21SA386- People v. Trujillo-Tucson Orals not held

• Court: Supreme Court of Colorado
• Decided: June 21, 2022
• Docket: 22CO31
• Status: Published

Opinion

The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

2022 CO 31

Supreme Court Case No. 21SA386 Interlocutory Appeal from the District Court Adams County District Court Case No. 21CR441 Honorable Sean Patrick Finn, Judge ________________________________________________________________________

Plaintiff-Appellant:

The People of the State of Colorado,

v.

Defendant-Appellee:

Isaiah Cain Trujillo-Tucson. ________________________________________________________________________

Order Reversed en banc June 21, 2022 ________________________________________________________________________

Attorneys for Petitioner: Brian Mason, District Attorney, Seventeenth Judicial District Cameron Munier, Senior Deputy District Attorney Brighton, Colorado

Attorneys for Respondent: Megan A. Ring, Public Defender Chris Carraway, Deputy Public Defender Brighton, Colorado JUSTICE HART delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, and JUSTICE SAMOUR joined. JUSTICE GABRIEL, joined by JUSTICE HOOD, specially concurred. JUSTICE BERKENKOTTER, joined by JUSTICE MÁRQUEZ, dissented.

2 JUSTICE HART delivered the Opinion of the Court.

¶1 While in police custody, during a pause in an interrogation, Isaiah Trujillo-

Tucson waited in an interview room with a non-interrogating officer while the

interrogating officer was off getting Trujillo-Tucson a soda. The non-interrogating

officer was patting Trujillo-Tucson down without pressing for information while

Trujillo-Tucson repeatedly initiated mostly casual conversation. At one point,

Trujillo-Tucson asked whether he would be booked in, and the officer responded

by explaining that he was not in charge of the investigation and that such a

question should be directed to the officer in charge. Shortly thereafter,

Trujillo-Tucson asked, “Am I able to get a phone call? . . . To my lawyer, [E.K.]?”

The officer spoke over Trujillo-Tucson during the latter portion of his question to

say, “Yeah.” After a brief silence, casual conversation continued. When the

interrogating officer joined the two men in the room to continue questioning,

Trujillo-Tucson made incriminating statements.

¶2 After the People charged Trujillo-Tucson with various offenses,

Trujillo-Tucson moved to suppress his statements, arguing that questioning

should have ceased because he had invoked his right to counsel. The trial court

agreed. The People filed this interlocutory appeal from the trial court’s

suppression order pursuant to C.A.R. 4.1(a) and section 16-12-102(2), C.R.S. (2021),

3 arguing that Trujillo-Tucson’s question, posed to the non-interrogating officer,

was not an unambiguous and unequivocal invocation of his right to counsel.

¶3 Based on our independent review of the video- and audio-recorded

interrogation, we conclude that Trujillo-Tucson’s question about a phone call to

an attorney did not constitute an unambiguous and unequivocal request for

counsel during the interrogation. Trujillo-Tucson asked his question during a

pause in the interrogation when the interrogating officer was not in the room and

while no one was actively questioning him. He posed the question to an officer

who had just explained that he was not in charge of the investigation, and the

question arose in a casual context in which Trujillo-Tucson demonstrated

confidence with officers, familiarity with the criminal justice system, and an ability

to request counsel directly should that be his desire. A reasonable officer in these

circumstances could have concluded that Trujillo-Tucson’s question was a

logistical one aimed at exploring his options rather than an immediate request for

counsel during interrogation.

¶4 Applying the standard established in Davis v. United States, 512 U.S. 452,

461–62 (1994), and elaborated in People v. Kutlak, 2016 CO 1, ¶¶ 23–24, 364 P.3d

199, 205–06, officers were therefore under no obligation to cease questioning.

Accordingly, we reverse the trial court’s suppression order and remand for further

proceedings consistent with this opinion.

4 I. Facts and Procedural History

¶5 On February 12, 2021, officers arrested Trujillo-Tucson based on allegations

that he was involved in a shooting. After the arrest, Detectives Jai Rogers and

Trevor Tuttle transported Trujillo-Tucson to a police station for questioning.

During the drive, Detective Rogers began recording the interrogation1 and

informed Trujillo-Tucson of his Miranda rights as follows:

You have the right to remain silent. Anything you say can be used against you in a court of law. You have a right to have an attorney present with you during the questioning if you choose to. If you cannot afford an attorney, one will be provided for you. And these rights are ongoing continuous rights if you choose to exercise them.

Detective Rogers then asked Trujillo-Tucson, “Do you understand?” And

Trujillo-Tucson responded, “Yes, sir.”

¶6 Next, Detective Rogers informed Trujillo-Tucson that a woman named

Adrianna had accused him of shooting at her while she was driving on I-76.

Detective Rogers then questioned Trujillo-Tucson for roughly eight minutes while

they traveled to the station. During that time, Trujillo-Tucson answered Detective

Rogers’s questions and asked a few questions of his own, inquiring as to whether

he would be “booked in” and asking questions about Adrianna.

1The audio and video recordings of the interrogation are in the record before us as People’s Exhibit 1. This court has carefully reviewed each of those recordings.

5 ¶7 When the detectives and Trujillo-Tucson arrived at the station, Detective

Rogers left to get Trujillo-Tucson a soda. Detective Tuttle meanwhile took

Trujillo-Tucson to an interrogation room. Upon entering the room, Detective

Tuttle began patting Trujillo-Tucson down, and the following conversation

ensued:

Tuttle: Before I, uh, get you out of the cuffs—

Trujillo-Tucson: No sharp objects, no weapons, no nothing.

Tuttle: I’m just gonna just pat you down real quick.

Trujillo-Tucson: I’ve been in jail long enough to know the routine.

Tuttle: What’s up?

Trujillo-Tucson: I said I’ve been in jail long enough to know the routine.

[Silence]

Trujillo-Tucson: Were you part of the chase, too?

Tuttle: Yep.

Trujillo-Tucson: How come you guys didn’t just turn on your lights? I would’ve pulled over.

Tuttle: Can you just, uh, take a step to your right for me? Thanks, Brother.

Trujillo-Tucson: If you guys would’ve just turned on your lights, I would’ve pulled over. I thought I was being chased by someone trying to kill me.

Tuttle: You thought you were being chased by someone trying to kill you?

Trujillo-Tucson: Well, I knew you guys were chasing me. I didn’t know it was the cops. I would’ve pulled over.

6 [Silence]

Trujillo-Tucson: I was just on my way to go get some pizza and then got hit with a weird white line.

Trujillo-Tucson: Yeah, these shoes ain’t good running shoes.

Trujillo-Tucson: These shoes ain’t good running shoes.

Tuttle: Why’s that?

Trujillo-Tucson: Fell off.

Tuttle: Uh-huh, you gotta tighten ‘em up.

Trujillo-Tucson: I almost had you.

Tuttle: Who did?

Trujillo-Tucson: If my shoe hadn’t fallen off.

Tuttle: Oh [chuckling]. [Inaudible] I’m gonna take these [handcuffs] off. Just go ahead and put that hand on top of your head for me.

