2026 CO 17 | Omnilex

Gesamter Gesetzestext

The opinion summaries are not part of the Colorado Supreme
Court’s opinion. They have been prepared solely for the reader’s
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.
ADVANCE SHEET HEADNOTE
March 30, 2026
2026 CO 17
No. 25SA146, People v. Lulei—Constitutional Law—Fifth Amendment—
Custody—Party Presentation.
The supreme court holds that the district court erred as a matter of law when
it concluded that the defendant’s invocation of the right to counsel outside of a
custodial interrogation setting was nevertheless effective because police had
attempted to advise him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
Citing People v. Kutlak, 2016 CO 1, 364 P.3d 199, a plurality of the supreme court
concludes that under the circumstances here, it may address whether the
defendant was in custody as a necessary antecedent to the Edwards v. Arizona,
451 U.S. 477 (1981), issue before it. The supreme court’s review of the record
confirms the trial court’s finding that the defendant was not in custody when he
requested counsel. Thus, the district court erred in suppressing Lulei’s statements
under Miranda and Edwards. Accordingly, the supreme court reverses the district
court’s suppression order and remands the case to the district court for further
proceedings.

The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2026 CO 17
Supreme Court Case No. 25SA146
Interlocutory Appeal from the District Court
District Court, City and County of Denver, Case No. 24CR5907
Honorable Eric Johnson, Judge
Plaintiff-Appellant:
The People of the State of Colorado,
v.
Defendant-Appellee:
Dakotah J. Lulei.
Order Reversed
en banc
March 30, 2026
Attorneys for Plaintiff-Appellant:
John Walsh, District Attorney, Second Judicial District
Jeff M. Van der Veer, Senior Deputy District Attorney
Anya Havriliak, Deputy District Attorney
Denver, Colorado
Attorneys for Defendant-Appellee:
Megan A. Ring, Public Defender
Robert Swestka, Deputy Public Defender
Robert Halpern, Deputy Public Defender
Denver, Colorado

2
CHIEF JUSTICE MÁRQUEZ delivered the Opinion of the Court, in which
JUSTICE BOATRIGHT and JUSTICE SAMOUR joined.
JUSTICE BLANCO concurred in part and concurred in the judgment.
JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE
BERKENKOTTER, dissented.

3
CHIEF JUSTICE MÁRQUEZ delivered the Opinion of the Court.
¶1 The People bring this interlocutory appeal under C.A.R. 4.1, challenging a
Denver District Court order suppressing Defendant Dakotah J. Lulei’s statements
to law enforcement under Edwards v. Arizona, 451 U.S. 477, 484–85 (1981) (holding
that when an accused who is subject to custodial interrogation has invoked their
right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966), police may not
reinitiate interrogation until counsel has been made available). At the suppression
hearing, the district court acknowledged that the right to counsel under Miranda
applies to custodial interrogation. It further concluded (consistent with defense
counsel’s position at the hearing) that Lulei was not in custody when he invoked
his right to counsel as police attempted to advise him of his Miranda rights.
Nevertheless, the district court ruled that Lulei’s subsequent (albeit voluntary)
statements must be suppressed under Edwards because the police did not
scrupulously honor his request for a lawyer and instead reinitiated interrogation.
¶2 We conclude that the district court erred as a matter of law when it
concluded that Lulei’s invocation of the right to counsel outside of a custodial
interrogation setting was nevertheless effective because police had attempted to
advise him of his Miranda rights. Because our review of the record confirms the
trial court’s finding that Lulei was not in custody when he requested the presence
of an attorney, Miranda and Edwards are inapplicable here and the district court

4
therefore erred in suppressing Lulei’s statements under those cases. Accordingly,
we reverse the district court’s order and remand the case to the district court for
further proceedings.
I. Facts and Procedural History
A. The Incident and Subsequent Police Interview
¶3 Late one evening, Lulei called 911 to report that his motel roommate was
unconscious because of a possible overdose.1 When police arrived, they saw
emergency medical personnel performing CPR on the roommate, who died
shortly thereafter. At that point, Lulei was not a suspect, nor did officers suspect
foul play. Officers took Lulei’s statement, processed the scene, and released the
room back to Lulei.
¶4 The following morning, Detective Bolton of the Denver Police Department
(“DPD”) attended the roommate’s autopsy. The results of the autopsy, along with
evidence of additional 911 calls the evening before, led law enforcement to suspect
there had been a disturbance between the men. Detective Bolton and another
detective decided to reinterview Lulei as a witness. That afternoon, officers
brought Lulei to police headquarters, handcuffing him in front of his body during
1 We derive the facts from the transcript of the hearing on the motion to suppress
and from our review of body-worn camera footage and the video- and audio-
recorded events from the police interview room.

5
transportation for officer safety pursuant to DPD policy. Lulei was not under
arrest at that point.
¶5 At police headquarters, Lulei waited in the lobby until he was brought into
an interview room.2 During the interview, Lulei was not handcuffed, and he had
his cell phone and a water bottle with him. He took the seat closest to the door,
which was unlocked. Detective Bolton entered, wearing a shirt and tie and visibly
carrying a holstered firearm. He sat across a table from Lulei.
Det. Bolton: What’s up man?
Lulei: Oh, . . . , it’s this guy!
Det. Bolton: This guy. Got your water I see?
Lulei: Oh thank you big sexy.
Det. Bolton: I got you, bro. [Sitting.] Alright.
Lulei: Alright, so, uh, we’re going to keep this under two
minutes.
Det. Bolton: Two minutes huh?
Lulei: Oh, yeah, cuz, you have my statement right?
Det. Bolton: Ah, dude, listen—
Lulei: So, you have my statement, [slaps the desk] that’s
what we’re going by. [Gets up.] Thank you, have
2 The parties dispute how long Lulei waited before he was brought to the interview
room. Lulei contends it was at least forty-five minutes, while Detective Bolton
testified at the suppression hearing that it was less than fifteen minutes.

6
a good day. [Opens the door but remains in the
room.]
Det. Bolton: Wait, wait, are you for real? Wait, wait, hold on—
Lulei: I am for real—
Det. Bolton: You can’t leave—
Lulei: I am for real— [Stays in the room; closes the door
and goes back to stand by his chair.]
Det. Bolton: You can’t leave until the cop gets here; hold on,
I’ve got to get you out of here.
Lulei: No, no, you have my statement—
Det. Bolton: I don’t have your statement.
Lulei: The police have it, that’s what happened, and I’m
free to go now.
¶6 Lulei became agitated, telling Detective Bolton that he had been made to
wait for over an hour and a half. Detective Bolton maintained a calm tone, told
Lulei that it had not been that long, and that he just needed “to make sure we’re
all on the same page.” Lulei agreed to stay and sat.
Det. Bolton: So, if you could give me just a little bit more of
your time, I would appreciate it.
Lulei: Alright, so, here’s the deal, here’s the deal, here’s
the deal— [Takes a cell phone out of his pocket.]
Det. Bolton: I’ve been pretty smooth with you.
Lulei: You have been so that’s why I’m—
Det. Bolton: Let’s just start from scratch, and get this interview
done, and be done.

