21SA386- People v. Trujillo-Tucson Orals not held

 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2022 CO 31Supreme Court Case No. 21SA386
Interlocutory Appeal from the District Court
Adams County District Court Case No. 21CR441
Honorable Sean Patrick Finn, Judge
________________________________________________________________________
Plaintiff-Appellant:
The People of the State of Colorado,
v.
Defendant-Appellee:
Isaiah Cain Trujillo-Tucson.
________________________________________________________________________
Order Reversed
en banc
June 21, 2022
________________________________________________________________________
Attorneys for Petitioner:
Brian Mason, District Attorney, Seventeenth Judicial District
Cameron Munier, Senior Deputy District Attorney
Brighton, Colorado
Attorneys for Respondent:
Megan A. Ring, Public Defender
Chris Carraway, Deputy Public Defender
Brighton, Colorado
JUSTICE HART delivered the Opinion of the Court, in which CHIEF JUSTICE
BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, and JUSTICE SAMOUR
joined.
JUSTICE GABRIEL, joined by JUSTICE HOOD, specially concurred.
JUSTICE BERKENKOTTER, joined by JUSTICE MÁRQUEZ, dissented.
2
JUSTICE HART delivered the Opinion of the Court.
¶1 While in police custody, during a pause in an interrogation, Isaiah Trujillo-
Tucson waited in an interview room with a non-interrogating officer while the
interrogating officer was off getting Trujillo-Tucson a soda. The non-interrogating
officer was patting Trujillo-Tucson down without pressing for information while
Trujillo-Tucson repeatedly initiated mostly casual conversation. At one point,
Trujillo-Tucson asked whether he would be booked in, and the officer responded
by explaining that he was not in charge of the investigation and that such a
question should be directed to the officer in charge. Shortly thereafter,
Trujillo-Tucson asked, “Am I able to get a phone call? . . . To my lawyer, [E.K.]?”
The officer spoke over Trujillo-Tucson during the latter portion of his question to
say, “Yeah.” After a brief silence, casual conversation continued. When the
interrogating officer joined the two men in the room to continue questioning,
Trujillo-Tucson made incriminating statements.
¶2 After the People charged Trujillo-Tucson with various offenses,
Trujillo-Tucson moved to suppress his statements, arguing that questioning
should have ceased because he had invoked his right to counsel. The trial court
agreed. The People filed this interlocutory appeal from the trial court’s
suppression order pursuant to C.A.R. 4.1(a) and section 16-12-102(2), C.R.S. (2021),
3
arguing that Trujillo-Tucson’s question, posed to the non-interrogating officer,
was not an unambiguous and unequivocal invocation of his right to counsel.
¶3 Based on our independent review of the video- and audio-recorded
interrogation, we conclude that Trujillo-Tucson’s question about a phone call to
an attorney did not constitute an unambiguous and unequivocal request for
counsel during the interrogation. Trujillo-Tucson asked his question during a
pause in the interrogation when the interrogating officer was not in the room and
while no one was actively questioning him. He posed the question to an officer
who had just explained that he was not in charge of the investigation, and the
question arose in a casual context in which Trujillo-Tucson demonstrated
confidence with officers, familiarity with the criminal justice system, and an ability
to request counsel directly should that be his desire. A reasonable officer in these
circumstances could have concluded that Trujillo-Tucson’s question was a
logistical one aimed at exploring his options rather than an immediate request for
counsel during interrogation.
¶4 Applying the standard established in Davis v. United States, 512 U.S. 452,
461–62 (1994), and elaborated in People v. Kutlak, 2016 CO 1, ¶¶ 23–24, 364 P.3d
199, 205–06, officers were therefore under no obligation to cease questioning.
Accordingly, we reverse the trial court’s suppression order and remand for further
proceedings consistent with this opinion.
4
I. Facts and Procedural History
¶5 On February 12, 2021, officers arrested Trujillo-Tucson based on allegations
that he was involved in a shooting. After the arrest, Detectives Jai Rogers and
Trevor Tuttle transported Trujillo-Tucson to a police station for questioning.
During the drive, Detective Rogers began recording the interrogation1 and
informed Trujillo-Tucson of his Miranda rights as follows:
You have the right to remain silent. Anything you say can be used
against you in a court of law. You have a right to have an attorney
present with you during the questioning if you choose to. If you
cannot afford an attorney, one will be provided for you. And these
rights are ongoing continuous rights if you choose to exercise them.
Detective Rogers then asked Trujillo-Tucson, “Do you understand?” And
Trujillo-Tucson responded, “Yes, sir.”
¶6 Next, Detective Rogers informed Trujillo-Tucson that a woman named
Adrianna had accused him of shooting at her while she was driving on I-76.
Detective Rogers then questioned Trujillo-Tucson for roughly eight minutes while
they traveled to the station. During that time, Trujillo-Tucson answered Detective
Rogers’s questions and asked a few questions of his own, inquiring as to whether
he would be “booked in” and asking questions about Adrianna.
1The audio and video recordings of the interrogation are in the record before us
as People’s Exhibit 1. This court has carefully reviewed each of those recordings.
5
¶7 When the detectives and Trujillo-Tucson arrived at the station, Detective
Rogers left to get Trujillo-Tucson a soda. Detective Tuttle meanwhile took
Trujillo-Tucson to an interrogation room. Upon entering the room, Detective
Tuttle began patting Trujillo-Tucson down, and the following conversation
ensued:
Tuttle: Before I, uh, get you out of the cuffs—
Trujillo-Tucson: No sharp objects, no weapons, no nothing.
Tuttle: I’m just gonna just pat you down real quick.
Trujillo-Tucson: I’ve been in jail long enough to know the routine.
Tuttle: What’s up?
Trujillo-Tucson: I said I’ve been in jail long enough to know the routine.
[Silence]
Trujillo-Tucson: Were you part of the chase, too?
Tuttle: Yep.
Trujillo-Tucson: How come you guys didn’t just turn on your lights? I
would’ve pulled over.
Tuttle: Can you just, uh, take a step to your right for me? Thanks, Brother.
Trujillo-Tucson: If you guys would’ve just turned on your lights, I would’ve
pulled over. I thought I was being chased by someone trying to kill me.
Tuttle: You thought you were being chased by someone trying to kill you?
Trujillo-Tucson: Well, I knew you guys were chasing me. I didn’t know it
was the cops. I would’ve pulled over.
6
[Silence]
Trujillo-Tucson: I was just on my way to go get some pizza and then got hit
with a weird white line.
[Silence]
Trujillo-Tucson: Yeah, these shoes ain’t good running shoes.
Tuttle: What’s up?
Trujillo-Tucson: These shoes ain’t good running shoes.
Tuttle: Why’s that?
Trujillo-Tucson: Fell off.
Tuttle: Uh-huh, you gotta tighten ‘em up.
Trujillo-Tucson: I almost had you.
Tuttle: Who did?
Trujillo-Tucson: If my shoe hadn’t fallen off.
Tuttle: Oh [chuckling]. [Inaudible] I’m gonna take these [handcuffs] off.
