NOT RECOMMENDED FOR PUBLICATION File Name: 24a0153n.06
Case No. 23-3265
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 04, 2024 ) KELLY L. STEPHENS, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) v. UNITED STATES DISTRICT ) COURT FOR THE ) WILLIAM SIDNEY HITCHINGS, V, SOUTHERN DISTRICT OF ) OHIO Defendant-Appellant. ) OPINION )
Before: GRIFFIN, NALBANDIAN, and MATHIS, Circuit Judges.
MATHIS, Circuit Judge. William Hitchings pleaded guilty to receipt of child
pornography. He now appeals the district court’s denial of his motion to suppress statements he
made during a February 2021 interrogation by law enforcement officers. Hitchings argues that the
district court erred in denying his motion to suppress because the officers violated his Fifth
Amendment rights during the interrogation. For the reasons explained below, we affirm.
I.
Law enforcement obtained a warrant to search Hitchings’s home after suspecting him of
sending and receiving child pornography. In February 2021, the FBI, with the help of local police
in Troy and Dayton, Ohio, executed the warrant during the early morning hours. Officers observed
Hitchings leave through his home’s back door as they approached, and they apprehended him as
he attempted to flee from the house. The officers handcuffed Hitchings, who was not wearing
shoes, and placed him in the back seat of an unmarked police vehicle. Task Force Officer Jeffrey No. 23-3265, United States v. Hitchings
Kunkleman of the Troy Police Department (“TPD”) and Special Agent Andrea Kinzig of the FBI
then transported Hitchings to the TPD’s police station to question him.
Kunkleman and Kinzig escorted the still handcuffed and shoeless Hitchings into an
interview room around 6:27 a.m. The interviewing officers left Hitchings alone in this room with
the door closed. Around 6:32 a.m., the interviewing officers re-entered the room, removed
Hitchings’s handcuffs, and provided him with a bottle of water. Then, they told him he was not
under arrest, that he was free to leave at any time, and that they brought him in just to talk.
Kinzig established several things during the initial stages of Hitchings’s interview and
before she advised him of his Miranda rights. She asked Hitchings if he was currently under the
influence of any drugs. Hitchings told her that he had smoked both marijuana and
methamphetamine just before officers arrived at his home that morning. When Kinzig inquired
about his ability to think clearly and understand her questions following his drug use, Hitchings
unequivocally stated that he was “fully cognizant,” he had no trouble understanding what was
going on, and that he was “so here right now it’s not even funny.” Kinzig also established that
Hitchings spoke English, could read and write, and had received a high school diploma with
vocational training in computer networking. Kinzig explained to Hitchings that she typically
advises interviewees of their Miranda rights before she asks any questions. Before she read
Hitchings his Miranda rights, however, he stated that he was not waiving his rights but that he
understood them. Kinzig then read Hitchings his rights. After that, Hitchings signed a form
confirming his understanding of those rights and confirming that he would answer questions
without an attorney present.
2 No. 23-3265, United States v. Hitchings
After being read his rights, Hitchings answered most, but not all, of the interviewing
officers’ questions. He answered Kinzig’s questions about his upbringing, education, and work
history. He also answered her questions about his past drug addictions and completion of drug
rehabilitation programs. He provided Kinzig with his email addresses and his phone number. Still,
Hitchings would not answer Kinzig’s questions about the email address and phone number he used
to sign into his Facebook account, the password to his computer server, or where officers could
locate the footage from his home’s surveillance cameras.
Early in the interview, Hitchings oscillated between calmly answering questions and
extreme frustration. For example, he expressed frustration with what he viewed as pointless
questions and inquired what purpose the interviewing officers had behind their inquiries. Still, at
other times, he asked for a moment to compose himself so that he could continue answering the
interviewing officers’ questions. When he made such a request, the interviewing officers allowed
him the time he needed to calm down, encouraged him to drink water, and offered him a snack.
