: [Suggests that the suspect had fought with
the murder victim].

Suspect: Okay. I'll tell you. I think it's about time for
me to stop talking.

Officer: You can stop talking.

Suspect: Okay.

Officer: It's up to you…

Suspect: Well, I mean. God damn accused of something that I
didn't do. I'm telling you the truth. And you're not believe [sic]
me.

Officer: Richard, the only problem is, I can prove
otherwise.

Suspect: The only thing you can prove is I took her out of
that bar man.

Court: The remark ("I think it's about time for me to stop
talking") was merely an expression of "apparent frustration."
P v. Stitely (2005) 35 C4 514, 535. Also see P
v. Nelson (2012) 53 C4 367, 383 ["A reasonable
officer in the circumstances could view that statement [that the
juvenile wanted to speak with his mother] as an expression of
frustration with the investigators' repeated refusal to accept his
denial of guilt for the murder."].

• Officer: By you sitting here lying it just makes us
think you're hiding something.

Suspect: Well, I know I wasn't there. I ain't talking no
more and we can leave it at that.

Court: "When viewed in conjunction with his earlier
expressions of frustration during the interview, this statement
… was another expression of momentary frustration and, at
most, was an ambiguous invocation of the right to remain silent."
P v. Thomas (2012) 211 CA4 987, 1007.

• Officer: How did you meet her that day?

Suspect: I don't know.

Officer: What did you do that day with her? Why did it turn
out the way it did?

Suspect: I don't want to talk about it.

Court: The remark was merely "an expression of defendant's
repeated insistence that he was not acquainted with the victim as
proof that he had not encountered her on the night of the crime."
P v. Williams (2010) 49 C4 405, 434.

[19] OTHER:
US v. Ferrer-Montoya (8C 2007) 483 F3 565, 569 ["Being
evasive and reluctant to talk is different from invoking one's
right to remain silent."].

[20] CAL: P v.
Maier (1991) 226 CA3 1670, 1677-78. 9th CIR:
US v. Andaverde (9C 1995) 64 F3 1305,
1315 ["The Seventh and Eighth Circuits, and a number of other
circuits, have stated that a refusal to sign a waiver form does
not show that subsequent statements are involuntary," citations
omitted.]. OTHER: US v. Oehne (2C 2012) 698 F3 119,
123; US v. Plugh (2C 2011) 648 F3 118, 123;
US v. Binion (8C 2009) 570 F3 1034, 1041
["Refusing to sign a written waiver of the privilege against self
incrimination does not itself invoke that privilege and does not
preclude a subsequent oral waiver."].

[21] USSC: Connecticut
v. Barrett (1987) 479 US 523, 530, fn.4 ["there may
be several strategic reasons why a defendant willing to speak to
the police would still refuse to write out his answers to
questions"].

[22] USSC: Fare v.
Michael C. (1979) 442 US 707 [talk to probation officer].
CAL: P v. Robertson (1982) 33 C3 21, 40 [request to
talk to his psychologist]; P v. Barrow (1976) 60 CA3 984,
994 [request to talk to employer]; P v. Dreas (1984)
153 CA3 623, 631 [talk to friend, employer];
P v. Lessie (2010) 47 C4 1152, 1165 [request to talk with
father]; Ahmad A. v. Superior Court (1989)
215 CA3 528, 538 [talk to parent]; P v.
Hector (2000) 83 CA3 228, 235-36 [request to talk with
parent]. OTHER: Hall v. Thomas (11C
2010) 611 F3 1259, 1289 ["there is no clearly established federal
constitutional requirement that interrogation cease upon a
juvenile's request for the presence of a parent or guardian,"
edited].

[23] USSC: Davis v. US (1994)
512 US 452, 461 [invocation occurs only if the suspect "clearly
requests an attorney"]; McNeil v. Wisconsin (1991) 501 US
171, 178 [invocation of the right to counsel "requires, at a
minimum, some statement that can reasonably be construed to be an
expression of a desire for the assistance of an attorney
in dealing with custodial interrogation by the police."].

[24] EXAMPLES: The following are
examples of unambiguous invocations of the Miranda right to
counsel:

• "Want to, speak to an attorney first."
P v. Henderson (2020)) 9 C5 1013, 1023-24 [There is nothing
inconsistent or ambiguous about wanting to speak to an attorney
before taking responsibility"].

