466
Souter, J., concurring in judgment
Justice Souter, with whom Justice Blackmun, Justice Stevens, and Justice Ginsburg join, concurring in the judgment.
In the midst of his questioning by naval investigators, petitioner said "Maybe I should talk to a lawyer." The investigators promptly stopped questioning Davis about the killing of Keith Shackleton and instead undertook to determine whether he meant to invoke his right to counsel, see Miranda v. Arizona, 384 U. S. 436 (1966). According to testimony accepted by the courts below, Davis answered the investigators' questions on that point by saying, "I'm not asking for a lawyer," and "No, I don't want to talk to a lawyer." Only then did the interrogation resume (stopping for good when petitioner said, "I think I want a lawyer before I say anything else").
I agree with the majority that the Constitution does not forbid law enforcement officers to pose questions (like those directed at Davis) aimed solely at clarifying whether a suspect's ambiguous reference to counsel was meant to assert his Fifth Amendment right. Accordingly I concur in the judgment affirming Davis's conviction, resting partly on evidence of statements given after agents ascertained that he did not wish to deal with them through counsel. I cannot, however, join in my colleagues' further conclusion that if the investigators here had been so inclined, they were at liberty to disregard Davis's reference to a lawyer entirely, in accordance with a general rule that interrogators have no legal obligation to discover what a custodial subject meant by an ambiguous statement that could reasonably be understood to express a desire to consult a lawyer.
Our own precedent, the reasonable judgments of the majority of the many courts already to have addressed the issue before us,1 and the advocacy of a considerable body of law
1 See, e. g., United States v. Porter, 776 F. 2d 370 (CA1 1985) (en banc); United States v. Gotay, 844 F. 2d 971, 975 (CA2 1988); Thompson v. Wainwright, 601 F. 2d 768, 771-772 (CA5 1979) (en banc); United States v. Fouche, 833 F. 2d 1284, 1287 (CA9 1987); United States v. March, 999 F. 2d
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