Vargas-Salguero v. State, No. 159, September Term 2017. Opinion by Nazarian, J.

FIFTH AMENDMENT – RIGHT TO COUNSEL – INVOCATION
Where a defendant invokes his right to counsel on a condition that in context would, to the
reasonable police officer, have clearly been met, the request for counsel was unequivocal
and unambiguous and further interrogation by officers after that point violates the
defendant’s Fifth Amendment rights. A reasonable officer must take into account who is
speaking and what his words reasonably meant to convey.
FIFTH AMENDMENT – RIGHT TO SILENCE – INVOCATION
Where a defendant invokes his right to silence and officers continue interrogation, the
defendant’s Fifth Amendment rights have been violated. The trial court should take into
account what the interrogation video actually shows, and not merely the officers’
interpretation of their actions at the suppression hearing.
Circuit Court for Prince George’s County
Case No. CT141464X

                                                         REPORTED

                                           IN THE COURT OF SPECIAL APPEALS

                                                      OF MARYLAND

                                                           No. 159

                                                   September Term, 2017


                                              MYNOR VARGAS-SALGUERO

                                                              v.

                                                 STATE OF MARYLAND


                                             Nazarian,
                                             Reed,
                                             Beachley,

                                                             JJ.


                                                   Opinion by Nazarian, J.


                                             Filed: June 1, 2018
               Craig Kettleman: I just think I’d look guilty if I hired a lawyer.

               James McGill: No, actually it’s getting arrested that makes
               people look guilty, even the innocent ones, and innocent people
               get arrested everyday. And they find themselves in a little room
               with a detective who acts like he’s their best friend. “Talk to
               me,” he says, “Help me clear this thing up. You don’t need a
               lawyer, only guilty people need lawyers” and BOOM! Hey,
               that’s when it all goes south. That’s when you want someone
               in your corner. Someone who will fight tooth and nail.1

         We all know (from television, if nowhere else) that a person in custodial

interrogation has the right to ask for counsel and that once that right is invoked, questioning

must stop. The issue in this case is whether Mynor Vargas-Salguero invoked his right to

counsel during questioning by Prince George’s County detectives, and specifically whether

the words he used conveyed that request with sufficient clarity and without ambiguity. The

Circuit Court for Prince George’s County found his words ambiguous, and, after a trial, he

was convicted of second-degree murder, robbery, and theft. He argues on appeal that his

Fifth and Sixth Amendment rights were violated when detectives continued questioning

him after he invoked his rights to counsel and to remain silent. We hold Mr. Vargas-

Salguero invoked his Fifth (not Sixth) Amendment rights when, under these circumstances,

officers continued to question him after he asked (in Spanish) for a lawyer, and we reverse

the judgment and remand for further proceedings.

                                 I.      BACKGROUND

         On the night of September 2, 2014, Miguel Barillas (the “victim”) was killed in

Langley Park by a single stab wound to the chest. While investigating the murder,


1
    Better Call Saul: Uno (AMC television broadcast Feb. 15, 2015).
detectives discovered that Mr. Barillas’s phone had been taken immediately before or right

after the murder. Police tracked the phone to Jose Ventura, who explained that a man

approached him and offered to sell it for $100. Mr. Ventura declined the offer, but loaned

the man $100 and held the phone as collateral. The man gave Mr. Ventura his phone

number so that he could retrieve the phone from Mr. Ventura later. That number belonged

to Mr. Vargas-Salguero.

      The police looked at the phone’s call history and discovered a call to Glenda Matute,

an acquaintance of Mr. Vargas-Salguero, that had been placed after the victim had died.

When questioned, Ms. Matute told officers that Mr. Vargas-Salguero had called her late at

night on September 2nd and offered to sell her the victim’s phone. Ms. Matute and another

eyewitness, Hugo Cordon, also identified Mr. Vargas-Salguero as the aggressor in an

altercation between Mr. Vargas-Salguero and the victim; they said that Mr. Vargas-

Salguero appeared to “punch” the victim before the men walked off in separate directions.2

      Detectives obtained an arrest warrant for Mr. Vargas-Salguero early in the morning

on September 6, 2014. The statement of charges included first-degree murder, robbery,

armed robbery, and carrying a dangerous weapon with the intent to injure. They arrested

him and brought him to an interrogation room, then began questioning him at about

2:45 a.m.




2
 Ms. Matute identified Mr. Vargas-Salguero in security camera footage that recorded the
murder. Mr. Cordon saw the murder take place from his balcony.


                                            2
         Before describing the interrogation itself, though, a little context. Mr. Vargas-

Salguero’s first language is Spanish and he speaks some English. Two of the detectives

interrogating Mr. Vargas-Salguero (Detectives Deleon and Rodriguez) spoke English and

Spanish, and one (Detective Bellino) spoke only English. Most of the interrogation took

place in Spanish, and the Spanish-speaking detectives occasionally translated or

summarized for Detective Bellino. At times, though, Detective Bellino questioned

Mr. Vargas-Salguero in English, and at other times Mr. Vargas-Salguero responded to

them in English. The excerpts of the interrogation that follow come, except where

otherwise noted, from the transcript prepared by the police, as they translated the

discussion, but we have italicized the portions spoken in Spanish and added some further

annotations to synchronize the transcripts with the actual interrogation as recorded on

video. At the suppression hearing we discuss later, the circuit court had access to the video

as well as the translated transcripts.

         During the initial part of the questioning, Mr. Vargas-Salguero revealed that he had

drunk alcohol and smoked marijuana the previous night, but he assured the detectives that

he was sober as they spoke. Detective Deleon advised Mr. Vargas-Salguero of his

Miranda3 rights in Spanish. When asked if he understood his rights, Mr. Vargas-Salguero

responded that he understood them perfectly. The detectives then asked Mr. Vargas-

Salguero where he had been on the night of the murder, and told him (despite the arrest

warrant) that he was not being accused of anything. Mr. Vargas-Salguero initially denied



3
    Miranda v. Arizona, 384 U.S. 436, 444 (1966).

                                              3
being in Langley Park that night, but eventually admitted that he’d gone there to buy

marijuana after work. He described (in Spanish) what happened next:

             [DETECTIVE DELEON]: And after what did you do? When
             you smoked that joint that night?