Trujillo-Tucson: I know.

Trujillo-Tucson: So am I gonna be booked in?

Tuttle: What’s that?

Trujillo-Tucson: Am I being booked in?

7 Tuttle: Uh, so I’m not the primary detective on this case. Uh, Detective Rogers is.

Trujillo-Tucson: Yes, sir.

Tuttle: So, I would ask him when he gets back here.

Trujillo-Tucson: I caught a cold knee to the face.

Tuttle: A cold knee?

Tuttle: Go ahead and have a seat right there for me.

Trujillo-Tucson: Am I able to just pull up my pants and—

Tuttle: Yeah that’s fine.

Trujillo-Tucson: Tuck my pockets in and stuff?

Tuttle: Yeah.

Trujillo-Tucson: Sorry.

Tuttle: You’re good.

Trujillo-Tucson: I know you guys . . . you’re doing your job.

Trujillo-Tucson: So what allegations are enough to arrest someone?

Tuttle: You [inaudible] have probable cause.

8 Trujillo-Tucson: Am I able to get a phone call?

Tuttle: Yeah—

Trujillo-Tucson: To my lawyer, [E.K.]?

¶8 Trujillo-Tucson’s reference to counsel occurred with the crosstalk depicted

here: Detective Tuttle responded, “Yeah,” to the question, “Am I able to get a

phone call?” at almost the same instant that Trujillo-Tucson added, “to my lawyer,

[E.K.]?”

¶9 Roughly thirteen seconds after this exchange, Trujillo-Tucson began

speaking with Detective Tuttle again. He complained that his handcuffs had been

too tight, showing his wrists to Detective Tuttle and saying, “My hands almost fell

off.” The two then engaged in chit chat, discussing Trujillo-Tucson’s dental work

as well as their shared interest in athletic activities such as jiu-jitsu and grappling.

¶10 Five minutes after Trujillo-Tucson’s reference to a phone call with his

lawyer, Detective Rogers entered the room and began questioning Trujillo-Tucson

about the alleged shooting. This questioning continued for roughly ninety

minutes, at which point Trujillo-Tucson said to Detective Rogers, “Um, may I

please have my lawyer here?”

¶11 The People charged Trujillo-Tucson with several criminal offenses,

including three counts of criminal attempt to commit murder in the first degree.

Trujillo-Tucson moved to suppress statements made during the interrogation,

9 arguing that he never waived his Miranda rights and that he had invoked his right

to counsel when he said, “Am I able to get a phone call? . . . To my lawyer, [E.K.]?”

The People opposed the motion, contending that Trujillo-Tucson’s reference to

counsel was not an unambiguous and unequivocal request for counsel that would

require officers to stop the questioning.2 The district court found that Trujillo-

Tucson implicitly waived his Miranda rights by talking with Detective Rogers after

receiving Miranda warnings, but it agreed with Trujillo-Tucson that he had

“clearly asked for a lawyer and asked for a specific lawyer by name.” Finding that

Trujillo-Tucson’s reference to counsel constituted an unambiguous invocation of

the right to counsel during custodial interrogation, the district court suppressed

Trujillo-Tucson’s subsequent statements.

¶12 The People then brought this interlocutory appeal, challenging the district

court’s suppression order. Specifically, the People argue that suppression was

improper because Trujillo-Tucson’s reference to counsel was not a clear invocation

of the right to counsel during custodial interrogation.

2The People also argued that, in the alternative, continued questioning was proper because Trujillo-Tucson reinitiated communication with officers. Neither Trujillo- Tucson’s waiver argument nor the People’s argument regarding reinitiating communication with officers is before this court.

10 II. Analysis

¶13 We begin by outlining the appropriate standard of review. Then, we review

the law relating to the Fifth Amendment right to counsel and the requirement that

an invocation of the right to counsel must be unambiguous and unequivocal.

Finally, we apply the law to the facts of this case and conclude that, under the

totality of the circumstances, Trujillo-Tucson’s reference to counsel was not an

unambiguous invocation of the right to counsel.

A. Standard of Review

¶14 Our review of a trial court’s suppression order is a mixed question of fact

and law. People v. Coke, 2020 CO 28, ¶ 10, 461 P.3d 508, 512. We defer to the trial

court’s factual findings where they are supported by sufficient evidence in the

record, but we review the legal effect of those findings de novo. Leyba v. People,

2021 CO 54, ¶ 11, 489 P.3d 728, 732. Where, as here, “the statements sought to be

suppressed are audio- and video-recorded, and there are no disputed facts outside

the recording controlling the issue of suppression, we are in a similar position as

the trial court to determine whether the statements should be suppressed.” Id.

(quoting People v. Madrid, 179 P.3d 1010, 1014 (Colo. 2008)). We may thus

“independently review the audio or video recording to determine whether the

statements were properly admitted in light of the controlling law.” Id.

11 B. Applicable Law

¶15 The Fifth Amendment of the United States Constitution establishes the

privilege against self-incrimination. See U.S. Const. amend. V (providing that no

person “shall be compelled in any criminal case to be a witness against himself”).

In Miranda v. Arizona, 384 U.S. 436, 455 (1966), the Supreme Court recognized that,

because “custodial interrogation exacts a heavy toll on individual liberty and

trades on the weakness of individuals,” it threatens that privilege. As the Court

explained, “[a]n individual swept from familiar surroundings into police custody,

surrounded by antagonistic forces, and subjected to [coercive] techniques of

persuasion . . . cannot be otherwise than under compulsion to speak.” Id. at 461.

To uphold the privilege against self-incrimination in such an environment, the

Court required that law enforcement officers conducting a custodial interrogation

use certain “procedural safeguards.” Id. at 444.

¶16 Relevant here, Miranda established that individuals subjected to custodial

interrogation have a right to counsel during interrogation, and law enforcement

officers must inform them of this right before they initiate questioning.3 Id. at

3 Of course, these are not the only procedural safeguards Miranda requires. Per Miranda, officers must advise persons subject to custodial interrogation that they have the right to remain silent; that anything they say may be used against them; that they have the right to the presence of an attorney during the interrogation; and that, if they are unable to afford an attorney, one will be appointed. Id.

12 469–71. If a suspect knowingly and voluntarily waives their Miranda rights,

officers may proceed with the interrogation. Id. at 479. However, if the suspect

invokes the right to counsel, that right must be scrupulously honored: A suspect,

“having expressed his desire to deal with the police only through counsel, is not

subject to further interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further communication,

exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477,

484–85 (1981). This “‘rigid’ prophylactic rule,” Smith v. Illinois, 469 U.S. 91, 95

(1984), aims “to prevent police from badgering a defendant into waiving his

previously asserted Miranda rights,” Michigan v. Harvey, 494 U.S. 344, 350 (1990).

