Opposition Brief — Shabaz v. United States

No. 09-636

Jn the Supreme Court of the Gnited States

SAMUEL SHABAZ, PETITIONER

v),

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

LANNY A. BREUER

Assistant Attorney General

DERORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

f \ 24.9019

(202) 514-2217

QUESTION PRESENTED

Whether Davis v. United States, 512 U.S. 452 (1994),

which held that a suspect’s invocation of the right to

counsel must be unambiguous in order to require the

police to cease questioning him, applies to initial invoca-

tions of the right as well as to invocations of the right

that follow an initial waiver of that right.

TABLE OF CONTENTS

Page

CD 5g i554 bows eae ee ee ee ee 1

UO <5 Xo 5 eA ¥en oe eee ee eae ee eee l

Pe Lee eee ate ee my! 1

PO PETE eT Pe re rn ery 5

eee ee Se rr re te 13

TABLE OF AUTHORITIES

Cases:

Christopher K., In re, 841 N.E..2d 945 (Ill. 2005) ......... 8

Cothren, Ex parte, 705 So. 2d 861 (Ala. 1997),

cert. denied, 523 U.S. 1029 (1998) ........c.cccevcene 8

Davis v. United States, 512 U.S. 452 (1994) ...... 5, 6, 7, 10

Edwards v. Arizona, 451 U.S. 477 (1981) ..............- 6

Grant-Chase v. Commissioner, N.H. Dep't of Corr.,

145 F.3d 431 (1st Cir.), cert. denied, 525 U.S. 941

FIO so odes uSa Oe a eae ea a ee 8

Michigan v. Mosley, 423 U.S. 96 (1975) ................ 7

Miranda v. Arizona, 384 U.S. 486 (1966) .......... 2,6, 11

Montejo v. Louisiana, 129 8. Ct. 2079 (2009) ........... 9

Moore v. State, 903 S.W.2d 154 (Ark. 1995) ............. 8

Monroe v. State, 126 P.38d 97 (Wyo. 2006)... ............ 8

People v. Crittenden, 885 P.2d 887 (Cal. 1994),

cert. denied, 516 U.S. 849 (1995) .................... 8

Smith v. Illinois, 469 U.S. 91 (1984) 2... ccc wcrc even ees 10

State v. Holloway, 760 A.2d 223 (Me. 2000) ........0.000. 8

State v. Leyva, 951 P.2d 738 (Utan 1997) ...... cece ee 8

State v. Morris, 880 P.2d 1244 (Kan. 1994) .............. 8

State v. Tuttle, 650 N.W.2d 20 (S.D. 2002) .............. 8

(ITT)

Cases—Continued: Page

State v. Williams, 535 N.W.2d 277 (Minn. 1995) ......... 8

United States v. Brown, 287 F.3d 965 (10th Cir. 2002) .... 8

United States v. Hurst, 228 F.3d 751 (6th Cir. 2000) .....8

United States v. Johnson, 400 F.3d 187 (4th Cir.),

cert. denied, 546 U.S. S56 (ZOU) ... cee ccc cece ecces r

United States v. Lee, 413 F.3d 622 (7th Cir. 2005) ....... 7

United States v. Plugh, 576 F.3d 135 (2d Cir. 2009) ...... 8

United States v. Posada-Rios, 158 F.3d 832 (5th Cir.

1998), cert. denied, 526 U.S. 1031, 526 U.S. 1080,

og Ete Mo ea, A re rare 8

United States v. Rodriguez, 518 F.3d 1072 (9th Cir.

a so aa eNO et Men ee ee Ce ere ca oa §

United States v. Suarez, 263 F.3d 468 (6th Cir. 2001),

cert. denied, 635 U.S. 961 (2008) ... ccc ccc eie acces 8

United States v. Syslo, 303 F.3d 860 (8th Cir. 2602) ...... 8

Constitution and statute:

ee aba aalewcauuewtarn 7.40

1S UA. Silas) .... Be ed ang GN ees ee ee is

Jn the Supreme Court of the GAnited States

No. 09-636

SAMUEL SHABAZ, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-11)

is reported at 579 F.3d 815.

