by Sam Rutherford

The U.S. Court of Appeals for the First Circuit held that a defendant’s statement in response to Miranda warnings that “I guess my best bet would probably be to not talk” until she had a lawyer was an unequivocal invocation of her right to counsel during custodial interrogation and that law enforcement officials violated that right by continuing to question her over the course of two days.

Background

In 2018, the U.S. Drug Enforcement Administration and local law enforcement agencies in Maine were investigating a drug-trafficking operation. They identified Amanda Cowette as a minor player in the conspiracy, in that her role was limited to storing fentanyl in her home prior to its distribution. Officers executed a search warrant at Cowette’s residence. She was handcuffed and detained on her driveway at the search’s inception.

A lieutenant with the local sheriff’s department placed Cowette in his police truck and Mirandized her. The lieutenant then asked if Cowette wanted to speak with him. Cowette responded, “I guess my best bet would probably be to not talk until [I] have a lawyer….” Twice more during this brief colloquy, Cowette stated: “I mean, I guess I should probably wait until I have a lawyer, that sounds like the best idea, I don’t—I’ve never been in court[;] I’ve never been in trouble, I don’t—[,]” and “I guess not, I guess I’ll wait until I have a lawyer.” This discussion was recorded on the dashboard camera inside the police truck.

The lieutenant directed Cowette to exit the police truck and remain on the driveway while the search warrant was executed. During the search, another officer approached Cowette stating that officers found two safes inside her home and wondered if she would volunteer the combinations. Cowette did and also stated that only a small baggie of fentanyl in a dresser belonged to her. The search revealed multiple bags containing 95 grams of fentanyl, a loaded gun, nearly $7,500 in cash, and other drug paraphernalia. Cowette was then arrested.

A detective was assigned to transport Cowette to jail. Prior to departing, the lieutenant told the detective that Cowette had invoked her right to counsel prior to interrogation. Despite this knowledge, the detective elicited multiple inculpatory statements from Cowette during the car ride to the jail. Later that day and the next day, the lieutenant and detective repeatedly interrogated Cowette, during which questioning she made multiple additional inculpatory statements. Cowette signed a written waiver of her Miranda rights after approximately 45 minutes of questioning on the second day.

Cowette was charged with the following offenses: (1) conspiracy to distribute and to possess with intent to distribute forty grams or more of fentanyl; (2) possession with intent to distribute forty grams or more of fentanyl; and (3) using/maintaining a drug involved premises.

Through counsel, she filed a motion to suppress her inculpatory statements to police, arguing that she had unequivocally invoked her right to counsel and that police should not have continued questioning her. The U.S. District Court for the District of Mainerejected this argument, ruling that Cowette’s “I guess” statements were not an unambiguous request for counsel and that the officers were not required to halt the interrogation. Cowette pleaded guilty as charged, preserving her right to appeal the District Court’s denial of her motion to suppress.

Analysis

The Court began its analysis by noting that whether a defendant has unequivocally invoked his or her right to counsel prior to custodial interrogation is a mixed question of fact and law that is reviewed de novo. The test for determining whether a defendant has made such an invocation is an objective one—“requiring that the statement be such that ‘a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.’” United States v. Oquendo-Rivas, 750 F.3d 12 (1st Cir. 2014) (quoting Davis v. United States, 512 U.S. 452 (1994)). Courts analyze a defendant’s words to be “understood as ordinary people would understand them[,]” Connecticut v. Barrett, 479 U.S. 523 (1987), and to give those words “a broad, rather than a narrow interpretation.” Id. (quoting Michigan v. Jackson, 475 U.S. 625 (1986), overruled on other grounds by Montejo v. Louisiana, 556 U.S. 778 (2009)). “[W]hen counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present….” Minnick v. Mississippi, 498 U.S. 146 (1990).

Turning to the present case, the Court observed that the focus of the analysis is on Cowette’s use of the phrase “I guess” and whether it “imbues ambiguity into the otherwise straight-forward request for counsel” because the District Court acknowledged that the remainder of Cowette’s statement—“I’ll wait until I have a lawyer”—constitutes an unambiguous invocation of her right to counsel. The District Court found Cowette’s request for counsel ambiguous and equivocal by analogizing her “I guess” statement to those in United States v. Havlik, 710 F.3d 818 (8th Cir. 2013), where the defendant said, “I guess I need to get [a lawyer], don’t I?” and “I guess you better get me a lawyer then.”

