U.S. v. Lee

• Decision Date: 28 June 2005
• Docket Number: No. 03-4140.,03-4140.
• Citation: 413 F.3d 622
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth A. LEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

413 F.3d 622

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth A. LEE, Defendant-Appellant.

No. 03-4140.

United States Court of Appeals, Seventh Circuit.

Argued February 24, 2005.

Decided June 28, 2005.

K. Tate Chambers (argued), Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Robert A. Handelsman (argued), Chicago, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and MANION and EVANS, Circuit Judges.

MANION, Circuit Judge.

Police executed a search warrant on a residence in Peoria, Illinois on July 3, 2002, looking for drugs and associated paraphernalia. In the residence, the police found Kenneth Lee seated at a kitchen table, with crack cocaine on and underneath the table. After delivering Miranda warnings, the police interrogated Lee in the bathroom and he admitted that the crack was his. On August 21, 2002, Lee was indicted in the United States District Court for the Central District of Illinois for possession of more than five grams of a mixture and substance containing cocaine base (crack) with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). A jury convicted Lee on August 7, 2003, and he was sentenced to 262 months' imprisonment. Lee appeals, claiming that the police violated his Miranda rights by interrogating him after he invoked his right to counsel. Lee also challenges his sentence based on United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm Lee's conviction but order a limited remand to the district court for sentencing determinations pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir.2005).

I

The Peoria Police Department obtained a search warrant for 1617 W. Lincoln Ave. in Peoria based on information from a confidential informant, who made several drug buys from Kenneth Lee at that residence. The police approached the front door of the residence and knocked. When asked by a voice inside who was at the door, a police officer responded "Toby" (the name of the drug-sniffing dog accompanying the officers). When the door opened slightly, the police forced the door open completely, identified themselves as police, and stated that they had a search warrant.

Proceeding into the apartment, the police found Lee seated at a table in the kitchen. On the kitchen table, the police saw crack cocaine packaged in plastic bags, as well as a number of unpackaged rocks of crack cocaine. On the floor beneath where Lee was sitting, there was more crack cocaine. On top of a dryer within arm's reach of where Lee was sitting, the police found several additional plastic bags containing crack cocaine. Lee's state identification card was also on the table, as was a razor blade. Not realizing that Lee suffered from a neurological impairment that impeded his motor coordination,¹ the police asked Lee to get on the floor. Lee collapsed onto the floor.

Officers Marion and Moore took Lee into a nearby bathroom where they explained the search warrant to him. Before the officers began questioning him, Lee blurted out, "She didn't know anything about it. Don't take the kids." Including Lee, there were three adults and five children in the residence at the time of the search. Lee apparently was referring to his caretaker, Carol Faulkner, and the caretaker's children. Officer Marion then read Lee the Miranda warnings and asked if Lee understood them, to which Lee responded in the affirmative.

Continuing, Officer Marion inquired regarding Lee's willingness to talk to them. Lee answered, "Can I have a lawyer?"² At this point, Officer Marion told Lee that he would not question him about the incident if a lawyer were present. Officer Moore informed Lee that a lawyer would tell him not to say anything. Further, Officer Moore said that Lee could help himself by talking, and that if he wanted to take responsibility, he should talk to Officer Marion. Lee responded that he did want to help himself out and talk.

After Lee made this statement, Officer Marion confirmed that Lee wished to talk to the officers. Lee detailed that he purchased a half of an ounce of crack prior to the search and that he was in the process of preparing it for sale. Lee also told the officers that he had been selling crack out of his residence for approximately three months.

Before the district court, Lee, representing himself, moved to suppress the confession, arguing that the police violated his Miranda rights when they continued talking to him after he asked about the lawyer. The court made a factual finding that Lee asked, "Can I have a lawyer?" The court analyzed this statement under United States v. Wesela, 223 F.3d 656 (7th Cir. 2000), and decided, in light of that case, that Lee failed to make a clear and unambiguous invocation of his Miranda rights. Accordingly, the court denied Lee's motion to suppress.

