                          SUPREME COURT OF MISSOURI
                                   en banc

                                               )          Opinion issued December 6, 2016
STATE OF MISSOURI,                             )
                                               )
                Appellant,                     )
                                               )
v.                                             )          No. SC95613
                                               )
DAVID K. HOLMAN,                               )
                                               )
                Respondent.                    )

            APPEAL FROM CIRCUIT COURT OF LAWRENCE COUNTY
                      Honorable Jack A.L. Goodman, Judge

         The state brings this interlocutory appeal, pursuant to section 547.200.1(3), RSMo

2000,1 after the trial court sustained David K. Holman’s (hereinafter, “Defendant”) motion

to suppress statements he made to police after his arrest. The state claims that Defendant’s

statements were suppressed improperly because Defendant failed to unequivocally assert

his Fifth Amendment right to counsel.

         This Court holds that Defendant’s Fifth Amendment rights were not violated.

Accordingly, the trial court’s judgment is reversed, and the case is remanded.

                             Factual and Procedural Background

         In determining whether to sustain Defendant’s motion to suppress, the trial court

took into consideration the stipulated facts as presented by the attorneys in the case, two


1
    All statutory references herein are to RSMo (2000).
depositions, and a police report. There was no live testimony. The facts as presented

demonstrated:

         In the early morning hours of December 10, 2013, it was asserted that RaDonna

Roland (hereinafter, “Wife”) shot Defendant in the back of the arm. Defendant fatally shot

Wife and thereafter, called 911.

         Deputies Ryan Devost (hereinafter, “Deputy Devost”) and Michael Thorn

(hereinafter, “Deputy Thorn”) were dispatched to Defendant’s home. Upon arrival, the

deputies knocked on the door, and Defendant told them to come inside. Inside, Deputy

Devost performed a security sweep of the premises while Deputy Thorn attended to Wife.

Deputy Devost handcuffed Defendant and took him to the patrol car.

         After paramedics arrived, they first attempted to treat Wife. Deputy Thorn moved

Defendant into the ambulance so that he could receive treatment.          Defendant was

emotional, upset about Wife, and repeating that he could not believe he shot her. Deputy

Devost informed Defendant of his Miranda 2 rights. Defendant continued speaking to

Deputy Devost, stating that he could not believe there was not more being done for Wife,

that he could not believe Wife shot him, and explaining that he should not have shot Wife

but rather should have run away. Deputy Devost requested Defendant sign a consent to

search form to search his home. Defendant responded, “I ain’t signing shit without my

attorney.”




2
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).


                                             2
      Other detectives arrived at the scene. Deputy Devost informed them that Defendant

was “in custody. He’s been read Miranda. He’s refused to sign a search without his

attorney.” Deputy Devost then departed the scene. Defendant was transported to the

hospital for treatment. After being discharged from the hospital, Defendant was taken to

the Lawrence County jail.

      The next morning, Detective Linda McElroy (hereinafter, “Detective McElroy”)

questioned Defendant. Detective McElroy read Defendant his Miranda rights and asked if

he understood them. Defendant indicated he understood his rights, and he spoke with

Detective McElroy. Subsequently, Defendant was charged with first-degree murder,

section 565.020, and armed criminal action, section 571.015.

      Prior to trial, Defendant brought this motion to suppress statements he made after

being read his Miranda rights. The trial court sustained his motion, concluding that after

Defendant stated that “I ain’t signing shit without my attorney,” he had invoked his right

to counsel. The state appeals.

                                  Standard of Review

      This Court will reverse a trial court’s ruling on a motion to suppress only if it is

clearly erroneous. State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). To find clear

error, this Court must be “left with a definite and firm belief a mistake has been made.”

State v. Bell, 488 S.W.3d 228, 238 (Mo. App. E.D. 2016) (quoting State v. Haldiman, 106

S.W.3d 529, 533 (Mo. App. W.D. 2003)). Whether conduct violates the Fifth Amendment

is a question of law that this Court reviews de novo. State v. Lammers, 479 S.W.3d 624,

630 (Mo. banc 2016).

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                                        Discussion

       The state asserts that the trial court erred in sustaining Defendant’s motion to

suppress the statements he made to the police. The state argues that Defendant did not

unequivocally assert his Fifth Amendment right to counsel when he refused to sign the

consent to search form. Further, the state maintains that other than refusing to sign the

consent to search form, Defendant communicated with the police and never invoked his

right to counsel.

       The clear issue in this case is whether Defendant invoked his Fifth Amendment right

to counsel. This Court must determine whether, after being Mirandized, a suspect can graft

a refusal to sign a consent to search onto his Fifth Amendment right to have an attorney

present during questioning.