7
Lulei: Yep, and then uh . . . [Sets timer on cell phone and
puts phone on the desk.]
Det. Bolton: What do you want to show me?
Lulei: You have six minutes.
Det. Bolton: Six minutes? How’d you come up with that
number?
Lulei: Just cuz. You’re wasting time.
Det. Bolton: Alright buddy. Well listen, first of all, you’re all
the way down here at the police station, okay, and
I know you talked to the cops a few times. I just
have a couple follow-up questions for you really
quick.
Lulei: Keep going with it. Yeah.
Det. Bolton: Alright. In order to do that, I want to read you
your [Miranda] advisement form, alright? That
way you feel protected, I feel protected, we all
know we’re on the same page, okay? I’ll go
through it line by line for you. But that’s just,
reading your rights. Have you ever had your
rights read to you before? [Turns form toward
Lulei.]
Lulei: [Takes advisement form; reads.] Oh, so I’m
allowed to have a lawyer present for this?
Det. Bolton: Absolutely.
Lulei: Oh . . . yeah, let’s reschedule this when I have a
lawyer present.
Det. Bolton: Okay, we can do that.
Lulei: [Gets up and walks toward the door.] Yeah,
reschedule this for when I have a lawyer present.

8
Det. Bolton: Alright, sounds good.
Lulei: And we’ll do it at a time where you don’t make me
wait.
Det. Bolton: [Stands.] Well, listen man, things take time.
Lulei: [Opens the door.]
Det. Bolton: Hold on one second, let me get the officer so we
can get you transported back.
Lulei: [Looking out into the hallway.] This guy right
here?
Det. Bolton: Yep, absolutely.
Lulei: Oh, one hundred percent.
Det. Bolton: Alright, let me chat with him for a second, and I’ll
get you out of here in just a second, okay?
Lulei: No problem, and then, uh, you know, I want a
lawyer present next time. And next time, I’m not
waiting . . . .
¶7 Detective Bolton left the interview room and closed the door. After
conferring with Detective Sandoval in the hall, they decided that they had enough
information to arrest Lulei. Detective Bolton, Detective Sandoval, and a
uniformed officer entered the interview room. The officer held out handcuffs and
asked Lulei to turn around.
Lulei: What?
Officer: I’m just gonna put the cuffs on you; we did this
before.
Lulei: But you all put it on in front of me on the way here.

9
Det. Sandoval: We did, yes. Not now.
Lulei: What’s going on now?
Det. Bolton: Well, Dakotah, I tried to talk to you, get your side
of the story. Right now, you’re going to be
arrested, okay?
Lulei: What the . . . ? For what?
Det. Sandoval: For murder.
Lulei: Oh, dude, no. Like, let’s talk this out then. Dude,
like, no.
Det. Sandoval: Nope, you had your chance, and you asked for a
lawyer. We can’t do it now.
Det. Bolton: I tried to talk to you smoothly, man, and hear your
side of it. We have some serious questions.
Lulei: Alright, I’ll rescind that then. I have serious—like,
get answers then, dude. Like come on, like,
don’t . . . arrest me right now. I have my . . . motel
paid for, for the next two weeks. I have to go to
work on Monday. Like, I’m down to talk to you.
Like, dude, like don’t . . . detain me . . . I thought I
was going to be free to go after this.
Det. Sandoval: Well, no one told you you were free to go after
this—
Det. Bolton: No one told you that, and also, I tried to get your
side of the story and figure it out, man, and you
didn’t want to talk.
Lulei: I’ll talk to you now, man.
¶8 The officer escorted Lulei, still handcuffed, to a holding cell. Around twenty
minutes later, Detective Bolton brought Lulei back to the interview room. After

10
receiving a full Miranda advisement, Lulei signed a form waiving his rights.
During the approximately two-and-a-half-hour interview that followed, Lulei
made incriminating statements.
B. The Suppression Hearing
¶9 Lulei later moved to suppress his statements made to Detective Bolton,
arguing that (1) officers failed to honor his invocation of the right to counsel and
(2) his subsequent statements to the police were involuntary.
¶10 At the suppression hearing, defense counsel acknowledged that the case law
in this context generally involves individuals who are under arrest, and that
“[h]ere we don’t have that situation.” Rather, Lulei “was told he wasn’t under
arrest” and “was brought as a witness to make a statement.” Defense counsel also
argued that “[w]hat make[s] this situation unique” is that Lulei had been told he
could leave after invoking the right to counsel, and moments later police arrested
him for murder. Defense counsel contended that this amounted to police coercion
because it prompted Lulei to rescind his request for counsel and proceed with the
interview.
¶11 The district court ruled on the motion from the bench. In its findings, the
court accepted—and pointed out that the defense accepted—that Lulei was not in
custody when he was brought to the police station. The district court then
acknowledged that Miranda applies to custodial interrogation. The court

11
continued, “If everyone has confessed he was not in custody initially does it even
really matter that he says I want a lawyer? I’m going to say yes. He was given his
Miranda rights. He clearly, unambiguously invoked his right[] to have an
attorney.”
¶12 The court then found that the police failed to scrupulously honor Lulei’s
request for an attorney when they arrested him and reinitiated interrogation. It
therefore granted Lulei’s motion to suppress under Edwards because the police
failed to honor Lulei’s invocation of the right to counsel. The court also concluded
that Lulei’s subsequent statements to the police were voluntary and there was no
coercive police conduct. The court emphasized that it was not suppressing Lulei’s
statements on voluntariness grounds.
¶13 After the court ruled, the People asked the court to clarify if it was finding
that Lulei was not in custody when he was initially brought to the interview room.
The court confirmed that “the evidence has established that when he was brought
to the police station he was not in custody,” but that the detective tried to read
Lulei his Miranda rights and Lulei invoked his right to counsel. The court then
reiterated that it was suppressing Lulei’s statements because Lulei “asked for his
right for the attorney and he is not the one that reinitiated.”

12
C. The People’s Appeal
¶14 After the suppression hearing, the People brought this interlocutory appeal
under C.A.R. 4.1 seeking review of the district court’s suppression ruling.3
¶15 In their initial briefing to this court, the People focused their arguments on
the trial court’s finding that the police violated Edwards by reinitiating
interrogation after Lulei unambiguously invoked the right to counsel. The People
contested this finding, arguing that when Lulei asked after being handcuffed,
“What’s going on now?” the detectives’ comments did not amount to
interrogation.
¶16 At oral argument, however, the People also pointed out that Lulei was not
in custody when he asserted a right to counsel, and therefore he was not entitled
to protections under Edwards. When offered an opportunity to respond on this
point, defense counsel acknowledged that co-counsel who argued the motion had
“conceded that point,” and that, “at the time of the invocation [Lulei was] not per
se in custody.” Defense counsel later reiterated this point,4 but argued that
3 The People raised a single issue:
Whether the district court erred in suppressing the defendant’s
statements.
4 When asked if the record showed that Lulei was not in custody, defense counsel
replied, “I don’t think I can in good faith make the argument that [Lulei] was in
fact—or felt like he was—restrained, or not free to leave, until after he invoke[d]
the right to counsel.”