• Could I have an attorney? Because that's not me.
P v. Art T. (2015) 234 CA4 335, 355.

• Yeah, that's what my dad asked me to ask you guys ... uh,
give me a lawyer. Sessoms v. Grounds (9C 2015) 776 F3 615,
634.

• I want a lawyer. P v. McCurdy (2014) 59 C4 1063,
1089.

• I'm being set up. I want to see my lawyer!
P v. Hensley (2014) 59 C4 788, 810.

• I want to have an attorney. P v. Sapp (2003) 31 C4
240, 268.

• Well, if I'm under arrest I wanna lawyer. P v.
Boyer (1989) 48 C3 247.

• I'd like an attorney because this is serious. P v.
McClary (1977) 20 C3 218, 222.

• I better talk to a lawyer. P v. Dingle (1985)
174 CA3 21.

• I won't say anything until I see my lawyer.
P v. Jablonski (2006) 37 C4 774, 811.

• I didn't do any murders. I want to talk to a lawyer.
P v. Hayes (1985) 169 CA3 898, 907.

• Get me a lawyer and let's go down the road.
P v. Davis (2009) 46 C4 539, 588.

• I am ready to talk to my lawyer. P v.
Neal (2003) 31 C4 63, 73.

• I think now that you told me what you think, I better talk
to a lawyer. P v. Dingle (1985) 174 CA3 21.

• Fuck you. I want to talk to my lawyer. P v.
Lopez (2005) 129 CA4 1508, 1527.

• I mean, but can I call [an attorney] now?
US v. Wysinger (7C 2012) 683 F3 784, 795-96.

• I think I should get a lawyer. Wood v.
Ercole (2C 2011) 644 F3 83, 91.

• I do think before I take the polygraph I would like to talk
with an attorney and just make sure. I'd like to know what is
going on before I answer any more questions. P v.
Gamache (2010) 48 C4 347, 385.

• After the interrogating officer asked the suspect if he
understood that he had a right to counsel, he said "Uh, yea. I'd
like to do that." Smith v. Illinois (1984)
469 US 91.

[25] CAL: P v. Nelson (2012) 53
C4 367, 379-80 ["once a juvenile suspect has made a valid waiver
of the Miranda rights, any subsequent assertion of the
right to counsel or right to silence during questioning must be
articulated sufficiently clearly that a reasonable police officer
in the circumstances would understand the statement to be an
invocation of such rights"].

[26] EXAMPLES: The following are
examples of expression of uncertainty that did not constitute an
invocation of the right to counsel:

• "I would feel more comfortable [if I spoke to the public
defender]." P v. Molano (2018) 7 C5 620, 660 ["Most people
would feel more comfortable with a lawyer present during
interrogation. But that reality does not establish the converse:
that defendant was unwilling to speak without counsel's
assistance."].

• I'd sort of like to know what my lawyer wants me to do.
Petrocelli v. Baker (9C 2017) 869 F3 710, 725.

• They always tell you get a lawyer."
P v. McCurdy (2014) 59 C4 1063, 1087.

• I don't know if I need a lawyer. US v. Plugh (2C
2011) 648 F3 118, 126.

• I don't know if I should without a lawyer. P v.
Michaels (2002) 28 C4 486, 510

• Maybe I should talk to a lawyer. Davis v. US (1994)
512 US 452, 462. Also see P v. Sapp (2003) 31 C4 240, 268
["Maybe I should have an attorney"].

• I just thinkin', maybe I shouldn't say anything without a
lawyer and then I thinkin' ahh. P v.
Bestelmeyer (1985) 166 CA3 520, 527.

• If you can bring me a lawyer that way I can tell you
everything I know and everything I need to tell you and someone to
represent me. P v. Sauceda-Contreras (2012) 55 C4 203,
219-20.

• I think it'd probably be a good idea for me to get an
attorney. P v. Bacon (2010) 50 C4 1082, 1107
[edited].

• I guess you better get me a lawyer then.
US v. Havlik (8C 2013) 710 F3 818, 822 ["The phrase 'I
guess' is used to indicate that although one thinks or supposes
something, it is without any great conviction or strength of
feeling."].

