Appeals decisions conflict on what a military law enforcement agent should do
when a suspect makes an ambiguous remark concerning a lawyer. When confronted
with this situation, military investigators and agents should follow the Court
of Military Appeals decision and seek clarification from the suspect as to
whether or not he wants a lawyer.
As with all legal issues, the agent or
investigator should seek advice from the servicing prosecutor.
j. In U.S. v. Schroeder, 39 MJ 471 (CMA. 1994), police officers for a
civilian railroad saw the accused smoking and snorting what appeared to crack
cocaine one night in the railroad yard. They arrested him and told him they
were taking him to a civilian hospital for a nonconsensual urinalysis.
accused responded he did not want to give urine until he talked to a lawyer.
The police officers said he would not get a lawyer until after the "booking
process." Early the next morning after the accused gave urine, an OSI agent
came to the county jail to interrogate the accused. Since he was in custody,
the agent advised him of his rights under Article 31(b), UCMJ, and Miranda.
The agent asked him if he wanted a lawyer.
The accused responded, "I will
eventually get a lawyer." The agent replied, "What I really need to know is do
you want an attorney right now?" The accused rejoined, "No, not right now."
Then he signed the waiver and orally confessed to using marijuana and cocaine.
The agent used this oral confession to get a search authorization for the
accused's dormitory room.
Therein the agent found and seized drug
Four days later, the accused was still in county jail.
agent returned to the jail and readvised him of his rights which he waived.
Thereafter, the accused gave a written confession.
The Court of Military
Appeals held that the accused's request for a lawyer prior to going to the
hospital to give a urine sample was "premature." The accused does not have the
rights to a lawyer under Miranda until he is in custody and he has been advised
of his right to counsel. Then he must elect either to invoke or waive this
right. In this case, the accused knowingly and voluntarily waived his right to
a lawyer. Therefore, his oral and written confessions and the evidence based
on his oral confession were admissible, notwithstanding his premature request
for a lawyer.
The same rule applies when the suspect requests a lawyer while in
custodial interrogation situation with foreign police officials.
In U.S. v.
Dock, 40 MJ 112 (CMA. 1994), the accused was in the custody of the German
Criminal Police who suspected him of a brutal murder of a German cab driver. A
U.S. CID agent was present during this interrogation, but acted only as an
observer. At some point during the German questioning, the accused stated he
wanted an American lawyer from the United States. The German police continued
their interrogation of the accused who gave some incriminating oral statements.
When the German police were done with the accused, they turned him over to the
observing CID agent.
This agent properly advised the accused of his rights
which he knowingly and voluntarily waived. Thereafter, the accused gave a full
oral confession to the murder and followed up the next day by putting this
confession in writing. The Court of Military Appeals held that the accused was
in exclusive German custody when he requested a lawyer. This request was not
binding on the CID agent who was acting only as an observer. This was not a
Therefore, the accused's request for a lawyer was
premature. When he was fully advised of his rights,