Brief of respondent for Florida v. Powell, 08-1175 - Oyez

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circumstances would have understood only
that the suspect might be invoking the right
to counsel, our precedents do not require the
cessation of questioning. . . . Rather, the suspect
must unambiguously request counsel.
Davis, 512 U.S. at 459. If the suspect’s request is not
clear and unambiguous, the police have no obligation
to stop the questioning. Id. at 461-62. 16
Thus, under Petitioner’s approach a suspect
would be required to invoke his right to counsel
clearly and unequivocally, but law enforcement officers
would not have a corresponding obligation to
explain those rights clearly and unequivocally. “If the
suspect is not made aware of when he can have an
attorney, he will not realize that he is entitled to have
an attorney present during interrogation, and any
request for an attorney may seem ambiguous. The
Davis threshold creates a double standard. . . .” 17
16
E.g., Davis, 512 U.S. at 455 (defendant initially waived
his right to counsel, but one hour into questioning stated “maybe
I should talk to a lawyer,” which was held too ambiguous to
require that questioning cease); United States v. Peters, 435 F.3d
746, 751-52 (7th Cir. 2006) (citing cases reflecting the types of
requests that have not satisfied the “strict” clarity requirement).
17
Adam S. Bazelon, Comment, Adding (or Reaffirming) a
Temporal Element to the Miranda Warning “You Have the Right
to an Attorney,” 90 Marq. L. Rev. 1009, 1031 (2007); accord Daria
K. Boxer, Comment, Miranda With Precision: Why the Current
Circuit Split Should Be Solved in Favor of a Uniform
Requirement of an Explicit Miranda Warning of the Right to
Have Counsel Present During Interrogation, 37 Sw. U. L. Rev.
425, 447 (2008) (“[C]onsidering a ‘lawyer-like clarity’ that the
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