State v. Aguirre , 301 Kan. 950 ( 2015 )

Biles, J.,

dissenting: I disagree with the majority’s holding that Aguirre unambiguously invoked his right to remain silent. The majority finds an unambiguous invocation in Aguirre’s statement: “This is—I guess where I, I’m going to take my rights and I want to turn in David to his family and I’ll be back here. I mean, I would like to keep helping you guys I just want to—The majority’s conclusion deviates from our caselaw and ignores the full context of what was happening during the questioning at issue.

To begin with, the majority overlooks that when Aguirre voluntarily came to the Austin Police Department for his interview with the investigating Kansas detectives, he brought David, the young son of Dulce Mendez, with him. David remained in a separate room with an Austin Police Department employee while Aguirre was interviewed. This explains why Aguirre initially said in the quoted portion of his interview, “I want to go turn in David to his family and then I will be here as long as you want me to after-wards.”

To me, this additional context, coupled with Aguirre’s initial statement, clarify why the detectives could easily understand Aguirre’s second statement: “This is—I guess where I, I’m going to take my rights and I want to turn in David to his family and I’ll be back here. I mean, I would like to keep helping you guys I just want to—,” was a concern for David and an expression of continued cooperation with law enforcement and not a clear, unequivocal, and unambiguous assertion of Miranda rights. In other words, the detectives reasonably could ask follow up questions to clarify what Aguirre meant; and when they did, he explained more than once that he was willing to keep talking to them but needed to make sure David was alright.

Police are free to question a suspect who is in custody when the suspect has waived his or her Miranda rights. See Davis v. United States, 512 U.S. 452, 458, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). If the suspect invokes Miranda during questioning, the interrogation must end. See Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010) (right to remain silent); Davis, 512 U.S. at 458 (right to counsel). No one disagrees about these bedrock principles. But our caselaw requires the invocation to be unambiguous, such that a reasonable police officer under the circumstances' would understand the statement as an assertion of a Miranda right. See State v. Cline, 295 Kan. 104, 113, 283 P.3d 194 (2012) (reviewing trial court’s conclusion statement freely, voluntarily, and intelligently made); see also Thompkins, 560 U.S. at 381.

“A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that ‘avoid[s] difficulties of proof and ... provide[s] guidance to officers’ on how to proceed in tire face of ambiguity. [Citation omitted.] If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression ‘if they guess wrong.’ [Citation omitted.] Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. [Citations omitted.] Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights ‘might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation.’ [Citation omitted.] But ‘as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.’ [Citations omitted.]” (Emphasis added.) Thompkins, 560 U.S. at 381-82.

In determining whether an alleged invocation is clear and unambiguous, the court may examine the invocation itself and the defendant’s statements prior to the invocation. Cline, 295 Kan. at 114; State v Appleby, 289 Kan. 1017, 1051, 221 P.3d 525 (2009) (recognizing timing, content, and context of reference to counsel may aid in determining whether alleged invocation was unambiguous assertion of Fifth Amendment right to counsel); see also Thompkins, 560 U.S. 381 (no reason to adopt different standards for determining when accused has invoked right to silence as opposed to right to counsel).

Our focus in deciding whether Aguirre clearly and unambiguously invoked the right to remain silent must be on the alleged invocation itself and the circumstances leading up to it. See Cline, 295 Kan. at 114; Appleby, 289 Kan. at 1051. This court has examined on several occasions whether a suspect’s statements were unambiguous assertions of the right to remain silent.

. For instance, the statement “ T think I’ll just quit talking, I don’t know’ ” was held to be ambiguous because it could be construed -to mean the suspect simply chd not want to talk about details of a shooting at that precise moment in the interview but did not know if he should. State v. Holmes, 278 Kan. 603, 619, 102 P.3d 406 (2004). Similarly, the phrase “ T think that might be all for you’ ” was ambiguous as to whether the defendant desired to end the interview. State v. KLeypas, 272 Kan. 894, 924, 40 P.3d 139 (2001). And the declaration “ ‘[s]o that’s all I [got] to say’ ” was ambiguous because it could be interpreted to mean the defendant had simply finished his answer to the previous question. State v. McCorkendale, 267 Kan. 263, 273, 979 P.2d 1239 (1999). Similarly, the phrase “ 1 don’t want to talk about it anymore, it hurts too much’ ” uttered while the suspect was being questioned about his involvement in two murders “d[id] not even reach the level of a potentially ambiguous request to remain silent; [the suspect] was saying he was upset and having difficulty talking.” State v. Fritschen, 247 Kan. 592, 606-07, 802 P.2d 558 (1990).

