In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1696
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ATTHEW L. M ARTIN ,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 4:10-cr-40008—Michael M. Mihm, Judge.
A RGUED O CTOBER 27, 2011—D ECIDED D ECEMBER 30, 2011
Before F LAUM, K ANNE, and W OOD , Circuit Judges.
K ANNE, Circuit Judge. Law enforcement officers in
Warren County, Illinois, arrested Matthew Martin after
discovering illegal drugs and a firearm in his vehicle.
Shortly after his arrest, Martin was advised of his
Miranda rights and interviewed by Chief Deputy Bruce
Morath of the Warren County Sheriff’s Department. At
one point during the interview, Deputy Morath asked
Martin if he would be interested in providing a written
2 No. 11-1696
statement. Martin responded, “I’d rather talk to an attor-
ney first before I do that.” Deputy Morath ended
the interview and took Martin to the booking area for
processing. Approximately two to three hours later,
detectives from Burlington, Iowa, arrived at the Warren
County Sheriff’s Department to interview Martin about
a recent robbery. They advised Martin of his Miranda
rights but were never informed of his prior request to
speak to an attorney. Prior to trial, Martin moved
to suppress statements he made during this second inter-
view. After an evidentiary hearing, the district court
denied his motion. Because we find Martin’s invocation
of his Fifth Amendment right to counsel was limited
to written statements, we affirm the judgment of the
district court.
I. B ACKGROUND
On the morning of November 9, 2009, two black males
robbed the Farmers & Merchants Bank in Burlington,
Iowa. The robbers wore yellow hard hats, tool belts,
coveralls, and dust masks to partially conceal their faces.
One of the robbers displayed a handgun while forcing
a teller to take him to the vault area of the bank. The
two men left with approximately $44,000 in cash.
The following day Burlington officers received several
tips indicating that one of the robbers might be Daryl
Jackson. During an interview with Burlington detectives,
Jackson denied any involvement but identified Matthew
Martin as one of the robbers. Jackson explained that he
and Martin met while incarcerated in Indiana. Martin
No. 11-1696 3
contacted Jackson by telephone a couple of weeks prior
to the robbery, indicating that he wanted to rob a bank
in Burlington. After Martin arrived in Burlington a few
days before the robbery, he met with Jackson to discuss
his plans in greater detail. Martin described wearing
construction equipment during the robbery and told
Jackson he had a gun located underneath the hood of
his red SUV. Martin called Jackson after the robbery
and told him they stole approximately $50,000 in cash.
After interviewing Jackson, Burlington detectives
contacted authorities in Indiana to learn more about
Martin, including information about any prior robbery
convictions. Among other useful information, Indiana
police officers provided Burlington detectives with Mar-
tin’s photograph. His appearance in the photograph
was consistent with the bank’s surveillance footage. The
Burlington detectives’ investigation also revealed that
Martin stayed at a local Super 8 motel for two nights
prior to the robbery. One of the housekeepers at the
Super 8 told officers that she observed four black males
exiting a room and two of these men were wearing
yellow hard hats. The housekeeper positively identified
Martin as one of the men wearing a hard hat.
On November 19, 2009, the front desk clerk at the
Super 8 contacted Burlington detectives to report that
Martin recently checked into the hotel. Burlington detec-
tives began conducting surveillance on Martin and at-
tached a GPS tracking device to his vehicle, a gray
Monte Carlo with Illinois temporary tags, registered to
Martin’s sister.
4 No. 11-1696
The following Monday, November 23, 2009, the GPS
unit on Martin’s car malfunctioned, which prevented
detectives from tracking Martin for a short period of
time. After the GPS unit resumed proper functioning,
Burlington detectives discovered that Martin was
driving eastbound in Illinois. The detectives pursued
Martin and contacted law enforcement officers in
Illinois for additional assistance. Martin entered Warren
County, Illinois, before officers were able to conduct a
traffic stop. The Warren County Sheriff’s Department
was apprised of the situation and Chief Deputy Bruce
Morath responded to the scene of the traffic stop.