             A:    Open the door and get my ass in the house cause I know
             how to hot this shit.

             [DETECTIVE DELEON]: Okay, and then what happened?

             A:     What do you mean what happened?

             [DETECTIVE DELEON]: Once you went inside the house,
             what happened?

             A:     Sleep, like always.

             [DETECTIVE DELEON]: And what time did you wake up?

             A:     I wake up—didn’t I just tell you?

             [DETECTIVE DELEON]: No, the other day. Or I don’t know
             if it’s your day off.

             A:     Excuse me but, you can ask me and repeat what you like
             and I’ll answer how it is, okay? Because I don’t owe you and
             haven’t done anything to anyone. Okay? At 4:30 my sister gets
             up to (make) lunch. Okay?

             [DETECTIVE DELEON]: Okay.

             A:     At 4:30 I get up, sometimes I shower in the afternoon or
             sometimes I shower in the morning. Okay? So, you know, I get
             up at 4:30…

             [DETECTIVE DELEON]: Every day?

             A:     Not every day.

             [DETECTIVE DELEON]: That’s why I asked you.



                                           4
               A:      Sometimes I get up at 4:30 when I take a shower.

               [DETECTIVE DELEON]: Okay. Tha—that’s why I asked
               you.

               A:     At 5:30 my ride wakes me up, there at the house where
               I live—lived right now with my sister, that I just moved in.

               [DETECTIVE DELEON]: Right.

               A:     And I go to work. That’s all I have to say to you. And if
               you accuse me of something I better want an attorney.
               (underlining added).

       That, at least, is how the police transcript translated this last sentence—in Spanish,

he said “si me acusan de eso quiero un abogado mejor,” and what he actually meant when

he said it lies at the heart of this case.4

       After the following short, non-substantive back-and-forth that switched between

languages, detectives left the room for about three minutes:

               [DETECTIVE DELEON]: We’re not—okay.

               A:     Try to put me in jail. It doesn’t matter. Pay for
               something I haven’t done. That’s fine. I feel clean and happy
               in my heart. I don’t need to hurt anyone, that’s why I work.
               That’s why I earn my own money, (unintelligible) the rent and
               I’m clear that it’s always me paying my rent where I lived
               before with my wife.



4
  We have used the detective’s translation of “quiero un abogado mejor” (offered in the
transcript and at the suppression hearing) as “I better want an attorney” because that
translation was not contested at the suppression hearing. Mr. Vargas-Salguero’s brief
contends that the officers’ translation is convoluted, and that his words translate more
directly as “I want a better lawyer.” But the circuit court never considered alternate
translations, and we will not do so here in the first instance (or employ our own amateur
Spanish to that end). If Mr. Vargas-Salguero’s translation is correct, though, his statement
invoked his right to counsel even more clearly.


                                              5
              [DETECTIVE BELLINO]: Why are you so angry, man?

              A:     No I’m not angry ‘cause…I’m sorry, man.

              [DETECTIVE BELLINO]: We’re not coming at you like that,
              man.

              A:     I’m sorry man. Forgive me.

              [DETECTIVE BELLINO]: Don’t be angry, man.

              A:    That’s the way I am, brother. I’m sorry I know you’re
              not my brother, but that’s the way I am. I’m sorry. Okay I’m
              not…

              [DETECTIVE DELEON]: Okay. We’ll be right back.

       When they returned, Mr. Vargas-Salguero was crying and emotionally distraught.

Detective Bellino asked Mr. Vargas-Salguero if he was “all right,” to which he answered,

rhetorically, “[h]ow do you think I feel?” So the Detective offered, “Listen, if you – if you

want to talk to me, I’m willing to talk,” then laid down surveillance photos from the night

of the murder on the table where Mr. Vargas-Salguero could see them:

              A:     Right. Ask me whatever you want.

              [DETECTIVE BELLINO]: Okay. Maybe…

              A:     People confuse me and—this has to be this way, man.

              [DETECTIVE BELLINO]: Hold up, just a moment ago you
              said you wanted a lawyer but5 you’re willing to talk to us
              right now, right?

5
   The bolded text represents the words Mr. Vargas-Salguero spoke during the
interrogation—as the circuit court and we can see on the video—that the police left out of
the transcript they prepared and submitted to the court. Where, as here and in one other
important place, the transcript and the video conflict, we will fall back on the video.
   The record does not reveal, nor do the police explain, why their transcript deviates from
the interrogation. The discrepancies were not identified to the circuit court, and the court

                                             6
                A:     Yeah because I don’t have no problem.

                [DETECTIVE BELLINO]: And you understand you have the
                right to remain silent, you understand you have the right to
                have an attorney, but you’re willing to talk to us correct?

                A:     I want to fix it. I want to fix it.

Shortly after this exchange, Mr. Vargas-Salguero confirmed that it was he in the

surveillance photos. A bit later in the interview, Mr. Vargas-Salguero stated he had nothing

else to say, and this time the detectives were the first to speak:

                A:      In what moment did – did – I don’t want to say anything
                else now. Because I have nothing else to say. I have nothing
                else to tell you. Me, killing a poor man. (unintelligible.)

                [DETECTIVE BELLINO]: Go ahead here.

                [DETECTIVE DELEON]: Here.

                A:    There, what? Go ahead, what? What you got in there?
                What do you say? I don’t see anything there. Nothing.

                [DETECTIVE BELLINO]: Look are you willing to talk to
                us? I thought you said you didn’t want to talk.6 Do you want
                to talk to me? Are you willing to talk to me?