JURISDICTION

The judgment of the court of appeals was entered on

August 27, 2009. The petition for a writ of certiorari was

filed on November 24, 2009. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a conditional plea of guilty in the United

States District Court for the Northern District of IIli-

nois, petitioner was convicted of bank robbery (Counts

1 and 2), and attempted bank robbery (Count 3), all in

violation of 18 U.S.C. 2113(a). He was sentenced to 188

months of imprisonment, to be followed by three years

(1)

2

of supervised release. The court of appeals affirmed.

Pet. App. 1-11.

1. On December 21, 2007, agents of the F'ederal Bu-

reau of Investigation (FBI) arrested petitioner at his

home in Chicago, Illinois. The agents acted under the

authority of an arrest warrant naming petitioner as a

suspect in a robbery at a TCF Bank located in Oak

Lawn, Illinois. FBI agents and Oak Lawn Police De-

partment officers took petitioner to the Calumet City

Police Department, where petitioner confessed to twice

robbing the TCF Bank and also attempting to rob the

Stanford Bank and Trust in Oak Lawn. Petitioner pro-

vided many details about the planning and execution of

the robberies, his motive, and the disposition of the rob-

bery proceeds. He also identified himself in bank sur-

veillance photographs and signed them to acknowledge

that he was the person depicted in them. Pet. App. 1-2,

4,

2. Petitioner was indicted on one count of attempted

bank robbery and two counts of bank robbery, all in vio-

lation of 18 U.S.C. 2113(a). Pet. App. 1-2. He moved to

suppress his confession on the ground that it was taken

in violation of his rights under Miranda v. Arizona, 384

U.S. 436 (1966), because the agents questioned him after

he had requested counsel and because he did not validly

waive his Miranda rights. Mot. to Suppress 1-3.

At the suppression hearing, petitioner and the gov-

ernment presented significantly different versions of the

events surrounding petitioner’s confession. FBI Agent

Brian Watson testified that before petitioner was taken

into the interview room, he was permitted to use the

bathroom. Thereafter, Agent Watson heard petitioner

use the word “attorney” or “lawyer,” but did not remem-

ber the context in which the word was used. Agent Wat-

3

son testified, however, that he was sure petitioner did

not request an attorney. Once inside the interview

room, Agent Watson identified those present, explained

to petitioner why he had been arrested, and outlined the

topics the FBI wished to discuss with him. Agent Wat-

son read petitioner his Miranda rights and asked him to

sign an “advice of rights” waiver form. Petitioner stated

that he understood his rights, but did not want to sign

the form. Petitioner said that he would continue to

speak to the FBI but would stop any time he did not

want to answer a question. Agent Watson further testi-

fied that the agents did not promise petitioner leniency

in return for his statement. Pet. App. 2-3.

Petitioner testified that, after arriving at the police

station and using the restroom, he asked Agent Watson,

“(AJjm I going to be able to get an attorney?” and Agent

Watson replied, “[L]et’s just get you down here,” point-

ing to the interview room. Petitioner further testified

that, as he entered the interview room, Agent Watson

told him that “[W]Je know what you’ve been doing,” and

asked petitioner to “start at the beginning.” Petitioner

testified that he asked for a lawyer several times but

was ignored. He also testified that at some point he

asked to call his girlfriend and a friend, but that the offi-

cers refused to allow him to do so until he agreed to co-

operate. Petitioner also testified that the officers prom-

ised him leniency if he cooperated. Pet. App. 3.

3. The magistrate judge who conducted the hearing

recommended that the suppression motion be denied.

Pet. App. 33-53. The magistrate judge credited peti-

tioner’s testimony that, before entering the interview

room, he had asked Agent Watson, “[A]m I going to be

able to get an attorney?” Jd. at 5, 39-40. The magistrate

judge determined that Agent Watson did not answer

that question, but instead deferred respondiny until the

police had petitioner in the interrogation room and could

advise him of his rights. /d. at 5, 40. The magistrate

judge rejected petitioner’s account of what had occurred

inside the interview room, crediting instead the account

given by the government witnesses. /d. at 5, 47. Fi-

nally, the magistrate judge found that petitioner had

knowingly and voluntarily waived his Miranda rights

once he was in the interview room. /d. at 5, 47-49. The

magistrate judge noted that petitioner “testified that he

had a good understanding of what his rights were” be-

cause he “had been presented with [an advice of rights]

form in connection with an earlier criminal matter.”