At the time Deputy Morath arrived, officers were con-
ducting a search of Martin’s vehicle. The officers discov-
ered small quantities of marijuana and cocaine in the
passenger compartment and a silver revolver under
the hood of the car.1 Deputy Morath arrested Martin
for possession of a firearm by a felon, possession of can-
nabis, and possession of a controlled substance. Deputy
Morath transported Martin to the Warren County
Sheriff’s Department.
At the sheriff’s department, Deputy Morath read Martin
his Miranda rights prior to questioning him. Martin ac-
knowledged that he understood those rights and agreed
1
At the suppression hearing, Martin challenged the legality of
the officers’ search under the hood of the car. The district court
found that there was probable cause to search pursuant to
Arizona v. Gant, 556 U.S. 332 (2009). Martin did not appeal
this ruling.
No. 11-1696 5
to speak with law enforcement officers. Deputy Morath
asked Martin various questions about ownership of the
Monte Carlo and Martin’s knowledge of the drugs
and gun. Deputy Morath stated at the suppression
hearing that the sole purpose of his interview was to
substantiate the charges brought against Martin based
on the items found in his car. Martin admitted he was a
convicted felon but denied knowledge of the drugs
and gun found in the vehicle. Following these denials,
Deputy Morath asked Martin if he would be interested
in providing a written statement. According to Deputy
Morath’s testimony at the suppression hearing, Martin
responded, “I’d rather talk to an attorney first before I
do that.” 2 (Tr. at 106.) Deputy Morath ended the
interview and returned Martin to the lock-up. Deputy
Morath, whose shift was ending, wrote his report and
submitted a copy to the Sheriff and the state’s attorney
before leaving. He did not speak with the Burlington
detectives.
Burlington detectives Schwandt and Thompson arrived
at the Warren County Sheriff’s Department approxi-
mately two to three hours after the traffic stop to
question Martin about his involvement in the robbery.
They first met with the Warren County Sheriff, who
informed them that Martin denied knowledge of the
2
Deputy Morath’s report, completed shortly after his
interview with Martin, states: “R.O. then asked Martin if
he wanted to write a statement of what he knew about the
incident. Stated he wanted to talk to an attorney before he
did that.” (Tr. at 120.)
6 No. 11-1696
items recovered from the vehicle. They were not
informed, however, that Martin requested to speak with
an attorney. The detectives advised Martin of his
Miranda rights for the second time. Martin again waived
these rights and agreed to speak with the two detectives.
Martin thereafter admitted that he loaned a gun to
Jackson, who returned it to him by placing it under
the hood of the vehicle. Detectives Schwandt and Thomp-
son never requested a written statement and Martin
did not ask to speak to an attorney during this interview.
II. A NALYSIS
Martin argues that the statements elicited from him
during his interview with the Burlington detec-
tives should be suppressed because he invoked his Fifth
Amendment right to counsel prior to this interview. In
reviewing the district court’s denial of Martin’s motion
to suppress, we review factual findings for clear error
and legal conclusions de novo. United States v. Griffin,
652 F.3d 793, 797 (7th Cir. 2011).
Law enforcement officers are free to question a suspect
who waives his right to counsel after receiving Miranda
warnings. Davis v. United States, 512 U.S. 452, 458 (1994).
But a suspect may still invoke his right to counsel after
an initial waiver if he does so unambiguously. See id. at
458-59. “[A]n accused . . . 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, ex-
No. 11-1696 7
changes, or conversations with the police.” Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981). The Edwards rule
is non-offense specific and prohibits police from inter-
rogating a suspect regarding any offense after the
suspect invokes his Miranda rights. McNeil v. Wisconsin,
501 U.S. 171, 177 (1991) (citing Arizona v. Roberson, 486
U.S. 675 (1988)).
Whether a suspect invokes his right to counsel is an
objective inquiry which requires, “ ‘at a minimum, some
statement that can reasonably be construed to be an
expression of a desire for the assistance of an attorney.’ ”
Davis, 512 U.S. at 459 (quoting McNeil, 501 U.S. at 178). If
a request is ambiguous or equivocal, police officers
may continue questioning a suspect. Id.
The Edwards rule serves as an absolute prohibition
on further interrogation only if an accused invokes
his right to counsel for all purposes. See Connecticut v.
Barrett, 479 U.S. 523, 529-30 (1987); accord United States v.