                A:     Yeah.




made no findings about them; the court reviewed both the transcript and the video, and thus
could consider the full interrogation, but didn’t address the differences. We cannot help but
notice, however, that the officers’ transcript omitted words Mr. Vargas-Salguero in fact
said at two critical points in the interrogation, and that the omitted language bears directly
on whether the officers understood that Mr. Vargas-Salguero invoked his rights to counsel
and to remain silent. We cannot determine from this record whether the officers created a
misleading transcript intentionally, but we might well have been misled had we not
reviewed the video ourselves.
6
    The police-prepared transcript says only “I understand you want to talk.”

                                                  7
              [DETECTIVE BELLINO]: All right because, you know.
              Here’s the thing, first of all, you want to talk to me I’ll repeat
              everything I already explained to you, you have the right to a
              lawyer, you have the right to remain silent, you’re willing to
              speak to me, is that right?

              A:     Yeah because I don’t have any.

       And the words alone don’t paint a complete picture of what was happening in the

interrogation room. Mr. Vargas-Salguero’s statements in Spanish that he had nothing else

to say (“In what moment did – did – I don’t want to say anything else now. Because I have

nothing else to say. I have nothing else to tell you.”) were not translated by Detective

DeLeon for Detective Bellino. At that point, Detective DeLeon pushed away from the table

(“Here.”) to allow Detective Bellino to lean over and continue speaking to him, at which

point he said, in English, “Look are you willing to talk to us? I thought you said you didn’t

want to talk. Do you want to talk to me?”

       From there, the interrogation continued, and over the course of the next two hours,

Mr. Vargas-Salguero’s story changed. He eventually admitted to knowing the victim

through neighborhood pick-up soccer games. He also admitted that he had been in Langley

Park that night buying drugs, but hadn’t returned home right away. Instead, he drank with

an acquaintance named Chano, who gave him the victim’s cell phone. Later, Mr. Vargas-

Salguero admitted that he took the phone himself, but claimed that the victim was passed

out drunk or sleeping at the time. Finally, Mr. Vargas-Salguero confessed that he’d

approached the victim who “was just there sitting” and said, “Give me your phone.” The

victim apparently “tried to go off running” but Mr. Vargas-Salguero “push[ed] him down.”

Then, he “took it away from [the victim], [I] hit him once, he fell, I grabbed the phone and


                                              8
left.” Mr. Vargas-Salguero stated that he thought he made a call on the victim’s phone, but

couldn’t remember to whom.

       Mr. Vargas-Salguero was charged by criminal indictment with first-degree murder,

armed robbery, and carrying a dangerous weapon openly with intent to injure. Before trial,

he moved in limine to suppress the statements he made to the detectives in the early

morning interview on September 6th. He argued that his statements to the detectives were

not knowing and voluntary and that the detectives violated his Fifth and Sixth Amendment

rights. The transcript of Mr. Vargas-Salguero’s interrogation was prepared in English by

one of the detectives who conducted the interview and was admitted without objection at

the hearing on the motion to suppress. The detectives who conducted Mr. Vargas-

Salguero’s initial interview also testified in person.

       At the hearing, Mr. Vargas-Salguero focused primarily on challenging the

voluntariness of his confession due to his alcohol and drug use the night before. He also

asked the detectives about his request for an attorney. The detectives were provided with

copies of the transcript and viewed relevant portions of the interview video. Detective

DeLeon claimed that Mr. Vargas-Salguero hadn’t been under arrest at the time he was

questioned, but acknowledged that they had given him Miranda warnings all the same.

Detective DeLeon also acknowledged that Mr. Vargas-Salguero had mentioned an attorney

at least once during their interview, but said that it hadn’t been clear to him that Mr. Vargas-

Salguero was requesting one:

              [DEFENSE COUNSEL]: Okay. And is it fair to say each time
              the word attorney came out of his mouth, he was not
              Mirandized and you continued to ask questions?


                                               9
DETECTIVE DELEON: That’s false.

[DEFENSE COUNSEL]: Which part is false?

DETECTIVE DELEON: That I continued to ask questions. If
we go back where he says on Line 1096, I better want an
attorney, at that point, he doesn’t say to me – that was very
unclear of what he was asking. I wasn’t sure and I was going
to ask him, then he cut me off when I was going to ask him
what did he mean by that. He continued talking. And if we
watch the video, I never asked him another question.

And I said to Detective Bellino, said, hey, I need to speak to
you outside, because I was unsure and we could – it happened
so quick where I wasn’t sure what he said. So I didn’t ask any
questions about anything else and I asked him to step out and I
advised him, I said, hey, I heard the word. I’m not sure what
happened.

                            ***

STATE: Do you recall whether or not the defendant mentioned
the word attorney ever again?

DETECTIVE DELEON: I’m not sure. I’d have to go through
it.

STATE: Okay. But at this point when he said, if you accuse me
of something, I better want an attorney, was that clear to you?

DETECTIVE DELEON: No, it wasn’t.

STATE: And how do we know it wasn’t clear to you?

DETECTIVE DELEON: Because I was going to ask him what
he meant, but then he kind of interrupted me, then just kept on
talking.

                            ***

STATE: When you came back into the room, who started
talking first?



                              10
DETECTIVE DELEON: Detective Bellino.

STATE: And what was the defendant’s response?

DETECTIVE DELEON: He just said he wants to talk.

STATE: And was that in response to any questions posed by
Detective Bellino about the case?

DETECTIVE DELEON: No.

                            ***

STATE: According to Line 1039, what does the defendant say?

DETECTIVE DELEON: He said, ask me whatever you want.

STATE: And at that point, what does Detective Bellino do?

DETECTIVE DELEON: He asks him if he’s willing to talk to
us.

STATE: And what, if anything, does Detective Bellino do after
that?