¶17 Given the consequences that flow from an invocation of the right to counsel,

the question of whether an individual subjected to custodial interrogation actually

invoked their rights arises frequently. Acknowledging the need for “a bright line

that can be applied by officers in the real world of investigation and interrogation

without unduly hampering the gathering of information,” Davis, 512 U.S. at 461,

the Supreme Court has explained that an invocation of the right to counsel must

be clear and unequivocal: The accused “must articulate his desire to have counsel

present sufficiently clearly that a reasonable police officer in the circumstances

would understand the statement to be a request for an attorney.” Id. at 459. As

we have previously explained, if the accused “makes a reference to an attorney

13 that is ‘ambiguous or equivocal in that a reasonable officer in light of the

circumstances would have understood only that the suspect might be invoking the

right to counsel,’” officers may proceed with questioning. Kutlak, ¶ 15, 364 P.3d at

204 (quoting Davis, 512 U.S. at 459). The rationale behind the Davis rule is that

police should not have to guess about whether an ambiguous statement by a

suspect is actually a request for counsel. Davis, 512 U.S. at 461; Kutlak, ¶ 16,

364 P.3d at 204. The Supreme Court in Davis, and this court in Kutlak, noted that

it would be good practice for officers to ask questions clarifying whether a

particular statement is a request for counsel, but that clarifying questions are not

required. Davis, 512 U.S. at 461; Kutlak, ¶ 22, 364 P.3d at 205. Instead, absent an

unambiguous request for counsel, an interrogation can continue. Davis, 512 U.S.

at 462; Kutlak, ¶ 23, 364 P.3d at 206.

¶18 This court recently explained that the standard established in Davis sets a

high bar: It requires courts to ask not whether some reasonable officer could have

understood that a suspect was invoking the right to counsel, but whether any

reasonable officer would have drawn that conclusion. Kutlak, ¶¶ 22–23, 364 P.3d at

205–06. In Kutlak, a suspect received Miranda warnings and then stated, “Um

[sigh] . . . I mean . . . like . . . can we get [my lawyer] down here now, or . . . ?” Id.

at ¶ 4, 364 P.3d at 201. Rather than ceasing conversation at that point, the officer

stated in response, “It may be difficult . . . It may be something we have to do later.

14 It’s entirely up to you.” Id. Kutlak then said that he would “take a dice roll” and

talk to police. Id. As this court explained, although Kutlak’s statement could

indicate that he desired counsel, “an equally logical inference . . . is that he was

weighing his options and asked a question to help him decide whether to request

his counsel’s presence.” Id. at ¶ 27, 364 P.3d at 206. Under those

circumstances—despite a fairly direct reference to getting counsel “now”—we

concluded that Kutlak’s request could not be deemed unambiguous given his

uncertain demeanor, tone, and body language, accompanied by the fact that his

reference to counsel trailed off and he stated that he would “take a dice roll” and

talk to police. Id.

¶19 In Kutlak we recognized that “suspects ‘may not be legally sophisticated or

paragons of clarity in their use of language,’” and we emphasized the importance

of looking to the totality of the circumstances to decide whether a suspect invoked

the right to counsel. Id. at ¶ 24, 364 P.3d at 206 (quoting People v. Romero, 953 P.2d

550, 554–55 (Colo. 1998)). We emphasized that several factors may be relevant to

this analysis, including the words, demeanor, and tone of the attendant officer; the

words, speech patterns, and behavior of the accused; the officer’s response to any

reference to counsel; and “the accused’s youth, criminal history, background,

nervousness or distress, and feelings of intimidation or powerlessness.” Id.

¶20 With these principles in mind, we turn to the facts of this case.

15 C. Application

¶21 Based on our independent review of the audio and video recordings

submitted to the trial court, we conclude that Trujillo-Tucson’s reference to

counsel was not an unambiguous and unequivocal request for counsel. At the

outset, we acknowledge that Trujillo-Tucson’s words, “Am I able to get a phone

call? . . . To my lawyer, [E.K.]?”—standing alone—could be construed as a request

for counsel. But we do not ask whether a reasonable officer could have believed a

suspect requested counsel—we ask whether a reasonable officer would have had

such an understanding. Kutlak, ¶¶ 22–23, 364 P.3d at 205–06. And we do not

analyze a suspect’s words in isolation—we look to the totality of the circumstances

surrounding a suspect’s reference to counsel. Id. at ¶ 24, 364 P.3d at 206. Given

those circumstances here, we hold that, although Trujillo-Tucson’s statement

might have indicated a desire for counsel during interrogation, he did not clearly

request counsel.

¶22 The interrogation by Detective Rogers began during the car ride to the police

station after the detective gave Miranda warnings and Trujillo-Tucson indicated

that he understood his rights. Trujillo-Tucson did not invoke his right to counsel

at that time. Instead, during the car ride, Trujillo-Tucson answered Detective

Rogers’s questions and demonstrated some confidence with law enforcement by

16 asking a few questions of his own, including a question as to whether he was going

to be “booked in.”

¶23 Once Trujillo-Tucson and the detectives arrived at the station, the setting

shifted. Detective Rogers—the questioning officer—left to get Trujillo-Tucson a

soda while Detective Tuttle took Trujillo-Tucson to an interrogation room. Inside

the interrogation room, there was no indication that Detective Tuttle would be

questioning Trujillo-Tucson. To the contrary, Trujillo-Tucson repeatedly initiated

conversation with Detective Tuttle while Detective Tuttle was doing nothing more

than patting him down. To the extent Detective Tuttle “questioned” Trujillo-

Tucson, his questions came in the form of responses to Trujillo-Tucson’s

unsolicited comments. The following exchange is illustrative:

17 Tuttle: Oh [chuckling]. [Inaudible] I’m gonna take these [handcuffs] off. Just go ahead and put that hand on top of your head for me.

Throughout their interactions, which were casual and non-confrontational,

Detective Tuttle appeared to be holding Trujillo-Tucson in the interrogation room

until Detective Rogers would arrive to continue the questioning and was not

himself pressing Trujillo-Tucson for information.

¶24 In fact, Detective Tuttle made clear that he was not the officer in charge of

the investigation. During the pat-down, Trujillo-Tucson asked Detective Tuttle

whether he would be booked in (having already inquired about this once with

Detective Rogers during the drive to the station). But rather than answering

Trujillo-Tucson’s question, Detective Tuttle explained that such inquiries should

be directed elsewhere:

Tuttle: Uh, so I’m not the primary detective on this case. Uh, Detective Rogers is.

¶25 It was only after this explanation that Trujillo-Tucson eventually asked,

“Am I able to get a phone call? . . . To my lawyer, [E.K.]?” An officer who had just

explained that he was not in charge of the investigation and that questions about

being booked in should be directed to the officer in charge could have reasonably

18 interpreted this inquiry as a logistical one—not so much an immediate request for

counsel as much as a question about what options would generally be available.

Cf. Kutlak, ¶ 27, 364 P.3d at 206 (explaining that suspect’s question—“Can we get

[my attorney] down here now . . . or . . .”—could have indicated that suspect was

weighing his options and asking a question to decide whether to request counsel).

Moreover, given the crosstalk that occurred, it is not clear that a reasonable officer

under the circumstances would have heard the latter portion of Trujillo-Tucson’s

question when he asked not just for a phone call but for a phone call to a lawyer.