Just go ahead and put that hand on top of your head for me.
Trujillo-Tucson: I know.
[Silence]
Trujillo-Tucson: So am I gonna be booked in?
Tuttle: What’s that?
Trujillo-Tucson: Am I being booked in?
7
Tuttle: Uh, so I’m not the primary detective on this case. Uh, Detective
Rogers is.
Trujillo-Tucson: Yes, sir.
Tuttle: So, I would ask him when he gets back here.
Trujillo-Tucson: I caught a cold knee to the face.
Tuttle: What’s up?
Trujillo-Tucson: I caught a cold knee to the face.
Tuttle: A cold knee?
Trujillo-Tucson: Yes, sir.
Tuttle: Go ahead and have a seat right there for me.
Trujillo-Tucson: Am I able to just pull up my pants and—
Tuttle: Yeah that’s fine.
Trujillo-Tucson: Tuck my pockets in and stuff?
Tuttle: Yeah.
Trujillo-Tucson: Sorry.
Tuttle: You’re good.
Trujillo-Tucson: I know you guys . . . you’re doing your job.
[Silence]
Trujillo-Tucson: So what allegations are enough to arrest someone?
Tuttle: You [inaudible] have probable cause.
[Silence]
8
Trujillo-Tucson: Am I able to get a phone call?
Tuttle: Yeah—
Trujillo-Tucson: To my lawyer, [E.K.]?
¶8 Trujillo-Tucson’s reference to counsel occurred with the crosstalk depicted
here: Detective Tuttle responded, “Yeah,” to the question, “Am I able to get a
phone call?” at almost the same instant that Trujillo-Tucson added, “to my lawyer,
[E.K.]?”
¶9 Roughly thirteen seconds after this exchange, Trujillo-Tucson began
speaking with Detective Tuttle again. He complained that his handcuffs had been
too tight, showing his wrists to Detective Tuttle and saying, “My hands almost fell
off.” The two then engaged in chit chat, discussing Trujillo-Tucson’s dental work
as well as their shared interest in athletic activities such as jiu-jitsu and grappling.
¶10 Five minutes after Trujillo-Tucson’s reference to a phone call with his
lawyer, Detective Rogers entered the room and began questioning Trujillo-Tucson
about the alleged shooting. This questioning continued for roughly ninety
minutes, at which point Trujillo-Tucson said to Detective Rogers, “Um, may I
please have my lawyer here?”
¶11 The People charged Trujillo-Tucson with several criminal offenses,
including three counts of criminal attempt to commit murder in the first degree.
Trujillo-Tucson moved to suppress statements made during the interrogation,
9
arguing that he never waived his Miranda rights and that he had invoked his right
to counsel when he said, “Am I able to get a phone call? . . . To my lawyer, [E.K.]?”
The People opposed the motion, contending that Trujillo-Tucson’s reference to
counsel was not an unambiguous and unequivocal request for counsel that would
require officers to stop the questioning.2 The district court found that Trujillo-
Tucson implicitly waived his Miranda rights by talking with Detective Rogers after
receiving Miranda warnings, but it agreed with Trujillo-Tucson that he had
“clearly asked for a lawyer and asked for a specific lawyer by name.” Finding that
Trujillo-Tucson’s reference to counsel constituted an unambiguous invocation of
the right to counsel during custodial interrogation, the district court suppressed
Trujillo-Tucson’s subsequent statements.
¶12 The People then brought this interlocutory appeal, challenging the district
court’s suppression order. Specifically, the People argue that suppression was
improper because Trujillo-Tucson’s reference to counsel was not a clear invocation
of the right to counsel during custodial interrogation.
2The People also argued that, in the alternative, continued questioning was proper
because Trujillo-Tucson reinitiated communication with officers. Neither Trujillo-
Tucson’s waiver argument nor the People’s argument regarding reinitiating
communication with officers is before this court.
10
II. Analysis
¶13 We begin by outlining the appropriate standard of review. Then, we review
the law relating to the Fifth Amendment right to counsel and the requirement that
an invocation of the right to counsel must be unambiguous and unequivocal.
Finally, we apply the law to the facts of this case and conclude that, under the
totality of the circumstances, Trujillo-Tucson’s reference to counsel was not an
unambiguous invocation of the right to counsel.
A. Standard of Review
¶14 Our review of a trial court’s suppression order is a mixed question of fact
and law. People v. Coke, 2020 CO 28, ¶ 10, 461 P.3d 508, 512. We defer to the trial
court’s factual findings where they are supported by sufficient evidence in the
record, but we review the legal effect of those findings de novo. Leyba v. People,
2021 CO 54, ¶ 11, 489 P.3d 728, 732. Where, as here, “the statements sought to be
suppressed are audio- and video-recorded, and there are no disputed facts outside
the recording controlling the issue of suppression, we are in a similar position as
the trial court to determine whether the statements should be suppressed.” Id.(quoting People v. Madrid, 179 P.3d 1010, 1014 (Colo. 2008)). We may thus
“independently review the audio or video recording to determine whether the
statements were properly admitted in light of the controlling law.” Id.11
B. Applicable Law
¶15 The Fifth Amendment of the United States Constitution establishes the
privilege against self-incrimination. See U.S. Const. amend. V (providing that no
person “shall be compelled in any criminal case to be a witness against himself”).
In Miranda v. Arizona, 384 U.S. 436, 455 (1966), the Supreme Court recognized that,
because “custodial interrogation exacts a heavy toll on individual liberty and
trades on the weakness of individuals,” it threatens that privilege. As the Court
explained, “[a]n individual swept from familiar surroundings into police custody,
surrounded by antagonistic forces, and subjected to [coercive] techniques of
persuasion . . . cannot be otherwise than under compulsion to speak.” Id. at 461.
To uphold the privilege against self-incrimination in such an environment, the
Court required that law enforcement officers conducting a custodial interrogation
use certain “procedural safeguards.” Id. at 444.
¶16 Relevant here, Miranda established that individuals subjected to custodial
interrogation have a right to counsel during interrogation, and law enforcement
officers must inform them of this right before they initiate questioning.3 Id. at
3 Of course, these are not the only procedural safeguards Miranda requires. Per
Miranda, officers must advise persons subject to custodial interrogation that they
have the right to remain silent; that anything they say may be used against them;
that they have the right to the presence of an attorney during the interrogation;
and that, if they are unable to afford an attorney, one will be appointed. Id.12
469–71. If a suspect knowingly and voluntarily waives their Miranda rights,
officers may proceed with the interrogation. Id. at 479. However, if the suspect
invokes the right to counsel, that right must be scrupulously honored: A suspect,
“having expressed his desire to deal with the police only through counsel, is not
subject to further interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further communication,
exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477,
484–85 (1981). This “‘rigid’ prophylactic rule,” Smith v. Illinois, 469 U.S. 91, 95
(1984), aims “to prevent police from badgering a defendant into waiving his
previously asserted Miranda rights,” Michigan v. Harvey, 494 U.S. 344, 350 (1990).
