The opinion
1
2026 CO 17
The People of the State of Colorado, Plaintiff-Appellant:
v.
Dakotah J. Lulei. Defendant-Appellee:
No. 25SA146
Supreme Court of Colorado, En Banc
March 30, 2026
Interlocutory Appeal from the District Court District Court,
City and County of Denver, Case No. 24CR5907 Honorable Eric
Johnson, Judge
Order
Reversed
2
Attorneys for Plaintiff-Appellant: John Walsh, District
Attorney, Second Judicial District Jeff M. Van der Veer,
Senior Deputy District Attorney Anya Havriliak, Deputy
District Attorney Denver, Colorado
Attorneys for Defendant-Appellee: Megan A. Ring, Public
Defender Robert Swestka, Deputy Public Defender Robert
Halpern, Deputy Public Defender Denver, Colorado
3
CHIEF
JUSTICE MÁRQUEZ delivered the Opinion of the Court, in
which JUSTICE BOATRIGHT and JUSTICE SAMOUR joined. JUSTICE
BLANCO concurred in part and concurred in the judgment.
JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE
BERKENKOTTER, dissented.
4
MARQUEZ CHIEF JUSTICE
OPINION
¶1
The People bring this interlocutory appeal under C.A.R. 4.1,
challenging a Denver District Court order suppressing
Defendant Dakotah J. Lulei's statements to law
enforcement under Edwards v. Arizona, 451 U.S. 477,
484-85 (1981) (holding that when an accused who is subject to
custodial interrogation has invoked their right to counsel
under Miranda v. Arizona, 384 U.S. 436 (1966),
police may not reinitiate interrogation until counsel has
been made available). At the suppression hearing, the
district court acknowledged that the right to counsel under
Miranda applies to custodial interrogation. It
further concluded (consistent with defense counsel's
position at the hearing) that Lulei was not in custody when
he invoked his right to counsel as police attempted to advise
him of his Miranda rights. Nevertheless, the
district court ruled that Lulei's subsequent (albeit
voluntary) statements must be suppressed under
Edwards because the police did not scrupulously
honor his request for a lawyer and instead reinitiated
interrogation.
¶2
We conclude that the district court erred as a matter of law
when it concluded that Lulei's invocation of the right to
counsel outside of a custodial interrogation setting was
nevertheless effective because police had attempted to advise
him of his Miranda rights. Because our review of the
record confirms the trial court's finding that Lulei was
not in custody when he requested the presence of an attorney,
Miranda and Edwards are inapplicable here
and the district court
5
therefore erred in suppressing Lulei's statements under
those cases. Accordingly, we reverse the district court's
order and remand the case to the district court for further
proceedings.
I.
Facts and Procedural History
A.
The Incident and Subsequent Police Interview
¶3
Late one evening, Lulei called 911 to report that his motel
roommate was unconscious because of a possible
overdose. [1] When police arrived, they saw emergency
medical personnel performing CPR on the roommate, who died
shortly thereafter. At that point, Lulei was not a suspect,
nor did officers suspect foul play. Officers took Lulei's
statement, processed the scene, and released the room back to
Lulei.
¶4
The following morning, Detective Bolton of the Denver Police
Department ("DPD") attended the roommate's
autopsy. The results of the autopsy, along with evidence of
additional 911 calls the evening before, led law enforcement
to suspect there had been a disturbance between the men.
Detective Bolton and another detective decided to reinterview
Lulei as a witness. That afternoon, officers brought Lulei to
police headquarters, handcuffing him in front of his body
during
6
transportation for officer safety pursuant to DPD policy.
Lulei was not under arrest at that point.
¶5
At police headquarters, Lulei waited in the lobby until he
was brought into an interview room. [2] During the interview, Lulei
was not handcuffed, and he had his cell phone and a water
bottle with him. He took the seat closest to the door, which
was unlocked. Detective Bolton entered, wearing a shirt and
tie and visibly carrying a bolstered firearm. He sat across a
table from Lulei.
Det. Bolton: What's up man?
Lulei: Oh,. . ., it's this guy!
Det. Bolton: This guy. Got your water I see?
Lulei: Oh thank you big sexy.
Det. Bolton: I got you, bro. [Sitting.] Alright.
Lulei: Alright, so, uh, we're going to keep this under
two minutes.
Det. Bolton: Two minutes huh?
Lulei: Oh, yeah, cuz, you have my statement right?
Det. Bolton: Ah, dude, listen -
Lulei: So, you have my statement, [slaps the desk] that's
what we're going by. [Gets up.] Thank you, have
7
a good day. [Opens the door but remains in the room.]
Det. Bolton: Wait, wait, are you for real? Wait, wait, hold
on -
Lulei: I am for real -
Det. Bolton: You can't leave -
Lulei: I am for real- [Stays in the room; closes the door and
goes back to stand by his chair.]
Det. Bolton: You can't leave until the cop gets here;
hold on, I've got to get you out of here.
Lulei: No, no, you have my statement -
Det. Bolton: I don't have your statement.
Lulei: The police have it, that's what happened, and
I'm free to go now.
¶6
Lulei became agitated, telling Detective Bolton that he had
been made to wait for over an hour and a half. Detective
Bolton maintained a calm tone, told Lulei that it had not
been that long, and that he just needed "to make sure
we're all on the same page." Lulei agreed to stay
and sat.
Det. Bolton: So, if you could give me just a little bit more
of your time, I would appreciate it.
Lulei: Alright, so, here's the deal, here's the deal,
here's the deal- [Takes a cell phone out of his pocket.]
Det. Bolton: I've been pretty smooth with you.
Lulei: You have been so that's why I'm -
Det. Bolton: Let's just start from scratch, and get this
interview done, and be done.
8
Lulei: Yep, and then uh . . . [Sets timer on cell phone and
puts phone on the desk.]
Det. Bolton: What do you want to show me?
Lulei: You have six minutes.
Det. Bolton: Six minutes? How'd you come up with that
number?
Lulei: Just cuz. You're wasting time.
Det. Bolton: Alright buddy. Well listen, first of all,
you're all the way down here at the police station, okay,
and I know you talked to the cops a few times. I just have a
couple follow-up questions for you really quick.
Lulei: Keep going with it. Yeah.
Det. Bolton: Alright. In order to do that, I want to read you
your [Miranda] advisement form, alright? That way
you feel protected, I feel protected, we all know we're
on the same page, okay? I'll go through it line by line
for you. But that's just, reading your rights. Have you
ever had your rights read to you before? [Turns form toward
Lulei.]
Lulei: [Takes advisement form; reads.] Oh, so I'm allowed
to have a lawyer present for this?
Det. Bolton: Absolutely.
Lulei: Oh. . . yeah, let's reschedule this when I have a
lawyer present.
Det. Bolton: Okay, we can do that.
Lulei: [Gets up and walks toward the door.] Yeah, reschedule
this for when I have a lawyer present.
9
Det. Bolton: Alright, sounds good.
Lulei: And we'll do it at a time where you don't make
me wait.
Det. Bolton: [Stands.] Well, listen man, things take time.
Lulei: [Opens the door.]
Det. Bolton: Hold on one second, let me get the officer so we
can get you transported back.
Lulei: [Looking out into the hallway.] This guy right here?
Det. Bolton: Yep, absolutely.
Lulei: Oh, one hundred percent.
Det. Bolton: Alright, let me chat with him for a second, and
I'll get you out of here in just a second, okay?
Lulei: No problem, and then, uh, you know, I want a lawyer
present next time. And next time, I'm not waiting ....
¶7
Detective Bolton left the interview room and closed the door.
After conferring with Detective Sandoval in the hall, they
decided that they had enough information to arrest Lulei.
Detective Bolton, Detective Sandoval, and a uniformed officer
entered the interview room. The officer held out handcuffs
and asked Lulei to turn around.
Lulei: What? Officer: I'm just gonna put the cuffs on
you; we did this before.
Lulei: But you all put it on in front of me on the way here.
10
Det. Sandoval: We did, yes. Not now.
Lulei: What's going on now?
Det. Bolton: Well, Dakotah, I tried to talk to you, get your
side of the story. Right now, you're going to be
arrested, okay?
Lulei: What the . . . ? For what?
Det. Sandoval: For murder.
Lulei: Oh, dude, no. Like, let's talk this out then.
Dude, like, no.
Det. Sandoval: Nope, you had your chance, and you asked for a
lawyer. We can't do it now.
Det. Bolton: I tried to talk to you smoothly, man, and hear
your side of it. We have some serious questions.
Lulei: Alright, I'll rescind that then. I have serious -
like, get answers then, dude. Like come on, like, don't.
. . arrest me right now. I have my . . . motel paid for, for
the next two weeks. I have to go to work on Monday. Like,
I'm down to talk to you. Like, dude, like don't. . .
detain me ... I thought I was going to be free to go after
this.
Det. Sandoval: Well, no one told you you were free to go
after this -
Det. Bolton: No one told you that, and also, I tried to get
your side of the story and figure it out, man, and you
didn't want to talk.
Lulei: I'll talk to you now, man.
¶8
The officer escorted Lulei, still handcuffed, to a holding
cell. Around twenty minutes later, Detective Bolton brought
Lulei back to the interview room. After
11
receiving a full Miranda advisement, Lulei signed a
form waiving his rights. During the approximately
two-and-a-half-hour interview that followed, Lulei made
incriminating statements.
B.
The Suppression Hearing
¶9
Lulei later moved to suppress his statements made to
Detective Bolton, arguing that (1) officers failed to honor
his invocation of the right to counsel and (2) his subsequent
statements to the police were involuntary.