13
Detective Bolton’s effort to administer the Miranda advisement effectively
triggered Lulei’s Miranda rights regardless of his custodial status.
¶17 After oral argument, Lulei requested leave to file supplemental briefing on
the following issues:
(1) Whether the prosecution waived any argument that Mr. Lulei was not in
custody at the time of the invocation of the right to counsel.
(2) Whether Mr. Lulei was, in fact, in custody at the time he invoked his right
to counsel based on the totality of the circumstances, including the fact
that he had been advised of his Miranda rights.
(3) Whether the sum total of police conduct rendered Mr. Lulei’s subsequent
Miranda waiver involuntary.
¶18 We granted Lulei’s request and ordered both parties to submit simultaneous
supplemental briefing on the above issues. Having received this briefing, we now
turn to our analysis.
II. Jurisdiction and Standard of Review
¶19 Under section 16-12-102(2), C.R.S. (2025), and C.A.R. 4.1, the prosecution
may immediately appeal a district court’s order granting a defendant’s pretrial
motion to suppress evidence.5 People v. Torres, 2026 CO 15, ¶ 17, __ P.3d __.
¶20 “When reviewing a lower court’s decision to suppress statements made by
a defendant, the question before the court is a mixed issue of law and fact.”
5 Pursuant to C.A.R. 4.1(a), the People certify that this appeal is not taken for the
purpose of delay and that the suppressed evidence constitutes a substantial part
of the People’s case against Lulei. Lulei does not object to this certification.

14
People v. Kutlak, 2016 CO 1, ¶ 13, 364 P.3d 199, 203. We defer to a district court’s
factual findings if there is sufficient record evidence, and we review the legal effect
of those findings de novo. People v. Cerda, 2024 CO 49, ¶ 22, 559 P.3d 206, 212.
“[W]here the statements sought to be suppressed are audio- and video-recorded,
and there are no disputed facts outside the recording controlling the issue of
suppression, we are in a similar position as the trial court to determine whether
the statements should be suppressed.” People v. Madrid, 179 P.3d 1010, 1014 (Colo.
2008). “[W]e may undertake an independent review of the audio or video
recording to determine whether the statements were properly suppressed in light
of the controlling law.” Kutlak, ¶ 13, 364 P.3d at 203.
III. Analysis
¶21 In Miranda, the United States Supreme Court “declared that an accused has
a Fifth and Fourteenth Amendment right to have counsel present during custodial
interrogation.” Edwards, 451 U.S. at 482. In Edwards, the Court took steps to
safeguard this Fifth Amendment right to counsel, holding that “it is inconsistent
with Miranda and its progeny for the authorities, at their instance, to reinterrogate
an accused in custody if he has clearly asserted his right to counsel.” Id. at 485.
¶22 Because the rule in Edwards serves to protect the right to counsel recognized
in Miranda, and because the right to counsel recognized in Miranda applies only in
the context of custodial interrogation, the rule in Edwards applies only when the

15
accused (1) is in custody, (2) is subject to interrogation, and (3) unambiguously
invokes their right to counsel. See Miranda, 384 U.S. at 444–45; Edwards, 451 U.S. at
484–85; Smith v. Illinois, 469 U.S. 91, 95 (1984). Indeed, the Court has observed that
Miranda and Edwards apply “only in the context of custodial interrogation,” and
that “[i]f the defendant is not in custody then those decisions do not apply.”
Montejo v. Louisiana, 556 U.S. 778, 795 (2009).
¶23 Here, the People seek review under C.A.R. 4.1, asking us to determine
whether the trial court erred in suppressing Lulei’s statements under Edwards. We
first address whether we may consider the issue of custody in this case, given that
the People did not argue this point in their initial briefing. We conclude that under
our decision in Kutlak, we may do so because a defendant’s custodial status is an
issue antecedent to and ultimately dispositive of the trial court’s Edwards analysis
before us on appeal. Next, we independently review the audio- and video-
recorded interrogation and confirm that Lulei was not in custody when he asked
for a lawyer. Because Lulei’s Fifth Amendment right to counsel had not attached,
and because Detective Bolton’s initial, attempted Miranda advisement did not alter
Lulei’s noncustodial status, we conclude that Edwards does not apply here. We
hold that the district court therefore erred in suppressing Lulei’s statements on the
basis that police ran afoul of Edwards by reinitiating interrogation after Lulei
requested an attorney.

16
A. Consideration of Custody as an Antecedent Issue
¶24 We first address whether we may consider the threshold issue of Lulei’s
custodial status in resolving this appeal.
¶25 Lulei argues that the People waived the issue of custody, and because it has
not been properly presented, we should decline to consider it. He further contends
that by focusing their initial briefing on whether police reinitiated interrogation
under Edwards, the People effectively conceded that he was in custody for
purposes of this appeal.
¶26 The People counter that a party’s omission of a particular legal argument
when addressing an issue is not a “waiver,” but rather, that such an omission
implicates the party presentation principle. They further argue that the party
presentation rule does not constrain a court’s fundamental obligation to ascertain
controlling law. See Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., 783 F.3d 976,
980 (4th Cir. 2015). Here, the People maintain, we may consider custody as
antecedent to the question of whether Lulei effectively invoked his right to counsel
under Miranda.
¶27 It is true that we typically refuse to address issues or arguments on appeal
that have been waived or abandoned. See, e.g., Moody v. People, 159 P.3d 611, 614
(Colo. 2007) (noting the “basic principle of appellate jurisprudence that arguments
not advanced on appeal are generally deemed waived”); CenCor, Inc. v. Tolman,

17
868 P.2d 396, 397 n.1 (Colo. 1994) (noting that the propriety of the trial court’s
dismissal of certain claims was not briefed on appeal and thus was deemed
abandoned). Although our case law has used the terms “waiver” and
“abandonment” somewhat interchangeably, “waiver” has been more precisely
associated with “‘the intentional relinquishment of a known right or privilege.’”
People v. Rediger, 2018 CO 32, ¶ 39, 416 P.3d 893, 902 (emphases added) (quoting
Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)); cf. Babcock v. People, 2025
CO 26, ¶ 29, 569 P.3d 850, 856 (waiver of statutory rights must be “voluntary, but
need not be knowing and intelligent” (quoting Finney v. People, 2014 CO 38, ¶ 16,
325 P.3d 1044, 1050)).6 Abandonment, by contrast, “typically arises from a party’s
decision not to pursue or reassert a claim that the party had raised previously.”
People v. Smith, 2024 CO 3, ¶¶ 18–19, 541 P.3d 1191, 1195 (emphasis added)
(deeming abandoned certain postconviction claims because they were neither
briefed nor argued during a hearing to the postconviction court).
¶28 Omissions like waiver and abandonment implicate the broader principle of
party presentation. See Jeffrey M. Anderson, The Principle of Party Presentation,
70 Buff. L. Rev. 1029, 1037–42, 1045–48, 1075–76 (2022). Under that principle,
courts “rely on the parties to frame the issues for decision.” Greenlaw v. United
6 It is unclear what “right” or “privilege” Lulei believes the People are
relinquishing by omitting argument on the custody issue.