¶17 Given the consequences that flow from an invocation of the right to counsel,
the question of whether an individual subjected to custodial interrogation actually
invoked their rights arises frequently. Acknowledging the need for “a bright line
that can be applied by officers in the real world of investigation and interrogation
without unduly hampering the gathering of information,” Davis, 512 U.S. at 461,
the Supreme Court has explained that an invocation of the right to counsel must
be clear and unequivocal: The accused “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.” Id. at 459. As
we have previously explained, if the accused “makes a reference to an attorney
13
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,’” officers may proceed with questioning. Kutlak, ¶ 15, 364 P.3d at
204 (quoting Davis, 512 U.S. at 459). The rationale behind the Davis rule is that
police should not have to guess about whether an ambiguous statement by a
suspect is actually a request for counsel. Davis, 512 U.S. at 461; Kutlak, ¶ 16,
364 P.3d at 204. The Supreme Court in Davis, and this court in Kutlak, noted that
it would be good practice for officers to ask questions clarifying whether a
particular statement is a request for counsel, but that clarifying questions are not
required. Davis, 512 U.S. at 461; Kutlak, ¶ 22, 364 P.3d at 205. Instead, absent an
unambiguous request for counsel, an interrogation can continue. Davis, 512 U.S.
at 462; Kutlak, ¶ 23, 364 P.3d at 206.
¶18 This court recently explained that the standard established in Davis sets a
high bar: It requires courts to ask not whether some reasonable officer could have
understood that a suspect was invoking the right to counsel, but whether any
reasonable officer would have drawn that conclusion. Kutlak, ¶¶ 22–23, 364 P.3d at205–06. In Kutlak, a suspect received Miranda warnings and then stated, “Um
[sigh] . . . I mean . . . like . . . can we get [my lawyer] down here now, or . . . ?” Id.
at ¶ 4, 364 P.3d at 201. Rather than ceasing conversation at that point, the officer
stated in response, “It may be difficult . . . It may be something we have to do later.
14
It’s entirely up to you.” Id. Kutlak then said that he would “take a dice roll” and
talk to police. Id. As this court explained, although Kutlak’s statement could
indicate that he desired counsel, “an equally logical inference . . . is that he was
weighing his options and asked a question to help him decide whether to request
his counsel’s presence.” Id. at ¶ 27, 364 P.3d at 206. Under those
circumstances—despite a fairly direct reference to getting counsel “now”—we
concluded that Kutlak’s request could not be deemed unambiguous given his
uncertain demeanor, tone, and body language, accompanied by the fact that his
reference to counsel trailed off and he stated that he would “take a dice roll” and
talk to police. Id.¶19 In Kutlak we recognized that “suspects ‘may not be legally sophisticated or
paragons of clarity in their use of language,’” and we emphasized the importance
of looking to the totality of the circumstances to decide whether a suspect invoked
the right to counsel. Id. at ¶ 24, 364 P.3d at 206 (quoting People v. Romero, 953 P.2d
550, 554–55 (Colo. 1998)). We emphasized that several factors may be relevant to
this analysis, including the words, demeanor, and tone of the attendant officer; the
words, speech patterns, and behavior of the accused; the officer’s response to any
reference to counsel; and “the accused’s youth, criminal history, background,
nervousness or distress, and feelings of intimidation or powerlessness.” Id.¶20 With these principles in mind, we turn to the facts of this case.
15
C. Application
¶21 Based on our independent review of the audio and video recordings
submitted to the trial court, we conclude that Trujillo-Tucson’s reference to
counsel was not an unambiguous and unequivocal request for counsel. At the
outset, we acknowledge that Trujillo-Tucson’s words, “Am I able to get a phone
call? . . . To my lawyer, [E.K.]?”—standing alone—could be construed as a request
for counsel. But we do not ask whether a reasonable officer could have believed a
suspect requested counsel—we ask whether a reasonable officer would have had
such an understanding. Kutlak, ¶¶ 22–23, 364 P.3d at 205–06. And we do not
analyze a suspect’s words in isolation—we look to the totality of the circumstances
surrounding a suspect’s reference to counsel. Id. at ¶ 24, 364 P.3d at 206. Given
those circumstances here, we hold that, although Trujillo-Tucson’s statement
might have indicated a desire for counsel during interrogation, he did not clearly
request counsel.
¶22 The interrogation by Detective Rogers began during the car ride to the police
station after the detective gave Miranda warnings and Trujillo-Tucson indicated
that he understood his rights. Trujillo-Tucson did not invoke his right to counsel
at that time. Instead, during the car ride, Trujillo-Tucson answered Detective
Rogers’s questions and demonstrated some confidence with law enforcement by
16
asking a few questions of his own, including a question as to whether he was going
to be “booked in.”
¶23 Once Trujillo-Tucson and the detectives arrived at the station, the setting
shifted. Detective Rogers—the questioning officer—left to get Trujillo-Tucson a
soda while Detective Tuttle took Trujillo-Tucson to an interrogation room. Inside
the interrogation room, there was no indication that Detective Tuttle would be
questioning Trujillo-Tucson. To the contrary, Trujillo-Tucson repeatedly initiated
conversation with Detective Tuttle while Detective Tuttle was doing nothing more
than patting him down. To the extent Detective Tuttle “questioned” Trujillo-
Tucson, his questions came in the form of responses to Trujillo-Tucson’s
unsolicited comments. The following exchange is illustrative:
Trujillo-Tucson: Yeah, these shoes ain’t good running shoes.
Tuttle: What’s up?
Trujillo-Tucson: These shoes ain’t good running shoes.
Tuttle: Why’s that?
Trujillo-Tucson: Fell off.
Tuttle: Uh-huh, you gotta tighten ‘em up.
Trujillo-Tucson: I almost had you.
Tuttle: Who did?
Trujillo-Tucson: If my shoe hadn’t fallen off.
17
Tuttle: Oh [chuckling]. [Inaudible] I’m gonna take these [handcuffs]
off. Just go ahead and put that hand on top of your head for me.
Throughout their interactions, which were casual and non-confrontational,
Detective Tuttle appeared to be holding Trujillo-Tucson in the interrogation room
until Detective Rogers would arrive to continue the questioning and was not
himself pressing Trujillo-Tucson for information.
¶24 In fact, Detective Tuttle made clear that he was not the officer in charge of
the investigation. During the pat-down, Trujillo-Tucson asked Detective Tuttle
whether he would be booked in (having already inquired about this once with
Detective Rogers during the drive to the station). But rather than answering
Trujillo-Tucson’s question, Detective Tuttle explained that such inquiries should
be directed elsewhere:
Trujillo-Tucson: Am I being booked in?
Tuttle: Uh, so I’m not the primary detective on this case. Uh,
Detective Rogers is.
Trujillo-Tucson: Yes, sir.
Tuttle: So, I would ask him when he gets back here.
¶25 It was only after this explanation that Trujillo-Tucson eventually asked,
“Am I able to get a phone call? . . . To my lawyer, [E.K.]?” An officer who had just
explained that he was not in charge of the investigation and that questions about
being booked in should be directed to the officer in charge could have reasonably
18
interpreted this inquiry as a logistical one—not so much an immediate request for
counsel as much as a question about what options would generally be available.
