In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-3751

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

S AMUEL S HABAZ,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 07 CR 855—Suzanne B. Conlon, Judge.



      A RGUED JUNE 4, 2009—D ECIDED A UGUST 27, 2009




 Before F LAUM, W OOD and T INDER, Circuit Judges.
  W OOD , Circuit Judge. On December 21, 2007, Samuel
Shabaz was arrested at his home in Chicago, Illinois,
by agents of the Federal Bureau of Investigation. The
FBI agents were acting under the authority of an arrest
warrant that named Shabaz as a suspect in a robbery at
a TCF Bank, which is located in Oak Lawn, Illinois. Fol-
lowing the arrest, the FBI agents, along with officers
from the Oak Lawn Police Department, took Shabaz to
2                                             No. 08-3751

the Calumet City Police Department. (Oak Lawn and
Calumet City are both south suburbs of Chicago.) Once
there, Shabaz confessed to his role in two bank robberies.
In due course, a federal grand jury indicted him on one
count of attempted bank robbery and two counts of bank
robbery, in violation of 18 U.S.C. § 2113(a). Shabaz
moved to suppress his confession, asserting that it was
taken in violation of his rights under Miranda v. Arizona,

(1966). After the district court denied his
motion, Shabaz entered a conditional plea of guilty,
reserving the right to appeal the court’s refusal to sup-
press the confession. We conclude that Shabaz cannot
prevail unless we were to overturn key credibility
rulings of the district court. Finding no reason to do so,
we affirm.


                            I
  Shabaz’s appeal turns on what happened to him after
he found himself at the Calumet City Police Depart-
ment. The parties’ accounts differ significantly. The Gov-
ernment presented evidence that once Shabaz arrived at
the police station he asked to use, and was permitted to
use, the bathroom. Agent Watson testified that before
Shabaz was taken into the interview room, he heard
Shabaz use the word “attorney” or “lawyer,” although
he did not remember the context in which the word was
used. Agent Watson said that he was sure that Shabaz did
not request an attorney. Once Shabaz was led into the
interview room, Agent Watson made introductory re-
marks, identified who was there, explained to Shabaz why
No. 08-3751                                              3

he had been arrested, and outlined the topics that the
FBI wanted to discuss with him. Agent Watson then read
Shabaz his Miranda rights and asked him to sign an
“advice of rights” waiver form. Shabaz stated that he
understood his rights, but he refused to sign the form.
Instead, he said that he would continue to speak to the
FBI but would stop any time he felt he did not want to
answer a question. The officers denied making any prom-
ises of lenience to him.
  Shabaz told quite a different story. According to him, as
soon as he had arrived at the police station and used
the restroom, he asked Agent Watson, “[A]m I going to
be able to get an attorney?” (In its brief, the Government
appears to agree that Shabaz asked this question.) Agent
Watson replied, “[L]et’s just get you down here,” pointing
to an interview room. Shabaz testified that as he
entered the interview room, Agent Watson said, “[W]e
know what you’ve been doing,” and asked him to “start
at the beginning.” Shabaz testified that he asked for a
lawyer several times and was ignored. At some point,
Shabaz asked to speak with two people: his girlfriend,
Maritza Velazques, and his friend Kabir. The officers
refused to let him do so until he agreed to cooperate.
Shabaz asserted that they repeatedly told him that he
would be treated with lenience if he cooperated. Shabaz
stated that he stopped requesting an attorney because
he believed that he would not be provided with one.
 Both sides agree that the FBI agents presented Shabaz
with a “consent to search” form, which he signed. The
Government says that the form described Shabaz’s
4                                             No. 08-3751

house, two Dodge vans, and his cellular telephone.
Shabaz, however, testified that the consent to search form
did not list the places to be searched at the time that he
signed it. There is additional disagreement about when
Shabaz was asked to sign the consent to search form and
at what point the agents began seriously to question
him. But once the questioning began, Shabaz confessed
in detail to robbing the TCF Bank in Oak Lawn on
two different occasions and once attempting to rob
the Standard Bank and Trust, also in Oak Lawn.
His confession included information about his
planning and execution of the robberies, his motive, and
his disposition of the money. He also identified himself
in the bank surveillance photographs from each of the
robberies, and he signed them to acknowledge that he
was the man in them.