About an hour into the interview, Kinzig asked Hitchings if he had any idea why she and
Kunkleman wanted to speak with him. Hitchings did, and this conversation ensued:
Kinzig: Okay, well, do, can you share with me what your thought is? Hitchings: Certain content, certain data. Is that what it is about? Kinzig: It is. Hitchings: Okay, then yeah, it’s me. Kinzig: What, now what data are we talking about? Hitchings: Um, illegal content. Kinzig: And what kind? Hitchings: Underage and uh, probably bestiality. Kinzig: Are we talking about pornography? Hitchings: Uh huh. And that is the only thing that I have, that’s, that’s it.
3 No. 23-3265, United States v. Hitchings
Kinzig: Okay, so when we are talking about underage pornography, um, what devices are those on? Because we really don’t want to take all of the computers in the house. Hitchings: I understand. It’s um, (bangs head on the table). Kinzig: Let’s not do that. Let’s not do that William. Kinzig: Is it on your laptop or your phone or on the server? Because again, we don’t want to take that server if we don’t have to. Hitchings: Lawyer. I have to have a lawyer from this point on. Don’t I? Kinzig: It’s up to you. Hitchings: I want to help you, but it doesn’t matter. I’m already dead anyway, so it doesn’t fucking matter. I’m not answering questions anymore until you find me an attorney. Please find me an attorney.
At this point, Hitchings put his head down on the table in front of him. Kinzig responded by saying
“okay,” put away her pen, and closed the notebook she was using to document the interview.
Seconds later, Hitchings asked the officers if he was supposed to request an attorney, and they
explained that it was his choice. Hitchings then asked for the officers’ “honest[]” opinions on
whether he should request an attorney, and Kunkleman responded that, in his opinion, “it’s always
better to cooperate.”
A few moments later, Hitchings began punching himself in the head; Kinzig and
Kunkleman then handcuffed him. As they did so, Hitchings and Kunkleman argued about
Hitchings’s behavior.
Meanwhile, Kinzig finished handcuffing Hitchings, packed up her belongings, and left the
room. Kunkleman did not follow her out of the interview room. Instead, he continued to argue
with Hitchings, pushed the interview table out of Hitchings’s reach, and sat on the table to face
4 No. 23-3265, United States v. Hitchings
Hitchings. Kinzig returned after a few seconds and gestured to Kunkleman to exit the room with
her. As she was about to leave the room for a second time, Hitchings said “wait, wait, wait.”
Kinzig stopped to hear what Hitchings had to say. He apologized to the officers for his
outburst. Hitchings turned to Kinzig and calmly said “Please sit down. I’ll tell you . . . I’ll tell
you whatever you want to know.”
While still standing in the doorway, Kinzig explained to Hitchings that if they continued
the interview, he would remain handcuffed for his own safety. Hitchings agreed to that condition
multiple times. Still, Kinzig indicated that she was not comfortable continuing with the
interrogation because Hitchings had requested an attorney; Hitchings nevertheless insisted that he
did not need an attorney. For the next few hours, Hitchings made several inculpatory statements,
including extensive details about his digital child pornography collection. Several hours into the
interview, Kinzig provided Hitchings with a pair of his shoes.
Kunkleman and Kinzig questioned Hitchings for nearly six hours. Once they concluded
the interview, Hitchings was arrested.
A federal grand jury indicted Hitchings on several charges. A superseding indictment
eventually charged Hitchings with possessing child pornography, possessing a gun while using
controlled substances, two counts of receiving child pornography, and transporting child
pornography.
Hitchings moved to suppress his inculpatory statements made to the officers during the
interrogation. He argued that the interviewing officers obtained those statements from him in
violation of his Fifth Amendment rights. The district court held a hearing on Hitchings’s
suppression motion where Kinzig testified about the interrogation. The government also
5 No. 23-3265, United States v. Hitchings
introduced, and the district court admitted, the video recording of the interview during the
suppression hearing.