Spruill, 296 F.3d 580, 588 (7th Cir. 2002) (suspect’s request
for an attorney if he took a polygraph exam was a “condi-
tional request”). In Barrett, the defendant on three occa-
sions indicated he would not make a written statement
without counsel present, but “he had no problem in
talking about the incident.” 479 U.S. at 525. Upon his
arrival at the police station, Barrett was advised of his
Miranda rights and acknowledged that he understood
those rights. Id. He stated that he would not give a
written statement but would talk to the police officers.
Id. Thirty minutes later, Barrett was again advised of his
rights and acknowledged he understood those rights. Id.
8 No. 11-1696
He repeated his earlier statement that he would not
provide a written statement without an attorney but had
“no problem” talking to the officers. Id. Barrett then
provided an oral confession. See id. After police officers
discovered their recording device malfunctioned, they
advised Barrett of his rights for a third time and Barrett
stated that he was still willing to talk but would not
put anything in writing until his attorney arrived. Id.
at 525-26. He then repeated his confession. Id. at 526.
The Supreme Court held that Barrett’s statements
were unambiguous, his intentions were clear, and the
police honored those intentions. Id. at 529-30. Noting
that the proper approach to questions of waiver
“ ‘requires us to give a broad, rather than a narrow, in-
terpretation to a defendant’s request for counsel,’ ”
the Supreme Court held that no such interpretation
was necessary because the defendant’s statements
served as an unequivocal waiver of his right to counsel
during oral interrogation. See id. at 529-30 (quoting
Michigan v. Jackson, 475 U.S. 625, 633 (1986), overruled
by Montejo v. Louisiana, 556 U.S. 778 (2009)).
The sole question in this case is whether Martin’s state-
ment, “I’d rather talk to an attorney first before I do
that,” served as an absolute prohibition on further inter-
rogation or was limited in its scope to written state-
ments. The district court held that Martin’s statement
was unambiguous and “cannot be fairly construed as
an unqualified invocation of his Miranda rights.” (Tr.
at 190.) The district court noted that Martin had
previously waived his Miranda rights, answered all of
No. 11-1696 9
Deputy Morath’s questions, and was directly responding
to a request to make a written statement at the time
he invoked his right to counsel. Thus, given the con-
text, the district court found that Martin’s invocation
was not an absolute prohibition.
We agree with the district court. Martin’s statement
is unambiguous in light of the circumstances and is
clearly limited to written statements. This case differs
from those cases described in Barrett requiring a court to
give “broad effect to requests for counsel that were less
than all-inclusive.” 479 U.S. at 529 (citing Oregon v.
Bradshaw, 462 U.S. 1039, 1041-42 (1983) (“I do want an
attorney before it goes very much further.”); Edwards,
451 U.S. at 479 (“I want an attorney before making a
deal.”)). Here, Deputy Morath clearly asked Martin if
he would provide a written statement. In response,
Martin invoked his right to counsel “before I do that.” His
request for counsel was unambiguous and the phrase
“before I do that” operates as a clear limitation of that
request. “To conclude that [Martin] invoked his right
to counsel for all purposes requires not a broad inter-
pretation of an ambiguous statement, but a disregard
of the ordinary meaning of [Martin’s] statement.” Id.
at 529-30.
Martin argues that this case is governed by Edwards,
not Barrett. He asserts that his case differs significantly
from Barrett in that he never affirmatively expressed a
desire to continue speaking with law enforcement
officers without an attorney present. We can infer from
Martin’s actions, however, that he was not unwilling to
10 No. 11-1696
do so. At the beginning of the interview, Martin was
apprised of his Miranda rights and signed a waiver in-
dicating that he was willing to talk to Deputy Morath.
He freely answered all of Deputy Morath’s questions.
At what may be reasonably interpreted as the conclusion
of the interview, Deputy Morath asked Martin if he
would provide a written statement. Martin stated he
would rather talk to an attorney “before I do that.” Deputy
Morath ceased questioning, either because the interview
was over 3 or because Martin requested an attorney.