¶26 Additionally, throughout his conversation with Detective Tuttle,

Trujillo-Tucson maintained a calm demeanor and demonstrated confidence in his

interactions with law enforcement officers. Not only did he initiate conversation

with the detective and direct questions toward him, he made a joke, suggesting

that he would have gotten away from police if his shoe had not fallen off.

Likewise, Trujillo-Tucson maintained a casual conversation with Detective Tuttle

even after asking about a phone call to his attorney. Further, he spoke in fluent

English, belying any notion that communication difficulties hindered his ability to

request counsel directly. And although video footage indicates that Trujillo-

19 Tucson is young, his confident style with officers indicated that he was not so

young or timid as to be unable to make a clear request for counsel.4

¶27 Trujillo-Tucson also made several statements indicating familiarity with the

criminal justice system. He asked whether he would be “booked in,” inquired

about the allegations against him, and understood what would happen as

Detective Tuttle patted him down. While Detective Tuttle was patting him down,

Trujillo-Tucson said, “No sharp objects, no weapons, no nothing,” and he

explained that he had “been in jail long enough to know the routine.” Similarly,

when Detective Tuttle asked Trujillo-Tucson to put his hands on top of his head,

Trujillo-Tucson said, “I know.”

¶28 In other words, Trujillo-Tucson’s reference to counsel occurred under

circumstances where an objectively reasonable officer would not have understood

his comment to be an immediate request for counsel—even ‍‍‍‍‍‍if we assume that a

4The parties dispute the significance of the fact that, when he asked about a phone call to an attorney, Trujillo-Tucson first looked directly at Detective Tuttle, then at the table, and then at the wall. According to Trujillo-Tucson, looking directly at Detective Tuttle implied that Trujillo-Tucson was firm in his desire for counsel, while the fact that he later looked at the wall evinced timidity in the custodial environment. In contrast, the People argue that Trujillo-Tucson’s looking down at the table and then toward the wall suggested that he was undecided about the presence of counsel. We conclude that Trujillo-Tucson’s movements during his reference to counsel reveal little about whether his request was unambiguous and unequivocal.

20 reasonable officer under the circumstances would have heard his entire question.

Trujillo-Tucson referred to counsel during a casual conversation in which he was

not being pressed for information, but rather, which he led. He made his comment

not to the interviewing officer who had given him Miranda warnings but to an

officer who was simply holding him in a room and who had explained that he was

not in charge of the investigation. And, given his casual tone, calm demeanor,

confidence with officers, and familiarity with the criminal justice system, Trujillo-

Tucson gave the impression that he was perfectly capable of directly requesting

counsel had that been his desire.

¶29 To be clear, we do not establish a rule suggesting that a suspect’s request to

call an attorney will always be insufficient to constitute an unambiguous and

unequivocal request for an attorney. Rather, we simply conclude that, given the

totality of the circumstances in this case, Trujillo-Tucson’s reference to counsel was

not unambiguous and thus did not require officers to immediately cease any

questioning.

III. Conclusion

¶30 Because Trujillo-Tucson’s reference to counsel did not constitute an

unambiguous invocation of the right to counsel during custodial interrogation, his

statements should not have been suppressed on that basis. Accordingly, we

21 reverse the decision of the district court and remand for further proceedings

consistent with this opinion.

JUSTICE GABRIEL, joined by JUSTICE HOOD, specially concurred.

JUSTICE BERKENKOTTER, joined by JUSTICE MÁRQUEZ, dissented.

22 JUSTICE GABRIEL, joined by JUSTICE HOOD, specially concurring.

¶31 For the reasons set forth in my dissent in People v. Kutlak, 2016 CO 1,

¶¶ 33–57, 364 P.3d 199, 208–12 (Gabriel, J., dissenting), I believe that that case was

wrongly decided, and were it not for that opinion, I would vote to affirm the trial

court’s suppression order in this case. Under principles of stare decisis, however,

I am bound by our decision in Kutlak, and I believe that it controls our

determination here.

¶32 Accordingly, I respectfully concur in the majority opinion.

1 JUSTICE BERKENKOTTER, joined by JUSTICE MÁRQUEZ, dissenting.

¶33 Following a police chase, twenty-two-year-old Isaiah Cain Trujillo-Tucson

was taken into custody in connection with an attempted first-degree-murder

investigation. Trujillo-Tucson was eventually escorted into an interrogation room.

There, he and Detective Tuttle chatted while Detective Tuttle patted him down.

Then, after being told to take a seat and assessing the gravity of his situation,

Trujillo-Tucson asked, “Am I able to get a phone call [pause] to my lawyer, [E.K.]?”

“Yeah,” Detective Tuttle replied, speaking slightly over Trujillo-Tucson.

¶34 Like the trial court, I perceive no equivocation or ambiguity in Trujillo-

Tucson’s request. Trujillo-Tucson not only asked for a lawyer—he asked for his

lawyer and then specifically identified her by name. But even if you look further,

none of the circumstances the majority looks to—Trujillo-Tucson’s confidence

with the detective, calm demeanor, or his claimed familiarity with the criminal

justice system—changed the plain meaning of his request or rendered it equivocal

or ambiguous. In fact, these are all circumstances that, typically, are seen as

reasons why a reasonable officer would have understood a suspect’s words to be

an invocation of his right to have counsel present under the Fifth Amendment of

the United States Constitution. See Edwards v. Arizona, 451 U.S. 477, 484–85 (1981);

Miranda v. Arizona, 384 U.S. 436, 444–45 (1966). These circumstances are also

essential to understanding why Trujillo-Tucson’s invocation is readily

1 distinguishable from the circumstances surrounding the defendant’s statement in

People v. Kutlak, 2016 CO 1, 364 P.3d 199.

¶35 This case also raises an important issue of first impression: If a suspect

makes an otherwise unambiguous and unequivocal statement that he wishes to

have counsel present, is that invocation rendered ambiguous and equivocal

because an officer may have failed to hear it? I would adopt the “reasonable police

officer” standard espoused by other state courts in this context because this

objective standard avoids difficulties of proof and provides guidance to

interrogating officers—and also protects suspects’ Fifth Amendment rights

without unduly burdening law enforcement. State v. Chavarria-Cruz, 784 N.W.2d

355, 362–63 (Minn. 2010); Cox v. Commonwealth, 641 S.W.3d 101, 118 (Ky. 2022).

Applying that objective standard, I would conclude that a reasonable officer in

Detective Tuttle’s situation would have heard and understood Trujillo-Tucson.

¶36 Because I believe Trujillo-Tucson clearly invoked his right to counsel, I

respectfully dissent.

I. Analysis

¶37 The majority accurately summarizes the relevant standard of review of a

trial court’s suppression order: We defer to the trial court’s factual findings where

they are supported by sufficient evidence in the record, but we review the legal

2 effect of those findings de novo. Leyba v. People, 2021 CO 54, ¶ 11, 489 P.3d 728,

732; Kutlak, ¶ 13, 364 P.3d at 203 (“[W]here the statements sought to be suppressed

are audio- and video-recorded, and there are no disputed facts outside the

recording controlling the issue of suppression, we are in a similar position as the

trial court to determine whether the statements should be suppressed.”) (quoting

People v. Madrid, 179 P.3d 1010, 1014 (Colo. 2008) (alteration in original)).