DETECTIVE DELEON: He advises him of his right to an
attorney and if he’s willing to talk to us.

STATE: And what, if anything, did the defendant do after that?

DETECTIVE DELEON: He said, yes. He wants to fix it.

STATE: And did the defendant ever indicate to you that he
didn’t understand what Detective Bellino said in English?

DETECTIVE DELEON: No.

STATE: Did the defendant ask you to translate for Detective
Bellino?

DETECTIVE DELEON: No.




                             11
             STATE: And [defense counsel] asked you whether or not the
             defendant asked for any clarification and your answer was yes,
             right?

             DETECTIVE DELEON: Yes.

             STATE: Other than what we’d spoken about where he asked
             you about the cost of the attorney, did the defendant ask any
             other clarifying questions about his Miranda Rights?

             DETECTIVE DELEON: No.

Detective Bellino also testified that he found Mr. Vargas-Salguero’s invocations of his

rights to an attorney ambiguous:

             STATE: Did there ever come a time when he expressed to you
             that he wanted the services of an attorney?

             DETECTIVE BELLINO: No.

             STATE: Now, did there come a time when you read him his
             Miranda Rights in English?

             DETECTIVE BELLINO: Yes.

             STATE: Why did you do that?

             DETECTIVE BELLINO: I guess just prior to this point in the
             video, he made a statement in Spanish to Detective Deleon that
             was ambiguous – I mean essentially what I termed to be
             ambiguous although we don’t have the benefit of rolling back
             the video to watch it. So I proceeded cautiously and then re-
             advised him just to confirm that he understood his rights and
             was still willing to speak to us.

             STATE: [] So what was your purpose in re-advising him?

             DETECTIVE BELLINO: Well, essentially to confirm that he
             understood his rights.

                            [THE VIDEO WAS PLAYED]



                                          12
STATE: So what just happened here, Detective? []

DETECTIVE BELLINO: Essentially stopped him, asked him
– basically I asked him if, in fact, he did want to speak to us
and if, in fact, he understood his rights and to confirm that he,
in fact, was willing to speak with us.

STATE: Now, what was his response?

DETECTIVE BELLINO: That he was.

STATE: And when you walked in, what kind of questions are
you asking him?

DETECTIVE BELLINO: When I entered, he was crying. You
could tell he was emotionally distraught, so initially my entry
was just basically to check on his welfare.

So I asked him, are you okay? And then with me, I had a
photograph from the surveillance footage that had just been
given to me and he looked at the photograph and said
something to the effect of that’s me, identifying himself in the
picture.

STATE: And was that in response to any question that you had
asked him?

DETECTIVE BELLINO: No. I made no mention of the
photograph and didn’t ask him anything about the photograph.

STATE: In fact, the question was, how do you feel?

DETECTIVE BELLINO: Correct.

STATE: And his response to you was?

DETECTIVE BELLINO: Yeah. He pointed to the photograph
and said, yeah, that’s me.

STATE: And did there come a time when you advised the
defendant of his Miranda Rights again?




                               13
DETECTIVE BELLINO: Yes. I believe it was a second time
beyond this where I made similar statements.

                           ***

              [THE VIDEO WAS PLAYED]

STATE: Detective Bellino, what just occurred?

DETECTIVE BELLINO: I asked him whether or not he was
willing to talk to us and he was going to talk to me.

STATE: And when he said yes, he was, what did you do in an
abundance of caution?

DETECTIVE BELLINO: Re-advised.

              [THE VIDEO WAS PLAYED]

STATE: And when you re-advised the defendant of his
Miranda Rights, what did the defendant say in response?

DETECTIVE BELLINO: Go ahead. Essentially he’s willing to
continue speaking to me.

STATE: And the rest of the time that you spoke to the
defendant, did he ever ask you for an attorney?

DETECTIVE BELLINO: No.

STATE: Did he ever tell you that he did not wish to speak to
you in English or in Spanish?

DETECTIVE BELLINO: He did not.

STATE: And did he ever indicate to you that he was not
voluntarily speaking to you?

DETECTIVE BELLINO: No, he did not.

STATE: Was the defendant charged?

DETECTIVE BELLINO: He was.


                            14
                STATE: When was he charged?

                DETECTIVE BELLINO: I believe after our interview.

The trial court considered all of the testimony, the transcript of the interview, and the

relevant excerpts of the recorded interview and denied the motion to suppress.

         After a jury trial, Mr. Vargas-Salguero was acquitted of first-degree murder, second-

degree murder, robbery with a deadly weapon, and carrying a dangerous weapon openly

with intent to injure. The jury hung on the charge of first-degree felony murder, but

convicted him of second-degree felony murder, robbery, and theft. The robbery and theft

charges were later merged into his conviction for second-degree felony murder. A timely

notice of appeal followed.

                                   II.     DISCUSSION

         Mr. Vargas-Salguero raises three issues on appeal that collapse naturally into the

broader question of whether the trial court properly denied his motion to suppress.7 He

argues first that he invoked his Fifth Amendment rights to silence and to an attorney and


7
    In his brief, Mr. Vargas-Salguero phrased the Issues Presented as follows:

          (1) Whether detectives violated Mynor Vargas-Salguero’s Sixth Amendment right
              to counsel by deliberately eliciting information from him despite his clear
              request for an attorney.

          (2) Whether detectives violated Mynor Vargas-Salguero’s Fifth Amendment right
              to counsel by questioning him and engaging in behavior that was the functional
              equivalent of questioning despite his clear request for an attorney during
              custodial interrogation.

          (3) Whether detectives violated Mynor Vargas-Salguero’s Fifth Amendment right
              to silence by questioning him and engaging in behavior that was the functional
              equivalent of questioning despite his clear requests to remain silent.


                                              15
that both were disregarded by detectives during questioning. The State responds that Mr.