       “Miranda rights inform a criminal defendant of his constitutional rights during the

interrogation process.” State v. Collings, 450 S.W.3d 741, 753 (Mo. banc 2014) (quoting

State v. Johnson, 284 S.W.3d 561, 582 (Mo. banc 2009)). “[A]lthough Miranda warnings

must precede ‘custodial interrogation,’ a request for consent to search is not an

‘interrogation’ because giving consent to search is not a self-incriminating statement under

the Fifth Amendment.” State v. Metz, 43 S.W.3d 374, 382 (Mo. App. W.D. 2001) 3; see

also State v. Baldwin, 290 S.W.3d 139, 144 (Mo. App. W.D. 2009) (stating that Missouri

courts “have found that requesting consent to search does not constitute interrogation


3
 In his motion to suppress, Metz alleged error in admitting evidence seized during a
consent search of his residence. Metz, 43 S.W.3d at 381. “Metz had been placed under
arrest for at least one outstanding warrant at the time he consented to the search, but he
was not advised of his Miranda rights prior to executing the consent-to-search form.” Id.
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because a statement of consent is not an incriminating response.”); United States v. Payne,

119 F.3d 637, 643–44 (8th Cir. 1997) (“Miranda rights affect the integrity of the truth

finding process in a criminal trial, but Fourth Amendment rights go to the right of privacy

and to be left alone. As the purposes of the two protections are different, it would be

unreasonable to require Miranda warnings before a request for permission to search.”). 4

       A criminal suspect is entitled to Miranda warnings once the suspect is subjected to

a custodial interrogation. “A custodial interrogation Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602, 16 L.Ed.2d 694 (1966) occurs only when the suspect is formally arrested

or is subjected to arrest-like restraints.” Lammers, 479 S.W.3d at 631-32. “Statements

obtained during a custodial interrogation not preceded by Miranda warnings are subject to

suppression at trial.” State v. Stover, 388 S.W.3d 138, 155 (Mo. banc 2012).

       Once a suspect is given Miranda warnings, and if that suspect “indicates in any

manner, at any time prior to or during questioning, that he [or she] wishes to remain silent,

the interrogation must cease.” Miranda, 384 U.S. at 473-74. Similarly, as in this case,


4
  The Seventh Circuit addressed a similar factual scenario in United States v. McClellan,
165 F.3d 535, 539 (7th Cir. 1999). In McClellan, the defendant was arrested and read
Miranda warnings. The police ceased their questioning. Id. Yet, police continued
speaking to the defendant for ten to fifteen minutes, and they requested the defendant to
consent to search his vehicle and motel room and indicated if the defendant allowed them
to search, there could be a reduced sentence due to his cooperation. Id. at 540. The
defendant gave a written consent to search, and the police recovered 200 pounds of
marijuana from the defendant’s vehicle and $35,400 from the defendant’s hotel room. Id.
On appeal, the defendant argued the marijuana should have been suppressed because it
was obtained in violation of his Fifth Amendment right to counsel because he invoked his
Miranda rights and was not provided an attorney. Id. at 544. The Seventh Circuit
disagreed, reaffirming that “‘consent to search is not an interrogation within the meaning
of Miranda’ because the giving of consent is not a self-incriminating statement.” Id.
(quoting United States v. Shlater, 85 F.3d 1251, 1256 (7th Cir. 1996)).
                                             5
when a suspect claims to have invoked his or her Fifth Amendment right to counsel, the

police must suspend all interrogation and may not reinitiate questioning unless counsel is

present. Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d

362 (1994); see also Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

       To successfully invoke the right to counsel, the suspect’s desire to have an attorney

present during his or her custodial interrogation must be sufficiently clear so that a

reasonable police officer would understand that the suspect is invoking his or her right to

have an attorney present during the interrogation. Davis, 512 U.S. at 459. “If the

[suspect’s] statement fails to meet the requisite level of clarity for the police officers to

understand it to be a request for an attorney, the officers are not required to stop questioning

the suspect.” State v. Harris, 305 S.W.3d 482, 485 (Mo. App. E.D. 2010). When the

suspect makes “an ambiguous or equivocal statement it will often be good police practice

for the interviewing officers to clarify whether or not [the suspect] actually wants an

attorney.” Davis, 512 U.S. at 461.

       At no point in time did Defendant seek to terminate questioning by the police nor

did he clearly state that he wanted an attorney. Deputy Devost advised Defendant of his

Miranda rights.     Defendant indicated he understood his rights.         After indicating he

understood his Miranda rights, Defendant continued speaking to Deputy Devost. Deputy

Devost responded to Defendant’s inquiry regarding Wife and the procedure the police were

following. Deputy Devost explained they needed to process the scene and, to do that, they

needed Defendant to sign a consent to search form. In response, Defendant stated, “I ain’t

signing shit without my attorney,” clearly indicating that he would not sign that form.

                                               6
Deputy Devost told other officers that Defendant would not sign the consent to search form.

Deputy Devost then left Defendant and departed the scene.            Deputy Devost never

questioned Defendant. Based on the circumstances here, a reasonable police officer would

not have understood Defendant’s statement refusing to sign the consent to search form to

be an invocation of his Fifth Amendment right to counsel.