B. Invoking the Right to Counsel

¶38 As the majority observes, the Fifth Amendment to the United States

Constitution establishes the privilege against self-incrimination. U.S. Const.

amends. V, XIV; see also Colo. Const. art. II, § 18. To protect that privilege, the

Edwards rule provides that if a suspect invokes their right to have counsel present

during custodial interrogation, interrogation must stop until either (1) an attorney

has been made available or (2) the suspect validly waives their earlier request for

an attorney by initiating further communication with the police. 451 U.S. at

484–85.

¶39 To trigger Edward’s “rigid prophylactic rule,” an accused’s request for

counsel must be unambiguous. Kutlak, ¶ 15, 364 P.3d at 204. In Davis v. United

States, 512 U.S. 452, 459 (1994), the Supreme Court clarified the standard for

determining ambiguity in a purported invocation. Invocation requires “at a

minimum, some statement that can reasonably be construed to be an expression

3 of a desire for the assistance of an attorney.” Id. (quoting McNeil v. Wisconsin,

501 U.S. 171, 178 (1991)). Thus, as we reiterated in Kutlak, “to make an

unambiguous request for counsel, the suspect ‘must articulate his desire to have

counsel present sufficiently clearly that a reasonable police officer in the

circumstances would understand the statement to be a request for an attorney.’”

Kutlak, ¶ 16, 364 P.3d at 204 (quoting Davis, 512 U.S. at 459) (alteration in original).

¶40 “To avoid difficulties of proof and to provide guidance to officers

conducting interrogations, this is an objective inquiry,” Davis, 512 U.S. at 458–59,

which requires courts to consider the totality of the circumstances, Kutlak, ¶ 24,

364 P.3d at 206. The totality of the circumstances may include such factors as: “the

words spoken by the interrogating officer; the words used by the accused in

referring to counsel; the officer’s response to the accused’s reference to counsel;

the speech patterns of the accused; the demeanor and tone of the interrogating

officer; the accused’s behavior during interrogation; and the accused’s youth,

criminal history, background, nervousness or distress, and feelings of intimidation

or powerlessness.” Id.

¶41 As the permissive “may” makes clear, the reviewing court need not take

into account all of these factors, but only those that may be relevant to the case at

hand. See People v. Arroya, 988 P.2d 1124, 1133 (Colo. 1999) (“A trial court need not

4 make specific findings with respect to each of these factors, and no single factor is

controlling.”).

II. Application

A. Trujillo-Tucson’s Invocation

¶42 In my view, the meaning of Trujillo-Tucson’s request: “Am I able to get a

phone call [pause] to my lawyer, [E.K.]?” was unequivocal and unambiguous.

Thus, no further interpretation is needed. See Connecticut v. Barrett, 479 U.S. 523,

529 (1987) (“Interpretation is only required where the defendant’s words,

understood as ordinary people would understand them, are ambiguous.”). We do

not require suspects to use talismanic language to ask for an attorney during

interrogation. See Kutlak, ¶ 24, 364 P.3d at 206. And because many people,

including many suspects, do not speak like lawyers or judges, I believe a

reasonable law enforcement officer standing in an interrogation room, waiting for

the interrogation of a suspect to resume, would understand that Trujillo-Tucson

was asking, “Can I call my lawyer?” Put another way, it is difficult to imagine that

there could be any alternative interpretations of Trujillo-Tucson’s request.

¶43 The majority nonetheless surmises that the question could have been

understood as a logistical one about “what options would generally be available.”

Maj. op. ¶ 25. But, applying that logic, even the clearest invocation if asserted in

5 the form of a question—like “Can I call my lawyer?”—could be understood to be

posing merely a logistical query.

¶44 And even if you parse Trujillo-Tucson’s request—like an Oxford don—the

meaning is just as apparent. “Am I able,” is the present tense of “to be able.” That

is, it is the equivalent of “can I,” which is a manner of asking for permission. Can,

Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/

can [permalink forthcoming] (defining “can” as, among other things, to “be

enabled by law, agreement, or custom”). In United States v. Hunter, 708 F.3d 938,

943–44 (7th Cir. 2013), the Seventh Circuit observed that the word “can” had

consistently been interpreted in that jurisdiction to imply immediacy:

All three defendants [in the cases Hunter analyzed] asked questions of a police officer who had previously read the defendants their Miranda rights. Instead of using a word like “should” or “might,” which would suggest that the defendants were still undecided about whether they wanted a lawyer, all three defendants used the word “can.” The defendants’ choice of the word “can,” by definition, means that they were inquiring into their present ability to be “able to” obtain a lawyer or to “have the opportunity or possibility to” obtain a lawyer.

(quoting Can, Oxford Dictionaries Pro Online,

http://english.oxforddictionaries.com/definition/can?region=us&rskey=OBo6r

G&result=1 (last visited Feb. 26, 2013)). I see no reason to depart from this sound

reasoning here.

6 ¶45 Perhaps it is the question’s fairly obvious meaning that prompts the

majority to acknowledge that Trujillo-Tucson’s words—standing alone—“could

be” construed as a request for counsel. Maj. op. ¶ 21. But it nonetheless concludes

that in light of the totality of the circumstances a reasonable officer would not have

understood Trujillo-Tucson’s question as a request for counsel. Id. It reaches this

conclusion by zeroing in on what it describes as Trujillo-Tucson’s casual tone, calm

demeanor, confidence with the officers, and familiarity with the criminal justice

system. Id. at ¶ 28. The majority then goes on to suggest that because Detective

Tuttle did not advise Trujillo-Tucson of his Miranda rights, and because Detective

Tuttle told Trujillo-Tucson that he was not the lead detective, and because

Detective Tuttle was not interrogating Trujillo-Tucson at the time of the

invocation, a reasonable officer would not have understood Trujillo-Tucson to be

invoking his right to counsel. Id. at ¶¶ 25, 28. The majority’s logic implies a

troubling proposition: that a reasonable officer would not have understood the

invocation because Detective Tuttle was not in charge of the investigation and the

invocation did not occur during active interrogation. Id. at ¶ 28. This, to my mind,

is where the majority veers off track.

7 B. Davis’s Objective Test Applies to the Question of Whether a Reasonable Officer Would Have Heard a Suspect’s Invocation, an Issue of First Impression

¶46 This case raises an important issue of first impression: If a suspect makes

an otherwise unambiguous and unequivocal statement that he wishes to have

counsel present, is that invocation rendered ambiguous and equivocal because an

officer may have failed to hear or understand it? The two state courts that have

addressed this issue have employed the “reasonable police officer” standard in

this context for the reasons explained in Davis—the objective standard avoids

difficulties of proof and provides guidance to interrogating officers—but it also

protects suspects’ Fifth Amendment rights without unduly burdening law

enforcement. Chavarria-Cruz, 784 N.W.2d at 362–63; Cox, 641 S.W.3d at 118.

