United States v. Walker Hampton ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-4094
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WALKER L. HAMPTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 15-cr-40023-001 — Sara Darrow, Judge.
____________________
ARGUED FEBRUARY 28, 2018 — DECIDED MARCH 21, 2018
____________________
Before MANION, SYKES, and HAMILTON, Circuit Judges.
PER CURIAM. Walker Hampton was caught breaking into a
trucking business and later confessed to robbing a nearby
post office as well. He was charged in a four-count indict-
ment. He then entered a conditional guilty plea and was sen-
tenced to 132 months’ imprisonment. Hampton reserved his
right to appeal two issues that he now presents, arguing: (1)
that robbing a person in lawful custody of United States prop-
erty, see 18 U.S.C. § 2114(a), is not a “crime of violence” under
2 No. 16-4094
18 U.S.C. § 924(c), and (2) that his motion to suppress his rec-
orded confession should have been granted because he was
questioned after he invoked his right to counsel. We affirm the
judgment because Hampton’s first argument is foreclosed by
our precedent, and his second is meritless because Hampton
did not clearly express a present desire to consult with coun-
sel before talking with law enforcement.
I. BACKGROUND
On January 24, 2015, Hampton robbed a post office in Tay-
lor Ridge, Illinois, at gunpoint. The employees handed over
$34 and seven books of stamps worth $68.60. Hampton also
took the employees’ wallets. A month later, he was arrested
after breaking into Mack Trucking in Viola, Illinois. When
sheriff’s deputies searched Hampton’s home, they found
three firearms that he was not allowed to possess because of
a prior felony conviction. Two of the guns had been stolen.
After arresting Hampton, the deputies took him to the
Mercer County Sheriff’s Office. Deputy Eric Holton, Deputy
Dusty Terrill, and Deputy Jessie Montez sat down to talk with
Hampton. Terrill first gave an introduction and informed
Hampton that they were recording the conversation. Hamp-
ton interjected and said: “Actually, I want to change that. I
haven’t even gotten a chance to get a lawyer or anything.”
At that point, Terrill left the room to turn off the video re-
corder and then, according to Holton’s uncontradicted testi-
mony at the suppression hearing, went back into the room
and explained to Hampton why they wished to record the Mi-
randa process. Holton and Terrill left the room and discussed
for five to ten minutes whether Hampton had invoked his
right to counsel. They concluded that he had not. The officers
No. 16-4094 3
then returned and, with the recorder still off, advised Hamp-
ton of his rights. At some point during that discussion, Hamp-
ton said: “Maybe I should have a lawyer.” Terrill explained
that Hampton had the right to have an attorney present. Hol-
ton did not recall exactly what Hampton said in response, but
he testified that he and his colleagues interpreted it as permis-
sion to continue the interview and record it. Hampton does
not contest that he was informed of his rights, and that he
agreed to proceed with the interview without counsel.
The recording resumed. After Terrill read Hampton his
Miranda rights, Hampton signed a form saying he understood
those rights and waived them. Hampton then confirmed that
he had not been threatened or received any promises while
the recording was off. Hampton confessed to stealing scrap
metal, copper tubing, and wires from empty houses and an
old school, but he denied robbing the post office. After a labo-
rious ninety minutes of questioning, Hampton confessed to
the post office robbery.
A grand jury indicted Hampton for robbing federal prop-
erty, see 18 U.S.C. § 2114(a), brandishing a firearm during a
crime of violence, see 18 U.S.C. § 924(c)(1)(A)(ii), being a felon
in possession of firearms, see 18 U.S.C. § 922(g)(1), and pos-
sessing stolen firearms, see 18 U.S.C. § 922(j).
Before trial Hampton moved to dismiss the § 924(c) charge
because, he argued, robbery of federal property is not a crime
of violence since it can be accomplished by “intimidation.”
The district judge denied the motion.
Hampton also moved to suppress his confession. Hamp-
ton contended that he unequivocally invoked his right to
counsel by saying “Actually, I want to change that, I haven’t
4 No. 16-4094
even gotten a chance to get a lawyer or anything.” The district
judge denied the motion because she found the statement am-
biguous.
Hampton entered into a plea agreement but reserved his
right to appeal the denial of his motions to dismiss and to sup-
press.
II. ANALYSIS
On appeal Hampton challenges the district judge’s denial
of his motions to dismiss the § 924(c) charge and to suppress
his confession. As to the § 924(c) charge, Hampton says only
that he raises the issue to preserve his right to further appel-
late review in light of this court’s decision in United States v.
