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UNITED STATES V. ZAKHARI, 2023 WL 6967568 (6th Cir. 2023)
Bored with his medical school studies after several years of studying to become a cardiothoracic surgeon, Joseph Zakhari blasted messages across 61 social-media accounts over three days on MeetMe, Kik and Badoo. One of his messages reached “boredcrbgirl,” and she responded. Zakhari wrote, “Hey. How are you?” “Bored,” she replied. Zakhari replied, “Same. And horny.” Zakhari and boredcrbgirl then exchanged messages, with Zakhari sending pictures of his penis along with increasingly explicit sexual requests. Boredcrbgirl was a male police detective posing as a 15-year-old girl and using profile pictures of a younger adult female police officer.
Zakhari invited boredcrbgirl to his apartment and sent an Uber driver to pick her up. When the Uber driver arrived, detectives arrested Zakhari outside his apartment building. Zakhari asked to go into his apartment to care for his pet; once Zakhari’s pet was adequately cared for, he was taken to a police facility for interrogation. During both the protective sweep of Zakhari’s apartment and his transportation to the police station, officers did not ask Zakhari any questions nor prompt any discussion.
Detective Hedden informed Zakhari of his Miranda rights. After the Miranda warnings. Zakhari said, “I can answer some questions and then maybe call.” When the detective began asking Zakhari for biographical data, Zakhari asked, “Can I call my dad?” The detective replied: “I don’t have your phone and I can’t give it to you right now.” Zakhari said: “But you said I can stop anytime and call if I wanted to.” The detective then asked whether Zakhari’s father was an attorney, and Zakhari replied, “My sister is an attorney.” The following ensued:
- Hedden: Do you want to call your sister?
- Zakhari: Yea–I mean, she– …
- Hedden: If you want to, yes, but that’s going to be the end of us talking. And that’s not my rule, that’s just the way it is.
- Zakhari: I understand, I just don’t know what more you want me to say. I made a huge mistake, if you want me to say that.
The detective continued to question Zakhari about the online chat Zakhari had with boredcrbgirl. Later during the interview, the detective asked if the app used to chat was still on Zakhari’s phone and whether the phone was locked. Zakhari then said, “Sir, I would like my lawyer at this point. I don’t think this is fair to, you know, put me through much more than this.”
The detective asked Zakhari if he wanted to call his sister and he replied, “Yeah,” then paused. The detective told Zakhari such a call would end the questioning and Zakhari continued to answer questions and make incriminating statements. Zakhari was charged with attempting to persuade a minor to engage in illegal sexual activity, attempting to transmit an obscene image to a minor and attempting to produce child pornography. Zakhari unsuccessfully asked the trial court to suppress his statements; he appealed the denial of his suppression motion.
An explicit request for an attorney requires all questioning to cease. If the suspect makes an ambiguous or equivocal statement concerning the right to legal counsel following an unequivocal waiver of the right to counsel, the officer does not need to stop and ask clarifying questions (Davis v. United States, 512 U.S. 452 (1994)). In Davis, the Supreme Court ruled the suspect’s statement, “Maybe I should have a lawyer,” was not an invocation of the right to counsel and allowed admission of following statements made to officers.
Even though officers are not required to stop the questioning and clarify an ambiguous statement regarding counsel, it may be good practice to do so. If the suspect responds ambiguously or equivocally to a Miranda warning, the officer should try to clarify the suspect’s intent. If the officer tries to clarify the suspect’s response and the suspect continues to respond ambiguously or equivocally, a valid implied waiver may still be found: “If an accused makes a statement concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no statement, the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights” (Berghuis v. Thompkins, 560 U.S. 370 (2010)). It is essential the officer proceed with caution and carefully document the suspect’s behavior and statements. In Berghuis v. Thompkins, the Supreme Court held an implied waiver of the right to remain silent may be established by showing “that a Miranda warning was given and the accused made an uncoerced statement,” and “the additional showing that the accused understood these rights.” Ideally, every interrogation would be accompanied by a written, express waiver, but that’s not realistic. A written waiver is not the legal requirement, and an implied waiver may be sufficient (North Carolina v. Butler, 441 U.S. 369 (1979)). The burden is on the prosecution to show a proper waiver of the right to counsel.
The trial court characterized Zakhari’s request to call his sister (the attorney) as equivocal and ruled it “more closely resembled an attempt to speak with family than a serious request for counsel.” The appellate court disagreed. The court opined that, when Zakhari’s responded to the detective’s question of whether the father was an attorney with the fact that his sister was an attorney, it was an “immediate response to identify a lawyer he knew.” Coupled with Zakhari’s statement, “You said I could stop at any time,” the court saw this as a request for “lawyerly assistance.” The court noted the detective understood Zakhari was requesting legal counsel because the detective told Zakhari questioning would cease if he called his sister. One of the three judges dissented, opining Zakhari’s request for a lawyer was — at best — equivocal.
If there is a clear lesson in this case, it is that the coupling of a suspect’s request to stop the questioning with the request to call a lawyer (whether a sister, brother, neighbor or friend) should be treated as a request for legal counsel and questioning should stop.