• I think I would like to talk to a lawyer. Clark
v. Murphy (9C 2003) 331 F3 1062, 1071.

• Yes, I understand [my rights] and I was told to talk to an
attorney but I'm going to tell you the same thing I'm going to
tell him. P v. Cortes (1999) 71 CA4 62, 68, 71. Also
see US v. Hampton (7C 2012) 675 F3 720, 728 [the "hedge
word" "but" was a qualifier].

• I want to have an attorney present. I will talk to you now
until I think I need one. I don't need one present at this time.
P v. Cunningham (2001) 25 C4 926, 994.

• I think I had better get a lawyer before I talk any more. I
am going to get into trouble more than I am in now."
Frazier v. Cupp (1969) 394 US 731, 738-39. Also see
P v. Suff (2014) 58 C4 1013, 1070 [in ruling that the
defendant's request for counsel "if charged" did not constitute a
conditional invocation, the court noted that the "defendant did
not state that he would speak to the detectives without the
assistance of counsel only if he would not be charged with the
crimes"]. Compare P v. Sanchez (2019) 7 C5 14, 50
[defendant's statement "I'm not going to say nothing more"
demonstrated only "impatience to take the voice stress analyzer
test"];

[27] USSC: McNeil v.
Wisconsin (1991) 501 US 171, 178 ["To invoke the Sixth
Amendment interest is, as a matter of fact, not to
invoke the Miranda-Edwards interest."]; Texas
v. Cobb (2001) 532 US 162, 177 (conc. opn. of
Kennedy, J.) ["It is quite unremarkable that a suspect might want
the assistance of an expert in the law to guide him through
hearings and trial, and the attendant complex legal matters that
might arise, but nonetheless might choose to give on his own a
forthright account of the events that occurred."];
Patterson v. Illinois (1988) 487 US 285, 290.
CAL: P v. Clark (1992) 3 C4 41, 121 ["A
desire to have an attorney in the future, coupled with an
unambiguous willingness to talk in the meantime, is not an
invocation of the [Miranda] right to counsel requiring
cessation of the interview."]; P v. Williams (2010) 49 C4
405; P v. Morris (1991) 53 C3 152, 202 ["[The
defendant's] request for counsel at the arraignment on the
marijuana charge is not a clear expression of a desire that police
interrogation on the murder charge cease until he had consulted
with counsel."]; P v. Avila (1999) 75 CA4
416, 421 ["invocation of the Sixth Amendment's right to counsel
does not trigger the Fifth Amendment's corollary right to counsel
under Miranda"]; P v. Lispier (1992) 4 CA4
1317, 1325 ["Just because a criminal defendant invokes his Sixth
Amendment right to counsel, it does not mean he is simultaneously
invoking his Fifth Amendment right on a separate case."].
9th CIR: US v. Charley (9C 2005) 396
F3 1074, 1082 ["Invocation of the Sixth Amendment right to counsel
alone does not constitute an invocation of the
Miranda-Edwards Fifth Amendment right to counsel."];
US v. Cheely (9C 1994) 36 F3 1439, 1447-48
["Of course, Cheely does not necessarily invoke his rights simply
by saying the magic word 'attorney'; that word has no talismanic
qualities, and a defendant does not invoke his right to counsel
any time the word falls from his lips."]. OTHER:
Poyner v. Murray (4C 1992) 964 F2 1404, 1411
["the mere mention by a suspect of the word 'attorney' is not
sufficient to invoke the right to counsel"].

[28] EXAMPLES: Not invocations:
The following are examples of remarks about wanting an attorney in
court that did not constitute invocations:

• My mother will put out money for a high price lawyer out of
New York. P v. Johnson (1993) 6 C4 1, 28 ["Yet we
have found no case suggesting that a suspect's statement
concerning the possible retention of a lawyer for
future proceedings would require termination of a police
interrogation."].

• I'd like to know how long it will take to get an attorney.
I would like to talk to you in the interim period but I would like
to try to get one—you know, get the process started.
P v. Clark (1992) 3 C4 41, 121 ["Although he expressed the
desire to have the process of getting an attorney started, he
never showed the slightest reluctance to talk in the meantime."].

• But I just feel I want it noted that I want an attorney.
Officer: So you do want an attorney but not necessarily at this
particular second. Is that right? Suspect: Yes. P v.
Turnage (1975) 45 CA3 201, 211, fn.5.