                            II
  In the district court, Shabaz moved to suppress all of
the incriminating statements he made during the inter-
view, arguing that his question in the hallway about
an attorney was an unambiguous request for counsel.
When the agents persisted in interrogating him, he
reasons, they violated his Miranda rights, and that viola-
tion renders all of his post-request statements inadmissi-
ble. Shabaz also argued that any waiver of his Miranda
rights he might have made in the interview room
was not knowing and voluntary.
  The suppression motion was heard by a magistrate
judge, who held an evidentiary hearing and recom-
No. 08-3751                                             5

mended that the district court find that the Government
had met its burden of showing by a preponderance of
the evidence that Shabaz had knowingly and voluntarily
waived his Miranda rights before his confession. First,
the magistrate judge found that the officers did not
violate Shabaz’s rights at the time of the arrest, because
he was not questioned nor did he give statements at that
time. Second, the judge credited Shabaz’s testimony that
he asked Agent Watson, “[A]m I going to be able to get
an attorney?” prior to entering the interview room. The
judge, however, did not interpret Agent Watson’s
response as an outright denial. Instead, the judge found,
when Agent Watson responded by directing Shabaz to
the interview room, the agent was merely deferring an
answer to the question for a couple of minutes (during
which no interrogation took place). At that point, the
judge chose to credit the accounts of the Government’s
witnesses and to reject Shabaz’s version. This led to the
judge’s finding that Shabaz knowingly and voluntarily
waived his Miranda rights once he was in the inter-
view room and he began to talk. On review, the district
court accepted the magistrate judge’s report and recom-
mendation and denied the motion to suppress.
  On appeal, Shabaz argues only that the district court
erred when it denied his motion to suppress for two
reasons: first, because the agents wrongfully denied his
request for an attorney, and second, because any waiver
of his Miranda rights that may have occurred was not
knowing and voluntary.
6                                                No. 08-3751

                             III
  Shabaz first argues that the district court erred in deny-
ing his motion to suppress because he unambiguously
requested an attorney when he asked, “[A]m I going to
be able to get an attorney?” Shabaz regards this state-
ment as sufficient, as a matter of law, to invoke his
Miranda rights. Central to Miranda’s holding is that law
enforcement officers are obliged to inform an accused
who is subject to custodial interrogation that she has
the right to consult an attorney and to have an attorney
present during questioning. 

;
Davis v. United States, 

, 457 (1994). If a suspect
invokes her Miranda rights, she “is not subject to further
interrogation by the authorities until counsel has been
made available . . . unless the accused [herself] initiates
further communication, exchanges, or conversations
with the police.” Edwards v. Arizona, 

, 484-85
(1981).
  The key issue in this case is whether Shabaz clearly
invoked his right to counsel. Whether an accused did so
is an objective inquiry. If the suspect makes a reference
to an attorney that is ambiguous “in that a reasonable
officer in light of the circumstances would have under-
stood that the suspect might be invoking the right to
counsel,” it is not necessary for the authorities to cut
off questioning. 

. Law enforcement
officials are not under any obligation to clarify am-
biguous statements made by an accused. United States
v. Muhammad, 

, 698 (7th Cir. 1997). The
burden is instead on the suspect to make a “clear and
No. 08-3751                                               7

unambiguous assertion of his right to counsel to stop
questioning.” United States v. Lee, 

, 625 (7th
Cir. 2005). Nonetheless, if a suspect confesses after law
enforcement officers have violated the requirements of
Miranda, any inculpatory statement made by the
suspect cannot be used against him at trial. 

that the district court erred as a matter
of law when it did not grant his motion to suppress
because he clearly asked for an attorney before Agent
Watson took him into the interview room. But this way
of phrasing the question assumes the answer to the prob-
lem, which is whether the statement “am I going to be
able to get an attorney?” was in fact an immediate
request for counsel. Neither the magistrate judge nor
the district court understood the question this way;
they held instead that the question did not require an
instant positive response and that Agent Watson simply
deferred his answer until they were inside the room.
  We agree with the district court that Shabaz’s question
was not a clear request for counsel under the circum-
stances. It falls short of other statements that we have
characterized as unambiguous requests for counsel.
Thus, in Lord v. Duckworth we mentioned a number of
statements that we would consider an unequivocal and
clear request for counsel, including: “I think I should call
my lawyer”; “I have to get me a good lawyer, man. Can
I make a phone call?”; and “Can I talk to a lawyer? At
this point, I think maybe you’re looking at me as a
suspect, and I should talk to a lawyer. Are you looking
at me as a suspect?” 