Vargas-Salguero’s invocations were ambiguous and, therefore, didn’t trigger his rights.

Second, Mr. Vargas-Salguero argues that his Sixth Amendment right to counsel was

violated after the detectives ignored his request for an attorney and continued to question

him. The State contends that the Sixth Amendment challenge was not argued in the circuit

court and thus not preserved, and also that his Sixth Amendment right to counsel had not

attached at the time of the interrogation.

       When we review a trial court’s denial of a motion to suppress, we limit our review

to the record of the suppression hearing, Holt v. State, 435 Md. 443, 457–58 (2013), and

consider the evidence in the light most favorable to the prevailing party. Gonzalez v.

State, 429 Md. 632, 648 (2012). We will not disturb the trial court’s factual findings unless

clearly erroneous, Gonzalez, 429 Md. at 648, but we use those facts to make our “own

independent constitutional appraisal[.]” Longshore v. State, 399 Md. 486, 499 (2007)

(cleaned up).

       A.       Mr. Vargas-Salguero Invoked His Fifth Amendment Rights.

       The Fifth Amendment protects a defendant from being “compelled in any criminal

case to be a witness against himself.” Miranda, 384 U.S. at 444. These protections include

the right by defendants in custody to remain silent and to have an attorney present on

request. Id. Officers are required to give Miranda warnings to defendants in custody to

warn “the person [] that he has a right to remain silent, that any statement he does make

may be used as evidence against him, and that he has a right to the presence of an attorney,

either retained or appointed.” Id. These rights may be waived if “the waiver is made


                                             16
voluntarily, knowingly and intelligently,” id., but “[i]f the [defendant] states that he wants

an attorney, the interrogation must cease until an attorney is present.” Id. at 474. If the

warnings are not given or the police officers fail to respect the person’s proper invocation

of their rights, “the prosecution may not use statements, whether exculpatory or

inculpatory, stemming from [the] custodial interrogation of the defendant [].” Id.

       A defendant in custody is entitled to invoke these rights, but must do so with

sufficient clarity. The invocation cannot be “ambiguous or equivocal in that a reasonable

officer in light of the circumstances would have understood only that the suspect might be

invoking [a Fifth Amendment right],” and “if the statement fails to meet the requisite levels

of clarity [then it] does not require that the officers stop questioning the suspect.” Davis v.

United States, 512 U.S. 452, 459 (1994) (emphasis added). Furthermore, officers are not

required to ask clarifying questions to determine if the defendant is asserting his rights.

Wimbish v. State, 201 Md. App. 239, 251 (2011).

       There is no dispute between the parties that Mr. Vargas-Salguero’s interview on

September 6th constituted a custodial interrogation: he was properly detained pursuant to

an arrest warrant supported by probable cause. Furthermore, Mr. Vargas-Salguero has not

argued on appeal that the Miranda warning he was given at the beginning of his interview

was improper, or that his waiver of those rights was not knowing and voluntary. The

question for us is whether Mr. Vargas-Salguero unambiguously invoked any of his Fifth

Amendment rights during that interview such that the officers were required to stop

questioning him. We hold that he did invoke his right to counsel and to remain silent and

that the detectives erred in continuing to question him.


                                              17
              1. Mr. Vargas-Salguero invoked his Fifth Amendment right to
                 counsel.

       Mr. Vargas-Salguero asserts that he invoked his Fifth Amendment right to an

attorney when he said, in Spanish, “si me acusan de eso quiero un abogado mejor.” The

overarching principle guiding our review is that “[a] statement either is [] an assertion of

the right to counsel or it is not,” and we judge the ambiguity of a defendant’s statement by

what the reasonable police officer in those circumstances would have understood the

statement to mean. Davis, 512 U.S. at 459.

       The statement at issue here has two components that we need to unpack: the

conditional opening (“if I am being accused of something”) followed by the request itself

(“I better want an attorney”). The first half of the sentence stated a condition, and a

colloquial preface or qualifier can render a statement ambiguous. But the statement’s

ultimate clarity depends on its context. In Ballard v. State, the Court of Appeals held that

that defendant’s request—“You mind if I not say no more and just talk to an attorney about

this”—unequivocally invoked his right to counsel. 420 Md. 480, 482, 485, 491, 492–93

(2011). There, “[t]he phrase ‘you mind if . . .’ in [that] context [was] a colloquialism; it is

reasonably assumed that the speaker [was] not actually seeking permission to do the thing

desired or to have the desired thing occur.” Id. at 492–93. The Court distinguished three

other cases8 in which the defendant had equivocated, noting that “[n]one of the statements



8
  See id. at 491–92 (distinguishing Davis v. United States, 512 U.S. 452, 462 (1994)
(“Maybe I should talk with a lawyer?”), Matthews v. State, 106 Md. App. 725, 737-38
(1995) (“Where’s my lawyer?”), and Minehan v. State, 147 Md. App. 432, 443-44 (2002)
(“Should I get a lawyer?”)).

                                              18
under consideration in [earlier 5th Amendment invocation cases] . . . provide[d] any

indication that the suspect, at the time the statement was uttered, actually desired to have

a lawyer present for the remainder of the interrogation.” Ballard, 420 Md. at 492

(emphasis added).

       The key is whether the defendant expresses a desire to have a lawyer present for the

interrogation, as opposed to mentioning the idea of having a lawyer present during the

interrogation. Likewise, a defendant’s statement that he’d “rather” have an attorney has

been held an unambiguous request for counsel. See Ballard, 420 Md. at 493–94 (suspect

invoked right to counsel by stating “You mind if I not say no more and just talk to an

attorney about this”); see also State v. Harris, 305 S.W.3d 482 (Mo. Ct. App.

2010) (suspect invoked right to counsel by stating “I’d rather appoint a lawyer”); McDaniel

v. Commonwealth, 506 S.E.2d 21 (Va. Ct. App. 1998) (suspect invoked right to counsel by

stating “I think I would rather have an attorney here to speak for me”).