Enoch, 865 F.3d 575 (7th Cir. 2017), cert. denied, 583 U.S. __ (Feb.
22, 2018). That decision held that robbery of federal property
under 18 U.S.C. § 2114(a) is a crime of violence for purposes
of 18 U.S.C. § 924(c). Hampton does not ask us to overrule
Enoch, and we will not do so here.
That leaves Hampton’s argument that the district judge
should have suppressed his confession because he invoked
his right to counsel when he said “I haven’t even gotten a
chance to get a lawyer or anything.” (He does not make an
argument about his later statement: “Maybe I should have a
lawyer.”) Hampton says that his first statement clearly ex-
pressed that he did not want to continue his interview with
law enforcement until he had a lawyer. Therefore, Hampton
continues, his subsequent waiver of the right to counsel was
involuntary. The government responds that the statement in
question — that Hampton wanted to “change that”— revoked
his permission to record the interview but did not express a
present desire for counsel. At the very least, the government
No. 16-4094 5
contends, Hampton’s statement was ambiguous, so the depu-
ties had no obligation to stop questioning him.
Suspects subjected to custodial interrogation must be in-
formed that they have the right to remain silent and to have
an attorney present. Miranda v. Arizona, 384 U.S. 436, 471
(1966); see also Edwards v. Arizona, 451 U.S. 477, 485 (1981). If
the suspect invokes his right to counsel, the interrogation
must cease. Miranda, 384 U.S. at 474. But to invoke the right to
counsel, the suspect must make a clear and unambiguous
statement. United States v. Shabaz, 579 F.3d 815, 818 (7th Cir.
2009); see also Davis v. United States, 512 U.S. 452, 459 (1994) (a
suspect must “articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer … would
understand the statement to be a request for an attorney”). In
determining whether a suspect clearly invoked the right to
counsel, this court considers the statement itself and the sur-
rounding context. United States v. Wysinger, 683 F.3d 784,
793–94 (7th Cir. 2012).
Hampton’s statement did not clearly show a present desire
to consult with counsel. We have found such intent only when
the suspect uses specific language. See, e.g., Wysinger, 683 F.3d
at 795–96 (“I mean, can I call [a lawyer] now?”). In Lord v.
Duckworth, we hypothesized several statements that would be
clear invocations of counsel. 29 F.3d 1216, 1221 (7th Cir. 1994).
All of them request an action (or permission to act); they are
more than observations. See id. (“Can I talk to a lawyer?” and
“I have to get me a good lawyer, man. Can I make a phone
call?”) The statement Hampton points to is, by contrast, nei-
ther specific nor action-oriented. He merely observed that he
had not gotten a lawyer. See United States v. Lee, 413 F.3d 622,
6 No. 16-4094
626 (7th Cir. 2005) (explaining that “potential desire to consult
with legal counsel” is not invocation of right to counsel).
Apart from his words, the circumstances under which
Hampton made his statement also support the view that he
did not invoke his right to counsel. In the same breath as his
request to stop recording, Hampton observed that he had not
gotten a lawyer. A reasonable officer could have concluded
that in making his statement, Hampton was explaining why
he did not want to have the interview recorded. Hampton ar-
gues that by this statement he intended to invoke his right to
counsel and rescind his permission to record the interview,
but that there is more than one interpretation only reinforces
the conclusion that his statement was ambiguous.
If Hampton had clearly invoked his right to counsel, we
then would consider whether or not he voluntarily waived his
rights when he later agreed to be interviewed without coun-
sel. A suspect can waive the right to counsel after clearly in-
voking it by initiating “further communication, exchanges, or
conversations with the police.” Edwards, 451 U.S. at 484–85. By
contrast, responding to more police-initiated questioning is
not a voluntary waiver. Id. at 484.
Hampton argues that his waiver of the right to counsel
was involuntary because he did not initiate the conversation
with police that resulted in his agreement to proceed with the
interview. But because Hampton’s observation about not hav-
ing talked with a lawyer was ambiguous, it does not matter
who initiated the conversation; the deputies could continue
questioning him. Shabaz, 579 F.3d at 818. Here the deputies
did not immediately resume questioning; they took extra pre-
cautions. They explained to Hampton his rights and tried to
No. 16-4094 7
clarify his intent, which the Supreme Court has identified as
“good police practice.” Davis, 512 U.S. at 459.
III. CONCLUSION
Because Hampton did not invoke his right to counsel and
he voluntarily waived his rights, we AFFIRM the district
court’s judgment.