, 1221 (7th Cir. 1994)
8                                               No. 08-3751

(quoting cases from the Eleventh and Ninth Circuits
regarding unambiguous invocation of the right to coun-
sel). In Lord, in contrast, we decided that the defendant’s
statement “I can’t afford a lawyer but is there anyway
I can get one?” was not an unambiguous request for an
attorney. 

The fact that Lord “did not
pursue the matter any further” after his initial inquiry
was an important factor in our determination. 

Similarly, in United States v. Walker, we held that the
defendant’s statement that “he wasn’t sure whether
he should talk to [the agent] because he was afraid it
would piss his lawyer off” was not an unambiguous
request for counsel where he later told police to “go
ahead” with questioning. 

, 413-14 (7th Cir.
2001). That was also the case in United States v. Buckley,
where the defendant said, “I don’t know if I need an
attorney,” but was soon thereafter read his Miranda
rights. 

, 558-59 (7th Cir. 1993). This was close
to the statement that the Supreme Court evaluated in
Davis, where it held that saying “maybe I should talk to
a lawyer” was not sufficiently clear to alert a reason-
able police officer that the defendant was requesting an

, 458-62.
  A common point among the statements that have been
deemed insufficient is that they do not clearly imply “a
present desire to consult with counsel . . . .” 

. Shabaz’s question is the same. The words
“am I going to be able to get an attorney?” did not unambig-
uously indicate to Agent Watson that Shabaz was right
then asking for an attorney. But our analysis does not
end with words alone; as in our previous cases, we also
No. 08-3751                                              9

consider the circumstances in which the statement was
made. The remainder of Shabaz’s encounter with
the agents supports our conclusion that he did not unam-
biguously request counsel. As soon as Shabaz was led
into the interview room, he was read his Miranda rights
and, at that point, he easily could have requested an
attorney. Although he says that he in fact did so, the
district court did not believe his account; instead, the
court credited the FBI agents and the Oak Lawn police
and found that he made no such request. That is the
kind of credibility finding to which we defer. 

. On the record as it comes to us, there-
fore, Shabaz did not clearly request an attorney. After
he was properly informed of his rights, he chose instead
to talk to his interrogators and never followed up on his
initial question in the hall. Under those circumstances,
the officers were under no obligation to stop ques-
tioning Shabaz, and the district court properly denied
his motion to suppress.
  Shabaz’s alternate claim is that even if his statement
was not a clear and unambiguous request for an attor-
ney, the district court erred in denying his motion to
suppress his post-arrest statements because he did not
knowingly and voluntarily waive his Miranda rights. We
consider de novo whether Shabaz’s Miranda waiver was
knowing and voluntary, United States v. Jackson, 

, 747-48 (7th Cir. 2002), but we review the district
court’s findings of fact and credibility determinations
under the clear error standard, 

.
Where a defendant makes a post-arrest statement, the
Government bears the burden of proving that the state-
10                                             No. 08-3751

ment was made following a voluntary, knowing, and
intelligent waiver, 

, taking into
account the totality of the circumstances, 

. In making this determination, we look at
factors such as the defendant’s background and
conduct, the duration and conditions of the interview
and detention, the physical and mental condition of the
defendant, the attitude of the law enforcement officials,
and whether law enforcement officers used coercive
techniques, either psychological or physical. 

suppression hearing, the magistrate judge
heard testimony from Shabaz and at least five govern-
ment witnesses. We have reviewed those accounts al-
ready. The magistrate judge made a credibility deter-
mination that despite Shabaz’s failure to sign the
waiver form, he was advised of his Miranda rights
and voluntarily agreed to waive them. In fact, the magis-
trate judge specifically found that Shabaz had “hedged
his bets” by talking and getting the benefit of cooperation
while refusing to sign the waiver and thus enabling
his subsequent claim of non-waiver of rights. The
district court accepted the magistrate judge’s findings
and recommendations in their entirety. Based on those
factual findings, we conclude too that Shabaz made a
knowing and voluntary waiver of his Miranda rights.
 We A FFIRM the judgment of the district court.




                          8-27-09