United States v. Derrick Lee

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 14, 2021
Decided January 21, 2022
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-2216
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Indiana, South Bend Division.
v. No. 3:19-CR-052 JD-MGG
DERRICK T. LEE, Jon E. DeGuilio,
Defendant-Appellant. Chief Judge.
ORDER
Derrick Lee, who pleaded guilty to discharging a firearm in furtherance of an
attempted armed robbery, 18 U.S.C. § 924(c), appeals the district court’s denial of his
motion to suppress his inculpatory statements. He argues that law-enforcement officers
improperly continued questioning him after he invoked his right to counsel or, at least,
failed to clarify his wishes. The judge was correct that Lee never unambiguously
requested an attorney and nothing required the officers to ask clarifying questions, so
we affirm.
No. 21-2216 Page 2
In 2019 Lee attempted an armed robbery. He posed as a female sex worker in an
online advertisement and lured a victim to a house in South Bend, Indiana, under
pretenses of meeting for sex. When the victim arrived, Lee pointed a handgun at him
and ordered him to give up “all he’s got.” The victim drew his own handgun, and the
two exchanged fire, with Lee striking the victim in the knee. Both fled the scene. The
police later found another victim whom Lee had robbed under similar circumstances.
A few months later, police officers arrested Lee for an unrelated offense. A police
detective and an FBI agent questioned him in an interview room at the police station. At
one point they began asking about the attempted robbery, and Lee considered whether
he needed a lawyer:
LEE: Do I need a lawyer or something?
AGENT: That’s totally up to you my friend … [,] totally up to you.
LEE: Before I get to even try and talk to you, do I need a lawyer?
AGENT: Totally up to you.
LEE: Would it be best?
AGENT: Totally up to you. I can’t give you any advice on that and they
tell us we can’t give you any advice on that. I’d like to see you get through
this.
LEE: I’d like to see me get through this fast.
….
LEE: I feel like I should have a lawyer, but I feel like when y’all leave here
this is gonna go in your ball park, even if I say I want a lawyer. It is, ain’t
it?
AGENT: We’re going to keep plugging away. And I’m gonna probably
find some more victims.
After this exchange Lee admitted to being present at the scene and shooting the victim
he had lured there, though he said it was in self-defense.
After Lee was charged with Hobbs Act robbery, 18 U.S.C. § 1951; possessing a
firearm as a felon, id. § 922(g); and discharging a firearm to further a violent crime, id.
§ 924(c), he moved to suppress his admissions. He argued that when he said, “Do I need
a lawyer?” and “I feel like I should have a lawyer,” he unambiguously requested an
attorney, and so questioning should have stopped. Lee added that the officers should
No. 21-2216 Page 3
have asked follow-up questions if they were not sure whether he was invoking his right
to counsel.
After hearing argument on the motion, a magistrate judge recommended against
suppression. The magistrate judge concluded that none of Lee’s statements were
unequivocal requests for a lawyer and that Lee’s questions about whether he needed an
attorney did not show a “certain and present desire” to consult with counsel. But the
magistrate acknowledged that whether “I feel like I should have a lawyer” sufficed was
a closer call. And when considered in context (“I feel like I should have a lawyer, but I
feel like when y’all leave here this is gonna go in your ball park, even if I say I want a
lawyer”), the phrase reflected indecision. Finally, the magistrate judge noted that
although the Supreme Court in Davis v. United States, 512 U.S. 452, 461–62 (1994),
recognized that it is “good police practice” for officers to clarify whether suspects who
make ambiguous statements wish to invoke their right to counsel, it explicitly declined
to adopt a rule requiring them to do so.
Over Lee’s objection, the district judge adopted the magistrate judge’s
recommendation and denied the motion. Lee then conditionally pleaded guilty to the
§ 924(c) charge in a plea agreement that preserved the right to appeal the denial of the
suppression motion.
The facts—including that Lee was a suspect under custodial interrogation at the
time in question—are not disputed, so we review the denial of Lee’s motion de novo.
See United States v. Hunter, 708 F.3d 938, 942 (7th Cir. 2013). On appeal Lee first repeats
his argument that he unambiguously invoked his right to counsel. When a suspect
clearly asserts that right, all questioning must stop, and any admissions obtained after
that point must be suppressed. See Edwards v. Arizona, 451 U.S. 477, 484–85, 487 (1981).
A statement is sufficient if it shows “a certain and present desire to consult with
counsel.” Hunter, 708 F.3d at 942. But if the suspect makes an “ambiguous or equivocal”
reference to an attorney and a reasonable officer would conclude only that the suspect
might be invoking the right to counsel, questioning can continue. See Davis, 512 U.S. at
459.
The district judge was correct that none of Lee’s statements were unambiguous
requests for counsel. Lee first contends that his question “Do I need a lawyer?” is
analogous to “Can I have a lawyer?”—a request that we deemed to be an unambiguous
invocation in United States v. Lee, 413 F.3d 622, 626 (7th Cir. 2005). (That case involved a
different defendant also named Lee.) But we rejected the same argument in United States
No. 21-2216 Page 4
v. Wysinger, 683 F.3d 784, 795 (7th Cir. 2012). We explained that “‘Do I need a lawyer?’ is
a substantively different question than ‘Can I have a lawyer?,’” with the former
suggesting only that the speaker is “contemplating whether he is in need of the services
of a lawyer” and thus not clearly requesting counsel. Id. Next, there is no unambiguous
request in the other statement Lee cites, especially in its entirety: “I feel like I should
have a lawyer, but I feel like when y’all leave here this is gonna go in your ball park,
even if I say I want a lawyer.” See United States v. Hampton, 675 F.3d 720, 728 (7th Cir.
2012) (“I felt like it should have been an attorney here” was ambiguous in the context of
the suspect’s equivocations). We have noted that using hedging language such as “but”
is a sign that a suspect was not clearly invoking the right to counsel, id. at 727, and we
have distinguished ambiguous language like “should” or “might” from clear language
like “can,” Hunter, 708 F.3d at 943–44. Further, the clause “even if I say I want a lawyer”
would allow a reasonable officer to believe that Lee had not yet asked for an attorney.
Lee argues in the alternative that our precedent requires officers to ask clarifying
questions in response to ambiguous references to an attorney and that the officers’
failure to do so here demands suppression. He is mistaken. As the district judge pointed
out, the Supreme Court in Davis expressly declined to adopt such a rule, 512 U.S. at461–62, and we have repeatedly emphasized—including in the very case that Lee relies
on, Lee, 413 F.3d at 625—that this practice is encouraged but not required. See also
Hampton, 675 F.3d at 728; United States v. Shabaz, 579 F.3d 815, 818 (7th Cir. 2009).
Because Lee does not accurately state our precedent, he necessarily does not provide a
“compelling reason” for overturning it. Wilson v. Cook County, 937 F.3d 1028, 1035
(7th Cir. 2019).
AFFIRMED