Id. at 46.

The district court adopted the magistrate’s report

and recommendation and denied the motion to suppress.

Pet. App. 12-30. The court reviewed the record and

found “no reason to set aside the magistrate judge’s

credibility determination and findings.” Jd. at 23. As

relevant here, the court determined that petitioner was

not questioned in violation of Miranda after requesting

a lawyer, id. at 24-26, and knowingly, intelligently, and

voluntarily waived his rights when he decided to speak

with the police, zd. at 20-24.

Petitioner then entered into a conditional plea of

guilty to all three charges. Pet. App. 2; Judgment 1. He

was sentenced to 188 months of imprisonment, to be fol-

lowed by three years of supervised release. Judgment

2-3.

4. The court of appeals affirmed. Pet. App. 1-11.

First, the court rejected petitioner’s claim that his ques-

tion—“[A]m I going to be able to get an attorney?”—

amounted to an unambiguous invocation of his Mrranda

rights so as to preclude police questioning. Jd. at 6-9.

5

The court explained that, under Davis v. United States,

512 U.S. 452, 459 (1994), police officers need not cut off

questioning unless a suspect makes an unambiguous

request for counsel. Pet. App. 6. The court “agree[d]

with the district court that [petitioner’s] question was

not a clear request for counsel under the circum-

stances.” Jd. at 7. The court explained that the question

itself did “not clearly imply a present desire to consult

with counsel” and that the circumstances in which the

question was asked support the conclusion that peti-

tioner did not unambiguously request counsel. /d. at 8-9

(internal quotation marks omitted). The court noted

that as soon as petitioner was led into the interview

room, he was advised of his Miranda rights, and al-

though he could easily have requested an attorney at

that point, he chose to talk to the officers and “never

followed up on his initial question in the hall.” /d. at 9.

The court concluded that “|ujnder those circumstances,

the officers were under no obligation to stop questioning

[petitioner}.” Jbid.

The court of appeals then rejected petitioner’s other

claim, which was that he did not validly waive his

Miranda rights. Pet. App. 9-11. The court adopted the

factual findings and credibility determinations of the

magistrate judge and concluded that, under the totality

of the circumstances, petitioner had knowingly and vol-

untarily waived his rights. /d. at 10-11.

ARGUMENT

Petitioner contends (Pet. 4-16) that this case pre-

sents the question whether the rule announced in Davis

v. United States, 512 U.S. 452 (1994)—that a suspect's

invocation of the right to counsel must be unambiguous

to trigger the requirement that the police cease ques-

6

tioning him—applies to both post-waiver invocations of

the right to counsel (the facts in Davis) and to initial

invocations of that right (the facts in this case). Peti-

tioner did not, however, raise that issue before either

the district court or the court of appeals. As a conse-

quence, the court below did not address it. This Court

should not review the question in the first instance. In

any event, the court below correctly applied Davis and

determined that, under the circumstances here, peti-

tioner did not unambiguously invoke his right to counsel.

1. In Miranda v. Arizona, 384 U.S. 436 (1966), the

Court held that, in order to “dispel the compulsion in-

herent in custodial” interrogation, certain warnings

must be given “at the outset of the interrogation.” Jd. at

457-458. Those warnings advise the suspect that he has

the right to remain silent, that any statements he makes

can be used against him in court, that he has the right to

consult with counsel, and that if he cannot afford an at-

torney, one will be provided for him prior to questioning.

Id. at 479. A suspect who receives these warnings may

then choose to waive or invoke his rights. If the suspect

invokes his right to counsel, the police must cease ques-

tioning him until counsel has been made available to

him, unless he initiates further contact with the police.

Edwards v. Arizona, 451 U.S. 477, 484-485 (1981); see

also Maryland v. Shatzer, No. 08-680 (argued Oct. 5,

2009) (considering possible circumstances in which Ed-

wards protection lapses).

