Billy Russell Clark v. Tim Murphy , 331 F.3d 1062 ( 2003 )

STAPLETON, Circuit Judge,

concurring:

I agree with my colleagues 'that the state court’s resolution of Clark’s claims was neither contrary to, nor an unreasonable application of, clearly established federal law. I reach my conclusions by a somewhat different route, however.

This case is difficult because Clark’s statement — “I think I would like to talk to a lawyer” — reflects at least a tentative decision in favor of having a lawyer. It does not, however, indicate unequivocally that a final decision has been made.

Such a statement presents a more appealing case than did the statement in Davis¹ — “Maybe I should talk to a lawyer” — for a rule that the interrogating officer must provide an opportunity for reflection and seek clarification before continuing the substantive interrogation. While the Davis Court’s interest in drawing a bright-line suggests to me that a majority of the Supreme Court would find no such duty here, a prediction on that score is unnecessary because Clark’s interrogator chose to do just that: he provided an opportunity for reflection and sought clarification. Even if this case be viewed as distinguishable from Davis, nothing in the Supreme Court case law suggests to me that the interrogator’s conduct here constitutes a violation of the Fifth or Fourteenth Amendment. To the contrary, the Court in Davis, while refusing to impose a duty to clarify in the circumstances there presented, recognized the utility of seeking clarification when uncertainty exists about the counsel issue:

Of course, when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. That was the procedure followed by the NIS agents in this case. Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect’s statement regarding counsel. But we decline to adopt a rule requiring officers to ask clarifying questions.

Davis, 512 U.S. at 461, 114 S.Ct. 2350.

I would affirm the judgment of the district court.

1 . Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).