18
States, 554 U.S. 237, 243 (2008). This principle recognizes that courts “should not[]
sally forth each day looking for wrongs to right.” Id. at 244 (quoting United States v.
Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in the denial of
rehearing en banc)). Instead, our adversarial system “is designed around the
premise that the parties know what is best for them, and are responsible for
advancing the facts and arguments entitling them to relief.” Id. (quoting Castro v.
United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring
in the judgment)).
¶29 Fidelity to the party presentation principle therefore generally precludes a
court from spontaneously deciding an issue that the parties have not raised or had
the opportunity to address. See Clark v. Sweeney, 607 U.S. 7, 9 (2025) (reversing the
Fourth Circuit because it “transgressed the party-presentation principle by
granting relief on a claim that [the defendant] never asserted and that the State
never had the chance to address”); Galvan v. People, 2020 CO 82, ¶¶ 3, 5, 44–46,
476 P.3d 746, 750–51, 757–58 (concluding that a division of the court of appeals
violated the party presentation principle when it “sua sponte and without
briefing” addressed whether interpreting a statutory provision a certain way
rendered it unconstitutionally vague and overbroad).
¶30 But “[t]he party presentation principle is supple, not ironclad.” United
States v. Sineneng-Smith, 590 U.S. 371, 376 (2020); cf. People in Int. of B.H., 2021 CO

19
39, ¶ 29 n.3, 488 P.3d 1026, 1034 n.3 (explaining that while the parties’ briefs did
not explicitly address a particular statute, one party raised the statute at oral
argument; quoting Sineneng-Smith and concluding that our discussion of the
statute did not “run afoul of the party-presentation principle given the scope of
the issues that the parties [had] placed before us”).
¶31 Importantly, the party presentation principle does not constrain a court’s
fundamental obligation to ascertain controlling law. Dan Ryan Builders, Inc.,
783 F.3d at 980. “A party’s failure to identify the applicable legal rule certainly
does not diminish a court’s responsibility to apply that rule.” Id. In other words,
“[w]hen an issue or claim is properly before the court, the court is not limited to
the particular legal theories advanced by the parties, but rather retains the
independent power to identify and apply the proper construction of governing
law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 94–95, 98–100, 108–09 (1991)
(concluding that while the petitioner did not raise an argument about the
applicable state corporate law until her reply brief to the Seventh Circuit, the
Seventh Circuit erred by disregarding that state law because it was required to
identify “the proper source of federal common law in this area”); see also Masterpiece
Cakeshop, Inc. v. Scardina, 2024 CO 67, ¶ 49, 556 P.3d 1238, 1250 (“[W]e have an
obligation to interpret and apply the law.”).

20
¶32 Relevant here, the Supreme Court has expressly recognized that courts have
the discretion to consider an issue that is “‘antecedent to . . . and ultimately
dispositive of’ the dispute before it, even an issue the parties fail to identify and
brief.” U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 444–48
(1993) (omission in original) (quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77
(1990)) (concluding that although respondents argued that a ruling was
inconsistent with a particular federal statute that the parties had assumed was
valid, the District of Columbia Circuit was within its discretion to first consider
whether that statute was still in force); see also Lebron v. Nat’l R.R. Passenger Corp.,
513 U.S. 374, 378–82 (1995) (concluding that the Court had the authority to
consider an argument the petitioner had expressly disavowed in the courts below,
citing United States National Bank of Oregon, and explaining that “[w]hen a question
is, like this one, both prior to the clearly presented question and dependent upon
many of the same factual inquiries, refusing to regard it as embraced within the
petition may force us to assume what the facts will show to be ridiculous, a risk
that ought to be avoided”); United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia,
J., concurring in the judgment) (“[T]here must be enough play in the joints that the
Supreme Court need not render judgment on the basis of a rule of law whose
nonexistence is apparent on the face of things, simply because the parties agree
upon it . . . .”).

21
¶33 The Supreme Court’s reasoning applies here. In addressing whether the
trial court erred in suppressing Lulei’s statements under Edwards, we are not
obligated to ignore the district court’s erroneous legal premise that a Miranda
advisement outside of a custodial interrogation triggers protections under Miranda
and Edwards, simply because the People failed in their initial briefing to flag this
particular basis for challenging the court’s Edwards analysis. Likewise, the party
presentation principle is not so rigid that it must force us to ignore the district
court’s factual finding (or defense counsel’s concession) that Lulei was not in
custody when he invoked the right to counsel—a critical finding that underpinned
the district court’s ruling. Rather, under the circumstances of this case, we may
exercise our discretion to consider the custody issue as a necessary antecedent to
the Edwards dispute before us because it is inherent to our review of the district
court’s ruling.
¶34 Our decision in Kutlak is illustrative of this point. There, we chose to
consider an issue that was a necessary antecedent to the Edwards dispute before
us, even though it had not been raised by the parties. In that case, a division of the
court of appeals held that the police violated Edwards because they never stopped
the interrogation after the defendant made a reference to his attorney. Kutlak, ¶ 7,
364 P.3d at 202. On review, we observed that an Edwards analysis embodies two
distinct inquiries: first, whether the individual subjected to custodial interrogation

22
actually invoked their right to counsel, and second, whether they initiated further
discussions with the police and knowingly and intelligently waived the right they
previously invoked. Id. at ¶ 9, 364 P.3d at 202. Although it was undisputed that
Kutlak was subjected to custodial interrogation, we were still required to ensure
that “the suspect actually invoked his right to counsel.” Id. at ¶¶ 9, 11, 364 P.3d at
202–03. The People had taken inconsistent positions on this point in the lower
courts, and they had not initially briefed the issue for our review. Id. at ¶ 10,
364 P.3d at 202–03. Following oral argument to this court, we sua sponte ordered
supplemental briefing on the issue of whether Kutlak had unambiguously
invoked his right to counsel. Id. at ¶ 11, 364 P.3d at 203. We then ultimately
resolved the case “on the threshold inquiry of the Edwards analysis,” concluding
that the defendant did not actually invoke his right to counsel. Id. at ¶ 12, 364 P.3d
at 203. In sum, even though the People failed to initially brief the issue of
invocation of counsel, we chose to address it as “antecedent to . . . and ultimately
dispositive of” the Edwards issue directly before us. U.S. Nat’l Bank of Or., 508 U.S.
at 447 (omission in original) (quoting Arcadia, 498 U.S. at 77).
¶35 Our decision in Kutlak applies with equal force here. In this case, the People
seek review under C.A.R. 4.1, asking us to determine whether the trial court erred
in suppressing Lulei’s statements under Edwards. To properly resolve that issue,
we must first consider whether Lulei was in custody when he invoked his right to