¶10
At the suppression hearing, defense counsel acknowledged that
the case law in this context generally involves individuals
who are under arrest, and that "[h]ere we don't have
that situation." Rather, Lulei "was told he
wasn't under arrest" and "was brought as a
witness to make a statement." Defense counsel also
argued that "[w]hat make[s] this situation unique"
is that Lulei had been told he could leave after invoking the
right to counsel, and moments later police arrested him for
murder. Defense counsel contended that this amounted to
police coercion because it prompted Lulei to rescind his
request for counsel and proceed with the interview.
¶11
The district court ruled on the motion from the bench. In its
findings, the court accepted - and pointed out that the
defense accepted - that Lulei was not in custody when he was
brought to the police station. The district court then
acknowledged that Miranda applies to custodial
interrogation. The court
12
continued, "If everyone has confessed he was not in
custody initially does it even really matter that he says I
want a lawyer? I'm going to say yes. He was given his
Miranda rights. He clearly, unambiguously invoked
his right[] to have an attorney."
¶12
The court then found that the police failed to scrupulously
honor Lulei's request for an attorney when they arrested
him and reinitiated interrogation. It therefore granted
Lulei's motion to suppress under Edwards because
the police failed to honor Lulei's invocation of the
right to counsel. The court also concluded that Lulei's
subsequent statements to the police were voluntary and there
was no coercive police conduct. The court emphasized that it
was not suppressing Lulei's statements on voluntariness
grounds.
¶13
After the court ruled, the People asked the court to clarify
if it was finding that Lulei was not in custody when he was
initially brought to the interview room. The court confirmed
that "the evidence has established that when he was
brought to the police station he was not in custody,"
but that the detective tried to read Lulei his
Miranda rights and Lulei invoked his right to
counsel. The court then reiterated that it was suppressing
Lulei's statements because Lulei "asked for his
right for the attorney and he is not the one that
reinitiated."
13
C.
The People's Appeal
¶14
After the suppression hearing, the People brought this
interlocutory appeal under C.A.R. 4.1 seeking review of the
district court's suppression ruling. [3]
¶15
In their initial briefing to this court, the People focused
their arguments on the trial court's finding that the
police violated Edwards by reinitiating
interrogation after Lulei unambiguously invoked the right to
counsel. The People contested this finding, arguing that when
Lulei asked after being handcuffed, "What's going on
now?" the detectives' comments did not amount to
interrogation.
¶16
At oral argument, however, the People also pointed out that
Lulei was not in custody when he asserted a right to counsel,
and therefore he was not entitled to protections under
Edwards . When offered an opportunity to respond on
this point, defense counsel acknowledged that co-counsel who
argued the motion had "conceded that point," and
that, "at the time of the invocation [Lulei was] not per
se in custody." Defense counsel later reiterated this
point, [4] but argued that
14
Detective Bolton s effort to administer the Miranda
advisement effectively triggered Lulei's Miranda
rights regardless of his custodial status.
¶17
After oral argument, Lulei requested leave to file
supplemental briefing on the following issues:
(1) Whether the prosecution waived any argument that Mr.
Lulei was not in custody at the time of the invocation of the
right to counsel.
(2) Whether Mr. Lulei was, in fact, in custody at the time he
invoked his right to counsel based on the totality of the
circumstances, including the fact that he had been advised of
his Miranda rights.
(3) Whether the sum total of police conduct rendered Mr.
Lulei's subsequent Miranda waiver involuntary.
¶18
We granted Lulei's request and ordered both parties to
submit simultaneous supplemental briefing on the above
issues. Having received this briefing, we now turn to our
analysis.
IL
Jurisdiction and Standard of Review
¶19
Under section 16-12-102(2), C.R.S. (2025), and C.A.R. 4.1,
the prosecution may immediately appeal a district court's
order granting a defendant's pretrial motion to suppress
evidence. [5] People v. Torres, 2026 CO 15 ,
¶ 17__,P.3d__.
¶20
"When reviewing a lower court's decision to suppress
statements made by a defendant, the question before the court
is a mixed issue of law and fact."
15
People v. Kutlak, 2016 CO 1, ¶ 13 , 364 P.3d
199, 203 . We defer to a district court's factual findings
if there is sufficient record evidence, and we review the
legal effect of those findings de novo. People v.
Cerda, 2024 CO 49 , ¶ 22, 559 P.3d 206 , 212.
"[W]here the statements sought to be suppressed are
audio- and video-recorded, and there are no disputed facts
outside the recording controlling the issue of suppression,
we are in a similar position as the trial court to determine
whether the statements should be suppressed." People
v. Madrid, 179 P.3d 1010,1014 (Colo. 2008). "[W]e
may undertake an independent review of the audio or video
recording to determine whether the statements were properly
suppressed in light of the controlling law."
Kutlak, ¶ 13, 364 P.3d at 203 .
III.
Analysis
¶21
In Miranda , the United States Supreme Court
"declared that an accused has a Fifth and Fourteenth
Amendment right to have counsel present during custodial
interrogation." Edwards, 451 U.S. at 482 . In
Edwards , the Court took steps to safeguard this
Fifth Amendment right to counsel, holding that "it is
inconsistent with Miranda and its progeny for the
authorities, at their instance, to reinterrogate an accused
in custody if he has clearly asserted his right to
counsel." Id. at 485 .
¶22
Because the rule in Edwards serves to protect the
right to counsel recognized in Miranda , and because
the right to counsel recognized in Miranda applies
only in the context of custodial interrogation, the rule in
Edwards applies only when the
16
accused (1) is in custody, (2) is subject to interrogation,
and (3) unambiguously invokes their right to counsel. See
Miranda, 384 U.S. at 444-45 ; Edwards, 451 U.S.
at 484-85 ; Smith v. Illinois, 469 U.S. 91, 95
(1984). Indeed, the Court has observed that Miranda
and Edwards apply "only in the context of
custodial interrogation," and that "[i]f the
defendant is not in custody then those decisions do not
apply." Montejo v. Louisiana, 556 U.S. 778, 795
(2009).
¶23
Here, the People seek review under C.A.R. 4.1, asking us to
determine whether the trial court erred in suppressing
Lulei's statements under Edwards . We first
address whether we may consider the issue of custody in this
case, given that the People did not argue this point in their
initial briefing. We conclude that under our decision in
Kutlak , we may do so because a defendant's
custodial status is an issue antecedent to and ultimately
dispositive of the trial court's Edwards
analysis before us on appeal. Next, we independently review
the audio- and videorecorded interrogation and confirm that
Lulei was not in custody when he asked for a lawyer.
Because Lulei's Fifth Amendment right to counsel had not
attached, and because Detective Bolton's initial,
attempted Miranda advisement did not alter
Lulei's noncustodial status, we conclude that
Edwards does not apply here. We hold that the
district court therefore erred in suppressing Lulei's
statements on the basis that police ran afoul of
Edwards by reinitiating interrogation after Lulei
requested an attorney.
17
A.
Consideration of Custody as an Antecedent Issue
¶24
We first address whether we may consider the threshold issue
of Lulei's custodial status in resolving this appeal.
¶25
Lulei argues that the People waived the issue of custody, and
because it has not been properly presented, we should decline
to consider it. He further contends that by focusing their
initial briefing on whether police reinitiated interrogation
under Edwards , the People effectively conceded that
he was in custody for purposes of this appeal.
¶26
The People counter that a party's omission of a
particular legal argument when addressing an issue is not a
"waiver," but rather, that such an omission
implicates the party presentation principle. They further
argue that the party presentation rule does not constrain a
court's fundamental obligation to ascertain controlling
law. See Dan Ryan Builders, Inc. v. Crystal Ridge Dev.,
Inc., 783 F.3d 976, 980 (4th Cir. 2015). Here, the
People maintain, we may consider custody as antecedent to the
question of whether Lulei effectively invoked his right to
counsel under Miranda .
¶27
It is true that we typically refuse to address issues or
arguments on appeal that have been waived or abandoned.
See, e.g., Moody v. People, 159 P.3d 611, 614 (Colo.
2007) (noting the "basic principle of appellate
jurisprudence that arguments not advanced on appeal are
generally deemed waived"); CenCor, Inc. v.
Tolman,
18
868 P.2d 396 , 397 n.l (Colo. 1994) (noting that the propriety
of the trial court's dismissal of certain claims was not
briefed on appeal and thus was deemed abandoned). Although
our case law has used the terms "waiver" and
"abandonment" somewhat interchangeably,
"waiver" has been more precisely associated with
"'the intentional relinquishment of a known
right or privilege.'" People v.
Rediger, 2018 CO 32, ¶ 39 , 416 P.3d 893, 902
(emphases added) (quoting Dep't of Health v.
Donahue, 690 P.2d 243, 247 (Colo. 1984)); cf Babcock
v. People, 2025 CO 26 , ¶ 29, 569 P.3d 850 , 856
(waiver of statutory rights must be "voluntary, but need
not be knowing and intelligent" (quoting Pinney v.
People, 2014 CO 38, ¶ 16 , 325 P.3d
1044,1050 )). [6] Abandonment, by contrast, "typically
arises from a party's decision not to pursue or reassert
a claim that the party had raised previously."
People v. Smith, 2024 CO 3 , ¶¶ 18-19, 541
P.3d 1191 , 1195 (emphasis added) (deeming abandoned certain
postconviction claims because they were neither briefed nor
argued during a hearing to the postconviction court).
¶28
Omissions like waiver and abandonment implicate the broader
principle of party presentation. See Jeffrey M.
Anderson, The Principle of Party Presentation, 70
Buff. L. Rev. 1029 , 1037-42, 1045-48, 1075-76 (2022). Under
that principle, courts "rely on the parties to frame the
issues for decision." Greenlaw v. United
19
States, 554 U.S 237, 243 (2008) This principle
recognizes that courts "should not[] sally forth each
day looking for wrongs to right" Id . at 244
(quoting United States v Samuels, 808 F.2d 1298,1301
(8th Cir 1987) (Arnold, J, concurring in the denial of
rehearing en banc)) Instead, our adversarial system "is
designed around the premise that the parties know what is
best for them, and are responsible for advancing the facts
and arguments entitling them to relief" Id .
(quoting Castro v United States, 540 U.S. 375, 386 (2003)
(Scalia, J, concurring in part and concurring in the
judgment)).
¶29
Fidelity to the party presentation principle therefore
generally precludes a court from spontaneously deciding an
issue that the parties have not raised or had the opportunity
to address. See Clark v. Sweeney, 607 U.S. 7 , 9
(2025) (reversing the Fourth Circuit because it
"transgressed the party-presentation principle by
granting relief on a claim that [the defendant] never
asserted and that the State never had the chance to
address"); Galvan v. People, 2020 CO 82,
¶¶ 3, 5, 44-46 , 476 P.3d 746 , 750-51, 757-58
(concluding that a division of the court of appeals violated
the party presentation principle when it "sua sponte and
without briefing" addressed whether interpreting a
statutory provision a certain way rendered it
unconstitutionally vague and overbroad).
¶30
But "[t]he party presentation principle is supple, not
ironclad." United States v. Sineneng-Smith, 590
U.S. 371, 376 (2020); cf. People in Int. of B.H.,
2021 CO
20
39, ¶ 29 n.3, 488 P.3d 1026 , 1034 n.3 (explaining that
while the parties' briefs did not explicitly address a
particular statute, one party raised the statute at oral
argument; quoting Sineneng-Smith and concluding that
our discussion of the statute did not "run afoul of the
party-presentation principle given the scope of the issues
that the parties [had] placed before us").
¶31
Importantly, the party presentation principle does not
constrain a court's fundamental obligation to ascertain
controlling law. Dan Ryan Builders, Inc., 783 F.3d
at 980 . "A party's failure to identify the
applicable legal rule certainly does not diminish a
court's responsibility to apply that rule."
Id. In other words, "[w]hen an issue or claim
is properly before the court, the court is not limited to the
particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the
proper construction of governing law." Kamen v.
Kemper Fin. Servs., Inc., 500 U.S. 90, 94-95, 98-100,
108-09 (1991) (concluding that while the petitioner did not
raise an argument about the applicable state corporate law
until her reply brief to the Seventh Circuit, the Seventh
Circuit erred by disregarding that state law because it was
required to identify "the proper source of
federal common law in this area"); see also
Masterpiece Cakeshop, Inc. v. Scardina, 2024 CO 67,
¶ 49 , 556 P.3d 1238, 1250 ("[W]e have an obligation
to interpret and apply the law.").
21
¶32
Relevant here, the Supreme Court has expressly recognized
that courts have the discretion to consider an issue that is
"'antecedent to . . . and ultimately dispositive
of' the dispute before it, even an issue the parties fail
to identify and brief." U.S. Nat'l Bank of Or.
v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 444-48
(1993) (omission in original) (quoting Arcadia v. Ohio
Power Co., 498 U.S. 73, 77 (1990)) (concluding that
although respondents argued that a ruling was inconsistent
with a particular federal statute that the parties had
assumed was valid, the District of Columbia Circuit was
within its discretion to first consider whether that statute
was still in force); see also Lebron v. Nat'l R.R.
Passenger Corp., 513 U.S. 374, 378-82 (1995) (concluding
that the Court had the authority to consider an argument the
petitioner had expressly disavowed in the courts below,
citing United States National Bank of Oregon, and
explaining that "[w]hen a question is, like this one,
both prior to the clearly presented question and dependent
upon many of the same factual inquiries, refusing to regard
it as embraced within the petition may force us to assume
what the facts will show to be ridiculous, a risk that ought
to be avoided"); United States v. Burke, 504
U.S. 229, 246 (1992) (Scalia, J., concurring in the judgment)
(" [T]here must be enough play in the joints that the
Supreme Court need not render judgment on the basis of a rule
of law whose nonexistence is apparent on the face of things,
simply because the parties agree upon it. . . .").
22
¶33
The Supreme Court's reasoning applies here. In addressing
whether the trial court erred in suppressing Lulei's
statements under Edwards , we are not obligated to
ignore the district court's erroneous legal premise that
a Miranda advisement outside of a custodial
interrogation triggers protections under Miranda and
Edwards , simply because the People failed in their
initial briefing to flag this particular basis for
challenging the court's Edwards analysis.
Likewise, the party presentation principle is not so rigid
that it must force us to ignore the district court's
factual finding (or defense counsel's concession) that
Lulei was not in custody when he invoked the right to counsel
- a critical finding that underpinned the district
court's ruling. Rather, under the circumstances of this
case, we may exercise our discretion to consider the custody
issue as a necessary antecedent to the Edwards
dispute before us because it is inherent to our review of the
district court's ruling.
¶34
Our decision in Kutlak is illustrative of this
point. There, we chose to consider an issue that was a
necessary antecedent to the Edwards dispute before
us, even though it had not been raised by the parties. In
that case, a division of the court of appeals held that the
police violated Edwards because they never stopped
the interrogation after the defendant made a reference to his
attorney. Kutlak, ¶ 7, 364 P.3d at 202 . On
review, we observed that an Edwards analysis
embodies two distinct inquiries: first, whether the
individual subjected to custodial interrogation
23
actually invoked their right to counsel, and second, whether
they initiated further discussions with the police and
knowingly and intelligently waived the right they previously
invoked. Id. at ¶ 9, 364 P.3d at 202 . Although
it was undisputed that Kutlak was subjected to custodial
interrogation, we were still required to ensure that
"the suspect actually invoked his right to
counsel." Id. at ¶¶ 9,11, 364 P.3d at
202-03 . The People had taken inconsistent positions on this
point in the lower courts, and they had not initially briefed
the issue for our review. Id. at ¶ 10, 364 P.3d
at 202-03 . Following oral argument to this court, we sua
sponte ordered supplemental briefing on the issue of whether
Kutlak had unambiguously invoked his right to counsel.
Id. at ¶ 11, 364 P.3d at 203 . We then
ultimately resolved the case "on the threshold inquiry
of the Edwards analysis," concluding that the
defendant did not actually invoke his right to counsel.
Id. at ¶ 12, 364 P.3d at 203 . In sum, even
though the People failed to initially brief the issue of
invocation of counsel, we chose to address it as
"antecedent to . . . and ultimately dispositive of"
the Edwards issue directly before us. U.S.
Nat'l Bank of Or., 508 U.S. at 447 (omission in
original) (quoting Arcadia, 498 U.S. at 77 ).
¶35
Our decision in Kutlak applies with equal force
here. In this case, the People seek review under C. A.R. 4.1,
asking us to determine whether the trial court erred in
suppressing Lulei's statements under Edwards . To
properly resolve that issue, we must first consider whether
Lulei was in custody when he invoked his right to
24
counsel. [7] If Lulei was not in custody, then the rule
in Edwards is inapplicable. See
Montejo, 556 U.S. at 795 ("If the defendant is
not in custody then [Miranda and Edwards]
do not apply."). If Edwards is inapplicable,
then we need not consider whether law enforcement violated
Edwards by reinitiating the interrogation. See
Kutlak, ¶ 12, 364 P.3d at 203 .
¶36
Accordingly, guided by Kutlak , we proceed to
consider whether Lulei was in custody when he asserted the
right to counsel because custody is a necessary antecedent to
the Edwards analysis presented on appeal.
B.
Miranda and Edwards
¶37
The Fifth Amendment to the United States Constitution
provides that no person "shall be compelled in any
criminal case to be a witness against
himself." [8] U.S. Const, amend. V. To protect this
privilege against self-incrimination, Miranda
requires law enforcement to employ procedural safeguards
before subjecting an individual to custodial interrogation.
Miranda, 384 U.S. at 478-79 . Among other
25
things, law enforcement must notify the individual of their
right to remain silent and to have an attorney present during
custodial interrogation. Id.; see also Edwards, 451
U.S. at 482 ( Miranda thus declared that an accused
has a Fifth. . . Amendment right to have counsel present
during custodial interrogation.").
¶38
Miranda's prophylactic rule serves to
"dissipate the compulsion inherent in custodial
interrogation and, in so doing, guard against abridgment of
the suspect's Fifth Amendment rights." Moran v.
Burbine, 475 U.S. 412, 425 (1986). Critically,
"this extraordinary safeguard 'does not apply
outside the context of the inherently coercive custodial
interrogations for which it was designed.'"
People v. Coke, 2020 CO 28, ¶ 14 , 461 P.3d 508,
513 (quoting Minnesota v. Murphy, 465 U.S. 420, 430
(1984)).
¶39
In Edwards , the Court clarified
Miranda's Fifth Amendment protections, holding
that when an individual is subject to custodial interrogation
and unambiguously invokes their right to counsel, law
enforcement may not continue the interrogation until counsel
has been made available, unless the individual reinitiates
communication with the police. Edwards, 451 U.S. at
484-85 . In other words, "it is inconsistent with
Miranda and its progeny for the authorities, at
their instance, to reinterrogate an accused in custody if he
has clearly asserted his right to counsel." Id.
at 485 .
26
¶40
Because an individual's rights under Miranda -
and, by extension, Edwards- attach only in the
inherently coercive setting of custodial interrogation,
"[i]f the defendant is not in custody then those
decisions do not apply." Montejo, 556 U.S. at
795 ; see also Coke, ¶ 7, 461 P.3d at 512
(concluding that because the defendant was not in custody,
she was not entitled to Miranda protections).
¶41
Importantly, a Miranda advisement does not itself
create Miranda rights. "[The] Court has
'never held that a person can invoke his Miranda
rights anticipatorily, in a context other than
"custodial interrogation."'" Bobby v.
Dixon, 565 U.S. 23, 28 (2011) (quoting McNeil v.
Wisconsin, 501 U.S. 171 , 182 n.3 (1991)). Similarly,
while Edwards provides that the Miranda
right to counsel, once invoked, is effective regarding future
custodial interrogation, this does not mean that an
individual may initially assert a Fifth Amendment right to
counsel outside the context of custodial interrogation, with
similar future effect. McNeil, 501 U.S. at 182 n.3.
¶42
Consistent with these principles, several states have
recognized that a defendant may not invoke a Fifth Amendment
right to counsel outside of custodial interrogation. See,
e.g., State v. Bartelt, 906 N.W.2d 684 , 700 (Wis. 2018)
("Because [the defendant] was not in custody when he
asked about counsel, his Fifth Amendment right to counsel did
not attach."); Commonwealth v. Eibby, 32 N.E.3d
890 , 900 (Mass. 2015) ("Given our conclusion that the
defendant was not in
27
custody ... his interview on this date was simply not
governed by Miranda. Therefore ... he did not
effectively invoke a 'right' to counsel."
(citation omitted)); State v. Pontbriand, 878 A.2d
227, 234 (Vt. 2005) ("[The defendant] was not in police
custody during the interview .. . [a]ccordingly,
Miranda is inapplicable here, and the police were
not obliged to stop questioning [him] when he indicated he
wished to speak with a lawyer."); Hannon v.
State, 84 P.3d 320, 337 (Wyo. 2004) ("[T]his
[c]ourt adheres to the principle that the rights recognized
in Miranda, including the right to counsel, apply
only in the context of custodial interrogation.").
¶43
Moreover, administering a Miranda advisement does
not create an inherently coercive environment when the
individual is otherwise not in custody. Cf. Oregon v.
Mathiason, 429 U.S. 492, 494-95 (1977) (holding that the
defendant was not in custody even after the police advised
the defendant of his Miranda rights and the
defendant gave a taped confession). Indeed, other
jurisdictions have expressly concluded that a
Miranda advisement does not, by itself, trigger a
suspect's Fifth Amendment right to counsel outside of
custodial interrogation. See, e.g., Commonwealth v.
Morgan, 610 A.2d 1013, 1016, 1018 (Pa. Super. Ct. 1992)
(noting that "the police officer took the precautionary
step of reading Miranda rights to a
non-custodial suspect, before they were
exercised" and concluding that "it is error for a
court to consider a confession presumptively coerced merely
because a request for a lawyer is not honored where, as here,
the suspect was not
28
in custody at the time"); State v. Stanley, 809
P.2d 944, 948 (Ariz. 1991) (concluding that "there was
neither a Miranda nor an Edwards violation
because [the defendant] was not in custody at the time of
[the officer's] questioning" regardless of the fact
that police gave the defendant Miranda warnings).
¶44
Here, although the district court twice concluded that Lulei
was not in custody, it nevertheless ruled (consistent with
defense counsel's contention at the suppression hearing)
that Lulei's invocation of his right to counsel was
effective because Detective Bolton attempted to give him a
Miranda advisement. This ruling was erroneous as a
matter of law. As discussed above, Miranda applies
only in the context of custodial interrogation. The Fifth
Amendment right to counsel is not triggered merely because
the police attempted to give a Miranda advisement
because a Miranda advisement, without more, does not
create the context of custodial interrogation. See
McNeil, 501 U.S. at 182 n.3.
C.
The Record Confirms that Lulei Was Not in Custody When He
Invoked the Right to Counsel
¶45
Our conclusion above does not end our inquiry. Rather, to
determine whether the district court erred in suppressing
Lulei's statements under Edwards , we must
examine whether, under the totality of the circumstances,
Lulei was in custody when he invoked the right to counsel.
Our independent review of the audio- and video-recorded
interrogation confirms the trial court's determination
that he was not.
29
¶46
A person is in custody for purposes of Miranda if,
under the totality of the circumstances, "a reasonable
person in the suspect's position would have felt that
[their] freedom of action had been curtailed to a degree
associated with formal arrest." People v.
Eugene, 2024 CO 59, ¶ 15 , 555 P.3d 601, 605
(quoting People v. Garcia, 2017 CO 106, ¶
20 , 409 P.3d 312,317 ); see also Stansbury v.
California, 511 U.S. 318, 322 (1994).
¶47
We consider a nonexhaustive list of factors to determine
whether, from an objective perspective, an individual was
subjected to circumstances associated with formal arrest:
(1) the time, place, and purpose of the encounter;
(2) the persons present during the interrogation;
(3) the words spoken by the officer to the defendant;
(4) the officer's tone of voice and general demeanor;
(5) the length and mood of the interrogation;
(6) whether any limitation of movement or other form of
restraint was placed on the defendant during the
interrogation;
(7) the officer's response to any questions asked by the
defendant;
(8) whether directions were given to the defendant during the
interrogation; and
(9) the defendant's verbal or nonverbal response to such
directions.
People v. Matheny, 46 P.3d 453,465-66 (Colo. 2002).
30
¶48
"A court may consider many factors, but no single factor
is determinative, and a court is not limited in the number of
factors it may consider." Eugene, ¶ 15,
555 P.3d at 605 (quoting People v. Minjarez, 81 P.3d
348, 353 (Colo. 2003)). It is irrelevant whether the
individual is "actually arrested at the close of the
interview." People v. Willoughby, 2023 CO 10,
¶ 21 , 524 P.3d 1186, 1192 (quoting Matheny, 46
P.3d at 468 n.lO).
¶49
Applying these factors here, our review of the record
confirms that Lulei was not in custody when he invoked his
right to counsel.
¶50
We begin by noting that the time and purpose of the encounter
weigh against custody. The encounter took place in the early
afternoon. See id. at ¶ 23, 524 P.3d at 1192
(noting that an encounter that takes place in daytime weighs
against custody). Detective Bolton told Lulei that he had
"a couple follow-up questions" regarding the
roommate's death, indicating that the purpose of the
encounter was for Lulei to provide more information as a
voluntary witness, not a suspect. Cf. People v.
Holt, 233 P.3d 1194,1198 (Colo. 2010) (noting that the
police behaved as though the defendant was a prime suspect in
a serious felony investigation, a fact that was "an
important consideration in our custody determination").
¶51
Lulei went to the station voluntarily - nothing in the record
indicates he was taken against his will. Compare
Mathiason, 429 U.S. at 495 (concluding that the fact
31
that the defendant went to the police station voluntarily and
was told he was not under arrest weighed against custody),
with People v. Sandoval, 218 P.3d 307,309-10 (Colo.
2009) (concluding that the defendant was in custody in part
because the officer informed the defendant that if he would
not come to the station voluntarily, he would be forced to go
against his will). Although Lulei was handcuffed in front of
his body during transport to DPD headquarters, this was
standard procedure for officer safety.
¶52
The encounter took place in a windowless interview room at
the station, but the door was unlocked and Lulei was not in
handcuffs or restrained in any way. See People v.
Clark, 2020 CO 36, ¶ 33 , 500 P.3d 356, 362 (noting
that the absence of handcuffs during the interrogation
weighed against custody); Mathiason, 429 U.S. at 495
(holding that the defendant was not in custody despite being
questioned at the police station because "there is no
indication that the questioning took place in a context where
[the suspect's] freedom to depart was restricted in any
way"). Instead, he was free to get up, and he even
opened the interview room door on multiple occasions. See
People v. Davis, 2019 CO 84, ¶ 31 , 449 P.3d 732 ,
740 ("Another 'well-recognized circumstance tending
to show custody is the degree of physical restraint used by
police officers to detain' a person." (quoting
People v. Breidenbach, 875 P.2d 879, 886 (Colo.
1994))). Although Detective Bolton was carrying a bolstered
firearm, he was dressed in plain clothes and sat farthest
from
32
the unlocked door. See People v. Becker, 196 P.3d
264, 267 (Colo. 2008) (considering the facts that the
officer's weapon was concealed during the interrogation
and the officer made an effort with his physical presence to
avoid the appearance that the defendant was not free to leave
in concluding that the defendant was not in custody).
¶53
Detective Bolton's tone was calm, nonconfrontational,
casual, and generally deferential to Lulei, even when Lulei
expressed his frustration that he was made to wait. See
Davis, ¶ 33,449 P.3d at 741 ("We have also
considered an officer's tone of questioning particularly
relevant to a custody determination."); People v.
Padilla, 2021 CO 18 , ¶ 24, 482 P.3d 441, 447
(considering the nonconfrontational, friendly demeanor of the
officer and the casual mood of the conversation as facts
weighing against custody).
¶54
The encounter was relatively brief; Lulei set a timer on his
phone for six minutes, telling Detective Bolton that he was
"wasting time." See Padilla, ¶ 25,
482 P.3d at 448 ("[W]e place particular emphasis on the
fact that [the defendant] dictated the length of the
interrogation .. . because a reasonable person who sets the
length of an interrogation is unlikely to believe that his
freedom of action has been curtailed to a degree associated
with formal arrest.").
¶55
Furthermore, Detective Bolton made no threats, commands, or
any show of force. See People v. Bohler, 2024 CO 18 ,
¶ 30, 545 P.3d 509 , 516 (noting that the
33
officers "made no threats, they made no promises, and no
one referenced criminal liability" when concluding that
the defendant was not in custody (footnote omitted)). When
Lulei indicated that he was leaving at the very beginning of
the interview, Detective Bolton directed Lulei to wait.
However, this directive was not accompanied by "force,
threats of negative consequences for not complying, or an
aggressive tone." Id. at ¶ 33, 545 P.3d at
517.
¶56
Additionally, Detective Bolton had not told Lulei that he was
under arrest at any point before Lulei invoked the right to
counsel. See Willoughby, ¶ 28, 524 P.3d at 1192
("Courts place great weight on whether police tell a
suspect that they are under arrest."). Instead,
Detective Bolton repeatedly reassured Lulei that he would
help Lulei leave and that he just wanted a little bit of
Lulei's time. Cf. Matheny, 46 P.3d at 467
(concluding that the fact that the officer told the defendant
he was free to go at any time weighed against custody).
Finally, although Detective Bolton attempted to administer a
Miranda advisement, this alone did not transform the
situation into a custodial setting. See United States v.
Bautista, 145 F.3d 1140, 1148 (10th Cir. 1998)
(acknowledging that "the reading of the Miranda
warning to a suspect does not create a custodial
interrogation").
¶57
In sum, our review of the record confirms that, under the
totality of the circumstances, a reasonable person in
Lulei's position would not have felt that his freedom of
movement was curtailed to a degree associated with formal
arrest.
34
¶58
Because Lulei was not in custody when he invoked his right to
counsel, Miranda and Edwards are
inapplicable here. Montejo, 556 U.S. at 795 . Put
differently, because Lulei's Fifth Amendment right to
counsel under Miranda had not attached, the district
court erred in suppressing Lulei's statements under
Edwards on grounds that law enforcement failed to
scrupulously honor Lulei's request for an attorney by
reinitiating the interrogation.
D.
Voluntariness
¶59
Finally, we decline to consider Lulei's supplemental
briefing arguments related to the voluntariness of his
Miranda waiver and his post-Miranda
statements because "interlocutory relief under C.A.R.
4.1 is not available to defendants." People v.
Brown, 2022 CO 11 , ¶ 13, 504 P.3d 970, 974-75 . The
district court concluded that Lulei's statements were
voluntary and there was no police coercion. "[I] f the
district court resolves a suppression issue against the
defendant, we have no jurisdiction to address it in an
interlocutory appeal." People v. Weston, 869
P.2d 1293,1297 (Colo. 1994).
IV.
Conclusion
¶60
This unusual case is illustrative of why the party
presentation principle "is a 'supple' rule, not
an intransigent one." Galvan, ¶ 46, 476
P.3d at 758 (quoting Sineneng-Smith, 590 U.S. at
376 ). Here, we have a finding by the trial court, based in
part on a concession by defense counsel, that Lulei was not
in custody. The
35
record supports that finding. Rigid adherence to the party
presentation principle would require us to disregard that
finding, not to mention the trial court's undisputable
legal error premised on that finding. In all, it would force
a resolution of the Edwards issue before us that is
untethered to the facts or the law. But the principle is not
ironclad, and we are not shackled to such an outcome.
Instead, under the circumstances here, we follow our decision
in Kutlak and exercise our discretion to address the
issue of custody as a necessary antecedent to the
Edwards issue before us. We perceive no unfairness
in doing so here, particularly given that the issue of
custody was expressly addressed (and conceded by the defense)
below, it was discussed at oral argument, and the parties
filed supplemental briefing on the issue in this court.
¶61
In sum, we reverse the district court's order suppressing
Lulei's statements on the basis that law enforcement
violated Lulei's Miranda rights under
Edwards , and we remand the case for further
proceedings.
JUSTICE BLANCO concurred in part and concurred in the
judgment.
JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE
BERKENKOTTER, dissented.
36
JUSTICE BLANCO, concurring in part and concurring in the
judgment.
¶62
I write separately to address an apparent injustice: Today
the People prevail on an argument they failed to advance.
Specifically, this court rules in favor of the People because
Dakotah J. Lulei "was not in custody [under
Miranda] when he invoked his right to counsel,"
Pl. op. ¶ 49, even though the People failed to brief
that issue prior to oral argument before this court.
¶63
But that is not the whole picture, and the party presentation
principle remains vital. Although Lulei indicates the People
unfairly ambushed him at oral argument, the parties also
presented the Miranda custody issue in two other
ways: the People's C.A.R. 4.1 Notice of Interlocutory
Appeal (the "Notice") and the supplemental briefing
requested by Lulei. These presentations from the
parties collectively (if barely) placed the custody issue
before this court despite the People's failure to do so
in their pre-argument briefing.
¶64
Therefore, I agree with the plurality's conclusions
regarding party presentation. I depart from its reasoning,
however, because I do not rely on a "fundamental
obligation to ascertain controlling law." Pl. op. at
¶ 31. Consequently, I respectfully agree with the
plurality that we may address the custody issue, concur in
part with its reasoning, and join this court's judgment.
37
I.
Discussion
¶65
This court is unanimous in finding that the People failed to
address the Miranda custody issue in their Opening
Brief or in their Reply Brief. Pl. op. ¶¶ 15-16;
Diss. op. ¶¶ 88, 90. The People did present the
issue, however, by way of (1) the Notice, (2) oral argument,
and (3) supplemental briefing.
¶66
First, the Notice framed the "Issues to be Raised on
Appeal" as "Did the district court err in
suppressing [Lulei's] statements?" Although it is
preferable for issues to be framed with greater specificity,
the People limited the Notice's citations to two cases:
Miranda v. Arizona, 384 U.S. 436 (1966), and
Edwards v. Arizona, 451 U.S. 477 (1981). Both cases
recognize custody as a prerequisite to their holdings.
See Miranda, 384 U.S. at 478 ("To summarize, we
hold that when an individual is taken into custody . . . and
is subjected to questioning, the privilege against
self-incrimination is jeopardized."); Edwards,
451 U.S. at 485-86 ("The Fifth Amendment right
identified in Miranda is the right to have counsel
present at any custodial interrogation. Absent such
interrogation,. . . there would be no occasion to determine
whether there had been a valid waiver."). Thus, the
issue of custody was fairly encompassed by the Notice. The
Notice, however, is insufficient to end my inquiry.
¶67
Second, during oral argument, the People addressed the
custody issue by arguing, "[L]et's take a step back
.... At the time that Mr. Lulei invoked [his right
38
to counsel,] he actually wasn't in custody .... That is
what the trial court found." Indeed, the district court
found that "everyone has confessed [Lulei] was not in
custody [when he was brought to the police station,]"
and Lulei did not contest this finding in his pre-oral
argument Answer Brief. Even then, the Notice and the oral
argument were insufficient to present the custody issue.
¶68
Finally, Lulei requested supplemental briefing after oral
argument. This court then ordered briefing for, among other
issues, "Whether Mr. Lulei was, in fact, in custody at
the time he invoked his right to counsel. . . ." Thus,
both Lulei and the People presented the Miranda
custody issue to this court.
¶69
Importantly, this court did not address the custody issue on
its own initiative. We do not permit courts below to reach an
issue "sua sponte and without briefing" when
"neither party raise[d] it," Galvan v.
People, 2020 CO 82, ¶¶ 44-47 , 476 P.3d 757 -58,
so I apply the same principle here. I find it significant
that Lulei -rather than this court -requested supplemental
briefing on the custody issue. But see People v.
Kutlak, 2016 CO 1, ¶¶ 10-12 , 364 P.3d 199,
202-03 (ruling in favor of the People after sua sponte
requesting supplemental briefing on an issue the People
raised in response to this court's questions during oral
argument even when the People did not present the issue in
pre-argument briefs). In my opinion, which follows the more
recent Galvan to the extent that case conflicts with
Kutlak , it took the sum of the Notice, oral
argument, and
39
supplemental briefing to present this issue despite the
People's failure to do so in their pre-argument briefing.
¶70
I also acknowledge this court facilitated the parties'
presentations of the custody issue by ordering oral argument
and supplemental briefing. [1] But those orders followed the Notice
and Lulei's unopposed request for supplemental briefing,
respectively, and there is no question this court had
discretion to issue the orders. See C.A.R. 4.1(g)
("Oral argument is not permitted unless ordered by the
court."). Now, the oral argument cannot be unheard; the
supplemental briefing cannot be unfiled. Nor did either party
ask this court to reconsider the orders. Therefore, I take
this case as I find it, after the district court addressed
the custody issue, which was then presented to this court
through the sum of the Notice, oral argument, and
supplemental briefing.
A.
Agreement with the Plurality/Majority
¶71
Under these circumstances, I agree with the plurality's
conclusions regarding party presentation, waiver, and
abandonment. Having determined the custody issue was
permissibly reached, I join this court's reasoning and
conclusion that Lulei was not in custody when he requested an
attorney. Pl. op. ¶¶ 37-58. I
40
also join this court's decision to reverse the
suppression order and to remand this case to the district
court for further proceedings.
B.
Disagreement with the Plurality
¶72
I do not agree with three aspects of the plurality's
opinion. First, I do not join its discussion of courts'
"fundamental obligation to ascertain controlling
law." Id. at ¶¶ 31-36. I cannot
square this proposed obligation with parties'
responsibility to advance "the facts and argument
entitling them to relief." See Galvan, ¶
45, 476 P.3d at 757 (quoting United States v.
Sineneng-Smith, 590 U.S. 371, 375-76 (2020)). Although
the plurality's opinion may be interpreted to avoid this
conflict, courts should not place the cart (deciding legal
questions) before the horse (confining decisions to contested
issues). In my view, courts must first assure themselves that
litigants have presented a disputed issue before considering
the merits of the issue. A "fundamental obligation to
ascertain controlling law" runs the risk of conflating
issue presentation with merits determinations.
¶73
Even in Masterpiece Cakeshop, Inc. v. Scardina, 2024
CO 67, ¶ 21 , 556 P.3d 1238, 1245 , which the plurality
cites, this court ruled on an issue preserved and presented
by the petitioner: whether a particular statute barred the
district court from hearing a claim. Only after we determined
the issue was "squarely before us" did we interpret
the statute. Id. Although we interpreted the statute
differently than the parties, that was beside the point of
whether the parties
41
presented the issue. See id.; see also Lucero v.
People, 2017 CO 49, ¶ 26 , 394 P.3d 1128, 1134
("[C]ourts 'rely on the parties to frame the issues
for decision' .... This principle, however, does not
prevent a court from properly characterizing an issue that
has been improperly characterized by a party." (quoting
Greenlaw v. United States, 554 U.S. 237, 243
(2008))). Thus, this court's legal determination properly
followed the parties' issue presentation.
¶74
Accordingly, in assessing whether the custody issue is before
this court, I considered the parties' presentations. I
did not consider the issue's merits, nor did I follow a
fundamental obligation to ascertain controlling law.
¶75
Second, I would specify that this court does not hold against
Lulei the custody-related statements his counsel made during
oral argument. See Diss. op. ¶ 100. But
see Pl. op. ¶¶ 16 &16 n.4, 60. In my view,
litigants generally should not raise unbriefed issues during
oral argument and adverse parties should not be penalized for
good-faith responses to such arguments. I would seek to avoid
any chilling effect on responses to objectively unexpected
questions during oral argument.
¶76
Third, although I agree with the plurality's conclusions,
I would be remiss to overlook the wisdom of the dissent and
the value we must place on adhering to the party presentation
principle. We rely on these procedures to provide a fair
opportunity for preparation and to keep the judiciary in its
adjudicatory lane.
42
There
is a dire cost to everyone when courts deviate from these
principles, which are only worthwhile if they are actively
maintained. I differ from the dissent, however, because the
parties in this matter did eventually present the custody
issue to this court.
II.
Conclusion
¶77
Accordingly, I respectfully concur in part and concur in the
judgment.
43
JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE
BERKENKOTTER, dissenting.
¶78
Today, a majority of this court reverses the district
court's suppression order on the ground that Miranda
v. Arizona, 384 U.S. 436, 444-45 (1966), and Edwards
v. Arizona, 451 U.S. 477 (1981), do not apply because
Dakotah J. Lulei was not in custody during the interrogation
at issue. Pl. op. ¶¶ 2, 23, 37-58; Cone. op. ¶
71. In so ruling, the plurality adopts (and
substantially develops over many pages) an argument
that the People made for the first time in oral argument
(during which the People relied on case law not cited in any
of their briefs). And the plurality does so notwithstanding
the fact that the People's new argument was completely
inconsistent with the argument presented in their briefing
before this court.
¶79
The plurality's analysis largely sidesteps long-settled
principles of waiver and abandonment, and it substantially
erodes the party presentation principle. After today, it
would appear that any party may present at oral argument
positions not argued in their briefs and this court may
address those new assertions if they have some relationship
to the issue actually raised and a majority of this court
believes that addressing the new contentions will allow the
majority to reach what it has determined to be the correct
result.
¶80
I cannot subscribe to such a precedent, which undermines the
orderly appellate process long prescribed by our rules and
case law. Contrary to the plurality, I believe that, by
arguing in their briefs only that the trial court
44
erroneously suppressed Lulei's statements because the
police did not reinitiate questioning (an argument that
presumed Lulei's custody and Edwards's
applicability in this case), the People waived or abandoned
any contention that Lulei was not in custody and that
Edwards did not apply. I would thus address only the
issue that the People actually raised in this case, and I
would conclude that after Lulei clearly and unambiguously
invoked his right to counsel, the police did not scrupulously
honor that invocation.
¶81
Accordingly, I would affirm the trial court's suppression
order, and therefore, I respectfully dissent.
I.
Factual and Procedural Background
¶82
After Lulei and another man spent time together in a motel
room drinking and smoking pot, Lulei called 911 to report a
medical emergency. Medical personnel and the police
responded, but the other man (the "victim") was
pronounced dead at the scene. An autopsy revealed that the
victim had suffered severe internal trauma. The police thus
commenced an investigation.
¶83
Lulei later agreed to come to police headquarters to give a
statement, and the police transported him there in a police
vehicle. Pursuant to department policy, Lulei was handcuffed
(with his hands in front of him) while being transported.
45
¶84
Lulei was eventually brought to an interview room for
questioning by Detective Bolton. Lulei told the detective
that the police already had his statement, but the detective
responded that he had a couple of follow-up questions. The
detective then began going through a Miranda
advisement form with Lulei. The detective provided the form
to Lulei, who began reading it to himself. After reading the
form for a brief time, Lulei asked, "Oh, so I'm
allowed to have a lawyer present for this?" The
detective responded, "Absolutely," at which point
Lulei replied, "Oh, hell yeah, let's reschedule this
when I have a lawyer present." The detective then said,
"Okay, we can do that."
¶85
Lulei stood and opened the interview door to leave, but the
detective told him to wait until he could talk to his
colleagues. The detective left the room and conferred with
another detective (Detective Sandoval) and a deputy district
attorney, and the three of them decided to arrest Lulei.
Detective Bolton then reentered the room with Detective
Sandoval and a uniformed officer, and the officer asked Lulei
to turn around. The following conversation ensued:
Lulei: What?
Officer: I'm just gonna put the cuffs on you; we did this
before.
Lulei: But you all put it on in front of me on the way here.
Det. Sandoval: We did, yes. Not now.
Lulei: What's going on now?
46
Det. Bolton: Well, Dakotah, I tried to talk to you, get
your side of the story. Right now, you're going
to be arrested, okay?
Lulei: What the fuck? For what?
Det. Sandoval: For murder.
Lulei: Oh, dude, no. Like, let's talk this out then.
Dude, like, no.
Det. Sandoval: Nope, you had your chance, and you asked
for a lawyer. We can't do it now.
Det. Bolton: I tried to talk to you smoothly, man, and
hear your side of it. We have some serious questions.
Lulei: Alright, I'll rescind that then. I have serious -
like, get answers then, dude. Like come on, like, don't
fucking arrest me right now. I have my fucking motel paid
for, for the next two weeks. I have to go to work on Monday.
Like, I'm down to talk to you. Like, dude, like don't
fucking detain me and shit like that. I thought I was going
to be free to go after this.
Det. Sandoval: Well, no one told you you were free to go
after this -
Det. Bolton: No one told you that, and also, I tried to
get your side of the story and figure it out, man, and you
didn't want to talk.
Lulei: I'll talk to you now, man.
Det. Bolton: Gimme a second.
(Emphases added.)
47
¶86
Detective Bolton subsequently re-Mirandized Lulei
and proceeded to question him for over two hours. In the
course of this conversation, Lulei made incriminating
statements.
¶87
The People charged Lulei with one count of second degree
murder and one count of first degree assault. Lulei
thereafter filed a motion to suppress his statements to the
detective, and the trial court conducted a hearing on this
motion. At the conclusion of the hearing, the trial court
granted the motion. As pertinent here, the court found that
"defendant's request for [an] attorney was not
scrupulously honored" when Lulei asked what was going on
and the detective responded, "I tried to talk to you to
get your side of the story. Right now, you're going to be
arrested, okay?"
¶88
The People then filed an interlocutory appeal in this court.
Notably, at no time did the People contend that Lulei was not
in custody and therefore Edwards did not apply. To
the contrary, throughout their briefing, the People proceeded
on the premise that Edwards applied. They thus
argued that the trial court had erred in suppressing the
statements that Lulei had made to Detective Bolton because,
in the People's view, the police did not reinitiate any
questioning. Instead, the People maintained that they had
scrupulously honored Lulei's unambiguous invocation of
his right to counsel and they did nothing other than answer
Lulei's questions about what was happening.
48
¶89
Lulei filed an answer brief, responding that Detective
Bolton's comments referencing Lulei's invocation of
his right to counsel was reasonably perceived by Lulei as
punishment for invoking that right. Thus, in Lulei's
view, the detective had improperly induced Lulei to
reconsider his invocation of the right to counsel to avoid
the perceived punishment. Finally, Lulei argued that he did
nothing to reinitiate the interrogation.
¶90
The People then filed a reply, arguing that Detective Bolton
had scrupulously honored Lulei's invocation of the right
to counsel and that Lulei had decided to reinitiate the
interrogation.
¶91
In short, all of the briefing in this case presumed
that Lulei was in custody and proceeded on the premise that
Edwards applies here. The parties disagreed only as
to the result of the Edwards analysis.
¶92
Notwithstanding the foregoing, at oral argument, the People
argued, for the first time, that Lulei was not in custody and
that therefore Edwards does not actually apply. In
so arguing, the People cited case law that they had not cited
in any of their briefs, thereby ambushing Lulei's
counsel.
¶93
Thereafter, Lulei requested supplemental briefing to address
the issues newly raised at oral argument. We granted his
motion and received simultaneous supplemental briefs from
both parties.
49
IL
Analysis
¶94
I begin by addressing the party presentation principle and
whether, in the circumstances presented, the People waived or
abandoned their contention that Lulei was not in custody and
that therefore Edwards does not apply here. After
concluding that the People waived or abandoned this
contention, I address the question that the People raised in
their initial briefing before us.
A.
The Party Presentation Principle, Waiver, and
Abandonment
¶95
The Supreme Court has stated:
In our adversary system, in both civil and criminal cases, in
the first instance and on appeal, we follow the principle of
party presentation. That is, we rely on the parties to frame
the issues for decision and assign to courts the role of
neutral arbiter of matters the parties present. To the extent
courts have approved departures from the party presentation
principle in criminal cases, the justification has usually
been to protect a pro se litigant's rights. But
as a general rule, "[o]ur adversary system is designed
around the premise that the parties know what is best for
them, and are responsible for advancing the facts and
arguments entitling them to relief."
Greenlaw v. United States, 554 U.S. 237, 243-44
(2008) (alteration in original) (footnote and citation
omitted) (quoting Castro v. United States, 540 U.S.
375, 386 (2003) (Scalia, J., concurring in part and
concurring in the judgment)).
¶96
In light of this settled law, we have long recognized
"the basic principle of appellate jurisprudence that
arguments not advanced on appeal are generally deemed
waived." Moody v. People, 159 P.3d 611, 614
(Colo. 2007). It has likewise long been settled that a party
may lose its right to assert an issue on appellate
50
review "when it has made contrary assertions in the
courts below, when it has acquiesced in contrary findings by
those courts, or when it has failed to raise such questions
in a timely fashion during the litigation." Steagald
v. United States, 451 U.S. 204, 209 (1981); see also
Compos v. People, 2021 CO 19 , ¶ 35, 484 P.3d 159,
165 (acknowledging the force of the defendant's argument
that a court of appeals division had erred in adopting a new
crime exception to Miranda when no party had
advocated for such an exception, but not deciding that
issue).
¶97
And in cases dating back nearly a century, we and divisions
of our court of appeals have consistently said that arguments
not pursued on appeal or not briefed are deemed abandoned.
See, e.g., In re Stanley, 2025 CO 51 , ¶ 17 n.3,
576 P.3d 171 ,178 n.3; People v. Smith, 2024 CO 3 ,
¶ 18, 541 P.3d 1191 ,1195; CenCor, Inc. v.
Tolman, 868 P.2d 396 ,397 n.l (Colo. 1994);
Nicoloffv. Bloom Land & Cattle Co., 66 P.2d 333,
334 (Colo. 1937); Armed Forces Bank, N.A. v. Hicks,
2014 COA 74, ¶ 38 , 365 P.3d 378, 386 ; In re Marriage
of Marson, 929 P.2d 51, 54 (Colo.App. 1996). Indeed, in
my almost eighteen years as an appellate judge, I have read
numerous briefs in which the People have asserted this very
argument against criminal defendants. As I have written
previously, "(A]rguments regarding waivers and
forfeitures do not operate solely against criminal
defendants; they work both ways." People v.
Rigsby, 2020 CO 74, ¶ 47 , 471 P.3d 1068, 1079
(Gabriel, J., dissenting).
51
¶98
Here, as noted above, in their opening and reply briefs
before us, the People framed their appellate issue based on
the premise that Lulei was in custody during the
interrogations at issue and that Edwards applied. At
no time in either their opening or reply briefs did the
People even suggest that Lulei might not have been in
custody. And this is so even though, as the plurality points
out, Pl. op. ¶¶ 10-13, 33, 60, the issue of whether
Lulei was in custody was discussed in the trial court.
Accordingly, the People were aware of a potential issue
regarding whether Lulei was in custody, but they chose not to
raise that issue in their initial briefing before us, despite
the fact that it was their own interlocutory appeal and they
controlled the issues to be raised.
¶99
Under the long-settled principles of law set forth above, I
would conclude that by not advancing any argument in their
initial briefs that Lulei was not in custody and therefore
Edwards does not apply (indeed, by taking precisely
the opposite position), the People waived or abandoned any
such argument. Assuredly, if, as we have recently concluded,
a defendant waives an objection to the belated setting of
restitution by impliedly requesting that the trial court set
restitution after the statutory deadline for doing so,
see Babcock v. People, 2025 CO 26 , ¶ 30, 569
P.3d 850 , 856, then the People must likewise be deemed to
have waived an argument when their briefing took a
diametrically opposed position to the one that they
subsequently took for the first time in oral argument.
52
¶100
I am not persuaded otherwise by the fact that the People
presented their new position at oral argument, while the case
was still under our consideration. To my knowledge, we have
never previously concluded that a party that has waived or
abandoned an argument can resurrect it by reversing course
and presenting the waived or abandoned contention at oral
argument. To allow a party to do so subverts the orderly
appellate process established by our case law and appellate
rules and invites appellate advocacy by ambush. Indeed, the
plurality implicitly condones such a practice when it uses
against Lulei statements regarding the issue of custody that
his counsel made at oral argument after being ambushed.
See Pl. op. ¶ 16 &n.4. The plurality does
so notwithstanding the fact that when Lulei's counsel
filed his supplemental brief, after being given an
opportunity to consider the question appropriately, he
corrected his prior statements and argued that Lulei was, in
fact, in custody. In my view, condoning the People's
taking a contrary position in oral argument from the one that
they took in all of their briefing before us while
simultaneously using against Lulei a statement that his
counsel made after being surprised at oral argument (but that
he later corrected) is inconsistent and manifestly unjust.
¶101
Nor can I subscribe to the plurality's approach based on
our obligation to "ascertain controlling law."
Id. at ¶¶ 26, 31. This case does not
present any question regarding the "controlling
law" because the parties agree on the law.
53
Thus,
addressing the issue that the parties initially briefed
(i.e., whether the People had scrupulously honored
Lulei's unambiguous invocation of the right to counsel)
would do no violence to the law. And if it were the case that
we have an obligation to reach the result that we believe to
be the correct one, regardless of what the parties argued,
then we would never be bound by what the parties argue, and
the party presentation principle would cease to exist.
¶102
On this point, I take no comfort from the plurality's
apparent attempt to cabin its novel approach to the
circumstance in which the newly raised issue is allegedly
antecedent to and ultimately dispositive of the issue before
the court. Id. at ¶¶ 23, 32-36. In support
of this effort, the plurality principally relies on
United States National Bank of Oregon v. Independent
Insurance Agents of America, Inc., 508 U.S. 439, 447
(1993), and People v. Kutlak, 2016 CO 1 , 364 P.3d
199 . But neither of those cases applies here.
¶103
United States National Bank, 508 U.S. at 447-48 ,
involved a question as to the very existence of the statute
at issue. There, trade associations representing insurance
agents challenged a decision by the Comptroller of the
Currency relying on a 1916 statute to permit certain banks to
sell insurance to a particular class of customers.
Id. at 443-44 . The Comptroller allowed the
petitioner bank to do so, and the trade associations
challenged that ruling, contending that the Comptroller's
determination was inconsistent with the statute. Id.
In the course
54
of the proceedings in the trial and intermediate appellate
courts, an issue arose as to whether the statute had, in
fact, been repealed. Id. at 444 . Although the trade
associations did not make such an argument, the court of
appeals concluded that the statute had been repealed (thus
undermining the Comptroller's decision), and the Supreme
Court granted the bank's petition to review that
determination. Id. at 444-45 . It is in this context
that the Court addressed whether the statute's repeal was
properly before the intermediate appellate court.
Id. at 447 . Specifically, the Court observed that
the appellate court could, in the exercise of its discretion,
address an issue that was antecedent to and ultimately
dispositive of the dispute before it because "[t]here
can be no estoppel in the way of ascertaining the existence
of a law." Id. at 447-48 (alteration in
original) (quoting Town of S. Ottawa v. Perkins, 94
U.S. 260, 267 (1876)). In other words, it was perfectly
appropriate for the appellate court, in the circumstances
before it, to determine whether the statute at issue was even
in effect.
¶104
United States National Bank is, thus,
distinguishable from the present case. That case, unlike the
one before us, directly involved a scenario in which the
courts were required to ascertain the controlling law. (The
Court ultimately determined that the statute at issue had
not, in fact, been repealed. Id. at 462-63.) As
noted above, the present case poses no such question. All
parties agree on the controlling
55
law. The only issue is the application of the law to the
facts before us, a matter of error correction, not
ascertainment of the applicable law.
¶105
Kutlak likewise does not support the plurality's
contention that it may properly address any issue that it
deems antecedent to the question presented, even if the issue
was waived. In Kutlak, ¶¶ 6-7, 364 P.3d at
202 , the trial court denied Kutlak's motion to suppress
statements that he had made in the course of a custodial
interrogation, and a division of the court of appeals
reversed, concluding that Kutlak had unambiguously invoked
his right to counsel and did not reinitiate further
communications. We granted certiorari solely on the question
of whether Kutlak had reinitiated communications, but we
ultimately concluded, instead, that he had not unambiguously
invoked his right to counsel. Id. at ¶¶ 3,
8 n.2, 364 P.3d at 201 , 202 n.2. We therefore reversed the
division's judgment, id. at ¶ 3, 364 P.3d
at 201 , reaching that conclusion even though (1) we did not
grant certiorari on the question of whether the
defendant's invocation was unambiguous; (2) the People
had conceded at every stage of the proceedings that the
defendant's invocation was sufficient; and (3) no party
had briefed the invocation question until we sua sponte
requested supplemental briefing after the case was at issue,
id. at ¶ 35, 364 P.3d at 208 (Gabriel, J.,
dissenting).
¶106
Kutlak , too, is distinguishable. We began our
analysis by noting that we generally have discretion to
affirm a trial court's suppression ruling on different
56
grounds from those on which the trial court had relied.
Id. at ¶ 11, 364 P.3d at 203 (majority
opinion). That principle does not apply here, however,
because in this case, we are reversing the trial
court's ruling. Nor did Kutlak involve a
question of waiver or this Court's ability to resurrect
an issue that a party had previously waived. (As noted above,
although the People in that case had conceded a sufficient
invocation of the right to counsel, the People did not
initiate a contrary argument in this court; a majority of
this court did so on its own.) And, respectfully, I am not
persuaded by the fact that, in a single case decided a decade
ago, a majority of this court departed from the ordinary
appellate process, as it does in an arguably even more
expansive way today. I believed that we were wrong to do so
then, see id. at ¶¶ 33-40, 364 P.3d at
208-09 (Gabriel, J., dissenting), and I believe that we
should not do so now, particularly given that we have not
been consistent in so departing from our settled rules of
procedure. (The present case provides one illustration of
such an inconsistency. Here, the plurality repeatedly points
out that Lulei allegedly conceded in the trial court that he
was not in custody, and it uses that concession to justify
ruling for the People, despite the fact that the People did
not raise any issue regarding custody in their initial
briefing before us. Pl. op. ¶¶ 33, 60. In
Kutlak , however, the People conceded in
both the trial court and on appeal that Kutlak had
unambiguously invoked his right to counsel, but the majority
effectively disregarded that concession and ruled
57
that Kutlak had not, in fact, unambiguously invoked that
right. Kutlak, ¶¶ 7, 32, 364 P.3d at 202,
207 . If the People's prior concessions in Kutlak
became irrelevant once we ordered supplemental briefing, then
Lulei's prior concessions should be treated the same way
here.)