       We view each statement through the lens of the reasonable officer, and ask what

that officer would believe those statements to mean. In the course of considering what a

reasonable officer would understand, though, we, like the officer, must take into account

who is speaking and what his words reasonably meant to convey. See Ballard, 420 Md. at

493 (“But even if viewed not as a colloquialism but rather as having literal meaning, the

import of the words is no different. Viewed from the perspective of a reasonable police

officer in the position of Detective Kaiser, the most that could be said about Petitioner’s

words, ‘You mind if I not say no more and just talk to an attorney about this,’ is that

Petitioner, though undoubtedly asking for an attorney, sought to couch the request in polite


                                            19
or (more likely, given the context) deferential terms. In other words, to the extent that the

phrase ‘you mind if . . .’ is understood as Petitioner genuinely posing a question, the only

question he reasonably posed was whether Detective Kaiser ‘mind[ed]’ if Petitioner

stopped talking and got an attorney.”). Very rarely will courts be examining the words of

attorneys or Fifth or Sixth Amendment experts, and detectives normally should be

interpreting and understanding the common sense meaning of the words the defendant has

said.

        Now back to Mr. Vargas-Salguero. The condition “if you accuse me of something”

in the first half of his statement had indisputably been met, at least in the way that a normal

person—and a reasonable police officer—would consider himself “accused of something.”

At the time he made these statements, he had been arrested at his home in the middle of

the night pursuant to an arrest warrant, issued by a court, that included serious crimes, and

was being questioned in an interrogation room by three detectives. He mentioned (and

lamented) several times that he felt like he could be going to jail for a crime he didn’t

commit. It doesn’t matter for these purposes whether the charging documents had triggered

his Sixth Amendment rights (we’ll deal with those below), or that the detectives claimed

that he wasn’t being accused of anything. Maybe he “sought to couch [his] request [for an

attorney] in polite or (more likely, given the context) deferential terms,” Ballard, 420 Md.

at 493, but he was there because he had been, and was being, accused of serious crimes.

        With that condition met, Mr. Vargas-Salguero’s statement that he’d “better want an

attorney,” the officers’ translated understanding of his statement in Spanish, sufficiently

invoked his desire for an attorney. Other cases have held “I think I want an attorney” or


                                              20
“I’d rather have an attorney” was sufficient. See, e.g., Harris, 305 S.W.3d at 489 (suspect

invoked right to counsel by stating “I’d rather appoint a lawyer”); McDaniel, 506 S.E.2d

at 23 (suspect invoked right to counsel by stating “I think I would rather have an attorney

here to speak for me”). This statement was at least as strong as those.

       Moreover, the testimony and actions of the detectives themselves demonstrated that

Mr. Vargas-Salguero’s request for counsel was sufficiently clear to them. Immediately

following Mr. Vargas-Salguero’s invocation, both detectives ceased asking questions and

exited the room.

              A:    And I go to work. That’s all I have to say to you. And if
              you accuse me of something I better want an attorney.

              DETECTIVE DELEON: We’re not – okay.

                                            ***

              DETECTIVE BELLINO: Why are you so angry man?

              A:     No I’m not angry ‘cause…I’m sorry, man.

              DETECTIVE BELLINO: We’re not coming at you like that,
              man.

              A:     I’m sorry man. Forgive me.

              DETECTIVE BELLINO: Don’t be angry, man.

              A:    That’s the way I am, brother. I’m sorry I know you’re
              not my brother, but that’s the way I am. I’m sorry. Okay I’m
              not…

              DETECTIVE DELON: Okay. We’ll be right back.

When they returned (as the video demonstrates and the transcript omits), Detective Bellino

confirmed with Mr. Vargas-Salguero that he had requested an attorney a couple minutes

ago, but suggested that he wanted to resume talking:


                                            21
              DETECTIVE DELEON: Hold up, just a moment ago you
              said you wanted a lawyer but you’re willing to talk to us right
              now, right?9

              A:     Yeah because I don’t have no problem.

              DETECTIVE DELEON: And you understand you have the
              right to remain silent, you understand you have the right to
              have an attorney, but you’re willing to talk to us correct?

              A:     I want to fix it. I want to fix it.

(Emphasis added). Then the detectives re-Mirandized Mr. Vargas-Salguero and picked

back up with the questioning. The officers’ words and actions—as reflected in the video,

if not the transcript—revealed their understanding that Mr. Vargas-Salguero had asked for

a lawyer.

       The officers attempted at the hearing to create ambiguity, but their actions

undermined their words. In his testimony at the hearing on the motion to suppress,

Detective DeLeon characterized Mr. Vargas-Salguero’s statement as “unclear,” but

nevertheless broke off the interview to consult with Detective Bellino:

              I better want an attorney, at that point, he doesn’t say to me –
              that was very unclear of what he was asking. I wasn’t sure and
              I was going to ask him, then he cut me off when I was going to
              ask him what did he mean by that…. And I said to Detective
              Bellino, said, hey, I need to speak to you outside, because I was
              unsure and we could – it happened so quick where I wasn’t
              sure what he said. (emphasis added)




9
 This is not a situation where the detective was asking clarifying questions for the purpose
of discerning Mr. Vargas-Salguero’s intentions. Cf. Berguis v. Thompkins, 560 U.S. 370,
386-89 (2010).

                                               22
And Detective Bellino testified that, after speaking with Detective DeLeon, he felt

Mr. Vargas-Salguero’s statement was close enough to a request for an attorney to re-advise

him of his Miranda rights:

              I guess just prior to this point in the video, he made a statement
              in Spanish to Detective Deleon that was ambiguous – I mean
              essentially what I termed to be ambiguous although we don’t
              have the benefit of rolling back the video to watch it. So I
              proceeded cautiously and then re-advised him just to confirm
              that he understood his rights and was still willing to speak to
              us.