¶47 In Chavarria-Cruz, the Minnesota Supreme Court reiterated that Davis’s

objective standard applies both when evaluating the suspect’s words and their

manner in speaking them, and thus the Davis standard applies even when “the

question is whether a suspect’s words were spoken loudly enough to be heard.”

Chavarria-Cruz, 784 N.W.2d at 362. In that case, the detective described the suspect

as “very soft spoken” with a “pronounced” accent and did not remember the

suspect using the word “lawyer” during the interview. Id. at 360. But he admitted

at the motions hearing that he could understand the reference to a lawyer on the

tape recording of the interview. Id. at 360. The district court concluded that the

8 detective subjectively did not hear the request and, accordingly, denied the

suspect’s request to suppress the statement. Id. at 361.

¶48 On appeal, the Minnesota Supreme Court reversed, explaining that the

district court’s subjective test would “essentially creat[e] an exception to the

objective, ‘reasonable officer’ analysis for cases where the officer testifies that the

suspect’s statement was spoken too quietly to be heard.” Id. at 362. The court

further reasoned that maintaining the objective test when assessing a suspect’s

manner—including the audibility of the suspect’s statement—imposed no new

burdens on law enforcement, who already had an incentive to “ensur[e] that all of

the suspect’s words are clear and audible” to the investigating officer. Id. The

court, thus, elaborated that “[a] ‘reasonable officer’ is one with ordinary hearing

abilities who has taken steps to ensure that clear communication can occur

between the officer and the suspect” and is “attentive to the suspect’s answers to

questions.” Id. at 363.

¶49 In Cox, the Kentucky Supreme Court likewise concluded that Davis’s

objective test applied to the same issue of first impression we address in this case.

641 S.W.3d at 118. The Kentucky court adopted much of Chavarria-Cruz’s

reasoning, including its additional contours for what constitutes a reasonable

officer: such an officer will (1) have ordinary hearing abilities; (2) ensure clear

9 communication with the suspect; and (3) be attentive to the suspect’s answers. Id.

at 120–21.

¶50 When the question is whether an officer would have understood a suspect

invoked the right to counsel (as distinguished from having heard the invocation),

we employ Davis’s “reasonable police officer” standard. We follow this approach

because it “avoid[s] difficulties of proof” and “provide[s] guidance to officers

conducting interrogations.” Davis, 512 U.S. at 458–59; see Kutlak, ¶¶ 15–16, 23,

364 P.3d at 204, 206 (noting the Davis standard is an objective standard and

discussing the rationale for the Davis approach). This “objective approach protects

suspects’ Fifth Amendment right against compelled self-incrimination without

placing any special burden on law enforcement,” and its extension to evaluating

the manner or audibility of a suspect’s speech strikes the same balance. Chavarria-

Cruz, 784 N.W.2d at 362. As other jurisdictions have recognized, officers

conducting investigations already have “a strong interest in facilitating effective

communication in order to gather information.” Id. “That interest includes

ensuring that all of a suspect’s words are clear and audible . . . and paying careful

attention to the suspect when they speak.” Id.

¶51 For these reasons, in cases involving a claim—like the one in this case—that

an officer may not have heard an invocation, I would apply the Davis objective

test, consistent with the Supreme Court’s jurisprudence and our own, to determine

10 if a reasonable officer, with ordinary hearing abilities, would have heard a

suspect’s invocation of the right to have counsel present. See Davis, 512 U.S. at

458–59; see also Kutlak, ¶ 23, 364 P.3d at 205–205 (reiterating our court’s application

of the Davis standard).

¶52 And, at first blush, it appears the majority has followed this path. Though

it does not articulate the pertinent legal standard, it concludes that “given the

crosstalk that occurred, it is not clear that a reasonable officer under the

circumstances would have heard the latter portion of Trujillo-Tucson’s question

when he asked not just for a phone call but for a phone call to a lawyer.” Maj. op.

¶ 25 (emphasis added). But that is the sum total of the majority’s objective

reasonable officer analysis (to the extent it purported to apply that standard).5

¶53 Applying the objective reasonable officer standard here, I would look to

Trujillo-Tucson’s ongoing one-on-one interaction with Detective Tuttle in the

interrogation room, and the quiet environment in which the request was made.6 I

view the crosstalk as fleeting. Trujillo-Tucson looks at Detective Tuttle and begins

5 That may be because it ultimately concludes that even if Detective Tuttle heard the request, a reasonable officer would not interpret Trujillo-Tucson’s question as a request for counsel. 6 In a louder, more chaotic situation, the outcome—applying an objective standard—might well be different.

11 “Am I able to get a phone call.” Then he pauses. Detective Tuttle answers “yeah”

just as Trujillo-Tucson finishes “to my lawyer [E.K.].” The officer’s “yeah” does

not last long enough to cover the end of Trujillo-Tucson’s sentence.

¶54 I would also consider whether Detective Tuttle was focused and engaged

or distracted. To my way of thinking, it is important here that when the detective

was patting Trujillo-Tucson down and did not hear or understand him, the

detective immediately followed up—asking “What’s up?” not once, not twice, but

six times—to make sure that he heard or understood what Trujillo-Tucson had

said. It is just as important here, that Detective Tuttle picked up a cell phone and

looked at it just as Trujillo-Tucson started to invoke. This is important because it

shows that the detective was distracted at this critical moment. It also provides

more context for Trujillo-Tucson’s request to call his lawyer. A request by a

suspect to call his lawyer upon seeing a detective pull out a cell phone does not

seem logistical or equivocal, it seems specific and unambiguous.

¶55 Under these circumstances, I would conclude that a reasonable officer alone

in a quiet interrogation room, waiting for interrogation to resume, in the midst of

interacting with a suspect, who was speaking at an unquestionably audible

volume, would have heard Trujillo-Tucson’s request for his lawyer, E.K.

12 C. Under the Supreme Court’s and Our Precedent, It Does Not Matter that Trujillo-Tucson Invoked to Someone Other Than the Lead Detective

¶56 In concluding that a reasonable officer would not have understood that

Trujillo-Tucson was invoking his right to have counsel present, the majority gives

great weight to the fact that Detective Tuttle told Trujillo-Tucson that he was not

the lead detective, that Detective Tuttle was not the officer who gave Trujillo-

Tucson his Miranda advisement, and that Detective Tuttle was not asking

Trujillo-Tucson questions at the time Trujillo-Tucson asked to call his lawyer,

E.K. Maj. op. ¶¶ 25, 28. It also points to Detective Tuttle directing Trujillo-

Tucson to Detective Rogers to ask if Trujillo-Tucson is being booked in. Id. at

¶ 25. To be sure, the meaning of Trujillo-Tucson’s words might have been even

more obvious if uttered to the lead detective in the midst of interrogation. But it

doesn’t follow that his question was ambiguous just because he asked a different

detective while they were waiting for the interrogation to resume.7 This view

seems to suggest that ambiguity is injected into every invocation made under less

than the most obvious circumstances. This approach seems like a slippery slope

7 It is undisputed in this case that Trujillo-Tucson was subject to custodial interrogation, as defined by our jurisprudence, at the time he uttered the statement in question and thus that Miranda’s Fifth Amendment protections applied.