23
counsel.7 If Lulei was not in custody, then the rule in Edwards is inapplicable. See
Montejo, 556 U.S. at 795 (“If the defendant is not in custody then [Miranda and
Edwards] do not apply.”). If Edwards is inapplicable, then we need not consider
whether law enforcement violated Edwards by reinitiating the interrogation. See
Kutlak, ¶ 12, 364 P.3d at 203.
¶36 Accordingly, guided by Kutlak, we proceed to consider whether Lulei was
in custody when he asserted the right to counsel because custody is a necessary
antecedent to the Edwards analysis presented on appeal.
B. Miranda and Edwards
¶37 The Fifth Amendment to the United States Constitution provides that no
person “shall be compelled in any criminal case to be a witness against himself.”8
U.S. Const. amend. V. To protect this privilege against self-incrimination, Miranda
requires law enforcement to employ procedural safeguards before subjecting an
individual to custodial interrogation. Miranda, 384 U.S. at 478–79. Among other
7 We also note that our consideration of custody in this case does not give rise to
concerns of unfairness or surprise. Here, the district court (and defense counsel)
addressed the custody issue at the suppression hearing, the People raised it at oral
argument to this court, where defense counsel had the opportunity to respond at
some length, and both parties addressed it in supplemental briefing at Lulei’s
request. The latter two circumstances provide us with an even stronger basis to
address the custody issue than we had in Kutlak, where we raised the invocation
issue at oral argument and sua sponte requested supplemental briefing.
8 The Colorado Constitution provides a similar privilege against self-
incrimination. Colo. Const. art. II, § 18.

24
things, law enforcement must notify the individual of their right to remain silent
and to have an attorney present during custodial interrogation. Id.; see also
Edwards, 451 U.S. at 482 (“Miranda thus declared that an accused has a
Fifth . . . Amendment right to have counsel present during custodial
interrogation.”).
¶38 Miranda’s prophylactic rule serves to “dissipate the compulsion inherent in
custodial interrogation and, in so doing, guard against abridgment of the suspect’s
Fifth Amendment rights.” Moran v. Burbine, 475 U.S. 412, 425 (1986). Critically,
“this extraordinary safeguard ‘does not apply outside the context of the inherently
coercive custodial interrogations for which it was designed.’” People v. Coke, 2020
CO 28, ¶ 14, 461 P.3d 508, 513 (quoting Minnesota v. Murphy, 465 U.S. 420, 430
(1984)).
¶39 In Edwards, the Court clarified Miranda’s Fifth Amendment protections,
holding that when an individual is subject to custodial interrogation and
unambiguously invokes their right to counsel, law enforcement may not continue
the interrogation until counsel has been made available, unless the individual
reinitiates communication with the police. Edwards, 451 U.S. at 484–85. In other
words, “it is inconsistent with Miranda and its progeny for the authorities, at their
instance, to reinterrogate an accused in custody if he has clearly asserted his right
to counsel.” Id. at 485.

25
¶40 Because an individual’s rights under Miranda—and, by extension,
Edwards—attach only in the inherently coercive setting of custodial interrogation,
“[i]f the defendant is not in custody then those decisions do not apply.” Montejo,
556 U.S. at 795; see also Coke, ¶ 7, 461 P.3d at 512 (concluding that because the
defendant was not in custody, she was not entitled to Miranda protections).
¶41 Importantly, a Miranda advisement does not itself create Miranda rights.
“[The] Court has ‘never held that a person can invoke his Miranda rights
anticipatorily, in a context other than “custodial interrogation.”’” Bobby v. Dixon,
565 U.S. 23, 28 (2011) (quoting McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991)).
Similarly, while Edwards provides that the Miranda right to counsel, once invoked,
is effective regarding future custodial interrogation, this does not mean that an
individual may initially assert a Fifth Amendment right to counsel outside the
context of custodial interrogation, with similar future effect. McNeil, 501 U.S. at
182 n.3.
¶42 Consistent with these principles, several states have recognized that a
defendant may not invoke a Fifth Amendment right to counsel outside of custodial
interrogation. See, e.g., State v. Bartelt, 906 N.W.2d 684, 700 (Wis. 2018) (“Because
[the defendant] was not in custody when he asked about counsel, his Fifth
Amendment right to counsel did not attach.”); Commonwealth v. Libby, 32 N.E.3d
890, 900 (Mass. 2015) (“Given our conclusion that the defendant was not in

26
custody . . . his interview on this date was simply not governed by Miranda.
Therefore . . . he did not effectively invoke a ‘right’ to counsel.” (citation omitted));
State v. Pontbriand, 878 A.2d 227, 234 (Vt. 2005) (“[The defendant] was not in police
custody during the interview . . . [a]ccordingly, Miranda is inapplicable here, and
the police were not obliged to stop questioning [him] when he indicated he wished
to speak with a lawyer.”); Hannon v. State, 84 P.3d 320, 337 (Wyo. 2004) (“[T]his
[c]ourt adheres to the principle that the rights recognized in Miranda, including
the right to counsel, apply only in the context of custodial interrogation.”).
¶43 Moreover, administering a Miranda advisement does not create an
inherently coercive environment when the individual is otherwise not in custody.
Cf. Oregon v. Mathiason, 429 U.S. 492, 494–95 (1977) (holding that the defendant
was not in custody even after the police advised the defendant of his Miranda
rights and the defendant gave a taped confession). Indeed, other jurisdictions
have expressly concluded that a Miranda advisement does not, by itself, trigger a
suspect’s Fifth Amendment right to counsel outside of custodial interrogation. See,
e.g., Commonwealth v. Morgan, 610 A.2d 1013, 1016, 1018 (Pa. Super. Ct. 1992)
(noting that “the police officer took the precautionary step of reading Miranda
rights to a non-custodial suspect, before they were exercised” and concluding that
“it is error for a court to consider a confession presumptively coerced merely
because a request for a lawyer is not honored where, as here, the suspect was not

27
in custody at the time”); State v. Stanley, 809 P.2d 944, 948 (Ariz. 1991) (concluding
that “there was neither a Miranda nor an Edwards violation because [the defendant]
was not in custody at the time of [the officer’s] questioning” regardless of the fact
that police gave the defendant Miranda warnings).
¶44 Here, although the district court twice concluded that Lulei was not in
custody, it nevertheless ruled (consistent with defense counsel’s contention at the
suppression hearing) that Lulei’s invocation of his right to counsel was effective
because Detective Bolton attempted to give him a Miranda advisement. This ruling
was erroneous as a matter of law. As discussed above, Miranda applies only in the
context of custodial interrogation. The Fifth Amendment right to counsel is not
triggered merely because the police attempted to give a Miranda advisement
because a Miranda advisement, without more, does not create the context of
custodial interrogation. See McNeil, 501 U.S. at 182 n.3.
C. The Record Confirms that Lulei Was Not in Custody
When He Invoked the Right to Counsel
¶45 Our conclusion above does not end our inquiry. Rather, to determine
whether the district court erred in suppressing Lulei’s statements under Edwards,
we must examine whether, under the totality of the circumstances, Lulei was in
custody when he invoked the right to counsel. Our independent review of the
audio- and video-recorded interrogation confirms the trial court’s determination
that he was not.

