10-12-21 Colorado Congressional Redistricting Commission Supreme Court Oral Arguments 1

Independent Congressional Redistricting Commission attorney Frederick R. Yarger argues to the Colorado Supreme Court on Oct. 12 that the map adopted by the commission meets the state constitution’s requirements.

In an unusual decision on Tuesday, the Colorado Supreme Court ruled 5-2 that a criminal defendant did not clearly invoke his constitutional right to an attorney during a police interrogation, even though a majority of the justices actually believed the opposite was true.

The appeal out of Adams County boiled down to a single moment when Isaiah Cain Trujillo-Tucson was alone in an interview room with a detective, waiting for the lead interrogator to return.

"Am I able to get a phone call to my lawyer?" Trujillo-Tucson asked, naming his attorney.

The court's majority believed his question was not a clear indication that Trujillo-Tucson wanted his lawyer present. As such, a reasonable officer would have concluded Trujillo-Tucson's request was a "logistical" one, rather than an invocation of a constitutional right.

"Given those circumstances here, we hold that, although Trujillo-Tucson’s statement might have indicated a desire for counsel during interrogation, he did not clearly request counsel," wrote Justice Melissa Hart in the June 21 opinion.

Justice Maria E. Berkenkotter, joined by Justice Monica M. Márquez, disputed that conclusion. They believed not only that Trujillo-Tucson's request was unambiguous, but the majority had provided a loophole for officers to disregard requests for counsel by those in custody.

A separate concurring opinion from two more members of the court agreed with the majority, but believed the precedent the majority relied upon was wrongly decided in the first place. Were it not for that caselaw, the concurring justices would have found in favor of Trujillo-Tucson.

Police took Trujillo-Tucson into custody following a chase. They suspected his involvement in an attempted murder, after a witness accused Trujillo-Tucson of shooting at her on Interstate 76. Sheriff's detectives Jai Rogers and Trevor Tuttle drove Trujillo-Tucson in for questioning. During the ride, Rogers began the interrogation and informed Trujillo-Tucson of his Miranda rights, including his constitutional right to an attorney.

At the police station, Rogers left to get Trujillo-Tucson a soda. Tuttle performed a pat-down search of Trujillo-Tucson in the interview room, which was audio and video recorded.

"I'm just gonna pat you down real quick," Tuttle informed Trujillo-Tucson.

"I've been in jail long enough to know the routine," Trujillo-Tucson responded. He then attempted to make small talk with Tuttle over the chase and other topics.

Eventually, Trujillo-Tucson asked whether he was being "booked in."

"So, I'm not the primary detective on this case," Tuttle answered. "Detective Rogers is."

After more small talk, Trujillo-Tucson asked when police officers are allowed to arrest someone. Upon probable cause of a crime, Tuttle said. Trujillo-Tucson then made his disputed request for a lawyer, which was partially interrupted by Tuttle's response.

"Am I able to get a phone call —"

"Yeah," Tuttle interjected.

"— To my lawyer?" Trujillo-Tucson asked, naming his attorney. Thirteen seconds of silence followed the exchange, after which Trujillo-Tucson moved on to other topics.

Minutes later, Rogers returned to the interview room and began questioning Trujillo-Tucson. Neither Trujillo-Tucson nor Tuttle brought up the request for Trujillo-Tucson's lawyer. After 90 minutes, Trujillo-Tucson asked Rogers if he could have his lawyer, and questioning ceased.

Prosecutors charged Trujillo-Tucson with attempted first degree murder and several other criminal offenses. The defense moved to suppress the incriminating statements Trujillo-Tucson made during the 90-minute interrogation, claiming the Adams County detectives failed to honor his invocation of the constitutional right to counsel.

District Court Judge Sean Finn agreed with Trujillo-Tucson in December, finding the request was "unambiguous."

"He clearly asked for a lawyer and for a specific lawyer by name," Finn observed, ordering Trujillo-Tucson's incriminating statements be disallowed as evidence at trial.

The 17th Judicial District Attorney's Office appealed Finn's decision directly to the Supreme Court. Prosecutors argued it made little sense for Trujillo-Tucson to sit for a 90-minute interrogation with Rogers minutes after deciding he wanted a lawyer present. Instead, it was reasonable to interpret what Trujillo-Tucson said as an "inquiry as to how Defendant could contact his lawyer later if he desired to secure her presence," wrote Senior Deputy District Attorney Cameron Munier.

The Colorado Supreme Court acknowledged the requirement, established by the U.S. Supreme Court, that police officers cease interrogations once suspects invoke their right to an attorney. The prohibition is intended to prevent officers from coercing defendants into waiving their Miranda rights.

But a request for counsel must also be clear. The state Supreme Court's 2016 decision in People v. Kutlak ruled that a defendant had not clearly invoked his right to his attorney during interrogation by asking, "Um ... I mean ... like ... can we get him down here now, or ...?" After police told him it would be "difficult to get in touch" with the lawyer, the defendant said he would "take a dice roll" and cooperate in the interrogation.

Relying on the Kutlak decision and all of the circumstances of Trujillo-Tucson's interaction with the detectives, the court's majority concluded Trujillo-Tucson's question could plausibly be a request for counsel — but was not in this instance.

"An officer who had just explained that he was not in charge of the investigation and that questions about being booked in should be directed to the officer in charge could have reasonably interpreted this inquiry as a logistical one — not so much an immediate request for counsel as much as a question about what options would generally be available," Hart wrote.

She elaborated that Trujillo-Tucson "demonstrated confidence" during his time in custody and indicated he was familiar with the criminal justice system. His question came not during the interrogation itself, but to someone who was merely patting him down and keeping him company until his interrogator returned.

If he wanted to request a lawyer directly, Trujillo-Tucson appeared "perfectly capable" of doing so, Hart concluded.

In a brief concurring opinion, Justice Richard L. Gabriel, writing for himself and Justice William W. Hood III, agreed with the outcome, but only because the Kutlak decision was on the books. Both men had dissented from the Kutlak decision at the time and still believe it was wrongly decided.

If not for the obligation to respect court precedent, Gabriel wrote, "I would vote to affirm the trial court’s suppression order in this case."

Berkenkotter's dissent argued the trial court judge correctly determined Trujillo-Tucson had asked not simply for any lawyer, but for his lawyer, whom he identified by name. To her, there was no ambiguity about the meaning of that request, especially after Tuttle revealed police had probable cause to arrest Trujillo-Tucson for a crime.

She also found troubling the majority's treatment of another issue in the case: What happens when a suspect in custody invokes their Miranda rights, but an officer either does not fully comprehend them or is not the one conducting the interrogation?

The majority "seems to suggest that law enforcement officers have differing degrees of responsibilities vis-à-vis Miranda and that an invocation is somehow ambiguous when it is made to someone other than the 'lead detective'," Berkenkotter wrote.

She faulted Tuttle for allowing Rogers to interrogate Trujillo-Tucson "as if nothing had happened" after Trujillo-Tucson's question. The dissenting justices were disconcerted that, even though Trujillo-Tucson asked for his attorney, the majority suggested he was capable of making the request in a more explicit way.

The case is People v. Trujillo-Tucson.

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