13 that is particularly ill-suited to the countless ways that invocation plays out in

the real world. What about invocations that are made at the scene to arresting

officers, or blurted out pre-Miranda advisement, or during booking, or during a

break in active interrogation?

¶57 I am aware of no legal authority that supports what seems to be the

majority’s underlying assumption that different officers have differing degrees

of responsibility vis-à-vis Miranda. See United States v. Kelsey, 951 F.2d 1196, 1199

(10th Cir. 1991) (We find no merit in the Government’s argument that Edwards

should not apply because the officers to whom Kelsey made his request for

counsel were not the officers who later questioned him.). This argument has been

rejected by the Supreme Court, the Tenth Circuit, and this court. Arizona v.

Roberson, 486 U.S. 675, 687–88 (1988); United States v. Scalf, 708 F.2d 1540, 1544

(10th Cir. 1983) (“[O]nce a suspect has invoked the right to counsel, knowledge

of that request is imputed to all law enforcement officers who subsequently deal

with the suspect.”); People v. Vigoa, 841 P.2d 311, 314 (Colo. 1992) (applying

Roberson); see also People v. Vasquez, 155 P.3d 588, 591 (Colo. App. 2006) (“Later

interrogators are charged with the knowledge of a suspect’s invocation of his

right to counsel because of the presumption that the suspect considers himself

unable to deal with the pressures of custodial interrogation without legal

assistance.”).

14 D. Under the Supreme Court’s Precedent and Kutlak, Trujillo-Tucson Invoked His Right to Counsel.

¶58 So, can the majority’s analysis stand if the only basis for concluding that

Trujillo-Tucson’s request was equivocal and ambiguous was his casual tone, calm

demeanor, confidence with the officers, and familiarity with the criminal justice

system? I conclude it cannot, particularly if you examine the context in which the

request was made. To begin, I agree with the majority that when officers brought

Trujillo-Tucson into the interrogation room, he initiated what seems to be casual

conversation with Detective Tuttle. But, in my view, there is an important shift in

the interaction between the two men shortly before Trujillo-Tucson asks to call his

attorney.

¶59 That is, in the video- and audio- recordings, you can see and hear Trujillo-

Tucson begin to assess the gravity of the situation. First, he asks if he is being

booked in. Then, after being directed to have a seat at the table in the interrogation

room, he asks, “So, what allegations are enough to arrest someone?” When

Detective Tuttle answers, “You [inaudible] have probable cause,” Trujillo-Tucson

is silent for several moments and then looks Detective Tuttle in the eye and asks,

“Am I able to get a phone call to my lawyer, [E. K.]?” In that moment, Trujillo-

Tucson displayed no indecision whatsoever.

¶60 The majority, however, turns that lack of indecision on its head to argue

that Trujillo-Tucson’s confidence and certainty render his request to call his

15 attorney equivocal. In my view, however, under the Supreme Court’s case law

and our own, confidence and certainty in a request have traditionally weighed in

favor of finding a request to be unequivocal and unambiguous. And, indeed,

Trujillo-Tucson’s invocation here was more certain, more immediate, and stronger

than statements that the Supreme Court has found evoked a certain and present

desire for counsel under the Fifth Amendment.

¶61 For example, in the case that gives us the rule that both the majority and I

apply today, Edwards, the Court concluded that the suspect’s statement, “I want

an attorney before making a deal,” unambiguously “expressed his desire to deal

with the police only through counsel.” 451 U.S. at 478, 484. There, the suspect

made this statement well into the interrogation, after he had waived his Miranda

rights, and his phrasing even appeared to condition his request on another

action—making a deal. See id. at 478–79. Yet the Supreme Court concluded this

statement was sufficiently clear to unambiguously invoke the suspect’s right to

counsel. Id. at 484.

¶62 Similarly, in Smith v. Illinois, 469 U.S. 91, 96–97 (1984) (per curiam), the

Supreme Court found that the suspect’s response, “Uh, yeah. I’d like to do that,”

to an officer asking if he understood his right to counsel, was an unambiguous

invocation of that right. Specifically, the Court found that “with the possible

exception of the word ‘uh’ the defendant’s statement in this case was neither

16 indecisive nor ambiguous”; indeed, to the contrary, it appeared “clear and

unequivocal.” Id. at 97 (quoting, respectively, People v. Smith, 466 N.E.2d 236,

241–42 (1984) (Simon, J., dissenting); People v. Smith, 447 N.E.2d 556, 559 (1983),

aff’d 466 N.E.2d 236 (1984), rev’d sub nom. Smith, 469 U.S. 91 (1984)).

¶63 The outcome under our precedent is no different. For example, Trujillo-

Tucson’s statement did not express the kind of indecision which created ambiguity

in Kutlak. In Kutlak, after undertaking an independent review of the audio- and

video-recordings, this court concluded that, under the totality of the

circumstances, Kutlak’s question to the detective—“Um [sigh]. . . I

mean . . . like . . . can we get [my lawyer] down here now, or . . . ?”—was not an

unambiguous and unequivocal assertion of Kutlak’s right to counsel. Kutlak,

¶¶ 4, 27, 364 P.3d at 210, 206. In reaching this conclusion, we relied heavily on

“the way [Kutlak] shrugged when he asked, ‘can we get him down here now,

or . . .?’ coupled with the general uncertainty reflected in his demeanor,” which we

found “suggest[ed] that he was merely inquiring how long it might take to acquire

counsel’s presence.” Id. (emphasis in original). Given this marked indecision in

speech and conduct, this court concluded it was equally logical to interpret Kutlak

as “weighing his options” by “ask[ing] a question to help him decide whether to

request his counsel’s presence.” Id. In addition, this court noted Kutlak’s question

about whether he might be able to go home that day and his conscious decision,

17 articulated almost immediately, to “take a dice roll” by speaking to the police, as

well as the detective’s attempt to clarify what Kutlak was requesting, to

underscore our conclusion that Kutlak’s statement was ambiguous. Id. at

¶¶ 28–29, 364 P.3d at 206–07.

¶64 But here, Trujillo-Tucson’s demeanor was essentially the opposite of

Kutlak’s. Trujillo-Tucson did not shrug. He did not express indecision. He did

not use phrases like “but,” “maybe,” or “should I?” which project uncertainty or

elicit advice. Cf. Davis, 512 U.S. at 462 (finding the phrase “Maybe I should talk to

a lawyer” was not a request for counsel) (emphasis added). His statement lacked

even the ambiguity of the future tense. Cf. Hunter, 708 F.3d at 945 (noting that the

phrase “going to” “indicates a possible desire to obtain an attorney in the future,

not presently”) (emphasis in original).