The district court denied Hitchings’s motion, finding: Hitchings was subject to custodial
interrogation during the interview; Hitchings voluntarily, knowingly, and intelligently waived his
Miranda rights; Hitchings made an unequivocal request for counsel, but then he reinitiated the
interview and waived his rights again; and Hitchings made his admissions during the interview
freely, voluntarily, and without improper influence.
Thereafter, Hitchings pleaded guilty to one count of receiving child pornography pursuant
to a plea agreement which preserved his right to appeal the district court’s denial of his motion to
suppress. After the district court sentenced Hitchings, this appeal timely followed.
II.
When considering a district court’s decision on a motion to suppress evidence, we review
findings of fact for clear error and conclusions of law de novo. United States v. Whitley, 34 F.4th
522, 528 (6th Cir. 2022). “When a district court has denied a motion to suppress,” as the district
court did here, “we consider the evidence in the light most favorable to the government.” United
States v. Long, 464 F.3d 569, 572 (6th Cir. 2006) (citation omitted).
III.
Hitchings contends that he was interrogated in violation of the Fifth Amendment’s Self-
Incrimination Clause. This clause provides: “No person . . . shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V. To make this right meaningful, the
Supreme Court has held that, prior to a custodial interrogation, law enforcement officials must
inform the individual to be interrogated that: (1) he has the right to remain silent; (2) his statements
may be used against him in court; (3) he has a right to an attorney during questioning; and (4) if
6 No. 23-3265, United States v. Hitchings
he cannot afford an attorney, one will be appointed to represent him. Miranda v. Arizona, 384
U.S. 436, 479 (1966). “Statements made by a defendant in response to interrogation while in
police custody are not admissible unless the defendant has first been apprised of the constitutional
right against self-incrimination and has validly waived this right.” United States v. Cole, 315 F.3d
633, 636 (6th Cir. 2003) (citing Miranda, 384 U.S. at 478–79). The government bears the burden
of proving, by a preponderance of the evidence, that a defendant has made a knowing, intelligent,
and voluntary waiver of his Miranda rights. Colorado v. Connelly, 479 U.S. 157, 168 (1986).
A.
We first consider whether Hitchings was in custody when Kinzig and Kunkleman
interrogated him.1 An accused must be “in custody” before officers are required to provide
Miranda warnings and thereafter interrogate the accused. United States v. Levenderis, 806 F.3d
390, 400 (6th Cir. 2015). Courts “must examine all of the circumstances surrounding the
interrogation” to determine whether “an individual was in custody.” Stansbury v. California, 511
U.S. 318, 322 (1994) (per curiam). This determination “depends on the objective circumstances
of the interrogation, not on the subjective views harbored by either the interrogating officers or the
person being questioned.” Id. at 323. “The ultimate inquiry is whether, under the totality of the
circumstances, the interviewee’s freedom of movement was restrained to a degree associated with
formal arrest.” United States v. Luck, 852 F.3d 615, 621 (6th Cir. 2017) (citing United States v.
Panak, 552 F.3d 462, 465 (6th Cir. 2009)). We generally consider the following four,
1 The district court found that Hitchings was in custody during the entire interview, yet both parties contend on appeal that Hitchings was not in custody during the initial portion of the interrogation before he was handcuffed. Whether a person was “in custody” during an interrogation is a “mixed question of law and fact” that we review de novo. United States v. Zabel, 35 F.4th 493, 501–02 (6th Cir. 2022). The parties do not truly dispute the facts, most of which are captured on video. And “[w]e are not bound to accept what in effect was a stipulation on a question of law.” United States v. Wilson, 978 F.3d 990, 996 (6th Cir. 2020) (quotation omitted). Therefore, we analyze whether Hitchings was in custody for the entirety of the interrogation.
