MEMORANDUM OPINION AND ORDER
Defendant Robert Allegra (“Allegra”) has moved to suppress- all statements he made during a post-arrest interview on March 25,- 2015 after allegedly invoking his right to counsel. See Miranda v. Arizona,
I.
Allegra is a licensed pilot who owns an aviation business, Royal Palm Aviation, Inc., based in Westmont, Illinois. In or around December 2013, the Federal Bureau of Investigation (“FBI”) and Drug Enforcement Agency (“DEA”) launched a joint investigation into whether Allegra was using his private planes to engage in drug trafficking. The FBI/DEA investigation culminated in Allegra’s arrest at the Van Nuys Airport near Los Angeles, California on March 25, 2015.
At the time of Allegra’s arrest, the Government believed he was about to fly two drug couriers carrying one hundred pounds of cocaine from Los Angeles to Chicago in exchange for $205,000 in total compensation. Allegra allegedly received a down payment of $30,000 in cash five days earlier from a Government informant and a check for $25,000 from the two drug couriers moments before he was arrested.
After his arrest, Allegra was taken to the Los Angeles Airport police station and interviewed by DEA Special Agent Patrick Brosnan (“Agent Brosnan”) and FBI Special Agent David Ostrow (“Agent Ostrow”) (collectively, “the Agents”). The parties have not raised any factual disputes about what occurred during the interview, which was videotaped and later transcribed.
At the beginning of the interview, Agent Ostrow advised Allegra of his Miranda rights and presented him with the FBI’s
Allegra mentioned, a lawyer three times during his interview. Although Allegra argues that only his third reference to counsel amounted to an invocation of his Miranda rights, I will describe all three references because determining whether a suspect invoked the right to counsel requires consideration of the full context preceding the alleged invocation. See U.S. v. Hampton,
After expressing his willingness to cooperate, Allegra said, “You tell me what you need. Do I need an attorney? Do I not need an attorney?” Tr. At 12.
Allegra’s second reference to counsel occurred during an exchange in which he asked Agents Brosnan and Ostrow to clarify what benefits he would receive for cooperating. After the Agents rejected Allegra’s attempt to negotiate the terms of his cooperation, he said, “I mean, I probably should have counsel then, because I don’t know what you want me to tell you other than I got a cheek—you tell me that’s your check and not. ..not whoever hired me, Jason’s check?” Tr. at 14. Without any further discussion of counsel, the conversation then turned to the $30,000 in cash that Allegra received five days before his arrest. Id. at 14-15.
Allegra’s third and final reference to counsel occurred immediately after Agent Brosnan explained that Allegra would be charged and put in jail pending a bond hearing if he refused to cooperate. Id. at 15. That threat led to the following exchange:
Allegra: Well, I need to talk to somebody because I don’t know what I’m looking at right now. So can you provide me with an attorney?
Agent Ostrow: You want to speak to an .attorney that’s...
Allegra: So we can have one.
Agent Ostrow:' That’s your right if you want to talk to an attorney. That’s absolutely fíne and we respect that.
But what happens now is, basically, it’s done. You get your attorney and then we will convene back in Chicago. But right now you will be... you will be charged and you will be locked up today. But you want to- speak to an attorney, that’s fíne. I respect that decision.
Allegra: I mean,..
Agent Brosnan: I mean, it hurts you a little... I mean, like he said, it’s up to you, you want to speak to an attorney, go ahead. But for you to help us, it would be better if you were out and you get more consideration if people didn’t know you were arrested and you can go home and—
Allegra : But you guys aren’t telling me what you want me to do.
Agent Ostrow: The truth. It’s not worth ■ getting into anything else besides the truth.
Allegra: For me providing you what I know, what do you want me to do from there? That’s just.. .I’m asking a straight up question.
Agent Brosnan: If you are truthful with ’ us, we can get into other things that we think you are involved in and get some more...
Id. at 16.
The conversation then turned to how Allegra knew someone named Jason or “Jay” who had hired him to make several flights. Id. at 16-17. Allegra eventually admitted that he agreed to fly cocaine from Los Angeles to Chicago for one of the Government’s informants. Id. at 21, 23. He was later indicted for attempted possession of five or more kilograms of cocaine with intent to distribute in violation of 21 U.S.C. § 846.
II.
Allegra has moved to suppress all statements he made after his third reference to counsel—“So can you provide me with an attorney?”—during his post-arrest interview. It is the Government’s burden to show that Allegra “voluntarily, knowingly and intelligently” waived his right to counsel. Miranda,
A.
Miranda held that “[i]f the individual [in custody] states that he wants an attorney, the interrogation must cease until an attorney is present.”
In Edwards v. Arizona,
“If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards.” McNeil v. Wisconsin,
B.
The Supreme Court’s leading case on how to determine whether a suspect has
In contrast, “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in right of the circumstances would have understood only that the suspect might be invoking the right to counsel, [the Court’s] precedents, do not require the cessation of questioning.” Id. (emphasis in original). The Court also declined to require officers to ask clarifying questions when a suspect’s reference to counsel is ambiguous or equivocal. Id. at 461,
C.
The Supreme Court and the Seventh Circuit have held that a variety of verbal formulations are sufficient to invoke the Miranda right to counsel. See, e.g., Smith,
In contrast, the following statements have been deemed too ambiguous or equivocal to invoke the Miranda right to counsel. See, e.g., Davis,
D.