28
¶46 A person is in custody for purposes of Miranda if, under the totality of the
circumstances, “a reasonable person in the suspect’s position would have felt that
[their] freedom of action had been curtailed to a degree associated with formal
arrest.” People v. Eugene, 2024 CO 59, ¶ 15, 555 P.3d 601, 605 (quoting People v.
Garcia, 2017 CO 106, ¶ 20, 409 P.3d 312, 317); see also Stansbury v. California, 511 U.S.
318, 322 (1994).
¶47 We consider a nonexhaustive list of factors to determine whether, from an
objective perspective, an individual was subjected to circumstances associated
with formal arrest:
(1) the time, place, and purpose of the encounter;
(2) the persons present during the interrogation;
(3) the words spoken by the officer to the defendant;
(4) the officer’s tone of voice and general demeanor;
(5) the length and mood of the interrogation;
(6) whether any limitation of movement or other form of restraint was
placed on the defendant during the interrogation;
(7) the officer’s response to any questions asked by the defendant;
(8) whether directions were given to the defendant during the
interrogation; and
(9) the defendant’s verbal or nonverbal response to such directions.
People v. Matheny, 46 P.3d 453, 465–66 (Colo. 2002).

29
¶48 “A court may consider many factors, but no single factor is determinative,
and a court is not limited in the number of factors it may consider.” Eugene, ¶ 15,
555 P.3d at 605 (quoting People v. Minjarez, 81 P.3d 348, 353 (Colo. 2003)). It is
irrelevant whether the individual is “actually arrested at the close of the
interview.” People v. Willoughby, 2023 CO 10, ¶ 21, 524 P.3d 1186, 1192 (quoting
Matheny, 46 P.3d at 468 n.10).
¶49 Applying these factors here, our review of the record confirms that Lulei
was not in custody when he invoked his right to counsel.
¶50 We begin by noting that the time and purpose of the encounter weigh
against custody. The encounter took place in the early afternoon. See id. at ¶ 23,
524 P.3d at 1192 (noting that an encounter that takes place in daytime weighs
against custody). Detective Bolton told Lulei that he had “a couple follow-up
questions” regarding the roommate’s death, indicating that the purpose of the
encounter was for Lulei to provide more information as a voluntary witness, not
a suspect. Cf. People v. Holt, 233 P.3d 1194, 1198 (Colo. 2010) (noting that the police
behaved as though the defendant was a prime suspect in a serious felony
investigation, a fact that was “an important consideration in our custody
determination”).
¶51 Lulei went to the station voluntarily—nothing in the record indicates he was
taken against his will. Compare Mathiason, 429 U.S. at 495 (concluding that the fact

30
that the defendant went to the police station voluntarily and was told he was not
under arrest weighed against custody), with People v. Sandoval, 218 P.3d 307, 309–10
(Colo. 2009) (concluding that the defendant was in custody in part because the
officer informed the defendant that if he would not come to the station voluntarily,
he would be forced to go against his will). Although Lulei was handcuffed in front
of his body during transport to DPD headquarters, this was standard procedure
for officer safety.
¶52 The encounter took place in a windowless interview room at the station, but
the door was unlocked and Lulei was not in handcuffs or restrained in any way.
See People v. Clark, 2020 CO 36, ¶ 33, 500 P.3d 356, 362 (noting that the absence of
handcuffs during the interrogation weighed against custody); Mathiason, 429 U.S.
at 495 (holding that the defendant was not in custody despite being questioned at
the police station because “there is no indication that the questioning took place in
a context where [the suspect’s] freedom to depart was restricted in any way”).
Instead, he was free to get up, and he even opened the interview room door on
multiple occasions. See People v. Davis, 2019 CO 84, ¶ 31, 449 P.3d 732, 740
(“Another ‘well-recognized circumstance tending to show custody is the degree of
physical restraint used by police officers to detain’ a person.” (quoting People v.
Breidenbach, 875 P.2d 879, 886 (Colo. 1994))). Although Detective Bolton was
carrying a holstered firearm, he was dressed in plain clothes and sat farthest from

31
the unlocked door. See People v. Becker, 196 P.3d 264, 267 (Colo. 2008) (considering
the facts that the officer’s weapon was concealed during the interrogation and the
officer made an effort with his physical presence to avoid the appearance that the
defendant was not free to leave in concluding that the defendant was not in
custody).
¶53 Detective Bolton’s tone was calm, nonconfrontational, casual, and generally
deferential to Lulei, even when Lulei expressed his frustration that he was made
to wait. See Davis, ¶ 33, 449 P.3d at 741 (“We have also considered an officer’s tone
of questioning particularly relevant to a custody determination.”); People v. Padilla,
2021 CO 18, ¶ 24, 482 P.3d 441, 447 (considering the nonconfrontational, friendly
demeanor of the officer and the casual mood of the conversation as facts weighing
against custody).
¶54 The encounter was relatively brief; Lulei set a timer on his phone for six
minutes, telling Detective Bolton that he was “wasting time.” See Padilla, ¶ 25,
482 P.3d at 448 (“[W]e place particular emphasis on the fact that [the defendant]
dictated the length of the interrogation . . . because a reasonable person who sets
the length of an interrogation is unlikely to believe that his freedom of action has
been curtailed to a degree associated with formal arrest.”).
¶55 Furthermore, Detective Bolton made no threats, commands, or any show of
force. See People v. Bohler, 2024 CO 18, ¶ 30, 545 P.3d 509, 516 (noting that the

32
officers “made no threats, they made no promises, and no one referenced criminal
liability” when concluding that the defendant was not in custody (footnote
omitted)). When Lulei indicated that he was leaving at the very beginning of the
interview, Detective Bolton directed Lulei to wait. However, this directive was
not accompanied by “force, threats of negative consequences for not complying,
or an aggressive tone.” Id. at ¶ 33, 545 P.3d at 517.
¶56 Additionally, Detective Bolton had not told Lulei that he was under arrest
at any point before Lulei invoked the right to counsel. See Willoughby, ¶ 28,
524 P.3d at 1192 (“Courts place great weight on whether police tell a suspect that
they are under arrest.”). Instead, Detective Bolton repeatedly reassured Lulei that
he would help Lulei leave and that he just wanted a little bit of Lulei’s time. Cf.
Matheny, 46 P.3d at 467 (concluding that the fact that the officer told the defendant
he was free to go at any time weighed against custody). Finally, although
Detective Bolton attempted to administer a Miranda advisement, this alone did not
transform the situation into a custodial setting. See United States v. Bautista,
145 F.3d 1140, 1148 (10th Cir. 1998) (acknowledging that “the reading of the
Miranda warning to a suspect does not create a custodial interrogation”).
¶57 In sum, our review of the record confirms that, under the totality of the
circumstances, a reasonable person in Lulei’s position would not have felt that his
freedom of movement was curtailed to a degree associated with formal arrest.