¶65 Trujillo-Tucson also never made an explicit decision to continue the

interview without counsel and at his own risk, as Kutlak did when he

said—twice—that he would “take a dice roll” and speak to the police. Kutlak, ¶ 28,

364 P.3d at 206–07. To the contrary, Trujillo-Tucson’s request came just after

Detective Tuttle appeared to confirm to Trujillo-Tucson that the detective believed

they had sufficient probable cause. This timing again confirms the

unambiguousness of Trujillo-Tucson’s request, as it “came on the heels” of his

asking for information related to the gravity of his situation. See Hunter, 708 F.3d

18 at 946–47 (finding the fact that a request for counsel that “came on the heels” of

the suspect inquiring about the evidence and charges against him indicated the

inherent unambiguousness of the suspect’s request, “Can you call my attorney?”).

¶66 Detective Tuttle’s conduct, moreover, clearly contrasts with the detective’s

conduct in Kutlak, which we found confirmed the ambiguity of the question in that

case. The Kutlak detective sought to clarify whether Kutlak was requesting

counsel, repeated Kutlak’s rights to him, reiterated Kutlak’s ability to end the

interview whenever he wanted, and obtained Kutlak’s clear waiver of his Miranda

rights subsequent to Kutlak’s ambiguous request. Kutlak, ¶¶ 28–29, 364 P.3d at

206–07. The detective’s decision to clarify, rather than to proceed immediately

with questioning in the face of an ambiguous statement, reflected the best practice

recommended by Davis. See 512 U.S. at 461 (“Of course, when a suspect makes an

ambiguous or equivocal statement it will often be good police practice for the

interviewing officers to clarify whether or not he actually wants an attorney.”).

¶67 And though Detective Tuttle’s silence initially honored Trujillo-Tucson’s

invocation, his inaction once Detective Rogers reinitiated interrogation,

conversely, undermined the purpose of the Edwards rule. That is, instead of

ending the interview and providing Trujillo-Tucson with the phone call he

requested—instead of scrupulously honoring Trujillo-Tucson’s right to

counsel—Detective Tuttle ultimately permitted his partner to interrogate Trujillo-

19 Tucson as if nothing had happened. In short, Detective Tuttle ignored Trujillo-

Tucson’s clear invocation of his Fifth Amendment right to counsel.

¶68 But the final way in which Kutlak is distinguishable is perhaps the most

telling: the majority offers no reasonable alternative reading of Trujillo-Tucson’s

request for counsel that could render his request ambiguous.8 Though the

majority summarily suggests that Trujillo-Tucson’s question may have been a

“logistical,” query “about what options would generally be available” to him, it

fails to identify any aspect of the language he used or his demeanor that would

support such a reading. Maj. op. ¶ 20. In Kutlak, this reading was supported in

great detail by the context of Kutlak’s statement, the words he used—including

his indecisive “um” and open-ended “or” at the end of his question—the shrug of

his shoulders, the detective’s interpretation of the question as eliciting more

information, and Kutlak’s subsequent statements indicating a conscious decision

to speak to law enforcement absent an attorney. ¶¶ 27–30, 364 P.3d at 206–07.

There are no such facts in Trujillo-Tucson’s case.

8Nor could it. Trujillo-Tucson’s question did not elicit information to help him “weigh[] his options” nor did it “help him decide whether to request his counsel’s presence.” Kutlak, ¶ 27, 364 P.3d at 206.

20 ¶69 But the majority does not compare its application of the objective test in

this case to our application of the objective test in Kutlak. Instead, it only suggests

that, given the totality of the circumstances, Trujillo-Tucson “gave the impression

that he was perfectly capable of directly requesting counsel had that been his

desire.” Maj. op. ¶ 28. But that is exactly what Trujillo-Tucson did—he looked

directly at Detective Tuttle and asked to call his attorney. At bottom, the majority

appears to suggest that Trujillo-Tucson knew how to frame a better request or at

least to ask again if he didn’t get what he wanted.

¶70 More than that, though, the majority seems to suggest that law

enforcement officers have differing degrees of responsibilities vis-à-vis Miranda

and that an invocation is somehow ambiguous when it is made to someone other

than the “lead detective” or outside active interrogation. Again, I agree that the

meaning of Trujillo-Tucson’s words might have been even more obvious if uttered

in the midst of interrogation. But it does not follow that invocations that occur in

anything other than the most obvious situations are somehow ambiguous. As

noted, the majority’s approach seems like a slippery slope that is particularly ill-

suited to the countless ways that invocation plays out in the real world. What

about invocations that are made at the scene to arresting officers, or blurted out

pre-Miranda advisement, or during booking, or during a break in active

interrogation, or . . . the list could go on and on.

21 ¶71 And finally, to the extent that the majority implies that Trujillo-Tucson

should have stated his request as a demand rather than a question or repeated or

rephrased his question, I can again find no support for this view in our

jurisprudence or that of the Supreme Court. Though Trujillo-Tucson framed the

request in the form of a question, this court has never before suggested that the

invocation of the right to counsel cannot be asserted in this manner. See People v.

Harris, 552 P.2d 10, 12 (Colo. 1976) (“The fact that the accused did not ‘demand’ an

attorney does not persuade us that he was not exercising his rights.”); see also

People v. Adkins, 113 P.3d 788, 790–91 (Colo. 2005) (finding a suspect’s questions,

“Why don’t I have [a lawyer] now?” and “How come I don’t have a lawyer right

now?” were unambiguous assertions of his right to counsel), overruled on other

grounds by Kutlak, ¶¶ 22–23, 364 P.3d at 205–06. Such a view, moreover, is at odds

with Davis, which makes it clear that suspects need not “speak with the

discrimination of an Oxford don.” Davis, 512 U.S. at 459 (quoting id. at 476 (Souter,

J., concurring in judgment)). Yet that is what the majority appears to require in

this case. If this is now the rule, we should provide the public with the talismanic

language they must use to invoke their rights. Cf. In re H.V., 252 S.W.3d 319, 326

(Tex. 2008) (“While police often carry printed cards to ensure precise Miranda

warnings, the public is not required to carry similar cards so they can give

similarly precise responses.”) (internal citation omitted).

22 ¶72 I cannot interpret Trujillo-Tucson’s statement as anything but a request for

counsel, and I find there is nothing in the surrounding circumstances that injects

ambiguity into his invocation of his right to counsel in this case.

¶73 Trujillo-Tucson not only asked for a lawyer—he asked for his lawyer and

then specifically identified her by name. Because the plain meaning of his request:

“Am I able to get a phone call [pause] to my lawyer, [E. K.]?” was unambiguous,

no further interpretation is needed. And even if you look further, Trujillo-

Tucson’s casual tone, calm demeanor, confidence, and familiarity with the

criminal justice system did nothing to change the plain meaning of his request or

render it equivocal or ambiguous. Because a reasonable officer under these

circumstances, would have heard his request and understood it to be an invocation

of his right to have counsel present, I would affirm the trial court’s order

suppressing Trujillo-Tucson’s statements from that point forward and, therefore,

I respectfully dissent.