Motion to suppress defendant’s police statements; Waiver of the right to counsel; Invocation of the right; Comparing People v Burnett; Motion to quash bindover

The court held that defendant never clearly and unequivocally invoked his right to counsel and thus, his waiver was valid and his motion to suppress his police statements was properly denied. It also upheld the denial of his motion to quash the charges against him, which was based on his claim that the district court could not consider those statements in making its probable cause determination. He argued his waiver was invalid because he had earlier “clearly and unequivocally invoked” the right during his interview. The court disagreed. As to the statements made during his smoke break, he asserted “he first invoked his right to counsel when he asked, ‘Can we have a lawyer, too, present?’ and then he invoked it again when, moments later, he said, ‘I’d like to have a lawyer—if we—if we could do this quick.’” He likened these statements to Burnett. But the court found that comparison “inapt,” finding that his first statement reflected “an inquiry into how the questioning would be conducted when” they returned from the break, and that the second “was no more clear or unequivocal[.]” It noted that, “in virtually his next breath, [he] said, ‘I’ll tell you everything’ before ultimately concluding with ‘I don’t know.’” An officer (K) acknowledged that defendant stated he wanted a lawyer after they returned to the interview room. But “considering the ambiguity and forward-looking nature of defendant’s smoke-break statements, it” was unsurprising that K “would attempt to follow up on that prior exchange now that questioning was about to begin, to determine whether defendant did, in fact, have a present desire for counsel at that point. Such clarifying questions are permissible and do not themselves render defendant’s prior statements any more clear or unequivocal.” As to his alleged third invocation, while “he referred to wanting a lawyer, he did so in the past tense, speaking to why he had previously expressed interest in potentially having the assistance of counsel during questioning. And then, rather than state a present interest in such counsel, [he], unprompted, invited his interrogators to question him.” Affirmed.