Thereafter, Martin signed an additional waiver of his
Miranda rights and agreed to speak with the Burlington
detectives.4 There is no indication that Martin “did
3
Deputy Morath acknowledged that his purpose in interview-
ing Martin was to elicit statements supporting the drug and
gun charges. This included whether Martin was the driver of
the vehicle and whether he owned the items found within
the vehicle. Prior to Deputy Morath’s request for a written
statement, Martin admitted he was the driver of the car
(which belonged to his sister), admitted to being a convicted
felon, and denied knowledge of the drugs and gun located
within the vehicle. Deputy Morath then asked Martin “if he
had anything else to say.” (Tr. at 106.) Only after these ques-
tions were asked and answered did Deputy Morath ask
Martin to provide a written statement.
4
Martin’s conversation with the Burlington detectives is
helpful only in supporting the inference that Martin was
willing to speak with authorities. Such evidence cannot
establish that Martin waived his right to counsel. See Edwards,
451 U.S. at 484 (“[A] valid waiver of that right cannot be
(continued...)
No. 11-1696 11
not feel sufficiently comfortable with the pressures of
custodial interrogation to answer questions without an
attorney.” Roberson, 486 U.S. at 684.
As noted in Barrett, the prohibition of further ques-
tioning after a suspect invokes his right to counsel is
intended to prevent police coercion. See 479 U.S. at 528.
In this case, there is no evidence of mischief by the
officers or any indication that Martin was coerced into
providing statements to either Deputy Morath or the
Burlington detectives. Rather, any alleged error by the
law enforcement officers appears to derive from a
simple, although troubling, lack of communication. But
despite this failure to communicate, Martin did not
suffer a constitutional deprivation. His invocation of
the right to counsel was clearly limited in its scope to
written statements. Martin did not provide a written
statement, nor did officers request one, after he
invoked his right to counsel.
III. C ONCLUSION
Because Martin’s request for counsel was limited to
written statements, the judgment of the district court
is A FFIRMED.
4
(...continued)
established by showing only that [the accused] responded to
further police-initiated custodial interrogation even if he
has been advised of his rights.”).
12 No. 11-1696
W OOD , Circuit Judge, dissenting. The question before us
in this case is whether Matthew Martin’s Fifth Amend-
ment rights were violated when law enforcement per-
sonnel disregarded his request to speak to an attorney
and instead resumed their interrogation of him after
initially (and properly) cutting off further questioning.
My colleagues find no such violation; in their view,
Martin intended to include only written statements
in his invocation of his right to counsel. With respect,
I cannot join them, because Martin never affirmatively
indicated that he was placing any such restriction on his
request. The majority’s approach drives yet another
hole into the protections that the Miranda warnings are
supposed to afford, and it does so in a way that fails
to take into account the realities of the situation that
a man like Martin faces. I therefore dissent.
As the majority notes, Martin was arrested on sus-
picion that he might have been responsible for a bank
robbery that took place on November 9, 2009, in
Burlington, Iowa. Another man, Daryl Jackson, pointed
the finger at Martin, explained that he had met Martin
in an Indiana prison, and stated that Martin had told
Jackson all about his plans for robbing the bank. The
Burlington police naturally followed up on this tip
and eventually began tracking Martin using a GPS
device after they located him in Iowa. The device
revealed that Martin was driving eastbound and had
crossed into Illinois, where he was picked up by Chief
Deputy Bruce Morath from the Warren County (Illinois)
Sheriff’s Department. A search of Martin’s car revealed
small amounts of drugs and a gun; these discoveries
No. 11-1696 13
prompted Deputy Morath to arrest Martin on several
charges and to transport him to the station.
There, Deputy Morath read Martin his Miranda
rights, and Martin acknowledged that he understood his
rights and was willing to speak with the officers. In
response to several questions about his car, the drugs,
and the gun, Martin admitted that he was a convicted
felon but he denied any knowledge of the drugs and gun
that had been found in his car. At that point, Deputy
Morath asked Martin if he would be interested in pro-
viding a written statement. Martin responded “I’d
rather talk to an attorney first before I do that.” (In fact,
there are a couple of versions of his response in the
record, each with a slight variation, but my point does
not depend on these nuances, and so I am willing to
use the version that the majority has adopted.) In light
of Martin’s response, Deputy Morath ended the
interview and returned Martin to the lock-up. He left
the building shortly after that, after writing up a report
that noted Martin’s request for an attorney and giving
a copy of it to the Sheriff and the state’s attorney.
