Invoking the Right to an Attorney Takes More Than Just a Magic Word

by | January 25, 2017

State v. Holman, 502 S.W.3d 621 (Mo. 2016)
Holman’s wife shot him in the arm. Holman returned the favor by shooting his wife, killing her. He then called 911. Arriving officers knocked, and Holman invited them into the house.

Sitting in the ambulance receiving treatment for his bullet wound, Holman expressed disbelief in his actions and said he should have just run away. One of the officers asked Holman to sign a consent-to-search form (wisely understanding that there was no warrant requirement exception just because Holman invited them into the house). Holman responded, “I ain’t signing shit without my attorney.”

The next day, a detective interviewed Holman. She first explained the Miranda rights and asked whether Holman understood his rights. He said that he understood. Holman later argued that his statement on the prior night, “I ain’t signing shit without my attorney,” served to invoke his right to have his attorney present during questioning. He asked the court to suppress his statements to the detective.

The bright line rule of the Miranda decision states that when a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” However, the Supreme Court later held in Davis v. United States (512 U.S. 452 (1994)) that the request for an attorney must be sufficiently clear so that a reasonable police officer would understand that the suspect is invoking his/her right to have an attorney present during the interrogation.

In Holman’s case, the court held that he hadn’t been sufficiently clear in his request, if indeed it was a request to speak to his attorney: “The mere utterance of the magic word ‘attorney’ in response to a request to search his home was not a clear and unequivocal invocation of his Fifth Amendment right to counsel.” The court opined that a reasonable officer could have concluded that Holman was willing to speak to officers, but that he was unwilling to give written consent for a search of his home without first asking an attorney’s advice.

“Attorney” isn’t likely to replace “abracadabra” as a magic word any time soon, and Holman loses his appeal.

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KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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