Perhaps most similar to Aguirre’s case is State v. Scott, 286 Kan. 54, 183 P.3d 801 (2008), in which detectives questioned a capital murder defendant about his involvement in a home invasion during which two occupants died. After the defendant admitted being in the house, the detectives pressed for more details, and the defendant said, “ ‘Can we finish this in the morning, man? Please?’ ” As detectives continued the questioning, defendant repeated, “ ‘[L]et’s finish this in the morning, man, I. Let’s finish this in the morning.’ ” 286 Kan. at 69.

The Scott court held the request was not an unequivocal invocation of the right to remain silent, reasoning that the defendant “never stated he did not wish to talk; he simply indicated a desire to finish his statement the next morning.” 286 Kan. at 71. The court also noted an interviewing detective testified he believed the defendant made the request because he was getting emotional and embarrassed but seemed to be in control and proceeded to tell the interviewers what had happened. 286 Kan. at 70. And it distinguished the defendant’s request to continue the interview later from similar requests in other cases in which it was held an invocation of the right to remain silent had occurred; namely, cases in which suspects explicitly told police they did not wish to talk at the time but said they might or would talk later. 286 Kan. at 71.

The majority mistakenly relies on Anderson v. Terhune, 516 F.3d 781, 787 (9th Cir. 2008), in which officers continued questioning after the defendant said, “ T plead the Fifth,’ ” in conjunction with other statements that he was through with questioning and wanted to be taken into custody. The United States Court of Appeals for the Ninth Circuit held the phrase “ 1 plead the Fifth’ ” is a facially unambiguous invocation of Miranda rights. 516 F.3d at 787. It also noted the context in which those words were said—among defendant’s other statements that signaled his intent to end the questionings—indicated defendant’s clear desire not to talk anymore. The court further observed that defendant did not equivocate his invocation with words like “ ‘maybe,’ ” “ ‘might,’ ” or “ 1 think.’ ” 516 F.3d at 787-88. Similarly, the majority’s reference to United States v. Rambo, 365 F.3d 906 (10th Cir. 2004), is misplaced because when the suspect was asked by the investigator, “ ‘Do you want to talk to me about this stuff?’ ” the suspect flatly stated, “ ‘No.’ ” 365 F.3d at 908.

Aguirre’s case is distinguishable because he did equivocate, saying he “guess[edj” he was going to “take [his] rights,” and made the statement in conjunction with others indicating he desired to continue the questioning. Like the defendant’s statements in Scott, Aguirre’s statement and the circumstances surrounding it suggest Aguirre, as he said, simply wanted “to go and turn in David to his family” and not end die questioning. Aguirre did not tell the detectives he did not wish to talk to them at that time; to the contraiy, he represented he wanted to continue the interview and would but for his need to attend to David. The stated purpose for the requested delay (childcare) was unrelated to Aguirre’s right to remain silent under the Fifth Amendment to the United States Constitution.

Under our caselaw, Aguirre’s statement was not an unambiguous, unequivocal invocation of his right to remain silent. I would hold the district court did not err in refusing to suppress Aguirre’s subsequent admissions. Given Aguirre’s internally inconsistent statement about “tak[ing] my rights” and wanting to “keep helping” tiie officers, the officers quite reasonably followed up to determine whether Aguirre’s concerns had to do with David or whether he intended to invoke the right to remain silent. See Scott, 286 Kan. at 69-70 (when suspect’s statement is ambiguous as to whether suspect is asserting right to remain silent, interrogator may ask questions to clarify). When they did follow up, Aguirre notably indicated more than once he was willing to continue talking to the detectives, which he did.

Nuss, C.J., and Rosen, J., join in the foregoing dissenting opinion.