Here's our scenario. Defendant has stabbed another guy in a parking lot of a bar at closing time. He stabs the victim, drops the knife, jumps in his nearby van and takes off. An officer just happened to be in the parking lot at the same time. He sees the victim "back-pedaling" with his hands in the air from a distance, but thinks it'a a bunch of guys playing football or fooling around. The officer's attention is distracted to another group of people coming out of the bar as he continues to cruise the parking lot. Not more than 30 seconds later as the officer turns into one of the parking aisles, a witness runs up to him and yells, "He just stabbed my friend!" and points to a van leaving the parking lot with tires screeching. The officer, at the same time, notices the guy he had seen just 30 seconds before "back-pedaling" lying on the ground. The officer takes off to pursue the defendant. When the defendant sees the officer behind him, he returns to the scene with the officer behind him. The officer gets out of his car with his weapon drawn and tells the defendant to get on the ground, etc. As he is handcuffing the defendant on the ground, the officer asks "where's the knife?" The defendant responds "it's over there" pointing to the scene where he had dropped the knife. Fast forward about five minutes. The officer is emptying the defendant's pockets on the hood of the car when the defendant says "Can I have my cell phone out of my van. I need to call my lawyer." The officer responds, "I'm not going to be asking you any questions without your lawyer." The officer puts the defendant in the back of his patrol car and stays there while other officers arrive and take control of the scene. The officer has been a police officer about 10 months. About an hour later, a detective advises the officer to transport the defendant to the police station and the detective follows. Once at the station, the detective directs the officer to bring the defendant into the interrogation room. The detective Mirandizes the defendant and records his statement.

The defense has moved to suppress the statement. They claim that the defendant invoked his right to counsel on the scene when he asked for his cell phone to call his lawyer. We argued that the defendant's 5th Amendment right to counsel had not attached yet because the defendant was not being custodially interrogated when he "invoked" his right to counsel, if he did. We also argued that the invocation of his right to counsel was not unambiguous and unequivocal. We won.

On the day of trial, the defense reasserted their argument alleging that the officer's question to the defendant "where's the knife" immediately after the defendant got out of his car was custiodial interrogation and, because the defendant subsequently "invoked" his right to counsel, the police could not have later approached him to take a statement.

I think they are wrong. I think the issue will ultimately turn on whether the initial question of the officer was, in fact, custodial interrogation or, if it was, whether when the defendant made his request for his cell phone to call his lawyer he did so in the context of or during custodial interrogation.

Please let me know what you think. We believe that we are okay on the issue of whether the statement by the defendant was ambiguous and equivocal, but would appreciate any thoughts on that issue as well. Trial was postponed until next Monday because not enough prospective jurors showed up, so we have a little time to get a response to the judge.

By the way, yes, I think we need the statement. This will be a very tough case without it.

Thanks for any input.

Take a look at New York v. Quarles, 467 U.S. 420 (1983). This might support your position that the question about the knife was not custodial interrogation.

2001 Tex. App. LEXIS 6128

This might also help you, though it's unpublished. I will continue to look.

Had similar situation in Cross v. State, 114 SW3d 92. Cross told police officer he didn't want to talk and wanted a lawyer. Once at police station detective tells him he will not ask questions because he invoked his right to atty. After Miranda, Cross says he is willing to talk to detective, just didn't want to talk to patrol officer. Det. takes statement - statement is admissible. Of course the statement is not an outright confession but substantiates some of the crimes.

Regarding the response to the question "Where's the knife?" Wouldn't 38.22 Sec. 3(c) of the CCP apply?

It is an exception to the usual 38.22 requirements when a statement refers to facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.

Should work, hope it helps.

Trey Hicks

By the time the officer arrested defendant, the knife had already been picked up at the scene by one of the witnesses to give to the police. It was handed over to police by one of the witnesses almost immediately. So, I don't think the exception to 38.22 applies because we did not recover the knife as a result of the defendant's statement. I'm not sure it would help even if the statement had led to the finding of the knife because the issue of admissibility of the statement is not grounded in 38.22 but in Miranda and the invocation of the right to an attorney. Thanks for the input, Trey.

I think that the answer may lie in the line of cases from the Supreme Court (and below) that recognizes a "public safety" exception to Miranda. Our fact situation would clearly fit. While the exception was recognized to allow the response to a safety question by the officer to come in to evidence, I think it would be hard to articulate why the public safety exception to Miranda (which is the basis of the issue about invocation of the right to an attorney) should apply in one case and not the other.

Any one have any thoughts on this "public safety" exception as it applies to our fact situation (see beginning of the thread for the facts)?

One of the issues addressed in the SPAs Brief in Consaul, No. 832-97 was "Can the Fifth Amendment Right to Counsel be invoked anticipatorily, in a context other than custodial interrogation?". Seems like that might be a good starting point. A copy of the brief is available under the "Forms, Briefs, et al" link above.

Even if your guy made a clear and unequivocal assertion of right to counsel and was in custody at the time, he was not being interrogated about the offense at the time and was not stating he wanted assistance with regard to interrogation. To me, that is the key factor which means he is still open game for a voluntary statement. The purpose of Edwards-Minnick is "to ensure that any statement made in a subsequent interrogation is not the result of coercive pressures." How can you say the giving of a Miranda warning at a different time and place is a coercive pressure tactic? Cf. Cobb, 85 S.W.3d at 263. This concept is no doubt what led the CCA at one point to say that "[t]he failure to scrupulously honor a suspect's invocation of his right to remain silent by continuing questioning is not necessarily coercive." Baker, 956 S.W.2d at 23. I would argue the police were not "re-initiating" or "continuing" the interrogation. Even in McCarty, 65 S.W.3d at 51, the court talks about invocation of the right to counsel "during questioning by law enforcement". Your facts seem enough different to me to keep the telephone request from having any legal significance.

[This message was edited by Martin Peterson on 05-12-04 at .]