The United States Court of Appeals for the Seventh Circuit Holds That When a Suspect is Asked if he Wants an Attorney and Replies “Yeah, I Do, But You . . .,” the Request is Equivocal and Police May Continue With Questioning

Deandre Hampton was arrested for being a felon in possession of a firearm.  When asked by police if he wanted an attorney he replied “[y]eah, I do, but you . . .” police continued to ask whether he wanted an attorney to clarify.  Ultimately, Hampton provided a statement without an attorney and his statement was used to convict him.  Hampton appealed, arguing his protection against self-incrimination had been violated.  The United States Court of Appeals for the Seventh Circuit found that Hampton’s rights were not violated.

On September 25, 2008, Deandre Hampton and others were standing outside an apartment complex in Kankakee, Illinois.  When two police cruisers from the Kankakee Police Department approached, Hampton and others ran into the apartment building.  Two police officers followed as they had previously been given a key to enter the building and permission to patrol common areas by the building manager.  During the pursuit, someone dropped a loaded semiautomatic handgun and Hampton scuffled with police.  Police suspected Hampton had possessed the gun as well.  Ultimately, the officers arrested Hampton, took him to a local hospital for treatment of minor injuries, and then brought him to the county jail. 

At the jail, Hampton was read his Miranda rights by Sergeant Peter Nicholos and Lieutenant Robin Passwater.  Hampton acknowledged that he understood his rights, signed a waiver, and began to answer questions, but quickly stopped and stated unequivocally that he wished to speak to a lawyer.  The officers stopped questioning Hampton and called for a correctional officer to escort Hampton to his cell.  Hampton recanted and said he would speak.  Nicholos and Passwater recorded the rest of the encounter.  A partial transcript of the recording reads as follows:

Passwater:  Alright.  Earlier, you told us you — you — you were gonna talk about getting a lawyer or whatever . . . do you want a lawyer at this time?

Hampton:  Yeah, I do, but you . . .

Passwater:  Then I can’t talk to you, alright?  We can’t – I can’t take a statement from you if you want a lawyer. 

[Five seconds of silence followed.]

Hampton:  But see, I’m askin’ you is this gonna effect what’s goin’ on[?]

Passwater:  To be honest, I don’t know—I mean . . .

Hampton:  What does—what does me—my attorney bein’ present has to do with it—you know what I’m sayin’? That’s what I . . . I don’t . . . that’s what ya’ll don’t understand . . . you makin’ me [. . .]

. . .

Nicholos:  Again, do you want an attorney here or not? I mean, you asked for an attorney, we have to get that cleared up before we talk about anything. You know what I’m saying?

Hampton:  I think, I, I felt like it should have been an attorney here cause that’s what I asked for.  You know what I’m saying? Before we talked . . .

Nicholos:  Then we’re done . . .

. . .

Hampton: I just want everything to see, my point, you know what I’m saying?

Nicholos: Right, I hear you, that’s your right. That’s why we read you those rights man.  We’re not going to think anything less of you because you want an attorney.  That’s your right.  That’s why we read you those rights man.

Hampton: Right.

. . .

Passwater: . . . [W]e got to know do you want an attorney or not?  I mean yes or no? It’s that . . .

Hampton:  No, I don’t want no attorney for right now.

At that point, Hampton proceeded to answer questions and admitted to holding the firearm for a moment on behalf of a friend, “Mike-Mike,” who asked Hampton to hold the gun when police approached.  However, Hampton claimed he got scared, gave the gun back to Mike-Mike and that it was in fact Mike-Mike who had dropped the gun during the chase. 

This statement was used to charge Hampton with possession of a firearm by a felon as an armed career criminal.  At trial before the United States District Court for the Central District of Illinois, Hampton moved to suppress the statement, arguing that his Fifth Amendment Right protecting against self-incrimination was violated when police took his statement even after he attempted to exercise his Sixth Amendment right to access legal counsel. 

The district court rejected Hampton’s suppression motion and Hampton was convicted; Hampton was sentenced to twenty-one years imprisonment because his sentence was enhanced under the Armed Career Criminal Act (ACCA), given his prior convictions. 

Hampton appealed to the United States Court of Appeals for the Seventh Circuit.  The court of appeals upheld Hampton’s conviction.  The court of appeals noted that precedent holds that if a suspect invokes the right to counsel, he “is not subject to further interrogation . . . until counsel has been made available to him, unless [he] himself initiates further communication, exchanges, or conversations with the police.”  Edwards v. Arizona - 451 U.S. 477, 484-85 (1981).  However, under Davis v. United States, 512 U.S. 452 (1994), questioning may continue if a request for counsel is “ambiguous or equivocal,” so long as the statement was not rendered equivocal by further police questioning.  Smith v. Illinois, 469 U.S. 91 (1984). 

Hampton argued that when he said “[y]eah, I do, but you . . .”  and “I think, I, I feel like it should have been an attorney here cause that’s what I asked for,” he made an unequivocal and unambiguous request for an attorney.  The court of appeals disagreed, finding that in context, the request was not unequivocal. 

The court of appeals considered several facts which would have lead police officers to believe that Hampton’s request was not unequivocal.  First, Hampton voluntarily initiated the discussion when he repudiated his request for a lawyer and said he would speak without one.  Second, he equivocated in the second statement and when he added “but you . . .” to the first statement.  Third, Hampton waffled on whether or not he would speak with police before requesting an attorney, creating ambiguity in his statements.  Fourth, Hampton appeared to the court to be “fishing” for a deal from police rather than definitely requesting an attorney.  Fifth, the police officers gave Hampton ample time to consider whether he wanted to speak and did not rush him. 

Furthermore, as recommended by Supreme Court precedent, officers tried to clarify on several occasions whether Hampton wanted an attorney.  They did not discourage him from exercising his rights before he flatly stated he did not need a lawyer and proceeded to make voluntary statements. 

For these reasons, the court of appeals found that Hampton’s rights were not violated and his conviction should stand.  However, the court of appeals found an error in aggravating the sentence under the ACCA, and remanded to the district court to impose a sentence of not more than ten years. 

The case, U.S. v. Hampton, can be found here.