776 F. 2d 370 - United States v. C Porter

Before CAMPBELL, Chief Judge, COFFIN, BOWNES, BREYER, TORRUELLA, Circuit Judges, and PEREZ-GIMENEZ,* District Judge.

Prior report: 764 F.2d 1.

We do not consider this opinion to announce a per se rule. Rather, we need only say, as several other circuits have said, that where the accused's words and actions are ambiguous as to whether he wishes a lawyer (at least as ambiguous as in the present case), the questioning officers must find out more specifically whether he wants a lawyer before they can proceed further with other questioning. On the record before us, we deem the questioning impermissible even under a standard that restricts further questioning to clarify an ambiguous request for counsel. See, e.g., United States v. Cherry, 733 F.2d 1124, 1130-31 (5th Cir.1984) (citing Thompson v. Wainwright, 601 F.2d 768, 772 (5th Cir.1979) and Nash v. Estelle, 597 F.2d 513, 517 (5th Cir.1979) (en banc); United States v. Riggs, 537 F.2d 1219, 1222 (4th Cir.1976); United States v. Prestigiacomo, 504 F.Supp. 681, 683 (E.D.N.Y.1981); United States v. Grullon, 496 F.Supp. 991, 997 (E.D.Pa.1979).

This order in no way changes Chief Judge Campbell's concurring Dubitante.

The petition for rehearing and the suggestion for rehearing en banc are denied.