• Well then book me and let's get a lawyer and let's go for
it."
P v. Davis (2009) 46 C4 539, 588 [The trial
court concluded that, in the context of what Davis and the
investigators had been saying at that point, he was merely
"standing up and issuing 'a challenge' to his questioners: If you
can prove it, go for it." The California Supreme Court agreed,
saying, "Here defendant's initial comments were not an unambiguous
invocation of the right to immediate presence of an attorney."].

• What time will I see a lawyer?" US v.
Doe (9C 1999) 170 F3 1162, 1166 ["[The defendant's]
question was an inquiry regarding the time at which appointed
counsel would be made available."].

• What time will I see a lawyer." US v.
Doe (9C 1999) 170 F3 1162, 1166 ["Doe's question was an
inquiry regarding the time at which appointed counsel would be
made available. [The officer] was not required to forgo
interrogation."].

• "And that's why I do not want to initial [the waiver]
because I do want an attorney if I'm going to be charged with
this."
US v. Giboney (8C 2017) 863 F3 1022, 1029.

[29] EXAMPLES: Not invocations:
The following questions and comments about attorneys were deemed
ambiguous:

• "Real quick, on the, uh, appointed lawyer, do you have a
lawyer here?" US v. Alt (7C 2023) __ F4 __ [2023 WL
387359].

• Should I have somebody here talking for me, is this the way
it's supposed to be?" P v. Cunningham (2015) 61 C4 609,
646.

• I'd like to know how long it will take to get an attorney.
I would like to talk to you in the interim period but I would like
to try to get one—you know, get the process started. Officer: Do
you want an attorney right now? Suspect: No, I'm willing to start
but I'm sure during the process, I'm going to want one.
P v. Clark (1992) 3 C4 41, 120.

• How can I obtain an attorney. Soffar v.
Cockrell (5C 2002) 300 F3 588, 595 ["a suspect's question
about how to obtain an attorney does not constitute an unambiguous
assertion of his right"].

• Do I need a lawyer before we start talking?
US v. Wysinger (7C 2012) 683 F3 784, 795 [the question
"indicates that the asker is contemplating whether he is in need
of [a lawyer]."].

• Do you think I need a lawyer? US v. Ogbuehi (9C
1994) 18 F3 807, 813.

• Am I going to be able to get an attorney?
US v. Shabaz (7C 2009) 579 F3 815, 819 ["Shabaz's question
was not a clear request for counsel"].

• How long would it take for a lawyer to get here.
P v. Simons (2007) 155 CA4 948, 958.

• Didn't you tell me I had the right to an attorney?
Poyner v. Murray (4C 1992) 964 F2 1404, 1411 [defendant was
merely "seeking clarification of his right to an attorney"].

• I can't afford a lawyer but is there any way I can get one?
Lord v. Duckworth (7C 1994) 29 F3 1216, 1221 [the remark
"lacked the clear implication of a present desire to consult with
counsel"].

• Did you say I could have a lawyer?
P v. Crittenden (1994) 9 C4 83, 130 ["Viewed in context,
defendant's statement simply indicated defendant wished to
ascertain whether he had heard the officer correctly."].

• Can I get an attorney right now? US v. Younger (9C
2005) 398 F3 1179, 1187.

• There wouldn't be [an attorney] running around here now,
would there? P v. Scaffidi (1992) 11 CA4 145, 154-55
["Defendant's language was phrased in a question. It displayed a
lack of decisiveness that the defendant wanted to assert his right
to counsel."].

• Can I call a lawyer or my mom to talk to you?
P v. Roquemore (2005) 131 CA4 11, 25 ["[This statement] did
not constitute an unequivocal request for counsel to be
present."].

• Could I call my lawyer? Dormire v. Wilkinson (8C
2001) 249 F3 801, 805 ["Wilkinson's question was not such a clear
and unambiguous request for counsel that [the officer] was
required to stop his interrogation."].

• But will [having an attorney] make a difference?
P v. Maynarich (1978) 83 CA3 476, 481 ["Defendant merely
wanted to know whether it would make a difference if he gave up
his right to have an attorney present."].