33
¶58 Because Lulei was not in custody when he invoked his right to counsel,
Miranda and Edwards are inapplicable here. Montejo, 556 U.S. at 795. Put
differently, because Lulei’s Fifth Amendment right to counsel under Miranda had
not attached, the district court erred in suppressing Lulei’s statements under
Edwards on grounds that law enforcement failed to scrupulously honor Lulei’s
request for an attorney by reinitiating the interrogation.
D. Voluntariness
¶59 Finally, we decline to consider Lulei’s supplemental briefing arguments
related to the voluntariness of his Miranda waiver and his post-Miranda statements
because “interlocutory relief under C.A.R. 4.1 is not available to defendants.”
People v. Brown, 2022 CO 11, ¶ 13, 504 P.3d 970, 974–75. The district court
concluded that Lulei’s statements were voluntary and there was no police
coercion. “[I]f the district court resolves a suppression issue against the defendant,
we have no jurisdiction to address it in an interlocutory appeal.” People v. Weston,
869 P.2d 1293, 1297 (Colo. 1994).
IV. Conclusion
¶60 This unusual case is illustrative of why the party presentation principle “is
a ‘supple’ rule, not an intransigent one.” Galvan, ¶ 46, 476 P.3d at 758 (quoting
Sineneng-Smith, 590 U.S. at 376). Here, we have a finding by the trial court, based
in part on a concession by defense counsel, that Lulei was not in custody. The

34
record supports that finding. Rigid adherence to the party presentation principle
would require us to disregard that finding, not to mention the trial court’s
undisputable legal error premised on that finding. In all, it would force a
resolution of the Edwards issue before us that is untethered to the facts or the law.
But the principle is not ironclad, and we are not shackled to such an outcome.
Instead, under the circumstances here, we follow our decision in Kutlak and
exercise our discretion to address the issue of custody as a necessary antecedent to
the Edwards issue before us. We perceive no unfairness in doing so here,
particularly given that the issue of custody was expressly addressed (and
conceded by the defense) below, it was discussed at oral argument, and the parties
filed supplemental briefing on the issue in this court.
¶61 In sum, we reverse the district court’s order suppressing Lulei’s statements
on the basis that law enforcement violated Lulei’s Miranda rights under Edwards,
and we remand the case for further proceedings.
JUSTICE BLANCO concurred in part and concurred in the judgment.
JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE
BERKENKOTTER, dissented.

1
JUSTICE BLANCO, concurring in part and concurring in the judgment.
¶62 I write separately to address an apparent injustice: Today the People prevail
on an argument they failed to advance. Specifically, this court rules in favor of the
People because Dakotah J. Lulei “was not in custody [under Miranda] when he
invoked his right to counsel,” Pl. op. ¶ 49, even though the People failed to brief
that issue prior to oral argument before this court.
¶63 But that is not the whole picture, and the party presentation principle
remains vital. Although Lulei indicates the People unfairly ambushed him at oral
argument, the parties also presented the Miranda custody issue in two other ways:
the People’s C.A.R. 4.1 Notice of Interlocutory Appeal (the “Notice”) and the
supplemental briefing requested by Lulei. These presentations from the parties
collectively (if barely) placed the custody issue before this court despite the
People’s failure to do so in their pre-argument briefing.
¶64 Therefore, I agree with the plurality’s conclusions regarding party
presentation. I depart from its reasoning, however, because I do not rely on a
“fundamental obligation to ascertain controlling law.” Pl. op. at ¶ 31.
Consequently, I respectfully agree with the plurality that we may address the
custody issue, concur in part with its reasoning, and join this court’s judgment.

2
I. Discussion
¶65 This court is unanimous in finding that the People failed to address the
Miranda custody issue in their Opening Brief or in their Reply Brief. Pl. op.
¶¶ 15–16; Diss. op. ¶¶ 88, 90. The People did present the issue, however, by way
of (1) the Notice, (2) oral argument, and (3) supplemental briefing.
¶66 First, the Notice framed the “Issues to be Raised on Appeal” as “Did the
district court err in suppressing [Lulei’s] statements?” Although it is preferable
for issues to be framed with greater specificity, the People limited the Notice’s
citations to two cases: Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v.
Arizona, 451 U.S. 477 (1981). Both cases recognize custody as a prerequisite to their
holdings. See Miranda, 384 U.S. at 478 (“To summarize, we hold that when an
individual is taken into custody . . . and is subjected to questioning, the privilege
against self-incrimination is jeopardized.”); Edwards, 451 U.S. at 485–86 (“The Fifth
Amendment right identified in Miranda is the right to have counsel present at any
custodial interrogation. Absent such interrogation, . . . there would be no occasion
to determine whether there had been a valid waiver.”). Thus, the issue of custody
was fairly encompassed by the Notice. The Notice, however, is insufficient to end
my inquiry.
¶67 Second, during oral argument, the People addressed the custody issue by
arguing, “[L]et’s take a step back . . . . At the time that Mr. Lulei invoked [his right

3
to counsel,] he actually wasn’t in custody . . . . That is what the trial court found.”
Indeed, the district court found that “everyone has confessed [Lulei] was not in
custody [when he was brought to the police station,]” and Lulei did not contest
this finding in his pre-oral argument Answer Brief. Even then, the Notice and the
oral argument were insufficient to present the custody issue.
¶68 Finally, Lulei requested supplemental briefing after oral argument. This
court then ordered briefing for, among other issues, “Whether Mr. Lulei was, in
fact, in custody at the time he invoked his right to counsel . . . .” Thus, both Lulei
and the People presented the Miranda custody issue to this court.
¶69 Importantly, this court did not address the custody issue on its own
initiative. We do not permit courts below to reach an issue “sua sponte and
without briefing” when “neither party raise[d] it,” Galvan v. People, 2020 CO 82,
¶¶ 44–47, 476 P.3d 757–58, so I apply the same principle here. I find it significant
that Lulei—rather than this court—requested supplemental briefing on the
custody issue. But see People v. Kutlak, 2016 CO 1, ¶¶ 10–12, 364 P.3d 199, 202–03
(ruling in favor of the People after sua sponte requesting supplemental briefing on
an issue the People raised in response to this court’s questions during oral
argument even when the People did not present the issue in pre-argument briefs).
In my opinion, which follows the more recent Galvan to the extent that case
conflicts with Kutlak, it took the sum of the Notice, oral argument, and

4
supplemental briefing to present this issue despite the People’s failure to do so in
their pre-argument briefing.
¶70 I also acknowledge this court facilitated the parties’ presentations of the
custody issue by ordering oral argument and supplemental briefing.1 But those
orders followed the Notice and Lulei’s unopposed request for supplemental
briefing, respectively, and there is no question this court had discretion to issue
the orders. See C.A.R. 4.1(g) (“Oral argument is not permitted unless ordered by
the court.”). Now, the oral argument cannot be unheard; the supplemental
briefing cannot be unfiled. Nor did either party ask this court to reconsider the
orders. Therefore, I take this case as I find it, after the district court addressed the
custody issue, which was then presented to this court through the sum of the
Notice, oral argument, and supplemental briefing.
A. Agreement with the Plurality/Majority
¶71 Under these circumstances, I agree with the plurality’s conclusions
regarding party presentation, waiver, and abandonment. Having determined the
custody issue was permissibly reached, I join this court’s reasoning and conclusion
that Lulei was not in custody when he requested an attorney. Pl. op. ¶¶ 37–58. I
1 The orders were issued before I joined this court.