7 No. 23-3265, United States v. Hitchings
nonexhaustive factors when making the in-custody determination: “(1) the location of the
interview; (2) the length and manner of the questioning; (3) whether there was any restraint on the
individual’s freedom of movement; and (4) whether the individual was told he or she did not need
to answer the questions.” Levenderis, 806 F.3d at 400 (quoting United States v. Hinojosa, 606
F.3d 875, 883 (6th Cir. 2010)). Considering these factors, we agree with the district court that
Hitchings was in custody for the entire period of the interrogation.
Location of the interview. Kinzig and Kunkleman interrogated Hitchings at the police
station after transporting him there in the back of a police car in handcuffs.
Length and manner of questioning. The interview lasted approximately six hours. And
the questioning resembled a custodial interrogation in almost all respects. Kinzig and Kunkleman
read Hitchings his Miranda rights at the beginning of the interview and had Hitchings sign a form
indicating that he understood and waived those rights. The officers spent most of the interview
time questioning Hitchings about subjects related to their child pornography investigation that led
to the execution of a search warrant at his residence earlier that day.
Restraint on freedom of movement. This factor is tricky under the circumstances in this
case. But it generally leans in favor of the district court’s finding that Hitchings was in custody
for the entirety of the interrogation. As mentioned above, when the officers executed the search
warrant at Hitchings’s residence, they handcuffed him, transported him to the police station, and
placed him in an interview room. A few minutes after Hitchings was placed in the interview room,
Kinzig and Kunkleman entered and removed the handcuffs. The door to the interview room
remained closed during the interrogation. That said, at the beginning of the interview, the officers
advised Hitchings that he was free to leave at any time. But Hitchings did not have his shoes on
during his transport to the police station, nor was he wearing shoes when his interview began.
8 No. 23-3265, United States v. Hitchings
In fact, Kinzig did not return with his shoes until approximately four hours into the interview. It
is hard to imagine that someone in Hitchings’s position would feel free to leave under those
circumstances. Additionally, approximately one hour into the interrogation, Kunkleman
handcuffed Hitchings after he had an emotional outburst.
Whether Hitchings was told he did not have to answer questions. Kinzig and Kunkleman
told Hitchings that he did not have to answer questions, so this factor weighs in favor of Hitchings
not being in custody. But as we have explained previously, “the existence of such advice is one
factor among many.” Panak, 552 F.3d at 467. What is more, “[i]t would be strange, indeed, to
say that a telltale sign of whether an individual must be Mirandized is whether the officer gave the
individual one of the Miranda warnings—that []he need not answer questions.” Id.
* * *
The first three factors weigh in favor of Hitchings being in custody, while the last one does
not. Therefore, the totality of the circumstances reveals that Hitchings was in custody throughout
the interrogation by Kinzig and Kunkleman.
B.
We next consider whether Hitchings waived his Miranda rights during the interrogation.
A valid Miranda waiver requires an individual to waive his right against self-incrimination
voluntarily, knowingly, and intelligently. See Garner v. Mitchell, 557 F.3d 257, 260–61 (6th Cir.
2009). Two “dimensions” guide our inquiry into “whether a defendant freely and knowingly chose
to talk with police despite Miranda protections”—“voluntariness and comprehension.” United
States v. Abdalla, 972 F.3d 838, 852 (6th Cir. 2020) (quoting Garner, 557 F.3d at 263).
Voluntariness requires “a free and deliberate choice rather than intimidation, coercion, or
deception.” United States v. Lawrence, 735 F.3d 385, 437 (6th Cir. 2013) (quoting Moran v.