If that were the end of the story, we would not have
this appeal. But it is not. What happened instead is
that two detectives from Burlington, Schwandt and
Thompson, showed up at the Sheriff’s office a couple of
hours after the arrest, wanting to question Martin. They
met first with the Sheriff, who told them that Martin
had denied knowledge of the drugs and the gun, but
who, despite having Deputy Morath’s report, failed to
mention that Martin had asked to speak with a lawyer.
14 No. 11-1696
Schwandt and Thompson thus met with Martin, read
him his Miranda rights (again), and Martin said that he
waived those rights and was willing to speak with them.
It was only during this later interrogation, which took
place only a few hours after Martin had asked for a
lawyer, that Martin admitted that he had loaned a gun
to Jackson and that Jackson had placed this gun under
the hood of Martin’s car.
All of us agree that the critical statement that must
be analyzed is the one that terminated Deputy Morath’s
interview with Martin: According to the best infor-
mation we have, he said “I’d rather talk to an attorney
first before I do that.” The majority finds that “[Martin’s]
request for counsel was unambiguous and the phrase
‘before I do that’ operates as a clear limitation of that
request.” Ante at 9. I agree with them that Martin’s
request for counsel was unambiguous. But, stare at it as
I might, I cannot see in the words “before I do that”
anything approaching a “clear” limitation of his con-
cededly unambiguous request for counsel. As I explain
further below, consideration of the totality of the cir-
cumstances does not bolster the majority’s posi-
tion—instead, it undermines their argument. Tellingly,
the facts here do not come close to meeting the standard
that the Supreme Court established in Connecticut v.
Barrett, 479 U.S. 523 (1987), for a limited invocation of
rights. In Barrett, the Court first reiterated the rule that
once an accused states that he wants an attorney, the
interrogation must cease until an attorney is present.
See, e.g., Edwards v. Arizona, 451 U.S. 477, 484-85 (1981);
Miranda v. Arizona, 384 U.S. 436, 474 (1966). But in
No. 11-1696 15
Barrett, as the Court put it, the accused’s “limited
requests for counsel . . . were accompanied by affirmative
announcements of his willingness to speak with the
authorities.” 479 U.S. at 529. Indeed, Barrett had said
that he was willing to speak to the police, but that he
did not want to make a written statement outside the
presence of counsel. Id. at 525.
That is a far cry from what we have here. In the state-
ment at issue, Martin never even hinted that he was
willing to talk to anyone. All he said was that he would
rather talk to an attorney “first.” Deputy Morath, by his
actions, demonstrated that he understood just what
Martin was doing. Deputy Morath properly ended his
interrogation, sent Martin back to the lock-up, and pre-
pared to go home. An explanation even more plausible
than the one the majority finds “clear” is that Deputy
Morath’s request for a written statement alerted Martin
to the fact that he was in real trouble: the interrogation
was getting serious, and Martin needed the assistance of
counsel. This is exactly the way that our colleagues in
the Second Circuit interpreted a comparable exchange.
In United States v. Quiroz, 13 F.3d 505, 512 (2d Cir. 1993)
(citing Barrett, 479 U.S. at 529, overruled on unrelated
grounds by United States v. Plugh, 648 F.3d 118, 126 (2d
Cir. 2011)), the court found that by “[l]ooking only at
Quiroz’s initial statement that he wished to consult with
counsel before signing, we do not see any intended limita-
tion, for that statement was a direct and complete
response to the precise question Quiroz had been asked”
(emphasis added). That is, the Quiroz court found that an
invocation of a right to counsel in response to a direct
16 No. 11-1696
question about signing something was an across-the-
board assertion of the accused’s rights. We should
follow the Second Circuit’s lead in Quiroz and recognize
here that Martin, by refraining from saying anything
about his willingness to talk in a limited way, placed
no limits on his invocation of his rights to remain silent
and to receive assistance of counsel.
The majority asserts that “[t]o conclude that [Martin]
invoked his right to counsel for all purposes requires not
a broad interpretation of an ambiguous statement,
but a disregard of the ordinary meaning of [Martin’s]
statement.” But this loses sight of what Martin said—and
of what he did not say. As I have already stressed,
in Barrett, the accused unambiguously and affirmatively
consented (three times) to providing oral statements.