(emphasis added).

       Mr. Vargas-Salguero invoked his right to counsel, and once he did, the detectives

were required to stop questioning him until an attorney was present. Miranda, 384 U.S. at

474 (“If the individual states that he wants an attorney, the interrogation must cease until

an attorney is present.”). Instead, after the detectives returned and acknowledged that

Mr. Vargas-Salguero had requested an attorney, they re-advised Mr. Vargas-Salguero of

his Fifth Amendment rights and asked him to waive them, at the same time they laid on the

table surveillance photos that appeared to depict him at the murder scene. See Miranda,

384 U.S. at 505 (“[T]hreats, tricks, or cajolings to obtain this waiver are forbidden.”);

see also Edwards v. Arizona, 451 U.S. 477, 484–85 (1981) (“[W]hen 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. . . . [He] is not

subject to further interrogation by the authorities until counsel has been made available to




                                             23
him, unless the accused himself initiates further communication, exchanges, or

conversations with the police.”).

       We have viewed the record from the suppression hearing in the light most favorable

to the prevailing party. Lee v. State, 418 Md. 136, 148–49 (2011). And although we

recognize that the State prevailed in the trial court, the detectives’ decisions to pause the

interview, re-enter the room, then re-administer the Miranda warning, after acknowledging

that he had asked for a lawyer, demonstrate that Mr. Vargas-Salguero invoked his

Fifth Amendment right to counsel with sufficient clarity. Edwards, 451 U.S. at 484–85.

We hold that Mr. Vargas-Salguero invoked his Fifth Amendment right to counsel, and that

the circuit court erred in denying his motion to suppress.

              2. Mr. Vargas-Salguero also invoked his right to remain silent.

       Mr. Vargas-Salguero also contends that he invoked his Fifth Amendment right to

remain silent at two different points in the questioning. The first invocation occurred in the

same statement we discussed above, when he said in Spanish, at approximately 30 to 35

minutes into the interview, “[t]hat’s all I have to say to you. And if you accuse me of

something I better want an attorney.” Detective DeLeon responded, “We’re not – okay.”

And then Mr. Vargas-Salguero continued speaking, stating that the officers should just put

him in jail and he’d pay the time for somebody else’s crime. After the detectives left the

room for a few minutes, they returned and told Mr. Vargas-Salguero that they were willing

to talk and re-advised him of his right to silence before they re-initiated questioning. In

response, Mr. Vargas-Salguero told the officers to “[a]sk me whatever you want” because

he wanted to “fix it.”


                                             24
       Second, Mr. Vargas-Salguero argues that he invoked his right to silence

approximately 10-15 minutes later when he said, in Spanish, “[i]n what moment did – did

– I don’t want to say anything else now. Because I have nothing else to say. I have nothing

else to tell you. Me, killing a poor man.” The video of the interview shows him flicking

away the surveillance photos and leaning back in his chair. Detective DeLeon did not

translate this statement for Detective Bellino, but pushed back from the table to give

Detective Bellino room to lean toward Mr. Vargas-Salguero and ask him if he still wanted

to talk:

              DETECTIVE BELLINO: Look, are you willing to talk? I
              thought you said you didn’t want to talk to us.10 Do you
              want to talk to me? Are you willing to talk to me?

              A:     Yeah.

              DETECTIVE BELLINO: All right because, you know. Here’s
              the thing, first of all, you want to talk to me I’ll repeat
              everything I have already explained to you, you have the right
              to a lawyer, you have the right to remain silent, you’re willing
              to speak to me, is that right?

              A:     Yeah because I don’t have any.

In both instances, the detectives re-initiated questioning after the statements by re-advising

Mr. Vargas-Salguero of his Miranda rights.

       We apply the same standard for an invocation of silence as we do an invocation of

counsel: the statement either invoked the right or it didn’t. In re Darryl P., 211 Md. App

112, 169 (2013) (“The right to silence is invoked in precisely the same way that the right


10
  Again, the bolded text represents the words actually spoken during the interrogation, as
demonstrated by the video, but left out of the transcript prepared by the police.

                                             25
to counsel is invoked. The right to counsel is waived in precisely the same way that the

right to silence is waived. The common invocation procedure, moreover, applies in the pre-

waiver context precisely as it does in the post-waiver context.”). No specific combination

of words is required, but the invocation must be unambiguous. See Williams v. State, 219

Md. App. 295, 326 (2014), aff’d, 445 Md. 452 (2015) (“As the State conceded below, the

isolated statement ‘I don’t want to say nothing’ would be unambiguous”); see also People

v. Arroya, 988 P.2d 1124, 1133 (Colo. 1999) (“I don’t wanna talk no more” held to be an

unambiguous invocation); Ballard, 420 Md. at 491 (“You mind if I not say no more and

just talk to an attorney about this” unambiguously invoked suspect’s right to counsel); Law

v. State, 21 Md. App. 13, 36–37 (1974) (suspect’s statement that “he didn’t want to talk

anymore” qualified as an unambiguous invocation). We judge the statement’s ambiguity

by what a reasonable officer in those circumstances would have thought the statement to

mean, Williams, 219 Md. App. at 327, an objective inquiry. Ballard, 420 Md. at 490.

       In the first invocation, Mr. Vargas-Salguero argues that the detectives should have

stopped questioning after he said, “[t]hat’s all I have to say to you.” This statement

immediately preceded his proper invocation of his right to an attorney and, as we discussed

above, questioning should have ceased at that point. Therefore, when we also consider the

“totality of the circumstances surrounding the interrogation,” Fare v. Michael C., 442 U.S.

707, 725 (1979), we find that Mr. Vargas-Salguero invoked his right to silence as well.