In Davis v. United States, the Court addressed what.

a suspect must do to invoke the right to counsel. There,

the police provided the suspect with Miranda warnings,

he initially waived his rights to silence and to counsel,

and one and one-half hours later, he said, “Maybe |

should talk to a lawyer.” 512 U.S. at 454-455. The Court

concluded that the statement was insufficient to invoke

the right to counsel. Jd. at 458, 462. The Court held

that, in order to invoke his right to counsel, a suspect

must “unambiguously” request counsel—that is, “he

must articulate his desire to have counsel present suff

ciently clearly that a reasonable police officer in the cir

cumstances would understand the statement to be a re-

quest for an attorney.” Jd. at 459. If a suspect makes a

statement “that is ambiguous or equivocal,” the police

are not required to cease questioning him. /hid. Nor

are the police required to ask questions to clarify an

ambiguous reference to counsel, although it will often be

“good police practice” to do so. /d. at 461-462.

An “objective inquiry” is required, the Court ex

plained, to “avoid difficulties of proof and to provide

ruidance to officers conducting investigations.” Davis,

512 U.S. at 458-459. And, the Court determined, an un

ambiguous invocation standard best balances the Fifth

Amendment interest in protecting against official com-

pulsion and society’s interest in uncovering and prose

cuting criminal activity. /d. at 459-460. A rule that

would require police officers to cease questioning a sus

pect when they “do not know whether or not the suspect

wants alawyer * * * ‘would transform the Miranda

safeguards into wholly irrational obstacles to legitimate

police investigative activity.’” /d. at 460 (quoting Michzt-

gan Vv. Mosley, 423 U.S. 96, 102 (1975)).

2. Although Davis addressed the factual situation of

a suspect who initially waived his Miranda rights and

then attempted to invoke them, the majority of courts of

appeals have applied the Davis standard to both initial

and post-waiver invocations of Miranda rights. See

lU/nited States v. Lee, 413 F.3d 622, 626 (7th Cir. 2005):

United States v. Johnson, 400 F.3d 187, 194-195 (4th

8

Cir.), cert. denied, 546 U.S. 856 (2005); United States v.

Syslo, 303 F.3d 860, 866 (8th Cir. piste (per curiam);

lLinited States v. Brown, 287 F.3d 965, 972-973 (10th Cit

2002); United States v. Suarez, 263 F.3d 468, 482-483

(6th Cir. 2001), cert. denied, ey U.S. 991 (2002); U/nited

States v. Hurst, 228 F.3d 751, 759-760 (6th Cir. 2000);

United States v. Posada- hited 158 F.3d 832, 867 (5th

Cir. 1998), cert. denied, 526 U.S. 1031, 526 U.S. 1080,

and 526 U.S. 1137 (1999); Grant-Chase v. Commissioner,

N.H. Dep't of Corr., 145 F.3d 481, 486 & n.5 (1st Cir.),

cert. denied, 525 U.S. 941 (1998).

The Second and Ninth Circuits, on the other hand,

have limited the Davis rule to post-waiver invocations.

See United States v. Plugh, 576 F.3d 135, 142-143 (2d

Cir. 2009); United States v. Rodriguez, 518 F.8d 1072

1077-1080 (9th Cir. 2008). Those circuits have held that

if a suspect’s initial invocation of the right to counsel is

ambiguous, officers are limited to asking questions

aimed at clarifying the suspect’s wishes concerning his

Miranda rights. Plugh, 576 F.3d at 139 & n.4, 144; Ro-

driguez, 518 F.3d at 1079-1080. '

' Similarly, some state courts of last resort have disagreed on wheth-

er the Duvis requirement of an unambiguous invocation applies to an

initial invocation of Miranda rights, as opposed to a post-waiver invoca-

tion. Compare, e.g., State v. Tuttle, 650 N.W.2d 20, 28 (S.D. 2002) (de-

clining to apply Davis standard to initial invocation); State v. Holloway,

760 A.2d 223, 228 (Me. 2000) (same); State v. Leyva, 951 P.2d 738, 743

(Utah 1997) (same), with, e.g., Monroe v. State, 126 P.38d 97, 101 (Wyo.