5
also join this court’s decision to reverse the suppression order and to remand this
case to the district court for further proceedings.
B. Disagreement with the Plurality
¶72 I do not agree with three aspects of the plurality’s opinion. First, I do not
join its discussion of courts’ “fundamental obligation to ascertain controlling law.”
Id. at ¶¶ 31–36. I cannot square this proposed obligation with parties’
responsibility to advance “the facts and argument entitling them to relief.” See
Galvan, ¶ 45, 476 P.3d at 757 (quoting United States v. Sineneng-Smith, 590 U.S. 371,
375–76 (2020)). Although the plurality’s opinion may be interpreted to avoid this
conflict, courts should not place the cart (deciding legal questions) before the horse
(confining decisions to contested issues). In my view, courts must first assure
themselves that litigants have presented a disputed issue before considering the
merits of the issue. A “fundamental obligation to ascertain controlling law” runs
the risk of conflating issue presentation with merits determinations.
¶73 Even in Masterpiece Cakeshop, Inc. v. Scardina, 2024 CO 67, ¶ 21, 556 P.3d
1238, 1245, which the plurality cites, this court ruled on an issue preserved and
presented by the petitioner: whether a particular statute barred the district court
from hearing a claim. Only after we determined the issue was “squarely before
us” did we interpret the statute. Id. Although we interpreted the statute
differently than the parties, that was beside the point of whether the parties

6
presented the issue. See id.; see also Lucero v. People, 2017 CO 49, ¶ 26, 394 P.3d 1128,
1134 (“[C]ourts ‘rely on the parties to frame the issues for decision’ . . . . This
principle, however, does not prevent a court from properly characterizing an issue
that has been improperly characterized by a party.” (quoting Greenlaw v. United
States, 554 U.S. 237, 243 (2008))). Thus, this court’s legal determination properly
followed the parties’ issue presentation.
¶74 Accordingly, in assessing whether the custody issue is before this court, I
considered the parties’ presentations. I did not consider the issue’s merits, nor did
I follow a fundamental obligation to ascertain controlling law.
¶75 Second, I would specify that this court does not hold against Lulei the
custody-related statements his counsel made during oral argument. See Diss. op.
¶ 100. But see Pl. op. ¶¶ 16 & 16 n.4, 60. In my view, litigants generally should not
raise unbriefed issues during oral argument and adverse parties should not be
penalized for good-faith responses to such arguments. I would seek to avoid any
chilling effect on responses to objectively unexpected questions during oral
argument.
¶76 Third, although I agree with the plurality’s conclusions, I would be remiss
to overlook the wisdom of the dissent and the value we must place on adhering to
the party presentation principle. We rely on these procedures to provide a fair
opportunity for preparation and to keep the judiciary in its adjudicatory lane.

7
There is a dire cost to everyone when courts deviate from these principles, which
are only worthwhile if they are actively maintained. I differ from the dissent,
however, because the parties in this matter did eventually present the custody
issue to this court.
II. Conclusion
¶77 Accordingly, I respectfully concur in part and concur in the judgment.

1
JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE BERKENKOTTER,
dissenting.
¶78 Today, a majority of this court reverses the district court’s suppression order
on the ground that Miranda v. Arizona, 384 U.S. 436, 444–45 (1966), and Edwards v.
Arizona, 451 U.S. 477 (1981), do not apply because Dakotah J. Lulei was not in
custody during the interrogation at issue. Pl. op. ¶¶ 2, 23, 37–58; Conc. op. ¶ 71.
In so ruling, the plurality adopts (and substantially develops over many pages) an
argument that the People made for the first time in oral argument (during which
the People relied on case law not cited in any of their briefs). And the plurality
does so notwithstanding the fact that the People’s new argument was completely
inconsistent with the argument presented in their briefing before this court.
¶79 The plurality’s analysis largely sidesteps long-settled principles of waiver
and abandonment, and it substantially erodes the party presentation principle.
After today, it would appear that any party may present at oral argument
positions not argued in their briefs and this court may address those new
assertions if they have some relationship to the issue actually raised and a majority
of this court believes that addressing the new contentions will allow the majority
to reach what it has determined to be the correct result.
¶80 I cannot subscribe to such a precedent, which undermines the orderly
appellate process long prescribed by our rules and case law. Contrary to the
plurality, I believe that, by arguing in their briefs only that the trial court

2
erroneously suppressed Lulei’s statements because the police did not reinitiate
questioning (an argument that presumed Lulei’s custody and Edwards’s
applicability in this case), the People waived or abandoned any contention that
Lulei was not in custody and that Edwards did not apply. I would thus address
only the issue that the People actually raised in this case, and I would conclude
that after Lulei clearly and unambiguously invoked his right to counsel, the police
did not scrupulously honor that invocation.
¶81 Accordingly, I would affirm the trial court’s suppression order, and
therefore, I respectfully dissent.
I. Factual and Procedural Background
¶82 After Lulei and another man spent time together in a motel room drinking
and smoking pot, Lulei called 911 to report a medical emergency. Medical
personnel and the police responded, but the other man (the “victim”) was
pronounced dead at the scene. An autopsy revealed that the victim had suffered
severe internal trauma. The police thus commenced an investigation.
¶83 Lulei later agreed to come to police headquarters to give a statement, and
the police transported him there in a police vehicle. Pursuant to department
policy, Lulei was handcuffed (with his hands in front of him) while being
transported.

3
¶84 Lulei was eventually brought to an interview room for questioning by
Detective Bolton. Lulei told the detective that the police already had his statement,
but the detective responded that he had a couple of follow-up questions. The
detective then began going through a Miranda advisement form with Lulei. The
detective provided the form to Lulei, who began reading it to himself. After
reading the form for a brief time, Lulei asked, “Oh, so I’m allowed to have a lawyer
present for this?” The detective responded, “Absolutely,” at which point Lulei
replied, “Oh, hell yeah, let’s reschedule this when I have a lawyer present.” The
detective then said, “Okay, we can do that.”
¶85 Lulei stood and opened the interview door to leave, but the detective told
him to wait until he could talk to his colleagues. The detective left the room and
conferred with another detective (Detective Sandoval) and a deputy district
attorney, and the three of them decided to arrest Lulei. Detective Bolton then
reentered the room with Detective Sandoval and a uniformed officer, and the
officer asked Lulei to turn around. The following conversation ensued:
Lulei: What?
Officer: I’m just gonna put the cuffs on you; we did this
before.
Lulei: But you all put it on in front of me on the way here.
Det. Sandoval: We did, yes. Not now.
Lulei: What’s going on now?

4
Det. Bolton: Well, Dakotah, I tried to talk to you, get your side of
the story. Right now, you’re going to be arrested,
okay?
Lulei: What the fuck? For what?
Det. Sandoval: For murder.
Lulei: Oh, dude, no. