Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 09CA1627.
The supreme court clarifies that in determining whether a suspect in custody has made an unambiguous request for counsel, the proper standard under Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), is whether " a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Applying this standard, the supreme court holds that, under the totality of the circumstances, the defendant did not unambiguously and unequivocally invoke his right to counsel. Because the defendant did not actually invoke his right to counsel, and because he otherwise validly waived his Miranda rights before making incriminating statements, his statements should not have been suppressed.
For Petitioner: Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado.
For Respondent: Douglas K. Wilson, Public Defender, Adam Mueller, Deputy Public Defender, Denver, Colorado.
dissents, and HOOD, JUSTICE joins in the dissent.
MÁ RQUEZ, JUSTICE.
[¶1] Westminster police arrested Levent Ray Kutlak after he had a physical altercation with members of his wife's family. Detective Russ Johnson interviewed Kutlak at the police station. After he was read his Miranda rights, Kutlak stated that he had a personal lawyer and asked, " [C]an we get him down here now, or . . . ?" Detective Johnson responded that " it may be difficult" to get in touch with the attorney and that " [i]t may be something we have to do later. It's entirely up to you." Moments later, Kutlak stated that he was going to " take a dice roll" and talk with the detective. Kutlak signed a Miranda waiver and proceeded to make incriminating statements regarding the incident.
[¶2] Kutlak later moved to suppress the statements he made in the interview with Detective Johnson. The trial court denied Kutlak's motion and a jury subsequently convicted him of child abuse, first degree criminal trespass, and two counts of third degree assault. The court of appeals reversed the judgment of conviction and remanded for a new trial, concluding that the trial court erred in denying Kutlak's motion to suppress his statements. The court reasoned that Kutlak unambiguously invoked his right to counsel during the interview and that, because the initial interview never stopped, Kutlak could not have reinitiated further communication with Detective Johnson. The court declined to reach Kutlak's remaining contentions on appeal.
[¶3] We granted the People's petition for writ of certiorari and now reverse the court of appeals. We first clarify that, in determining whether a suspect in custody has made an unambiguous request for counsel, the proper standard under Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), is whether " a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Applying this standard, we hold, based on our independent review of the video-recorded interrogation, that Kutlak did not unambiguously and unequivocally invoke his right to counsel. Because Kutlak did not actually invoke his right to counsel, and because he otherwise validly waived his Miranda rights before making incriminating statements to the detective, his statements should not have been suppressed. Accordingly, we reverse the judgment of the court of appeals and remand with instructions to address Kutlak's remaining contentions on appeal.
I. Facts and Procedural History
[¶4] At 2:43 a.m. on May 22, 2008, Westminster police were dispatched on a report of a stabbing that took place during an altercation between Kutlak and his wife's family. The police arrested Kutlak and brought him to the Westminster Police Department. Detective Johnson contacted Kutlak at the station around 8:30 a.m. and conducted an interrogation. The interrogation lasted approximately an hour and was both audio-and video-recorded.  It is undisputed that Detective Johnson properly advised Kutlak of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), including the right to have counsel present during the custodial interrogation. Immediately after the Miranda advisement, the following exchange occurred:
Johnson: Do you understand your rights as I have explained them to you?
Johnson: Okay. Do you have any questions about them?
Kutlak: Uh . . . if I, I have--
Johnson: Just about what your rights are. Do you have any questions about--
Kutlak: Yeah, I do, I do have a lawyer.
Kutlak: A personal lawyer.
Kutlak: He's on retainer.
Kutlak: Um [sigh] . . . I mean . . . like . . . can we get him down here now, or . . . ?
Johnson: It may be difficult. I mean, it's, it's difficult to get in touch with him. It may be something we have to do later. It's entirely up to you.
Kutlak: Is there any way of a long shot, that, I mean . . . we can work this out, and I can go home today or something?
Johnson: You know, I can't answer that question for you right now. I don't know the answer to that question right now. But what I need to know is, if you, if you do wanna--
Kutlak: I mean, I'm gonna take a dice roll, I'm gonna take a dice roll and I'm gonna talk to you guys. I mean, I'm not going to lie to you. I'm not going to do anything like that. I just . . . .
Kutlak: I mean--
Johnson: Well I need you to be one-hundred percent certain and one-hundred percent comfortable with doing that. It's--
Kutlak: Yeah, definitely. If I stop feeling comfortable, I'll ask to stop.
Johnson: Okay, you certainly can at any time stop this interview if you wish to. Um, so you do understand your rights?
Kutlak: Yes sir.
Johnson: And with those rights in mind you're willing to answer questions with me at this time?
Kutlak: Yes sir.
Kutlak thereafter signed a Miranda waiver form and made incriminating ...