2006) (applying Davis standard to initial invocation); /n re Christopher

K., 841 N.E.2d 945, 964-965 (LIl. 2005) (holding that Davis standard

upplies to initial invocation); Fa parte Cothren, 705 So. 2d 861, 862-867

(Ala. 1997) (applying Davis standard to initial invocation), cert. denied,

528 U.S 1029 (1998); State v. Willtams, 5385 N.W.2d 277, 285 (Minn.

1995) (same); Moore v. State, 903 S.W.2d 154, 157-1i DS (Ark. 1995)

(same); Pe it v. Crittenden, 885 P.2d 887, 912-913 (Cal. 1994) (same),

9

Despite the disagreement among the circuits on

whether the Davis rule applies to an initial invocation of

Miranda rights, review is unwarranted in this case.

First, petitioner did not present this question to the dis-

trict court or the court of appeals, and neither court ad-

dressed it. Rather, petitioner simply argued that his

question, “[A]m I going to be able to get an attorney?”

constituted an unambiguous request for counsel that

precluded any questioning. See Pet. C.A. Br. 2-4; Pet.

Objections to Magistrate’s Report 9-11. Petitioner

never suggested that the standard for invocation of

Miranda rights differed based on whether the suspect

already had waived his rights. He did not even mention

Davis in the court of appeals until his reply brief, and he

never cited Plugh, Rodriguez, or any other of the eases

he now cites that address whether Davis applies to ini-

tial invocations of Miranda rights. In view of peti-

tioner’s failure to raise the issue, and the court of ap.

peals’ failure to discuss it, this Court’s review is not war-

ranted. See, e.g., Montejo v. Louisiana, 129 S. Ct. 2079,

2092 (2009) (“[ W]e are a court of final review, not of first

view.”) (internal quotation marks omitted).

Second, petitioner would be entitled to no relief even

in the circuits that have limited Davis to post-waiver

invocations. In those circuits, when a suspect has made

an ambiguous or equivocal request for counsel, any

questioning is limited to clarifying the suspect’s wishes.

See p. 8, supra. Here, following petitioner’s statement

‘“{AJm I going to be able to get an attorney?”—which the

courts below construed as an ambiguous request—the

officers did not pose substantive questions to petitioner

cert. denied, 516 U.S. 849 (1995): State v. Morris, 886 P.2d 1244, 1253

(Kan. 1994) (same).

10

concerning his involvement in the bank robbery until

after petitioner had made clear his wishes concerning

his fifth Amendment rights. After entering the interro-

gation room, the officers explained to petitioner why he

had been arrested and outlined the topics they wished to

discuss with them. Pet. App. 2. They then advised him

of his Miranda rights and asked him to sign an “advice

of rights” form. Petitioner stated that he understood his

rights, and, while he refused to sign the form, he said

that he would continue to speak to the agents but would

stop any time he felt he did not want to answer a ques-

tion. /d. at 2-3. Only then did the agents commence

questioning him about the robbery. /d. at 3.

Third, the court of appeals’ application of Davis to

initial invocations of the right to counsel is correct. Da-

vis does not support a distinction between a defendant

who initially waived his M7randa rights and then recon-

sidered (the facts in Davis) and a suspect who is consid-

ering in the first instance whether to invoke his rights

following warnings (the facts in this case). Davis states

a general rule: a request for counsel must be unambigu-

ous, so that a reasonable police officer can recognize it

as an invocation of Miranda rights and respect the sus-

pect’s wishes. Davis, 512 U.S. at 459. That reasoning

applies equally to both initial and post-waiver invoca-

tions of Miranda rights. Presuming that the suspect

has requested counsel when he has made an ambiguous

invocation—whether it is an initial invocation or a post-

waiver invocation—would “needlessly prevent the police

from questioning a suspect * * * even if the suspect

did not wish to” exercise his rights. /d. at 460.

The magistrate judge, district court, and court of

appeals all coneluded that, on the facts of this case, peti-

tioner did not evidence a clear desire to have the assis-

11

tance of counsel. Pet. App. 7. That conclusion is cor-

rect: Petitioner’s question does not indicate that he

wished the assistance of counsel during questioning, and

the surrounding circumstances make clear that peti-

tioner was willing to speak to the police without a law-

yer.”

