State v. Richard K. Fischer, 2003 WI App 5, PFR filed 1/15/03
For Fischer: Mark S. Rosen
¶19. Applying Davis and Jennings here, we conclude that Fischer’s statement to detectives that if the officers read him his rights he would not answer any questions and would request an attorney is sufficiently ambiguous or equivocal such that a reasonable officer in light of the circumstances would have understood only that Fischer might be invoking the right to counsel. See Jennings, 2002 WI 44 at ¶36. Fischer’s request was conditional, as it depended upon something that had not yet happened but might happen in the future. His Miranda rights had not yet been read to him and thus he was not yet requesting counsel. A conditional and futuristic request for counsel is a statement that a reasonable officer in light of the circumstances would have understood only that Fischer might be invoking the right to counsel, see Jennings, 2002 WI 44 at ¶36, and thus is not a clear and unequivocal request for counsel.
That is, a suspect already in custody who says he’ll invoke his right to counsel once his rights are read hasn’t unequivocally invoked that right. Compare, People v. Gonzales, Cal SCt No. S100042, 1/24/05 (Gonzales’ statement that he wanted lawyer if he was going to be charged held to be, on its face, “conditional” and therefore ambiguous, equivocal request).