9 No. 23-3265, United States v. Hitchings
Burbine, 475 U.S. 412, 421 (1986)). Comprehension requires an accused’s “full awareness of both
the nature of the right” he chooses to abandon and “the consequences of” his “decision to abandon
it.” Id. (quoting Moran, 475 U.S. at 421). Put differently, “[t]he question is not whether
[Hitchings] knew and understood every possible consequence of a waiver, but rather whether he
knew that he could choose not to talk to law enforcement officers, to talk only with counsel present,
or to discontinue talking at any time.” Id. (quoting Garner, 557 F.3d at 261). An individual validly
waives his Miranda rights when “the totality of the circumstances surrounding the interrogation”
reveals he voluntarily chose to do so while comprehending the nature of that choice. Moran, 475
U.S. at 421 (quotation omitted); Garner, 557 F.3d at 260–61.
The district court concluded that Hitchings voluntarily, knowingly, and intelligently
waived his Miranda rights. The evidence showed that officers began interviewing Hitchings
approximately 30 minutes after they apprehended him. Before questioning him, Kinzig and
Kunkleman removed Hitchings’s handcuffs and gave him a bottle of water. Both officers were
wearing plain clothes and did not brandish their guns at any time during questioning.
The first ten minutes of the recorded interview are revealing. During that part of the
interview, Kinzig, in a calm and conversational tone, established that Hitchings spoke English,
could read and write, and had a high school education with vocational training in computer
networking. She also asked Hitchings whether he was under the influence of any drugs. Hitchings
admitted that he had taken a small amount of marijuana and methamphetamine that morning, but
he insisted more than once that he was able to understand what was happening to him. According
to Kinzig, who testified that she had experience interacting with people under the influence of such
drugs, Hitchings did not seem impaired during the interview despite his drug use. In fact, she
testified that “he spoke very intelligently and articulately throughout the interview.”
10 No. 23-3265, United States v. Hitchings
After establishing that Hitchings could comprehend what was going on, Kinzig read
Hitchings his Miranda rights. Hitchings then signed a form that set forth those rights. That form
also confirmed that he understood his rights and that he was willing to answer questions without
an attorney present. During the next 40 minutes, Hitchings refused to answer several of Kinzig’s
questions, including questions that could have led to potentially incriminating evidence. He also
expressed frustration with what he viewed as irrelevant questions and repeatedly asked the
interviewing officers to reveal the real reason they wanted to speak with him.
The district court did not err in finding that Hitchings waived his Miranda rights. First,
there is no evidence that the interviewing officers intimidated, coerced, or deceived Hitchings into
signing the waiver form or into responding to their questions. In fact, Kinzig told Hitchings several
times that he did not have to answer their questions. Every time Hitchings asked if he should have
an attorney present, the interviewing officers told him that the choice was up to him. The evidence
instead suggests that Hitchings freely and deliberately chose to waive his rights—he said he
wanted to answer the interviewing officer’s questions and explained his desire to help the officers’
investigation more than once. What is more, the interviewing officers remained calm throughout
the interview, though they reasonably reacted to Hitchings’s emotional outburst. Once the officers
handcuffed Hitchings following the outburst, however, the questioning resumed its earlier
conversational tone.
Second, the evidence suggests Hitchings comprehended his rights. True, Hitchings seemed
confused about the interviewing officers’ role in informing him whether he might be incriminating
himself. For example, he asked: “[H]ow far do I incriminate myself telling you things that are
personal? You know, like, before I actually do need one of those attorneys. I, I need to understand
it.” But a valid waiver does not require Hitchings to understand “every possible consequence” of
11 No. 23-3265, United States v. Hitchings
such a choice. See Lawrence, 735 F.3d at 437. A valid waiver instead requires that he understood
he could “choose not to talk to law enforcement officers” or “discontinue talking at any time.” Id.
(quotation omitted). Hitchings’s refusal to answer some of the interviewing officers’ questions
while choosing to answer others demonstrates he understood that requirement. A valid waiver
also requires that Hitchings understood he could choose to have counsel present. Id. The
interviewing officers reminded him of this choice every time he asked if he needed an attorney.