• Excuse me, if I am right, I can have a lawyer present
through all this, right? US v. Younger (9C 2005) 398 F3
1179 ["defendant's words did not unambiguously invoke the right to
counsel"].

• I don't have a lawyer. I guess I need to get one, don't I?
US v. Havlik (8C 2013) 710 F3 818, 821.

• Should I be telling you or should I talk to a lawyer?
Clark v. Murphy (9C 2003) 331 F3 1062, 1072.

• What can an attorney do for me? P v. Clark (1993) 5
C4 950, 990.

• Suspect asked if his attorney had been notified that a
second search warrant had been issued. US v. Medunjanin (2C
2014) 752 F3 576, 587.

• Suspect told officers that his attorney was at a funeral.
US v. Ricker (8C 2020) 983 F3 987, 993.

[30] CAL: P v. Williams (2010)
49 C4 405, 432 ["I want to see my attorney 'cause you're all
bullshitting now" was merely "an expression of frustration"];
P v. Johnson (1993) 6 C4 1, 28 ["My mother will put out
money for a high price lawyer out of New York."].

[31] USSC: McNeil v.
Wisconsin (1991) 501 US 171; Moran v.
Burbine (1986) 475 US 412, 422-23; Montejo
v. Louisiana (2009) 556 US 778. CAL:
P v. Sully (1991) 53 C3 1195, 1234 ["defendant's
appearance and acceptance of appointed counsel on one charge does
not amount to an invocation of such rights with respect to
another, uncharged offense"]; P v. Morris (1991) 53
C3 152, 201-2.; P v. Ledesma (1988) 204 CA3 682).
9th CIR: US v. Charley (9C 2005) 396
F3 1074, 1082 ["Invocation of the Sixth Amendment right to counsel
alone does not constitute an invocation of the
Miranda-Edwards Fifth Amendment right to counsel."].
OTHER: US v. Oehne (2C 2012) 698 F3 119, 123 ["Oehne
never requested a lawyer, even tentatively—he merely informed the
officers that he had a lawyer for an unrelated charge"].

[32] 9th CIR:
Robertson v. Pichon (9C 2017) 849 F3 1173, 1185.

[33] CAL: P v.
Burton (1971) 6 C3 375, 382 [an invocation occurs as the
result of "any words or conduct which reasonably appears
inconsistent with a present willingness on the part of the suspect
to discuss his case freely and completely with police at that
time"].

[34] USSC: Michigan v.
Mosley (1975) 423 US 96, 103-4 ["Through the exercise of
his option to terminate questioning [the suspect] can control the
time at which questioning occurs, the subjects discussed, and the
duration of the interrogation. The requirement that law
enforcement authorities must respect a person's exercise of that
option counteracts the coercive pressures of the custodial
setting."]; Connecticut v. Barrett (1987) 479
US 523, 525 ["The Connecticut Supreme Court nevertheless held as a
matter of law that respondent's limited invocation of his right to
counsel prohibited all interrogation ... Nothing in our decisions,
however, or in the rationale of Miranda, requires
authorities to ignore the tenor or sense of a defendant's response
to these warnings."]. CAL: P v.
Johnson (1993) 6 C4 1, 25-26 [a suspect does not
automatically invoke his rights "by imposing conditions governing
the conduct of the interview"].

[35] CAL: P v. Silva
(1988) 45 C3 604, 629-30 ["A defendant may indicate an
unwillingness to discuss certain subjects without manifesting a
desire to terminate an interrogation already in progress."];
P v. Vance (2010) 188 CA4 1182, 1211 ["I don't want to talk
about it" was not an unequivocal invocation]; P v.
Clark (1992) 3 C4 41, 122 ["Defendant did not refuse to
talk at all without an attorney. Rather, he indicated he would not
talk about one limited subject—unrelated to the offenses here
charged—without an attorney."]; P v. Williams (2010) 49 C4
405, 434 [the statement "I don't want to talk about it" was "an
expression of frustration… not an unambiguous invocation"];
P v. Ashmus (1991) 54 C3 932, 969 [by telling the
officer "I ain't saying no more," the suspect "sought to alter the
course of the questioning. But he did not attempt to stop it
altogether."]; P v. Michaels (2002) 28 C4 486, 510
["Defendant's statement, 'Okay, that one' implies a refusal to
answer a particular question"]. 9th CIR:
US v. Lopez-Diaz (9C 1980) 630 F2 661, 664, fn.2 ["A person
in custody may selectively waive his right to remain silent by
indicating that he will respond to some questions, but not to
others."]. OTHER: US v. Brown (7C 2011) 664 F3 1115,
1118 [not an invocation when defendant refused to name the person
who put out a "hit" on him]; McGraw v. Holland (6C 2001)
257 F2 513, 518 [limited invocation occurred when the suspect said
"I don't want to talk about it. I don't want to remember it."].
NOTE: If a suspect said that he did not want to talk about
the crime under investigation, officers may not ask questions that
were ancillary to the crime; e.g., "where were you last night at
eleven thirty?" See P v. Case (2018) 5 C5 1, 22 [after
invocation, a detective asked the suspect where he was on the
night of the murder; prosecution argued this was not a
Miranda violation because the question did not pertain
directly to the robbery/murder itself; the court said "we see no
meaningful distinction between" the two subjects].