Cf. Kutlak, ¶ 27, 364 P.3d at 206 (explaining that suspect’s question—“Can we get
[my attorney] down here now . . . or . . .”—could have indicated that suspect was
weighing his options and asking a question to decide whether to request counsel).
Moreover, given the crosstalk that occurred, it is not clear that a reasonable officer
under the circumstances would have heard the latter portion of Trujillo-Tucson’s
question when he asked not just for a phone call but for a phone call to a lawyer.
¶26 Additionally, throughout his conversation with Detective Tuttle,
Trujillo-Tucson maintained a calm demeanor and demonstrated confidence in his
interactions with law enforcement officers. Not only did he initiate conversation
with the detective and direct questions toward him, he made a joke, suggesting
that he would have gotten away from police if his shoe had not fallen off.
Likewise, Trujillo-Tucson maintained a casual conversation with Detective Tuttle
even after asking about a phone call to his attorney. Further, he spoke in fluent
English, belying any notion that communication difficulties hindered his ability to
request counsel directly. And although video footage indicates that Trujillo-
19
Tucson is young, his confident style with officers indicated that he was not so
young or timid as to be unable to make a clear request for counsel.4
¶27 Trujillo-Tucson also made several statements indicating familiarity with the
criminal justice system. He asked whether he would be “booked in,” inquired
about the allegations against him, and understood what would happen as
Detective Tuttle patted him down. While Detective Tuttle was patting him down,
Trujillo-Tucson said, “No sharp objects, no weapons, no nothing,” and he
explained that he had “been in jail long enough to know the routine.” Similarly,
when Detective Tuttle asked Trujillo-Tucson to put his hands on top of his head,
Trujillo-Tucson said, “I know.”
¶28 In other words, Trujillo-Tucson’s reference to counsel occurred under
circumstances where an objectively reasonable officer would not have understood
his comment to be an immediate request for counsel—even ‍‍‍‍‍‍if we assume that a
4The parties dispute the significance of the fact that, when he asked about a phone
call to an attorney, Trujillo-Tucson first looked directly at Detective Tuttle, then at
the table, and then at the wall. According to Trujillo-Tucson, looking directly at
Detective Tuttle implied that Trujillo-Tucson was firm in his desire for counsel,
while the fact that he later looked at the wall evinced timidity in the custodial
environment. In contrast, the People argue that Trujillo-Tucson’s looking down at
the table and then toward the wall suggested that he was undecided about the
presence of counsel. We conclude that Trujillo-Tucson’s movements during his
reference to counsel reveal little about whether his request was unambiguous and
unequivocal.
20
reasonable officer under the circumstances would have heard his entire question.
Trujillo-Tucson referred to counsel during a casual conversation in which he was
not being pressed for information, but rather, which he led. He made his comment
not to the interviewing officer who had given him Miranda warnings but to an
officer who was simply holding him in a room and who had explained that he was
not in charge of the investigation. And, given his casual tone, calm demeanor,
confidence with officers, and familiarity with the criminal justice system, Trujillo-
Tucson gave the impression that he was perfectly capable of directly requesting
counsel had that been his desire.
¶29 To be clear, we do not establish a rule suggesting that a suspect’s request to
call an attorney will always be insufficient to constitute an unambiguous and
unequivocal request for an attorney. Rather, we simply conclude that, given the
totality of the circumstances in this case, Trujillo-Tucson’s reference to counsel was
not unambiguous and thus did not require officers to immediately cease any
questioning.
III. Conclusion
¶30 Because Trujillo-Tucson’s reference to counsel did not constitute an
unambiguous invocation of the right to counsel during custodial interrogation, his
statements should not have been suppressed on that basis. Accordingly, we
21
reverse the decision of the district court and remand for further proceedings
consistent with this opinion.
JUSTICE GABRIEL, joined by JUSTICE HOOD, specially concurred.
JUSTICE BERKENKOTTER, joined by JUSTICE MÁRQUEZ, dissented.
22
JUSTICE GABRIEL, joined by JUSTICE HOOD, specially concurring.
¶31 For the reasons set forth in my dissent in People v. Kutlak, 2016 CO 1,
¶¶ 33–57, 364 P.3d 199, 208–12 (Gabriel, J., dissenting), I believe that that case was
wrongly decided, and were it not for that opinion, I would vote to affirm the trial
court’s suppression order in this case. Under principles of stare decisis, however,
I am bound by our decision in Kutlak, and I believe that it controls our
determination here.
¶32 Accordingly, I respectfully concur in the majority opinion.
1
JUSTICE BERKENKOTTER, joined by JUSTICE MÁRQUEZ, dissenting.
¶33 Following a police chase, twenty-two-year-old Isaiah Cain Trujillo-Tucson
was taken into custody in connection with an attempted first-degree-murder
investigation. Trujillo-Tucson was eventually escorted into an interrogation room.
There, he and Detective Tuttle chatted while Detective Tuttle patted him down.
Then, after being told to take a seat and assessing the gravity of his situation,
Trujillo-Tucson asked, “Am I able to get a phone call [pause] to my lawyer, [E.K.]?”
“Yeah,” Detective Tuttle replied, speaking slightly over Trujillo-Tucson.
¶34 Like the trial court, I perceive no equivocation or ambiguity in Trujillo-
Tucson’s request. Trujillo-Tucson not only asked for a lawyer—he asked for his
lawyer and then specifically identified her by name. But even if you look further,
none of the circumstances the majority looks to—Trujillo-Tucson’s confidence
with the detective, calm demeanor, or his claimed familiarity with the criminal
justice system—changed the plain meaning of his request or rendered it equivocal
or ambiguous. In fact, these are all circumstances that, typically, are seen as
reasons why a reasonable officer would have understood a suspect’s words to be
an invocation of his right to have counsel present under the Fifth Amendment of
the United States Constitution. See Edwards v. Arizona, 451 U.S. 477, 484–85 (1981);
Miranda v. Arizona, 384 U.S. 436, 444–45 (1966). These circumstances are also
essential to understanding why Trujillo-Tucson’s invocation is readily
1
distinguishable from the circumstances surrounding the defendant’s statement in
People v. Kutlak, 2016 CO 1, 364 P.3d 199.
¶35 This case also raises an important issue of first impression: If a suspect
makes an otherwise unambiguous and unequivocal statement that he wishes to
have counsel present, is that invocation rendered ambiguous and equivocal
because an officer may have failed to hear it? I would adopt the “reasonable police
officer” standard espoused by other state courts in this context because this
objective standard avoids difficulties of proof and provides guidance to
interrogating officers—and also protects suspects’ Fifth Amendment rights
without unduly burdening law enforcement. State v. Chavarria-Cruz, 784 N.W.2d
355, 362–63 (Minn. 2010); Cox v. Commonwealth, 641 S.W.3d 101, 118 (Ky. 2022).
Applying that objective standard, I would conclude that a reasonable officer in
Detective Tuttle’s situation would have heard and understood Trujillo-Tucson.
¶36 Because I believe Trujillo-Tucson clearly invoked his right to counsel, I
respectfully dissent.