However, the Court rejected that analogy and explained that the cases are distinguishable. The former statement from Havlik “is best understood as a question posed to the officers as to whether the defendant should seek counsel,” according to the Court. But Cowette didn’t make any similar interrogatory statements (that is, she didn’t ask the officers any questions); rather, she made only declarative statements, the Court stated. As to the latter statement from Havlik, the Court agreed with the Havlik Court that the “I guess” created ambiguity “because it is framed in the second person [that is, “you better get me a lawyer then”].” That’s important because a person “can guess or posit what another person will or should do without indicating their own intent,” the Court reasoned. In contrast, the Court stated that all the crucial parts of Cowette’s statements are in the first person, i.e., evidencing her own intent, not speculating about someone else. Thus, the Court held that Cowette “clearly and unequivocally invoked her right to counsel” and that the “district court erred by narrowly focusing on whether the term ‘I guess’ is ambiguous in and of itself without contextualizing its use in Cowette’s sentences.”

Conclusion

Accordingly, the Court vacated the District Court’s order denying Cowette’s motion to suppress and remanded for proceedings consistent with its opinion. See: United States v. Cowette, 88 F.4th 95 (1st Cir. 2023).

Writer’s note: On remand, the Government attempted to avoid suppression of Cowette’s statements by arguing that they were admissible because she had reinitiated conversations with the officers. “To qualify for this exception, the suspect must initiate this further communication without coercion or probing.” United States v. Carpentino, 948 F.3d 10 (1st Cir. 2020); see also Edwards v. Arizona, 451 U.S. 477 (1981). The District Court rejected the Government’s argument, holding that at no point during interrogation had Cowette made unsolicited statements to the officers after invoking her right to counsel. Instead, by asking Cowette “for the safe combinations, the officers created a situation in which it was likely that she would make [incriminating statements] to distance herself from the drugs found at the residence.” The District Court therefore granted Cowette’s motion and suppressed all the statements she made during the two days of custodial interrogation. United States v. Cowette, 2024 U.S. Dist. LEXIS 13127 (D. Me. 2024).

Editor’s note: Although the Court declared that it had “little trouble in holding that, under the circumstances here,” the defendant clearly and unambiguously invoked her right to counsel, reasonable minds can nevertheless disagree with Court’s certitude. In fact, it seems as though the District Court Judge in the case is one of those reasonable minds. On remand, the Judge wryly noted, “I am told that Cowette apparently invoked her right to counsel with metaphysical certitude.” That has the ring of someone who has been told by his superior that he is wrong but doesn’t believe it for a moment.

This case serves as a salient reminder that the invocation of one’s right to counsel and privilege against self-incrimination must be communicated unambiguously and without equivocation. In Davis v. United States, 512 U.S. 452 (1994), the U.S. Supreme Court held that the defendant’s statement, “Maybe I should talk to a lawyer,” is ambiguous and not sufficient to effectively invoke the right to counsel. When that statement is juxtaposed with Cowette’s statement, “I guess I’ll wait until I have a lawyer,” it’s apparent that Cowette’s case is probably a closer call than the Court acknowledged. Similarly, the invocation of one’s privilege against self-incrimination requires an unambiguous, affirmative statement to that effect. Simply remaining silent is not a valid invocation of the privilege.

While there aren’t any magic words that are required to invoke either of these constitutional rights, it’s advisable to keep it clear and simple without any qualifiers such as “I invoke my right to counsel” and “I invoke my right to remain silent.” Doing so will avoid being embroiled in a close case—one in which the courts may not take as an expansive view of “unequivocal invocation” as the Cowette Court.

But after effectively invoking your rights, it’s equally important to actually remain silent until counsel is present. It’s prudent to never speak to the police without the presence of a criminal defense attorney. False confessions are one of the leading causes of wrongful convictions. Even in situations where a person does not confess, there is virtually nothing to be gained by speaking to police, despite their declarations and misleading statements to the contrary, without the benefit of legal counsel, but a person can very easily make himself a prime suspect by talking with police, even though he is factually innocent of the crime being investigated.

In discussing the right to counsel and confessions, U.S. Supreme Court Justice Robert Jackson astutely observed that “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.” Watts v. Indiana, 338 U.S. 49 (1949) (Jackson, J., dissenting). Always keep in mind that there is little to be gained but a whole lot to lose by speaking to the police without the presence of qualified legal counsel.  

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