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Where a suspect has not waived his Miranda rights, a suspect invokes his right to counsel by making a statement “that can reasonably be construed to be an expression of a desire for the assistance of an attorney.”

Tio Sessoms filed a federal habeas petition after the California Court of Appeal affirmed his judgment of conviction. Sessoms’s appeal was based on the admission into evidence of incriminating statements that he made during an interrogation after Sessoms invoked his right to counsel. During the videotaped interrogation by police, Sessoms made two statements before he was “overwhelmed” and “persuaded [] out of exercising his constitutional rights:” (1) “There wouldn’t be any possible way that I could have a – a lawyer present while we do this?”; and (2) Yeah, that’s what my dad asked me to ask you guys . . . uh, give me a lawyer.” Instead of ceasing the interrogation, the detectives convinced Sessoms that having a lawyer was a bad idea. The detectives then advised Sessoms of his Miranda rights, after which Sessoms made incriminating statements. The Ninth Circuit held that the California Court of Appeal “unreasonably” applied the rule under Davis v. United States, requiring that a suspect “unequivocally or unambiguously” invoke his right to counsel, because the rule is limited to statements made after a suspect has waived his Miranda rights. Thereafter, the Ninth Circuit applied the correct standard of review under Miranda v. Arizona and Edwards v. Arizona, which requires that the suspect make “some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” The two statements that Sessoms made during the interrogation indisputably expressed his desire for counsel. Additionally, the detectives’ reaction of telling Sessoms that getting a lawyer was a bad idea after Sessoms made his request shows that the police reasonably understood Sessoms’s request. REVERSED and REMANDED.