In a recent case from the U.S. Court of Appeals for the Fifth Circuit (Federal), the court considered whether police interrogation of a suspect violated the suspect's constitutional right to have an attorney present when the suspect voluntarily continued the conversation with the officers.
U.S. v. Carillo - While the defendant was in jail on a parole violation, officers went to interview him about his involvement in a drug distribution conspiracy. After being read his Miranda rights, the defendant invoked his right not to be questioned without an attorney present. The officers stopped talking to him and left. The next day the defendant told jailers that he wished to speak to the officers from the day before. The officers returned to the jail, advised him of his Miranda rights, which then led to a discussion about the defendant's right to an attorney. The defendant made three comments during this time. He told the officers, “I wish I had a lawyer right here," "I wanted to see if we could push this thing to where I could get my lawyer," and "I wanted to see if you could work with me and push this deal to where I can get a lawyer and just sit down and talk about it." After one of the officers told the defendant that he would get an attorney at his arraignment, the defendant asked the officer what would happen if he agreed to talk to the officer now. The kind and helpful officer told the defendant that he would just be cooperating and helping himself and once he got into the federal system he would get an attorney. Hearing those words of encouragement, the defendant agreed to talk to the officers and (of course) made several incriminating statements, which led to his conviction.
On appeal, the appellant contended that his confession should have been suppressed because it was obtained in violation of his constitutional right not to be interrogated while in police custody without an attorney present, under Miranda v. Arizona, 384 U.S. 436 (1966).
The 5th Circuit recognized that the defendant's three comments, when viewed separately, appeared to indicate that he was invoking his right to counsel. However, the Court held that when considering the entire context in which the defendant made the comments, a reasonable police officer would not have understood him to be saying that he wanted to stop talking with the police without an attorney present. The court held that the defendant's comments to the officers were ambiguous at best. They expressed the defendant's preference to have an attorney present, however, the fact that he kept talking to the officers indicated that he also wished to keep the interview going and not to end it by invoking his right to counsel. The defendant re-initiated communication with the officers after he ended the interview the day before by invoking his right to counsel, so he was clearly aware of how he could end the interview. The defendant was merely weighing the pros and cons of talking to the officers without an attorney present which he eventually decided to do.