Under these precedents, Allegra’s question to the Agents—“So can you provide me with an attorney?—was sufficient to invoke his right to counsel and should have ended the interrogation. His words are indistinguishable from the suspect’s question in Lee that was deemed sufficient to invoke the right to counsel. See
The Agents’ responses to Allegra’s question provide additional support for the conclusion that he successfully invoked his right to counsel.
E.
The Government attempts to equate Allegra with the suspect in Hampton who engaged in a “pattern of equivocation” about whether he wanted counsel present during his interrogation.
The Seventh Circuit held that neither of Hampton’s references to an attorney after his initial invocation of the right to counsel—which the officers respected—was sufficiently clear to reinvoke the right. The first alleged reinvocation—‘Yeah, I do, but..in answer to whether he wanted an attorney—included a “hedge word.” Id. at 727-78. The second alleged reinvocation—“I think, I, I felt like it should have been an attorney here cause that’s what I asked for”—came only after the suspect “had twice mentioned an attorney only to change his mind and reinitiate the conversation with the officers” Id. at 728. In light of that context, “a reasonable officer would have understood that Hampton might want a lawyer, but also might want to proceed without one.” Id.
Hampton’s pattern of equivocation is nothing like Allegra’s straightforward request: “So can you provide me with an attorney?” Tr. at 24. To be sure, Allegra made two equivocal references to an attorney before making the request quoted above. Allegra’s temporary vacillation over whether he wanted counsel, however, is a far cry from Hampton’s prolonged back- and-forth with officers. Moreover, whereas Hampton used a hedge word (“but”) and the past tense (“should have been”) in his purported invocations of the right to counsel, Allegra’s request suffers from neither defect. To equate Allegra with Hampton is to ignore the facts of their respective post-arrest interviews.
The other case to which the Government analogizes, Lord v. Duckworth,
Unlike Charles Lord, Allegra asked for counsel during the early stages of his post-arrest interview while he was trying to negotiate the terms of his possible cooperation. Moreover, Allegra did not make- any incriminating admissions before asking for counsel that could support an inference (similar to the one made in Lord) that he was asking for an attorney only for purposes of future court proceedings. Allegra denied knowing that' the suitcases aboard his plane contained cocaine and said he thought he was transporting money. Tr. at 3, 6, 8-9, 12-13. Allegra admitted that he had flown cash to or from Texas, but denied knowing the source of the money. Id. at 10, 12-13. That limited admission is far different from Lord’s murder confession and promise to help agents find the weapon,he used.
In sum, although Allegra and Lord used similar words—“So can you provide me with an attorney?” (Allegra) and “I can’t afford a lawyer but it there any way I can get one?” (“Lord”)—the circumstances in which they uttered those words were quite different. Allegra’s request came during the early stages of his post-arrest interview rather than after an eighty minute recorded statement in which he admitted to the crime under investigation. There
F.
Where, as here, “the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Smith,
The Agents’ responses to Allegra’s request for counsel were similar to the law enforcement response in Lee that was “a matter of some concern” to the Seventh Circuit.
The Agents’ responses to Allegra’s request for counsel were even more coercive than the tactics used in Lee. Agent Ostrow told Allegra that he would be charged and “locked up” if he persisted in his request for counsel. Tr. at 16. Agent Brosnan added that it would “hurt” Allegra to request counsel whereas he would “get more consideration” if he cooperated with the FBI and DEA now rather than later. Id. At a minimum, Agent Brosnan’s attempt to persuade Allegra to waive his previously invoked right to counsel casts doubts on whether Allegra initiated further discussion with the Agents (such that the Edwards presumption of involuntariness would no longer apply to his subsequent statements) or simply succumbed to badgering (which Edwards prohibits). See Michigan v. Harvey,
Robinson points the way towards resolution of whether Allegra initiated a discussion with the Agents or succumbed to badgering. In Robinson, the Seventh Circuit held that the suspect’s “unprompted question, ‘What do you want?’ was sufficient under Edwards to initiate a conver
At first glance, Allegra’s first statement after invoking the right' to 'counsel—“But you guys aren’t telling me what you want me to do,” Tr. at 16—appears similar to the facts in Robinson. The Seventh Circuit was' quick to. note, however, that a suspect’s words cannot be divorced from context: “[I]f the officers’ conduct prior to the point when [the suspect] initiated further conversation amounted to interrogation, such interrogation would have violated Edwards and rendered the subsequent initiation and waiver invalid.” Robinson,
■ In sum, Allegra’s statements after invoking his right to counsel are presumptively involuntary—and therefore inadmissible—under Edivards because they were made in response to prohibited interrogation.
III.
Allegra’s motion to suppress is GRANTED for the reasons stated above.
Notes
. All "Tr.” citations refer to the transcript of Allegra’s post-arrest interview that the Government submitted to chambers on August 28, 2015. There are no material difference between that transcript and the "updated" transcript that Allegra submitted to chambers on November 6, 2015,
. While courts may not consider a suspect’s statements after invoking the right to counsel for purposes of “cast[ing] retrospective doubt on the clarity of the initial request,” Smith,
. Consistent with the Supreme Court’s admonition, courts have been loath to “build a superstructure of legal refinements” around what it means for a suspect to "initiate” further discussion with the police after initially invoking the right to counsel. See Bradshaw,
. An ‘‘incriminating response” means "any response-—whether inculpatory or exculpatory—that the. prosecution may seek to introduce at trial,” Innis,