       The next day, Detective McElroy sought to interrogate Defendant after again

reading Defendant his Miranda rights. Defendant again indicated his willingness to speak

with Detective McElroy. Because Defendant did not invoke his right to counsel clearly

and unequivocally after being read his Miranda rights by Deputy Devost or Detective

MCElroy, Detective McElroy’s interrogation of Defendant was proper. See Davis, 512

U.S. at 461. Defendant never invoked his Fifth Amendment right to counsel. Accordingly,

the trial court erred in sustaining his motion to suppress.

       However, assuming arguendo, Defendant partially invoked his Fifth Amendment

rights by saying, “I ain’t signing shit without my attorney,” in response to a request to

search his home, his right to counsel still was not violated. The mere utterance of the magic

word “attorney” in response to a request to search his home was not a clear and unequivocal

invocation of his Fifth Amendment right to counsel in all instances. It is unequivocal that

Defendant stated he would not sign anything without the presence of an attorney. 5

However, Defendant did not attempt to assert his Fifth Amendment right to counsel in any

context.


5
 Defendant was never presented with a written waiver of his Miranda rights to sign. The
only document Defendant was requested to sign was the consent to search form.
                                              7
       The United States Supreme Court recognized that a suspect may partially invoke

the rights to remain silent and to counsel. Connecticut v. Barrett, 479 U.S. 523, 529–30,

107 S. Ct. 828, 93 L. Ed. 2d 920 (1987). In Barrett, the suspect indicated he understood

his Miranda rights, and stated he would not make a written statement without his attorney,

but he had “no problem” speaking with the police. Id. at 525-26. While the suspect spoke

with the police, he confessed. Id. The suspect attempted to suppress his confession at trial,

asserting he had invoked his right to counsel. Id. at 526.

       In its opinion, the Supreme Court reiterated that the fundamental purpose of

Miranda was “to assure that the individual’s right to choose between speech and silence

remains unfettered throughout the interrogation process.” Id. at 528 (quoting Miranda,

384 U.S. at 469 (emphasis added)). In furtherance of this purpose, “the Miranda Court

adopted prophylactic rules designed to insulate the exercise of Fifth Amendment rights

from the government ‘compulsion, subtle or otherwise,’ that ‘operates on the individual to

overcome free choice in producing a statement after the privilege has been once invoked.’”

Id. (quoting Miranda, 384 U.S. at 474). The Supreme Court recognized that prohibiting

police from questioning a suspect after a suspect invokes the right to counsel is intended to

prevent police coercion. Id.

       Yet, in Barrett, the suspect’s stated intention was that he would speak with the police

but not make a written statement, and this intention was respected by the police. Id. at 529.

The Supreme Court reasoned that to conclude the suspect “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 [the suspect’s] statement.” Id. at 529-30. Further, the fact that

                                              8
a suspect’s decision to request an attorney only for the purpose of making a written

statement may seem illogical is irrelevant as the Supreme Court never “embraced the

theory that a defendant’s ignorance of the full consequences of his decisions vitiates their

voluntariness.” Id. at 530. See also United States v. Boyer, 914 F.2d 144, 146 (8th Cir.

1990) (finding statements admissible when made outside the context for the request for

counsel in a limited invocation circumstance); State v. Hunter, 840 S.W.2d 850, 870 (Mo.

banc 1992) (finding “an invocation of a right to counsel which is by its terms limited in

some respect does not foreclose further police questioning so long as police honor the

limitation”).

       In this case, Defendant never, at any time, clearly invoked his right to counsel.

Defendant strongly stated he would not sign a consent to search his residence without an

attorney. Defendant never said anything about invoking his Miranda rights or wanting to

have counsel present. A reasonable police officer could have concluded that Defendant

was not indicating he was unwilling to speak to officers, merely that he was unwilling to

give written consent for them to search his home without first consulting with counsel.

       Accordingly, this is not a case wherein the police failed to honor a custodial

suspect’s partial invocation of his right to counsel. Here, the police never spoke with

Defendant about the search of his home after Defendant refused to sign the consent to

search form by stating he would not sign that form without his attorney; Defendant did not

invoke his right to counsel for any other purpose. Accordingly, Detective McElroy was

free to provide Defendant a second reading of his Miranda rights and then speak with him



                                             9
after he waived those rights for a second time. Defendant agreed to speak with Detective

McElroy. Defendant’s Fifth Amendment rights were not violated.

                                       Conclusion

       In this case, Defendant failed to invoke his Miranda rights clearly and

unequivocally. Further, assuming Defendant partially invoked his right to counsel, there

was no Fifth Amendment violation when the police questioned him after Defendant refused

to sign a consent to search form. The trial court erroneously sustained Defendant’s motion

to suppress. The trial court’s judgment is reversed, and the case is remanded.



                                                 ____________________________
                                                   GEORGE W. DRAPER III, JUDGE

Breckenridge, C.J., Fischer, Stith,
Wilson and Russell, JJ., concur.




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