Hitchings also argues that Kinzig and Kunkleman should have readvised him of his
Miranda rights after his emotional outburst when they handcuffed him. This argument fails
because we, like the district court, conclude that Hitchings was in custody for the entirety of the
interrogation. We require additional Miranda warnings only “if the circumstances seriously
changed between the initial warnings and the interrogation.” Treesh v. Bagley, 612 F.3d 424, 432
(6th Cir. 2010) (citing Wyrick v. Fields, 459 U.S. 42, 47 (1982)). Courts have, moreover,
“generally rejected a per se rule as to when a suspect must be readvised of his rights after the
passage of time or a change in questioners.” United States v. Weekley, 130 F.3d 747, 751 (6th Cir.
1997) (quotation omitted).
Kinzig and Kunkleman interrogated Hitchings immediately after advising him of his
Miranda rights. Thus, the circumstances did not change between the warnings and the
interrogation.
C.
Next, we must decide whether Kinzig and Kunkleman violated Hitchings’s Fifth
Amendment right to counsel during questioning. Hitchings argues that he invoked his right to
counsel during the interrogation, but the officers continued to question him.
12 No. 23-3265, United States v. Hitchings
An accused subject to custodial interrogation by law enforcement officers has the right to
consult with an attorney and to have counsel present during questioning. Davis v. United States,
512 U.S. 452, 457 (1994). Law enforcement officers must explain this right to an accused before
questioning begins. Id. The right to counsel established in Miranda was one of a “series of
recommended procedural safeguards” that “were not themselves rights protected by the
Constitution but were instead measures to insure [sic] that the right against compulsory self-
incrimination was protected.” Michigan v. Tucker, 417 U.S. 433, 443–44 (1974) (quotation
omitted).
“The right to counsel recognized in Miranda is sufficiently important to suspects in
criminal investigations” that the Supreme Court has afforded it “the special protection of the
knowing and intelligent waiver standard.” Davis, 512 U.S. at 458 (quoting Edwards v. Arizona,
451 U.S. 477, 483 (1981)). If a suspect validly waives his right to counsel after receiving Miranda
warnings, law enforcement officers are free to question the suspect, and the suspect is free to
respond to questions from the officers. North Carolina v. Butler, 441 U.S. 369, 372–76 (1979).
But when a suspect requests an attorney, officers must stop interrogating him. Fare v.
Michael C., 442 U.S. 707, 719 (1979) (“[A]n accused’s request for an attorney is per se an
invocation of his Fifth Amendment rights, requiring that all interrogation cease.”). In Edwards,
the Supreme Court explained that “it is inconsistent with Miranda and its progeny for the
authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his
right to counsel.” 451 U.S. at 485. So “when an accused has invoked his right to have counsel
present during custodial interrogation, a valid waiver of that right cannot be established by showing
only that he responded to further police-initiated custodial interrogation even if he has been
advised of his rights.” Id. at 484. Edwards further held “that an accused . . . having expressed his
13 No. 23-3265, United States v. Hitchings
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.” Id. at 484–85. The Edwards
rule embodies two independent inquiries:
First, courts must determine whether the accused actually invoked his right to counsel. . . . Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.
Smith v. Illinois, 469 U.S. 91, 95 (1984) (per curiam) (citations omitted).
“If the police do subsequently initiate an encounter in the absence of counsel (assuming
there has been no break in custody), the suspect’s statements are presumed involuntary and
therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver
and his statements would be considered voluntary under traditional standards.” McNeil v.
Wisconsin, 501 U.S. 171, 177 (1991). “This is ‘designed to prevent police from badgering a
defendant into waiving his previously asserted Miranda rights.’” Id. (quoting Michigan v. Harvey,
494 U.S. 344, 350 (1990)). Once a suspect invokes the Miranda right to counsel regarding one
offense, he may not be re-approached regarding that offense or any other offense unless counsel is
present. Arizona v. Roberson, 486 U.S. 675, 686–87 (1988). This is a “bright-line rule.” United
States v. Potter, 927 F.3d 446, 450 (6th Cir. 2019).