I. Analysis
A. Standard of Review
¶37 The majority accurately summarizes the relevant standard of review of a
trial court’s suppression order: We defer to the trial court’s factual findings where
they are supported by sufficient evidence in the record, but we review the legal
2
effect of those findings de novo. Leyba v. People, 2021 CO 54, ¶ 11, 489 P.3d 728,
732; Kutlak, ¶ 13, 364 P.3d at 203 (“[W]here the statements sought to be suppressed
are audio- and video-recorded, and there are no disputed facts outside the
recording controlling the issue of suppression, we are in a similar position as the
trial court to determine whether the statements should be suppressed.”) (quoting
People v. Madrid, 179 P.3d 1010, 1014 (Colo. 2008) (alteration in original)).
B. Invoking the Right to Counsel
¶38 As the majority observes, the Fifth Amendment to the United States
Constitution establishes the privilege against self-incrimination. U.S. Const.
amends. V, XIV; see also Colo. Const. art. II, § 18. To protect that privilege, the
Edwards rule provides that if a suspect invokes their right to have counsel present
during custodial interrogation, interrogation must stop until either (1) an attorney
has been made available or (2) the suspect validly waives their earlier request for
an attorney by initiating further communication with the police. 451 U.S. at484–85.
¶39 To trigger Edward’s “rigid prophylactic rule,” an accused’s request for
counsel must be unambiguous. Kutlak, ¶ 15, 364 P.3d at 204. In Davis v. United
States, 512 U.S. 452, 459 (1994), the Supreme Court clarified the standard for
determining ambiguity in a purported invocation. Invocation requires “at a
minimum, some statement that can reasonably be construed to be an expression
3
of a desire for the assistance of an attorney.” Id. (quoting McNeil v. Wisconsin,
501 U.S. 171, 178 (1991)). Thus, as we reiterated in Kutlak, “to make an
unambiguous request for counsel, the 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.’”
Kutlak, ¶ 16, 364 P.3d at 204 (quoting Davis, 512 U.S. at 459) (alteration in original).
¶40 “To avoid difficulties of proof and to provide guidance to officers
conducting interrogations, this is an objective inquiry,” Davis, 512 U.S. at 458–59,
which requires courts to consider the totality of the circumstances, Kutlak, ¶ 24,
364 P.3d at 206. The totality of the circumstances may include such factors as: “the
words spoken by the interrogating officer; the words used by the accused in
referring to counsel; the officer’s response to the accused’s reference to counsel;
the speech patterns of the accused; the demeanor and tone of the interrogating
officer; the accused’s behavior during interrogation; and the accused’s youth,
criminal history, background, nervousness or distress, and feelings of intimidation
or powerlessness.” Id.¶41 As the permissive “may” makes clear, the reviewing court need not take
into account all of these factors, but only those that may be relevant to the case at
hand. See People v. Arroya, 988 P.2d 1124, 1133 (Colo. 1999) (“A trial court need not
4
make specific findings with respect to each of these factors, and no single factor is
controlling.”).
II. Application
A. Trujillo-Tucson’s Invocation
¶42 In my view, the meaning of Trujillo-Tucson’s request: “Am I able to get a
phone call [pause] to my lawyer, [E.K.]?” was unequivocal and unambiguous.
Thus, no further interpretation is needed. See Connecticut v. Barrett, 479 U.S. 523,
529 (1987) (“Interpretation is only required where the defendant’s words,
understood as ordinary people would understand them, are ambiguous.”). We do
not require suspects to use talismanic language to ask for an attorney during
interrogation. See Kutlak, ¶ 24, 364 P.3d at 206. And because many people,
including many suspects, do not speak like lawyers or judges, I believe a
reasonable law enforcement officer standing in an interrogation room, waiting for
the interrogation of a suspect to resume, would understand that Trujillo-Tucson
was asking, “Can I call my lawyer?” Put another way, it is difficult to imagine that
there could be any alternative interpretations of Trujillo-Tucson’s request.
¶43 The majority nonetheless surmises that the question could have been
understood as a logistical one about “what options would generally be available.”
Maj. op. ¶ 25. But, applying that logic, even the clearest invocation if asserted in
5
the form of a question—like “Can I call my lawyer?”—could be understood to be
posing merely a logistical query.
¶44 And even if you parse Trujillo-Tucson’s request—like an Oxford don—the
meaning is just as apparent. “Am I able,” is the present tense of “to be able.” That
is, it is the equivalent of “can I,” which is a manner of asking for permission. Can,
Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/
can [permalink forthcoming] (defining “can” as, among other things, to “be
enabled by law, agreement, or custom”). In United States v. Hunter, 708 F.3d 938,
943–44 (7th Cir. 2013), the Seventh Circuit observed that the word “can” had
consistently been interpreted in that jurisdiction to imply immediacy:
All three defendants [in the cases Hunter analyzed] asked questions
of a police officer who had previously read the defendants their
Miranda rights. Instead of using a word like “should” or “might,”
which would suggest that the defendants were still undecided about
whether they wanted a lawyer, all three defendants used the word
“can.” The defendants’ choice of the word “can,” by definition,
means that they were inquiring into their present ability to be “able
to” obtain a lawyer or to “have the opportunity or possibility to”
obtain a lawyer.
(quoting Can, Oxford Dictionaries Pro Online,
http://english.oxforddictionaries.com/definition/can?region=us&rskey=OBo6r
G&result=1 (last visited Feb. 26, 2013)). I see no reason to depart from this sound
reasoning here.
6
¶45 Perhaps it is the question’s fairly obvious meaning that prompts the
majority to acknowledge that Trujillo-Tucson’s words—standing alone—“could
be” construed as a request for counsel. Maj. op. ¶ 21. But it nonetheless concludes
that in light of the totality of the circumstances a reasonable officer would not have
understood Trujillo-Tucson’s question as a request for counsel. Id. It reaches this
conclusion by zeroing in on what it describes as Trujillo-Tucson’s casual tone, calm
demeanor, confidence with the officers, and familiarity with the criminal justice
system. Id. at ¶ 28. The majority then goes on to suggest that because Detective
Tuttle did not advise Trujillo-Tucson of his Miranda rights, and because Detective
Tuttle told Trujillo-Tucson that he was not the lead detective, and because
Detective Tuttle was not interrogating Trujillo-Tucson at the time of the
invocation, a reasonable officer would not have understood Trujillo-Tucson to be
invoking his right to counsel. Id. at ¶¶ 25, 28. The majority’s logic implies a
troubling proposition: that a reasonable officer would not have understood the
invocation because Detective Tuttle was not in charge of the investigation and the
invocation did not occur during active interrogation. Id. at ¶ 28. This, to my mind,
is where the majority veers off track.