[36] USSC: Fare v.
Michael C. (1979) 442 US 707, 727 ["at some points he did
state that he did not know the answer to a question put to him or
that he could not, or would not, answer the question, but these
statements were not assertions of his right to remain silent"].
CAL: P v. Hayes (1985) 38 C3 780, 786 ["taken in
context defendant's remark meant that although he was willing to
confess to the crimes he was uncomfortable about going into their
details"]; P v. Castille (2005) 129 CA4 863, 885 [the
suspect "gave no indication he actually wanted to stop the
interview, he merely demonstrated his discomfort with the
particular question"]. ALSO SEE: P v. Lessie (2010)
47 C4 1152, 1170 ["Nor did defendant hesitate at any point to
answer the detectives' questions."].

[37] CAL: P v. Parker (2017) 2
C5 1184, 1221 ["Here, although defendant made statements
suggesting he did not want to talk further with the Costa Mesa
detective and investigator, he also indicated a willingness to
speak with them in the future."]; P v. Martinez (2010) 47
C4 911, 951 ["I don't want to talk anymore right now."];
P v. Riva (2003) 112 CA4 981, 994 ["Riva's
statement he did not want to talk anymore 'right now' clearly
indicated he might be willing to talk in the future."];
P v. Bolden (1996) 44 CA4 707, 713 ["There was no
evidence appellant Bolden was undecided whether to talk to
investigator Kean, only when to do so."]; P v.
Conrad (1973) 31 CA3 308, 321-22 ["I have something very
serious to talk to you about and would like to talk to you again
at a later time," did not demonstrate "that he wished to remain
silent forever but simply that he wanted to talk about talking
further."]; P v. Brockman (1969) 2 CA3 1002, 1010
[suspect invoked the right to remain silent but then said he would
make a statement in a "couple of days"; officers were justified in
inquiring two days later whether the suspect now wanted to make a
statement]; P v. Rich (1988) 45 C3 1036, 1066, 1077
["I've got something to tell you, but not now."]; P v.
Mickey (1991) 54 C3 612, 652 ["I would like to continue our
conversation at a later time."]; P v. Rundle (2008) 43 C4
76, 116 [suspect requested to stop the interview "because he had a
headache"]. 9th CIR: US v. Rodriguez (9C 2008) 518
F3 1072, 1077 [the phrase "I'm good for tonight," "admits of
different interpretations"].

[38] CAL: P v. Parker (2017) 2
C5 1184, 1221 [This record supports the conclusion that any
asserted refusal to continue talking at that time applied only to
[Detectives] Redmond and Giesler, and did not extend to [Detective
Tarpley]."]; P v. Jennings (1988) 46 C3 963, 979 [it
reasonably appeared "that defendant was refusing to talk further
with [Officer] Cromwell whom he did not like or trust, as opposed
to [Officers] Maich or Rose"]; P v. Buskirk (2009) 175 CA4
1436, 1450 [court noted that the defendant made a "conditional
request for counsel if [a certain officer] were to stay" in the
interview room].

[39] CAL: P v.
Rundle (2008) 43 C4 76, 116.