To benefit from this rule’s protection, however, a defendant must clearly invoke his right
to counsel. That is, he “must make a ‘statement that can be reasonably construed to be an
expression of a desire for the assistance of an attorney.’” United States v. Zakhari, 85 F.4th 367,
375 (6th Cir. 2023) (quoting Davis, 512 U.S. at 459).
14 No. 23-3265, United States v. Hitchings
Here, Hitchings unequivocally invoked his right to counsel when he said: “I’m not
answering questions anymore until you find me an attorney. Please find me an attorney.” Seconds
later—and before the interviewing officers asked him any further questions—Hitchings asked:
“That’s what I’m supposed to do, right?” The officers replied by telling Hitchings that it was up
to him to have an attorney present. And then this exchange happened:
Hitchings: Tell me honestly, like what do you think I . . . (indecipherable). Kunkleman: Look I’m going to tell you honestly, okay. You want my opinion? Hitchings: I do. Kunkleman: I think it’s always better to cooperate. I think it goes better in the court system.
Based on the above exchange, Hitchings immediately reinitiated discussions with the officers after
he invoked his right to counsel.
This case is like the underlying circumstances in Bush v. Warden, Southern Ohio
Correctional Facility, a habeas case where we declined to grant the petitioner relief because the
police likely did not violate his Fifth Amendment rights. 573 F. App’x 503, 512–13 (6th Cir.
2014). There, we found that Bush, an accused who earlier invoked his right to counsel, reinitiated
questioning and subsequently waived his right when he asked the interviewing officer,
unprompted, “would it look better for me if I just go ahead and just tell you all? I mean, would it
be better for me?” Id. at 505. The interviewing officer and Bush then had this exchange:
Interviewer: You want my personal opinion? Bush: Yeah, truthfully. Interviewer: The truth is always going to be better. That’s my personal opinion.
15 No. 23-3265, United States v. Hitchings
Id. Because the “accused himself initiate[d] further communication, exchanges, or conversations
with the police,” his earlier invocation of the right to counsel no longer controlled. Id. at 513
(alteration in original) (quoting Edwards, 451 U.S. at 484–85). We also explained that this
exchange was not “indicative of the circumstance which the prophylactic rule in Edwards was
designed to prevent” because the officers “were not badgering Bush to waive his invocation of
right to counsel in any way.” Id. (internal quotation marks omitted).
Like the statements in Bush, Hitchings’s statements were “not prompted . . . by police
interrogation,” but suggest “a willingness and a desire for a generalized discussion about the
investigation.” United States v. Ware, 338 F.3d 476, 481 (6th Cir. 2003) (internal quotation marks
omitted); Oregon v. Bradshaw, 462 U.S. 1039, 1045–46 (1983) (plurality op.) (opining that the
suspect’s question—“Well, what is going to happen to me now?”—demonstrated “a willingness
and a desire for a generalized discussion about the investigation”). The district court therefore did
not err in finding that Hitchings reinitiated his conversation with law enforcement.
Hitchings validly waived his right to counsel after reinitiating discussions with the officers.
As mentioned above, Kinzig advised Hitchings of his Miranda rights during the first few minutes
of the interrogation. About 40 minutes later, Hitchings invoked his right to counsel and
subsequently reinitiated conversation with the officers. Then, he started repeatedly hitting himself
on the head, and the officers handcuffed him. Once he regained his composure, he asked Kinzig
not to leave the interview room and said: “Please sit down. I’ll tell you . . . I’ll tell you whatever
you want to know.” Before Kinzig asked Hitchings any further questions, she asked him several
times if he wanted an attorney. Hitchings explained that he wanted to continue the interview and
that he did not want an attorney before doing so. Kinzig expressed her discomfort with continuing
the interview because Hitchings had asked for an attorney, and then this exchange took place:
16 No. 23-3265, United States v. Hitchings
Kinzig: Again, I’m not feeling very comfortable right now because you asked for a lawyer. But if you want to talk to us, we’ll talk to you. But I’m not feeling real comfortable. Hitchings: I will talk to you, I will talk to you. Kunkleman: I, I want, you know how you wanted your questions answered? William, I want my question answered. Yes or no, do you want a lawyer now? Hitchings: I do not need a lawyer, no. I don’t need a lawyer[.] Kunkleman: Yes or no, do you want a lawyer now? Hitchings: No, I do not need a lawyer, no.
