The Indiana Court of Appeals found a man’s question, “Can I get a lawyer?” during police questioning unambiguously and unequivocally invoked his Fifth Amendment right to counsel, so the trial court erred in denying the man’s motion to suppress statements he made to police.

In Dana L. Lewis, Jr. v. State of Indiana, No. 40A01-1106-CR-276, Dana Lewis was invited by Jennings County Sheriff’s Sergeant Karen McCoy for an interview regarding an alleged sex crime with a 13-year-old girl. McCoy told Lewis he was not under arrest and free to leave at any time, read him his Miranda rights, and then began asking Lewis about the crime. During questioning, Lewis asked, “Can I get a lawyer?” but police continued questioning Lewis. Lewis spoke about the alleged crime for a few more minutes until asking whether he was under arrest or would be under arrest. Lewis was arrested two days later and charged with Class A felony child molesting.

Lewis filed a motion to suppress his statements to McCoy, arguing they were obtained in violation of the Fifth Amendment right to counsel. At a hearing, both parties stipulated that Lewis reasonably believed he was in custody and not free to leave, but the judge ultimately denied the motion.

The Court of Appeals reversed, rejecting the state’s argument that the trial court stipulation that Lewis believed he was in custody shouldn’t have any bearing on the appeal. The stipulation binds the state on the question of whether Lewis was in custody, wrote Judge Cale Bradford.

The judges cited United States v. Lee, 413 F.3d 622, 626 (7th Cir. 2005), in which the 7th Circuit Court of Appeals deemed a suspect’s question “Can I have a lawyer?” to be similar to other statements recognized by the court as proper invocations of the right to an attorney.

“Much as the question, ‘Can I get the car tonight?’ would be universally understood as a request to borrow the car tonight, and not as a theoretical question regarding one’s ability to borrow the car tonight, we have little trouble concluding that Lewis’s question would be understood by any reasonable police officer as an unequivocal request for counsel,” Bradford wrote.

The appellate court remanded for further proceedings.