Nothing of the sort happened in our case. The majority
must rest its decision on the thin reed of the final
four words in Martin’s statement: “before I do that.” Do
what? Sign a written statement? Talk more? If we are
to look at context, then the majority cannot limit its
view to Deputy Morath’s question; it must also take
into account his immediate response to Martin’s
request, which was to cease interrogation. Looking at
everything that was happening at the time Martin made
that statement, it is no disregard at all of the “ordinary
meaning” of Martin’s words to find that he placed no
limits on his invocation of his right to counsel.
The majority’s rule reverses the presumption reflected
in Barrett, under which a partial waiver of rights exists
only if the accused affirmatively spells out what he will
No. 11-1696 17
discuss and what he will not. In so doing, it calls for a
result different from the one that the Supreme Court
itself reached in Edwards, where the request for counsel
was conditionally phrased. Recall that after the officer
there told Edwards that he had no authority to make a
deal, Edwards stated that he “want[ed] an attorney
before making a deal.” 451 U.S. at 479 (emphasis added).
The next morning, two officers returned and elicited
a confession from Edwards. Under the standard
adopted by the majority, that second interrogation
would have been permissible: Edwards’ request would
be limited to conversations about a deal and would not
have reached anything about the events underlying
his arrest.
The majority also relies on the fact that after the imper-
missible resumption of his interrogation and the repeti-
tion of the Miranda warnings, Martin agreed to talk to
the Burlington detectives. This, they believe, “sup-
port[s] the inference that Martin was willing to speak
with authorities.” Ante at 10 n.4. Although the opinion
acknowledges that this evidence cannot be used to estab-
lish that Martin waived his right to counsel, id., this
does not go far enough. In fact, as Edwards holds, it is
impermissible to rely on anything Martin said during
the second phase of his interrogation. And Edwards
does not stand alone. In Smith v. Illinois, 469 U.S. 91, 100
(1984), the Supreme Court stated that “postrequest re-
sponses to further interrogation may not be used to cast
retrospective doubt on the clarity of the initial request”
(emphasis in original). Applying Smith to Barrett, the
Second Circuit found that “response[s] to [the police’s]
18 No. 11-1696
subsequent inquiry as to whether [the defendant] would
answer questions orally cannot be used to determine
whether his initial response was limited.” Quiroz, 13 F.3d
at 512; see also Robinson v. Borg, 918 F.2d 1387, 1391 n.4.
Last, the majority’s opinion deals only cursorily with
the fact that it is the government’s burden to prove
Martin waived his right to counsel. J.D.B. v. North
Carolina, 131 S. Ct. 2394, 2401 (2011). This is important
for two reasons. First, it means that ties go to Martin,
not to the prosecution. As footnote 2 in the majority’s
opinion concedes, there is still some question about
what exactly Martin said. Ante at 5 n.2. Second, the major-
ity suggests that Deputy Morath left the interroga-
tion room because he had reached the “conclusion of the
interview,” but as it acknowledges, it is equally likely
that he ended the conversation because “Martin re-
quested an attorney.” Ante at 10. We must take the de-
fendant’s statements “as ordinary people would under-
stand them,” Barrett, 479 U.S. at 529, and in that light (as
I have already noted), Deputy Morath’s own reaction
to Martin’s statement is instructive. Upon hearing
Martin’s response, Deputy Morath did not drop the
suggestion of a written statement and continue with the
oral interrogation. He immediately ceased all interroga-
tion without regard to its form. To the extent that the
record does not contain enough information to resolve
whether Deputy Morath left because he was finished or
because of Martin’s request for an attorney, it is the gov-
ernment that bears the risk of uncertainty. There is
nothing (except Martin’s postrequest statements, which
we all agree are out of bounds) to show Martin’s
intent to selectively waive his right to counsel.
No. 11-1696 19
Because Martin never affirmatively stated that he was
willing to continue to talk to the officers, because the
record shows that Deputy Morath realized that Martin
wanted interrogation to cease until an attorney arrived
for him, and because the majority attributes meaning
to Martin’s statement that it cannot bear, I respectfully
dissent.
12-30-11