After a trial, a jury convicted Lee. At sentencing, the court found that Lee had a total offense level of thirty-four based on a career criminal provision in the Sentencing Guidelines. The court found that Lee's relevant conduct also would result in a total offense level of thirty-four. This level, when combined with Lee's criminal history, produced a Guideline range of 262 to 327 months' imprisonment. The district court sentenced Lee to 262 months. Lee appeals.

II

Before this court, Lee mounts two separate challenges. First, he argues that the district court improperly denied his motion to suppress. Specifically, Lee asserts that his question to the police officers was a clear invocation of his right to counsel and that his subsequent confession must be suppressed. Lee also argues that his sentence is improper because the Guidelines were considered mandatory at sentencing.

A

"When reviewing appeals from denials of motions to suppress, we review legal questions de novo and factual findings for clear error." United States v. Fields, 371 F.3d 910, 914 (7th Cir.2004). The court's central factual determination in the hearing on the motion to suppress— that Lee asked the officers "Can I have a lawyer?"—is unchallenged by either party before this court, and we accept it for purposes of our review.

Lee contends that this statement was sufficient, as a matter of law, to invoke his Miranda rights and the protections outlined by that case and its progeny. As even the casual television and movie viewer realizes, the police must inform an accused of various rights before beginning an interrogation. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda stands for the proposition that an accused subject to custodial interrogation must be informed of the right to consult with an attorney and to have that counsel present during questioning. See Miranda, 384 U.S. at 471-72, 86 S.Ct. 1602; see also Davis v. United States, 512 U.S. 452, 457, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). If an accused invokes this right, he "is not subject to further interrogation until counsel has been made available to him, unless the accused himself initiates further communication." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); see also Miranda, 384 U.S. at 474, 86 S.Ct. 1602.

Since the police must stop questioning if an accused asserts his Miranda right to counsel, the crucial question in the present case becomes whether Lee clearly invoked this Miranda right. "To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry." Davis, 512 U.S. at 458-59, 114 S.Ct. 2350; see also Lord v. Duckworth 29 F.3d 1216, 1220 (7th Cir.1994). If an accused makes a reference to an attorney that is ambiguous "in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our [the Supreme Court's] precedents do not require the cessation of questioning." Davis, 512 U.S. at 459, 114 S.Ct. 2350. The police are under no obligation to clarify an ambiguous statement by the accused. See United States v. Muhammad, 120 F.3d 688, 698 (7th Cir.1997). Rather, the accused must make a clear and unambiguous assertion of his right to counsel to stop questioning, although there is no exact formula or magic words for an accused to invoke his right. See Davis, 512 U.S. at 459, 114 S.Ct. 2350. If an accused confesses, but the police have violated the principles of Miranda, that statement cannot be used against the accused at trial. See Edwards, 451 U.S. at 485, 101 S.Ct. 1880.

Here, the district court relied on the ruling of this court in United States v. Wesela, 223 F.3d 656, 661-62 (7th Cir. 2000), when it determined that Lee had not clearly asserted his rights. In that case, Wesela presented a challenge to two separate confessions based on Miranda. Police arrested Wesela after his wife reported that he had a gun, had threatened her, and had killed the family cat. See id. at 659. After the arrest, Wesela was read a Miranda warning, and he responded, "Could I get a lawyer?" See id. at 661. The police detective at that time explained that he could not call a lawyer for Wesela, to which Wesela answered: "I can't call one either. All right here's what happened." See id. We held that the police officer's statement was similar in content to another police statement, "where the police told the defendant that he had a right to a lawyer, but that they had no way of giving him one," which the Supreme Court upheld as proper. See id. at 662 (citing Duckworth v. Eagan, 492 U.S. 195, 201, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989)). Several days later, Wesela also volunteered incriminating information to a special agent who transported Wesela to the federal courthouse for his initial appearance, even though the special agent repeatedly asked Wesela not to talk about the facts of the case. See Wesela, 223 F.3d at 661-62. Again, this was found to be proper because Wesela had initiated the conversation. See id. at...