7
B. Davis’s Objective Test Applies to the Question of
Whether a Reasonable Officer Would Have Heard a
Suspect’s Invocation, an Issue of First Impression
¶46 This case raises an important issue of first impression: If a suspect makes
an otherwise unambiguous and unequivocal statement that he wishes to have
counsel present, is that invocation rendered ambiguous and equivocal because an
officer may have failed to hear or understand it? The two state courts that have
addressed this issue have employed the “reasonable police officer” standard in
this context for the reasons explained in Davis—the objective standard avoids
difficulties of proof and provides guidance to interrogating officers—but it also
protects suspects’ Fifth Amendment rights without unduly burdening law
enforcement. Chavarria-Cruz, 784 N.W.2d at 362–63; Cox, 641 S.W.3d at 118.
¶47 In Chavarria-Cruz, the Minnesota Supreme Court reiterated that Davis’s
objective standard applies both when evaluating the suspect’s words and their
manner in speaking them, and thus the Davis standard applies even when “the
question is whether a suspect’s words were spoken loudly enough to be heard.”
Chavarria-Cruz, 784 N.W.2d at 362. In that case, the detective described the suspect
as “very soft spoken” with a “pronounced” accent and did not remember the
suspect using the word “lawyer” during the interview. Id. at 360. But he admitted
at the motions hearing that he could understand the reference to a lawyer on the
tape recording of the interview. Id. at 360. The district court concluded that the
8
detective subjectively did not hear the request and, accordingly, denied the
suspect’s request to suppress the statement. Id. at 361.
¶48 On appeal, the Minnesota Supreme Court reversed, explaining that the
district court’s subjective test would “essentially creat[e] an exception to the
objective, ‘reasonable officer’ analysis for cases where the officer testifies that the
suspect’s statement was spoken too quietly to be heard.” Id. at 362. The court
further reasoned that maintaining the objective test when assessing a suspect’s
manner—including the audibility of the suspect’s statement—imposed no new
burdens on law enforcement, who already had an incentive to “ensur[e] that all of
the suspect’s words are clear and audible” to the investigating officer. Id. The
court, thus, elaborated that “[a] ‘reasonable officer’ is one with ordinary hearing
abilities who has taken steps to ensure that clear communication can occur
between the officer and the suspect” and is “attentive to the suspect’s answers to
questions.” Id. at 363.
¶49 In Cox, the Kentucky Supreme Court likewise concluded that Davis’s
objective test applied to the same issue of first impression we address in this case.
641 S.W.3d at 118. The Kentucky court adopted much of Chavarria-Cruz’s
reasoning, including its additional contours for what constitutes a reasonable
officer: such an officer will (1) have ordinary hearing abilities; (2) ensure clear
9
communication with the suspect; and (3) be attentive to the suspect’s answers. Id.
at 120–21.
¶50 When the question is whether an officer would have understood a suspect
invoked the right to counsel (as distinguished from having heard the invocation),
we employ Davis’s “reasonable police officer” standard. We follow this approach
because it “avoid[s] difficulties of proof” and “provide[s] guidance to officers
conducting interrogations.” Davis, 512 U.S. at 458–59; see Kutlak, ¶¶ 15–16, 23,
364 P.3d at 204, 206 (noting the Davis standard is an objective standard and
discussing the rationale for the Davis approach). This “objective approach protects
suspects’ Fifth Amendment right against compelled self-incrimination without
placing any special burden on law enforcement,” and its extension to evaluating
the manner or audibility of a suspect’s speech strikes the same balance. Chavarria-
Cruz, 784 N.W.2d at 362. As other jurisdictions have recognized, officers
conducting investigations already have “a strong interest in facilitating effective
communication in order to gather information.” Id. “That interest includes
ensuring that all of a suspect’s words are clear and audible . . . and paying careful
attention to the suspect when they speak.” Id.
¶51 For these reasons, in cases involving a claim—like the one in this case—that
an officer may not have heard an invocation, I would apply the Davis objective
test, consistent with the Supreme Court’s jurisprudence and our own, to determine
10
if a reasonable officer, with ordinary hearing abilities, would have heard a
suspect’s invocation of the right to have counsel present. See Davis, 512 U.S. at458–59; see also Kutlak, ¶ 23, 364 P.3d at 205–205 (reiterating our court’s application
of the Davis standard).
¶52 And, at first blush, it appears the majority has followed this path. Though
it does not articulate the pertinent legal standard, it concludes that “given the
crosstalk that occurred, it is not clear that a reasonable officer under the
circumstances would have heard the latter portion of Trujillo-Tucson’s question
when he asked not just for a phone call but for a phone call to a lawyer.” Maj. op.
¶ 25 (emphasis added). But that is the sum total of the majority’s objective
reasonable officer analysis (to the extent it purported to apply that standard).5
¶53 Applying the objective reasonable officer standard here, I would look to
Trujillo-Tucson’s ongoing one-on-one interaction with Detective Tuttle in the
interrogation room, and the quiet environment in which the request was made.6 I
view the crosstalk as fleeting. Trujillo-Tucson looks at Detective Tuttle and begins
5 That may be because it ultimately concludes that even if Detective Tuttle heard
the request, a reasonable officer would not interpret Trujillo-Tucson’s question as
a request for counsel.
6 In a louder, more chaotic situation, the outcome—applying an objective
standard—might well be different.
11
“Am I able to get a phone call.” Then he pauses. Detective Tuttle answers “yeah”
just as Trujillo-Tucson finishes “to my lawyer [E.K.].” The officer’s “yeah” does
not last long enough to cover the end of Trujillo-Tucson’s sentence.
¶54 I would also consider whether Detective Tuttle was focused and engaged
or distracted. To my way of thinking, it is important here that when the detective
was patting Trujillo-Tucson down and did not hear or understand him, the
detective immediately followed up—asking “What’s up?” not once, not twice, but
six times—to make sure that he heard or understood what Trujillo-Tucson had
said. It is just as important here, that Detective Tuttle picked up a cell phone and
looked at it just as Trujillo-Tucson started to invoke. This is important because it
shows that the detective was distracted at this critical moment. It also provides
more context for Trujillo-Tucson’s request to call his lawyer. A request by a
suspect to call his lawyer upon seeing a detective pull out a cell phone does not
seem logistical or equivocal, it seems specific and unambiguous.
¶55 Under these circumstances, I would conclude that a reasonable officer alone
in a quiet interrogation room, waiting for interrogation to resume, in the midst of
interacting with a suspect, who was speaking at an unquestionably audible
volume, would have heard Trujillo-Tucson’s request for his lawyer, E.K.
12
C. Under the Supreme Court’s and Our Precedent, It Does
Not Matter that Trujillo-Tucson Invoked to Someone Other
Than the Lead Detective
¶56 In concluding that a reasonable officer would not have understood that
Trujillo-Tucson was invoking his right to have counsel present, the majority gives
great weight to the fact that Detective Tuttle told Trujillo-Tucson that he was not
the lead detective, that Detective Tuttle was not the officer who gave Trujillo-
Tucson his Miranda advisement, and that Detective Tuttle was not asking
Trujillo-Tucson questions at the time Trujillo-Tucson asked to call his lawyer,
E.K. Maj. op. ¶¶ 25, 28. It also points to Detective Tuttle directing Trujillo-
Tucson to Detective Rogers to ask if Trujillo-Tucson is being booked in. Id. at
¶ 25. To be sure, the meaning of Trujillo-Tucson’s words might have been even
more obvious if uttered to the lead detective in the midst of interrogation. But it
doesn’t follow that his question was ambiguous just because he asked a different
detective while they were waiting for the interrogation to resume.7 This view
seems to suggest that ambiguity is injected into every invocation made under less
than the most obvious circumstances. This approach seems like a slippery slope
7 It is undisputed in this case that Trujillo-Tucson was subject to custodial
interrogation, as defined by our jurisprudence, at the time he uttered the statement
in question and thus that Miranda’s Fifth Amendment protections applied.
13
that is particularly ill-suited to the countless ways that invocation plays out in
the real world. What about invocations that are made at the scene to arresting
officers, or blurted out pre-Miranda advisement, or during booking, or during a
break in active interrogation?
¶57 I am aware of no legal authority that supports what seems to be the
majority’s underlying assumption that different officers have differing degrees
of responsibility vis-à-vis Miranda. See United States v. Kelsey, 951 F.2d 1196, 1199
(10th Cir. 1991) (We find no merit in the Government’s argument that Edwards
should not apply because the officers to whom Kelsey made his request for
counsel were not the officers who later questioned him.). This argument has been
rejected by the Supreme Court, the Tenth Circuit, and this court. Arizona v.
Roberson, 486 U.S. 675, 687–88 (1988); United States v. Scalf, 708 F.2d 1540, 1544
(10th Cir. 1983) (“[O]nce a suspect has invoked the right to counsel, knowledge
of that request is imputed to all law enforcement officers who subsequently deal
with the suspect.”); People v. Vigoa, 841 P.2d 311, 314 (Colo. 1992) (applying
Roberson); see also People v. Vasquez, 155 P.3d 588, 591 (Colo. App. 2006) (“Later
interrogators are charged with the knowledge of a suspect’s invocation of his
right to counsel because of the presumption that the suspect considers himself
unable to deal with the pressures of custodial interrogation without legal
assistance.”).
14
D. Under the Supreme Court’s Precedent and Kutlak,
Trujillo-Tucson Invoked His Right to Counsel.
¶58 So, can the majority’s analysis stand if the only basis for concluding that
Trujillo-Tucson’s request was equivocal and ambiguous was his casual tone, calm
demeanor, confidence with the officers, and familiarity with the criminal justice
system? I conclude it cannot, particularly if you examine the context in which the
request was made. To begin, I agree with the majority that when officers brought
Trujillo-Tucson into the interrogation room, he initiated what seems to be casual
conversation with Detective Tuttle. But, in my view, there is an important shift in
the interaction between the two men shortly before Trujillo-Tucson asks to call his
attorney.
¶59 That is, in the video- and audio- recordings, you can see and hear Trujillo-
Tucson begin to assess the gravity of the situation. First, he asks if he is being
booked in. Then, after being directed to have a seat at the table in the interrogation
room, he asks, “So, what allegations are enough to arrest someone?” When
Detective Tuttle answers, “You [inaudible] have probable cause,” Trujillo-Tucson
is silent for several moments and then looks Detective Tuttle in the eye and asks,
“Am I able to get a phone call to my lawyer, [E. K.]?” In that moment, Trujillo-
Tucson displayed no indecision whatsoever.
¶60 The majority, however, turns that lack of indecision on its head to argue
that Trujillo-Tucson’s confidence and certainty render his request to call his
15
attorney equivocal. In my view, however, under the Supreme Court’s case law
and our own, confidence and certainty in a request have traditionally weighed in
favor of finding a request to be unequivocal and unambiguous. And, indeed,
Trujillo-Tucson’s invocation here was more certain, more immediate, and stronger
than statements that the Supreme Court has found evoked a certain and present
desire for counsel under the Fifth Amendment.
¶61 For example, in the case that gives us the rule that both the majority and I
apply today, Edwards, the Court concluded that the suspect’s statement, “I want
an attorney before making a deal,” unambiguously “expressed his desire to deal
with the police only through counsel.” 451 U.S. at 478, 484. There, the suspect
made this statement well into the interrogation, after he had waived his Miranda
rights, and his phrasing even appeared to condition his request on another
action—making a deal. See id. at 478–79. Yet the Supreme Court concluded this
statement was sufficiently clear to unambiguously invoke the suspect’s right to
counsel. Id. at 484.
¶62 Similarly, in Smith v. Illinois, 469 U.S. 91, 96–97 (1984) (per curiam), the
Supreme Court found that the suspect’s response, “Uh, yeah. I’d like to do that,”
to an officer asking if he understood his right to counsel, was an unambiguous
invocation of that right. Specifically, the Court found that “with the possible
exception of the word ‘uh’ the defendant’s statement in this case was neither
16
indecisive nor ambiguous”; indeed, to the contrary, it appeared “clear and
unequivocal.” Id. at 97 (quoting, respectively, People v. Smith, 466 N.E.2d 236,
241–42 (1984) (Simon, J., dissenting); People v. Smith, 447 N.E.2d 556, 559 (1983),
aff’d 466 N.E.2d 236 (1984), rev’d sub nom. Smith, 469 U.S. 91 (1984)).
¶63 The outcome under our precedent is no different. For example, Trujillo-
Tucson’s statement did not express the kind of indecision which created ambiguity
in Kutlak. In Kutlak, after undertaking an independent review of the audio- and
video-recordings, this court concluded that, under the totality of the
circumstances, Kutlak’s question to the detective—“Um [sigh]. . . I
mean . . . like . . . can we get [my lawyer] down here now, or . . . ?”—was not an
unambiguous and unequivocal assertion of Kutlak’s right to counsel. Kutlak,
¶¶ 4, 27, 364 P.3d at 210, 206. In reaching this conclusion, we relied heavily on
“the way [Kutlak] shrugged when he asked, ‘can we get him down here now,
or . . .?’ coupled with the general uncertainty reflected in his demeanor,” which we
found “suggest[ed] that he was merely inquiring how long it might take to acquire
counsel’s presence.” Id. (emphasis in original). Given this marked indecision in
speech and conduct, this court concluded it was equally logical to interpret Kutlak
as “weighing his options” by “ask[ing] a question to help him decide whether to
request his counsel’s presence.” Id. In addition, this court noted Kutlak’s question
about whether he might be able to go home that day and his conscious decision,
17
articulated almost immediately, to “take a dice roll” by speaking to the police, as
well as the detective’s attempt to clarify what Kutlak was requesting, to
underscore our conclusion that Kutlak’s statement was ambiguous. Id. at
¶¶ 28–29, 364 P.3d at 206–07.
¶64 But here, Trujillo-Tucson’s demeanor was essentially the opposite of
Kutlak’s. Trujillo-Tucson did not shrug. He did not express indecision. He did
not use phrases like “but,” “maybe,” or “should I?” which project uncertainty or
elicit advice. Cf. Davis, 512 U.S. at 462 (finding the phrase “Maybe I should talk to
a lawyer” was not a request for counsel) (emphasis added). His statement lacked
even the ambiguity of the future tense. Cf. Hunter, 708 F.3d at 945 (noting that the
phrase “going to” “indicates a possible desire to obtain an attorney in the future,
not presently”) (emphasis in original).
¶65 Trujillo-Tucson also never made an explicit decision to continue the
interview without counsel and at his own risk, as Kutlak did when he
said—twice—that he would “take a dice roll” and speak to the police. Kutlak, ¶ 28,
364 P.3d at 206–07. To the contrary, Trujillo-Tucson’s request came just after
Detective Tuttle appeared to confirm to Trujillo-Tucson that the detective believed
they had sufficient probable cause. This timing again confirms the
unambiguousness of Trujillo-Tucson’s request, as it “came on the heels” of his
asking for information related to the gravity of his situation. See Hunter, 708 F.3d
18at 946–47 (finding the fact that a request for counsel that “came on the heels” of
the suspect inquiring about the evidence and charges against him indicated the
inherent unambiguousness of the suspect’s request, “Can you call my attorney?”).
¶66 Detective Tuttle’s conduct, moreover, clearly contrasts with the detective’s
conduct in Kutlak, which we found confirmed the ambiguity of the question in that
case. The Kutlak detective sought to clarify whether Kutlak was requesting
counsel, repeated Kutlak’s rights to him, reiterated Kutlak’s ability to end the
interview whenever he wanted, and obtained Kutlak’s clear waiver of his Miranda
rights subsequent to Kutlak’s ambiguous request. Kutlak, ¶¶ 28–29, 364 P.3d at206–07. The detective’s decision to clarify, rather than to proceed immediately
with questioning in the face of an ambiguous statement, reflected the best practice
recommended by Davis. See 512 U.S. at 461 (“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.”).
¶67 And though Detective Tuttle’s silence initially honored Trujillo-Tucson’s
invocation, his inaction once Detective Rogers reinitiated interrogation,
conversely, undermined the purpose of the Edwards rule. That is, instead of
ending the interview and providing Trujillo-Tucson with the phone call he
requested—instead of scrupulously honoring Trujillo-Tucson’s right to
counsel—Detective Tuttle ultimately permitted his partner to interrogate Trujillo-
19
Tucson as if nothing had happened. In short, Detective Tuttle ignored Trujillo-
Tucson’s clear invocation of his Fifth Amendment right to counsel.
¶68 But the final way in which Kutlak is distinguishable is perhaps the most
telling: the majority offers no reasonable alternative reading of Trujillo-Tucson’s
request for counsel that could render his request ambiguous.8 Though the
majority summarily suggests that Trujillo-Tucson’s question may have been a
“logistical,” query “about what options would generally be available” to him, it
fails to identify any aspect of the language he used or his demeanor that would
support such a reading. Maj. op. ¶ 20. In Kutlak, this reading was supported in
great detail by the context of Kutlak’s statement, the words he used—including
his indecisive “um” and open-ended “or” at the end of his question—the shrug of
his shoulders, the detective’s interpretation of the question as eliciting more
information, and Kutlak’s subsequent statements indicating a conscious decision
to speak to law enforcement absent an attorney. ¶¶ 27–30, 364 P.3d at 206–07.
There are no such facts in Trujillo-Tucson’s case.
8Nor could it. Trujillo-Tucson’s question did not elicit information to help him
“weigh[] his options” nor did it “help him decide whether to request his counsel’s
presence.” Kutlak, ¶ 27, 364 P.3d at 206.
20
¶69 But the majority does not compare its application of the objective test in
this case to our application of the objective test in Kutlak. Instead, it only suggests
that, given the totality of the circumstances, Trujillo-Tucson “gave the impression
that he was perfectly capable of directly requesting counsel had that been his
desire.” Maj. op. ¶ 28. But that is exactly what Trujillo-Tucson did—he looked
directly at Detective Tuttle and asked to call his attorney. At bottom, the majority
appears to suggest that Trujillo-Tucson knew how to frame a better request or at
least to ask again if he didn’t get what he wanted.
¶70 More than that, though, the majority seems to suggest that law
enforcement officers have differing degrees of responsibilities vis-à-vis Miranda
and that an invocation is somehow ambiguous when it is made to someone other
than the “lead detective” or outside active interrogation. Again, I agree that the
meaning of Trujillo-Tucson’s words might have been even more obvious if uttered
in the midst of interrogation. But it does not follow that invocations that occur in
anything other than the most obvious situations are somehow ambiguous. As
noted, the majority’s approach seems like a slippery slope that is particularly ill-
suited to the countless ways that invocation plays out in the real world. What
about invocations that are made at the scene to arresting officers, or blurted out
pre-Miranda advisement, or during booking, or during a break in active
interrogation, or . . . the list could go on and on.
21
¶71 And finally, to the extent that the majority implies that Trujillo-Tucson
should have stated his request as a demand rather than a question or repeated or
rephrased his question, I can again find no support for this view in our
jurisprudence or that of the Supreme Court. Though Trujillo-Tucson framed the
request in the form of a question, this court has never before suggested that the
invocation of the right to counsel cannot be asserted in this manner. See People v.
Harris, 552 P.2d 10, 12 (Colo. 1976) (“The fact that the accused did not ‘demand’ an
attorney does not persuade us that he was not exercising his rights.”); see also
People v. Adkins, 113 P.3d 788, 790–91 (Colo. 2005) (finding a suspect’s questions,
“Why don’t I have [a lawyer] now?” and “How come I don’t have a lawyer right
now?” were unambiguous assertions of his right to counsel), overruled on other
grounds by Kutlak, ¶¶ 22–23, 364 P.3d at 205–06. Such a view, moreover, is at odds
with Davis, which makes it clear that suspects need not “speak with the
discrimination of an Oxford don.” Davis, 512 U.S. at 459 (quoting id. at 476 (Souter,
J., concurring in judgment)). Yet that is what the majority appears to require in
this case. If this is now the rule, we should provide the public with the talismanic
language they must use to invoke their rights. Cf. In re H.V., 252 S.W.3d 319, 326
(Tex. 2008) (“While police often carry printed cards to ensure precise Miranda
warnings, the public is not required to carry similar cards so they can give
similarly precise responses.”) (internal citation omitted).
22
¶72 I cannot interpret Trujillo-Tucson’s statement as anything but a request for
counsel, and I find there is nothing in the surrounding circumstances that injects
ambiguity into his invocation of his right to counsel in this case.
III. Conclusion
¶73 Trujillo-Tucson not only asked for a lawyer—he asked for his lawyer and
then specifically identified her by name. Because the plain meaning of his request:
“Am I able to get a phone call [pause] to my lawyer, [E. K.]?” was unambiguous,
no further interpretation is needed. And even if you look further, Trujillo-
Tucson’s casual tone, calm demeanor, confidence, and familiarity with the
criminal justice system did nothing to change the plain meaning of his request or
render it equivocal or ambiguous. Because a reasonable officer under these
circumstances, would have heard his request and understood it to be an invocation
of his right to have counsel present, I would affirm the trial court’s order
suppressing Trujillo-Tucson’s statements from that point forward and, therefore,
I respectfully dissent.
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