The totality of the circumstances show that Hitchings waived his right to counsel after he
was advised of his Miranda rights. He later invoked his right to counsel during the interrogation
but reinitiated discussions with the officers and, again, knowingly and voluntarily waived his right
to counsel.
D.
Finally, Hitchings argues that the district court erred by finding that his confession was
voluntary. A defendant’s confession is admissible at trial only if he makes it “freely, voluntarily,
and without compulsion or inducement of any sort.” Wilson v. United States, 162 U.S. 613, 623
(1896). Although we look to the totality of the circumstances to assess the voluntariness of a
confession, “coercive police activity is a necessary predicate to the finding that a confession is not
voluntary.” Connelly, 479 U.S. at 167 (internal quotation marks omitted). “Police action is only
coercive when it ‘overbear[s] the accused’s will to resist.’” United States v. Jacobs, 63 F.4th 1055,
1058 (6th Cir. 2023) (alteration in original) (quoting Ledbetter v. Edwards, 35 F.3d 1062, 1067
(6th Cir. 1994)). Police action overbears the will of the accused if: “(1) the police activity was
objectively coercive; (2) the coercion in question was sufficient to overbear [the] defendant’s will;
17 No. 23-3265, United States v. Hitchings
and (3) [the] defendant’s will was, in fact, overborne as a result of the coercive police activity.”
Id. (alterations in original) (quoting United States v. Rigsby, 943 F.2d 631, 635 (6th Cir. 1991)).
Hitchings cannot show that the interviewing officers’ actions were objectively coercive.
As discussed above, the officers spoke to Hitchings in a conversational tone for most of the
interview and they never brandished their weapons nor threatened Hitchings. No officer told
Hitchings he had to talk to law enforcement. In fact, they told him several times he could refuse
to answer questions as he wished. The only time the officers raised their voice or otherwise applied
force against Hitchings was during his emotional outburst. Kinzig testified that she and
Kunkleman handcuffed him during this outburst only because Hitchings was “hitting his head on
the table and hitting his head with his fist.” After his outburst, the interview returned to its earlier
conversational tone. Although the interview lasted for almost six hours, the interviewing officers
gave Hitchings water, offered him food, and took several breaks throughout the questioning.
Further, when Hitchings requested time to think, the interviewing officers always complied. These
actions are like conduct “we’ve previously held is not coercive.” Jacobs, 63 F.4th at 1058–59
(citing Luck, 852 F.3d at 623).
Without evidence of coercion, Hitchings cannot show that the district court erred by finding
his confession admissible. This conclusion is true even though the recorded interview shows that
Hitchings was suffering from some degree of emotional distress and that he had used both
marijuana and methamphetamine before officers apprehended him. See Luck, 852 F.3d at 623
(“[E]ven if [a] defendant’s cognitive or volitional capacity was impaired, that ‘is never, by itself,
sufficient to warrant the conclusion that his confession was involuntary for purposes of due
process; some element of police coercion is always necessary.’” (quoting United States v.
18 No. 23-3265, United States v. Hitchings
Newman, 889 F.2d 88, 94 (6th Cir. 1989)). We therefore conclude that Hitchings voluntarily
answered the interviewing officers’ questions.
IV.
For these reasons, we AFFIRM the district court’s denial of Hitchings’s motion to
suppress.