[40] CAL: P v. Garcia (2017) 2
C5 792, 803 ["there is no Fifth Amendment privilege against
compelled disclosure of information that cannot be used to
incriminate the probationer"]; P v. Johnson (1993) 6
C4 1, 30-32 [an off-the-record request "effectively insulates the
affected portion of the interview from subsequent courtroom
use."].

[41] USSC: Lopez v. US (1963)
373 US 427, 439 ["Stripped to its essentials, petitioner's
argument amounts to saying that he has a constitutional right to
rely on possible flaws in the [IRS] agent's memory, or to
challenge the agent's credibility without being beset by
corroborating evidence that is not susceptible of impeachment. For
no other argument can justify excluding an accurate version of a
conversation that the agent could testify to from memory."].

[42] CAL: P v.
Samayoa (1997) 15 C4 795, 829-30 ["It is well established
that a suspect does not invoke his or her right to remain silent
by refusing to allow the tape recording of an interview, unless
that refusal is accompanied by other circumstances disclosing a
clear intent to speak privately and in confidence to others."];
P v. Johnson (1993) 6 C4 1, 26 [court notes that it
had previously ruled that a "no recording" demand constituted an
invocation only if the demand "was accompanied by other facts
disclosing his clear intent to speak privately and in confidence
with the officers"]; P v. Maier (1991) 226 CA3 1670,
1677-78 [there was no indication that the defendant's refusal to
be tape recorded constituted an absolute invocation]. NOTE:
We are unaware of any case in which such a "clear intent" was
shown. In P v. Nicholas (1980) 112 CA3 249, 268 the
court ruled that an invocation resulted because the defendant
asked whether the interview room was bugged and he had sought
"assurances of complete privacy." Nicholas is of doubtful
validity because it is a pre-Davis case that was published
when ambiguous invocations were treated as absolute invocations.
In the post-Davis case of P v. Samayoa (1997)
15 C4 795, 829-30, the court cited the "clear intent" language but
simply ruled that such an intent was not shown because the
defendant continued to answer the officers' questions. There is,
however, a Ninth Circuit case, Arnold v. Runnels (9C 2005)
421 F3 859 in which the court ruled that an unambiguous invocation
resulted when, after the suspect made his "no recording" request,
he began saying "no comment" to most of the officers' questions.
This ruling, however, appears to be contrary to the US Supreme
Court's subsequent decision in Berghuis v. Thompkins in
which it rejected an argument that a suspect had invoked the right
to remain silent because he "was largely silent during the
interrogation" and gave only a "few limited verbal responses,"
such as "yeah," "no," and "I don't know."

[43] CAL: P v.
Clark (1992) 3 C4 41, 122 ["Defendant did not refuse to
talk at all without an attorney. Rather, he indicated he would not
talk about one limited subject"].

[44] USSC: Connecticut
v. Barrett (1987) 479 US 523, 525; Arizona
v. Roberson (1988) 486 US 675, 683. OTHER:
US v. Martin (7C 2011) 664 F3 684, 689
[suspect's saying that he would like to talk with an attorney
before giving a written statement was not an invocation"].

[45] CAL: P v. Suff (2014) 58 C4
1013, 1068-69 ["I need to know, am I being charged with this,
because if I'm being charged with this I think I need a lawyer";
the fact that it was likely that the defendant would be charged
did not render the remark a conditional invocation]; P v.
Gonzalez (2005) 34 C4 1111, 1126 ["On its face, defendant's
statement was conditional; he wanted a lawyer if he was going to
be charged."]. ALSO SEE: Smith v. Endell (9C 1988)
860 F2 1528, 1531 [limited invocation resulted when the defendant
told officers he wanted a lawyer if "you're looking at me as a
suspect" (and they were)].

[46] CAL: P v. Tully (2012) 54
C4 952, 991 ["The context in which defendant referred to an
attorney was not a request for counsel for purposes of the
interrogation then occurring, but an indication that, if required
to submit to a polygraph test, he would first want to consult with
a lawyer."]; P v. Nelson (2012) 53 C4 367;
P v. Martinez (2010) 47 C4 911, 952 ["Under
these circumstances, the detectives reasonably could conclude that
defendant only wanted the assistance of counsel if he was taking a
polygraph exam."].

[47] CAL: P v.
Williams (2010) 49 C4 405, 426 ["his willingness to waive
the assistance of counsel turned on whether he could secure the
presence of counsel immediately"].