       He also invoked his right to silence in his second request. And it’s hard to imagine

how he could have been clearer: he said “I don’t want to say anything else now. Because I

have nothing else to say. I have nothing else to tell you,” while flicking away the


                                            26
surveillance photos, leaning back in his chair, and disengaging from the questioning. The

questioning continued only after Detective Bellino re-engaged him and re-advised

Mr. Vargas-Salguero of his Miranda rights.

       In both instances, the detectives re-advised Mr. Vargas-Salguero of his Miranda

rights before they re-initiated the interrogation, which was improper. Edwards, 451 U.S. at

484–85 (“[W]hen an accused has invoked his right [] 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 . . . . [He]

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.”). And because the detectives re-initiated the questioning,

Mr. Vargas-Salguero did not waive his right to remain silent when he answered their

questions. See Raras v. State, 140 Md. App. 132, 153 (2001); Davis, 512 U.S. at 458.

Again, “when placed in context with the other statements that he had made in the

interrogation room up to that point,” Williams, 219 Md. App. at 327, we hold that

Mr. Vargas-Salguero invoked his Fifth Amendment right to silence, and that the circuit

court erred when it denied his motion to suppress.

              3. Admitting the statements was not harmless error.

       Having concluded that Mr. Vargas-Salguero’s Fifth Amendment rights were

violated, we look at whether the admission of Mr. Vargas-Salguero’s statements

contributed to his conviction. Chapman v. California, 386 U.S. 18, 25–26 (1967). And

there is no question that they did.


                                              27
                A confession is like no other evidence. Indeed, ‘the defendant’s
                own confession is probably the most probative and damaging
                evidence that can be admitted against him . . . . [T]he
                admissions of a defendant come from the actor himself, the
                most knowledgeable and unimpeachable source of information
                about his past conduct. Certainly, confessions have profound
                impact on the jury, so much so that we may justifiably doubt
                its ability to put them out of mind even if told to do so.


Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting Bruton v. United States, 391

U.S. 123, 139–40 (1968)). In this case, Mr. Vargas-Salguero’s partial confession that he

had gotten into an altercation with the victim and stolen his phone on the night of the

murder undoubtedly affected the outcome of his conviction. And because the errors weren’t

harmless, we reverse the judgment of the circuit court and remand for further proceedings.

         B.     Mr. Vargas-Salguero’s Sixth Amendment Rights Had Not Attached.

         Next, Mr. Vargas-Salguero claims that his Sixth Amendment right to an attorney

was violated when, after making the same statement we discussed above, 11 the detectives

continued to question him without an attorney present. Because he was under arrest and,

he claims, already formally charged at the time of this statement, he contends that this

statement triggered his Sixth Amendment right to counsel. The State responds that this

issue was not preserved for review by this Court, but that, even if it were, the Sixth

Amendment was not triggered by Mr. Vargas-Salguero’s arrest.

         We can dispose quickly of the State’s preservation argument: in the supplement to

his motion to suppress, Mr. Vargas-Salguero argued in paragraphs 17 and 18 that “the State



11
     “Si me acusan de eso, quiero un abogado mejor.”


                                              28
violated [his] rights under the Fifth and Sixth Amendments to the United States

Constitution . . . to have counsel present at all critical stages of the criminal process[.]”

(emphasis added). So the State and the trial court were on notice, and had an opportunity

to respond to Mr. Vargas-Salguero’s objections under both Amendments.

       That said, we agree with the State that Mr. Vargas-Salguero’s Sixth Amendment

rights had not yet attached. The Sixth Amendment guarantees criminal defendants facing

incarceration the right to counsel at all “critical stages,” Adams v. State, 192 Md. App. 469,

480 (2010), when “adversar[ial] judicial proceedings have been initiated.” United States v.

Gouveia, 467 U.S. 180, 188 (1984). This right is generally triggered by “indictment,

information, other formal charge[s], arraignment, or preliminary hearing.” Webster v.

State, 299 Md. 581, 611 (1984). A warrant of arrest and statement of charges may be

considered a “formal charge . . . when a defendant is subject to be tried on that document.”

State v. Gee, 298 Md. 565, 574 (1984). In Maryland, however, charges for “felonies within

the circuit court’s exclusive jurisdiction” will trigger Sixth Amendment protections only

when the State has “commit[ted] to prosecution . . . [and] obtain[ed] an indictment from a

grand jury or file[d] a criminal information.” White v. State, 223 Md. App. 353, 279 (2015);

see also MD. CODE ANN., CTS. & JUD. PROC. § 4-302(a).

       Mr. Vargas-Salguero’s Sixth Amendment rights had not yet vested at the time of his

arrest. His arrest warrant and statement of charges were signed for murder and armed

robbery, both felonies within the exclusive jurisdiction of the circuit court. MD. CODE

ANN., CRIM. LAW § 2-201; § 3-403 (b); MD. CODE ANN., CTS. & JUD. PROC. § 4-302 (a)

(“[T]he District Court does not have jurisdiction to try a criminal case charging the


                                             29
commission of a felony.”); see also McBurney v. State, 280 Md. 21, 31 (1977) (“With

respect to the subject matter, within its county, a circuit court of this state has full common

law jurisdiction in all criminal cases committed in Maryland except where limited by law.

Maryland Code (1974), Courts and Judicial Proceedings Article, § 1-501.”). Therefore, it

was not until Mr. Vargas-Salguero was charged by criminal indictment with murder, armed

robbery, and carrying a dangerous weapon openly with intent to injure on October 30, 2014

that his Sixth Amendment rights vested. White, 223 Md. App. at 379.

                                           JUDGMENT OF THE CIRCUIT COURT
                                           FOR PRINCE GEORGE’S COUNTY
                                           REVERSED AND CASE REMANDED FOR
                                           FURTHER PROCEEDINGS CONSISTENT
                                           WITH   THIS   OPINION.   PRINCE
                                           GEORGE’S COUNTY TO PAY COSTS.




                                              30