¶107
Finally, I do not believe that it is fair or appropriate to
use against Lulei the fact that he was forced to seek
supplemental briefing after being ambushed during oral
argument. See Cone. op. ¶¶ 63, 67. After
the People raised the custody issue for the first time at
oral argument, a number of my colleagues expressed obvious
interest in that issue during the argument. As a result,
Lulei had no choice but to seek a reasonable opportunity to
respond. Regardless, I take no solace in the fact that the
parties were offered the opportunity to file supplemental
briefs. If we can cure all waivers, abandonments, and party
presentation problems simply by authorizing supplemental
briefs, then those important doctrines will be rendered
meaningless, at our discretion.
¶108
Notwithstanding the plurality's effort to downplay the
nature of its ruling in this case, see Pl. op.
¶ 60,1 believe that the harm to heretofore settled
principles of party presentation, waiver, and abandonment
that the plurality's opinion would engender is manifest
and significant. If it can be said that the question of
whether Lulei was in custody for Edwards purposes
was properly before us because this case related to an
alleged Edwards violation and the issue of custody
58
was antecedent to Edwards's application, then
there is no longer any limit to what a party can argue after
filing its briefs. This is so because creative lawyers will
inevitably be able to develop an argument as to how a newly
raised assertion was related and somehow antecedent to a
different contention that they actually presented. In
addition, allowing parties to change their approach in this
way would be inconsistent with the long line of authority
providing that objecting on one ground does not preserve an
objection on another ground. See Udemba v. Nicoli,
237 F.3d 8, 14-15 (1st Cir. 2001) ("It is a bedrock rule
that a party who unsuccessfully objects to the introduction
of evidence on one ground cannot switch horses in midstream
and raise an entirely new ground of objection on appeal. . .
."); People v. Rogers, 2012 COA 192, ¶ 24 ,
317 P.3d 1280,1284 ("An issue is unpreserved for review
when an objection or request was made to the trial court, but
on different grounds than those raised on appeal.").
¶109
For these reasons, I would conclude that by not advancing in
their initial briefing an argument that Lulei was not in
custody and therefore Edwards did not apply, the
People waived or abandoned that argument. I would therefore
limit our analysis to the issue that the parties actually
briefed, namely, whether the People had scrupulously honored
Lulei's invocation of his right to counsel and whether
Lulei had reinitiated the interrogation.
¶110
I turn to that question next.
59
B.
Edwards
¶111
The Fifth Amendment guarantees the right to counsel in the
course of a custodial interrogation. Miranda, 384
U.S. at 469 ; Leyba v. People, 2021 CO 54 , ¶ 12,
489 P.3d 728, 732 .
¶112
In Edwards, 451 U.S. at 483-85 , the Supreme Court
opined that when a suspect invokes the right to counsel,
interrogation must cease until counsel is made available or
the suspect voluntarily reinitiates communications with the
police and knowingly and intelligently waives his rights.
¶113
To invoke the right to counsel, a suspect's request for
counsel must be clear and unambiguous. See Leyba,
¶ 13, 489 P.3d at 732 . Upon a suspect's clear
invocation of the right to counsel, police must
"scrupulously honor []" the request and cease
questioning until counsel has been provided. People v.
Wood, 135 P.3d 744, 753 (Colo. 2006); accord
Edwards, 451 U.S. at 484-85; Miranda, 384 U.S.
at 473-74 . This bright-line rule exists to "prevent
police from badgering a defendant into waiving his previously
asserted right to counsel." Kutlak, ¶ 14,
364 P.3d at 204 .
¶114
Once the police cease interrogation upon a suspect's
invocation of the right to counsel, the suspect may
nonetheless subject himself to additional interrogation by
"initiat[ing] further communication, exchanges, or
conversations with the police." Edwards, 451
U.S. at 484-85 . To reinitiate questioning, however, the
60
suspect's comments must'" evince [] a
willingness and a desire for a generalized discussion about
the investigation,' and not merely question the reasons
for custody." People v. Martinez, 789 P.2d 420,
422 (Colo. 1990) (alteration in original) (quoting Oregon
v. Bradshaw, 462 U.S. 1039,1045-46 (1983) (plurality
opinion)).
¶115
Here, no party disputes that Lulei clearly and unambiguously
invoked his right to counsel. The question thus becomes
whether the police then scrupulously honored that invocation
and, if they did, whether Lulei reinitiated the questioning.
¶116
Like the trial court, I would conclude that the police did
not scrupulously honor Lulei's invocation of his right to
counsel. As noted above, when Lulei invoked his right and
asked to reschedule for a time when he could have a lawyer
present, Detective Bolton initially said that they could do
that. The detective, however, did not allow Lulei to leave.
Instead, the detective ordered Lulei to wait, walked outside,
and returned with Detective Sandoval and a uniformed officer
to arrest Lulei. Predictably, Lulei expressed surprise, and
he inquired as to what was happening. Contrary to the
People's position, the law enforcement officers did not
merely answer Lulei's question. Instead, they repeatedly
used his invocation of his Fifth Amendment rights against
him. For example, when an exasperated Lulei offered to talk
about what was happening, Detective Sandoval responded,
"Nope, you had your chance, and you asked for a lawyer.
We can't do it now." Detective Bolton then added,
"I tried to talk to you smoothly, man, and hear your
61
side of it." And when Lulei expressed his understanding
that he would be free to leave. Detective Bolton replied,
"No one told you that, and also, I tried to get your
side of the story and figure it out, man, and you didn't
want to talk."
¶117
In my view, this is the antithesis of scrupulously honoring
Lulei's invocation of the right to counsel. Indeed, it is
precisely the type of badgering of a defendant into waiving
his previously asserted right to counsel that the
bright-line, "scrupulously honor" rule seeks to
prevent. See Kutlak, ¶ 14, 364 P.3d at 204 . The
police expressly used Lulei's invocation of his Fifth
Amendment rights against him and announced that they were
arresting him for murder, apparently to provoke him into
waiving his rights, which, unsurprisingly, he did. See
also People v. Cerda, 2024 CO 49 , ¶ 32 &n.3,
559 P.3d 206 , 213-14, 213 n.3 (concluding that the police did
not scrupulously honor the defendant's unambiguous and
repeated invocations of his right to counsel when, after the
defendant's invocations, the police told him that he
would be charged with murder, knowing or reasonably
anticipating in the circumstances presented that continuing
the interrogation in this manner was likely to elicit an
incriminating response). In my view, this was a blatant
violation of Edwards and its progeny, and for that
reason alone, I would affirm the trial court's
suppression order.
¶118
Even were I to proceed to the question of whether Lulei
reinitiated the interrogation, I perceive no such
reinitiation here. Lulei was obviously surprised
62
by the turn of events, having just been told that the
interview would be rescheduled for a time when he could have
a lawyer present, and he initially did nothing more than
question the reasons for his custody. As noted above, this
type of question does not constitute reinitiation. See
Martinez, 789 P.2d at 422 . It was only after the police
threatened Lulei that he, under duress, sought to engage in
further dialogue. In no way do such circumstances constitute
the kind of voluntary reinitiation of conversation envisioned
by the above-described case law. ¶119 Accordingly, like
the trial court, I would conclude that after Lulei clearly
and unambiguously invoked his right to counsel, the police
did not scrupulously honor that invocation and Lulei did
nothing to reinitiate conversation so as to establish an
intentional, knowing, and voluntary waiver of his rights.
III.
Conclusion
¶120
For these reasons, I would conclude that the People waived or
abandoned any argument that Lulei was not in custody and that
Edwards therefore does not apply on the facts
presented. Addressing, then, only the argument that the
People properly presented to us, which presumed
Edwards's applicability, I would further
conclude that the police did not scrupulously honor
Lulei's clear and unambiguous invocation of his right to
counsel, as Edwards required. I would therefore
affirm the trial court's order suppressing Lulei's
statements to the detective.
¶121
Accordingly, I respectfully dissent.
---------
Notes:
[1] We derive the facts from the
transcript of the hearing on the motion to suppress and from
our review of body-worn camera footage and the video- and
audiorecorded events from the police interview room.
[2] The parties dispute how long Lulei
waited before he was brought to the interview room. Lulei
contends it was at least forty-five minutes, while Detective
Bolton testified at the suppression hearing that it was less
than fifteen minutes.
[3] The People raised a single
issue:
Whether the district court erred in suppressing the
defendant's statements.
[4] When asked if the record showed that
Lulei was not in custody, defense counsel replied, "I
don't think I can in good faith make the argument that
[Lulei] was in fact -or felt like he was -restrained, or not
free to leave, until after he invoke[d] the right to
counsel."
[5] Pursuant to C.A.R. 4.1(a), the People
certify that this appeal is not taken for the purpose of
delay and that the suppressed evidence constitutes a
substantial part of the People's case against Lulei.
Lulei does not object to this certification.
[6] It is unclear what "right"
or "privilege" Lulei believes the People are
relinquishing by omitting argument on the custody
issue.
[7] We also note that our consideration of
custody in this case does not give rise to concerns of
unfairness or surprise. Here, the district court (and defense
counsel) addressed the custody issue at the suppression
hearing, the People raised it at oral argument to this court,
where defense counsel had the opportunity to respond at some
length, and both parties addressed it in supplemental
briefing at Lulei's request. The latter two circumstances
provide us with an even stronger basis to address the custody
issue than we had in Kutlak , where we raised the
invocation issue at oral argument and sua sponte requested
supplemental briefing.
[8] The Colorado Constitution provides a
similar privilege against self-incrimination. Colo. Const,
art. II, § 18.
[1] The orders were issued before I joined
this court.
---------