3. Petitioner contends in passing (Pet. 12-13) that

the court of appeals erred in coneluding that he validly

waived his Miranda rights. But as petitioner notes,

“{iJnvoeation and waiver [of Miranda rights] are en-

tirely distinct inquiries,” Pet. 8 (brackets in original)

(quoting Smith v. fllinois, 469 U.S. 91, 98 (1984) (per

curiam)); see Pet. 11, 13, and he does not present any

separate question in his petition regarding waiver, Pet.

i. In any event, the court of appeals correctly deter-

mined that petitioner knowingly, intelligently, and vol-

untarily waived his rights. Pet. App. 9-11. After receiv-

ing Miranda warnings, petitioner stated that he under-

* Petitioner argues (Pet. 11) that his statement “Am I going to be

able to get an attorney?” “satisfield] Miranda’s standard for indicating

‘Inany manner’ that he preferred to remain silent.” While the Miranda

Court stated that questioning must cease “[i]f the individual indicates

inany manner * * * that he wishes to remain silent” (384 U.S. at 473-

474) or “to consult with any attorney before speaking” (7d. at 444-445),

it did not purport to address how to interpret an ambiguous statement

about either counsel or silence. The point of that passage was that a

suspect need not use particular words to invoke his right to counsel (7d.

at 444-445, 473-474) or to remain silent (id. at 473); he may do so “in any

manner.” Jd. at 444-445, 473-474. The Court did not address the level

of clarity required in the suspect’s statement. The decision below

therefore does not conflict with this Court’s decision in Miranda.

Petitioner also contends (Pet. 5) that the decision below is “eontrary

to this Court's holding in Davis,” but he is mistaken, because Davis did

not address the factual! situation of an initial invocation of the right to

counsel, 512 U.S. at 454-455; see Pet. 5 n.2, and because the court of

appeals applied the same rule as in Davis, Pet. App. 6.

12

stood his rights and immediately agreed to talk with the

police. Jd. at 10. His interview lasted approximately

one hour, and he was not deprived of any necessities or

coerced in any manner. /d. at 10-11, 22-25.

Petitioner also suggests (Pet. 8-9) that requiring that

a suspect’s initial invocation of his right to counsel be

unambiguous improperly relieves the government of its

heavy burden of establishing that the suspect waived his

Miranda rights, and instead shifts to the suspect the

burden of establishing the lack of such a waiver. But

that argument confuses the question whether a suspect

has invoked his Miranda rights with the question

whether he waived those rights. Whether or not a sus-

pect has clearly invoked his right to counsel determines

whether there may be further questioning of the sus-

pect. But even if a suspect has not clearly invoked his

right to counsel so as to preclude further questioning,

the burden remains on the government to establish a

knowing, intelligent, and voluntary waiver of the sus-

pect’s right to counsel. The court of appeals recognized

that “the Government bears the burden of proving that

[petitioner’s| statement was made following a knowing,

voluntary, and intelligent waiver,” and it correctly de-

termined that the government had met its burden. Pet.

App. 10-11.

4, There is no need to hold this case pending the

Court’s decision in Berghuis v. Thompkins, cert. grant-

ed, No. 08-1470 (oral argument scheduled for Mar. 1,

2010). That case presents issues concerning the applica-

tion of Miranda, including whether a suspect must un-

ambiguously invoke the right to remain silent in order

to preclude police questioning; whether the police may

question a suspect who has heen informed of his Mir-

anda rights, has stated that he understood his rights,

13

and has not invoked or waived those rights; and whether

a suspect who is aware of his rights waives them when

he knowingly, intelligently, and voluntarily responds to

police questioning. In its amicus brief, the government

has argued that the Davis standard should apply to

both initial and post-waiver invocations of the right

to silence. U.S. Amicus Br. at 13-19, Thompkins, supra

(No. 08-1470).

Although the Court in Thompkins may address re-

lated issues to the question petitioner presents, this case

should not be held pending the outcome in Thompkins,

because petitioner failed to preserve any argument re-

garding application of the Davis standard to initial invo-

cations of Miranda rights, see p. 9, supra, and because

petitioner made at most an ambiguous request for coun-

sel and the police did not obtain any substantive state

ments until advising him of his Miranda rights and ob-

taining a waiver, see 7d. at 9-10. Further review there-

fore is unwarranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

LANNY A. BREUER

Assistant Attorney General

DEBORAH WATSON

Attorney

FEBRUARY 2010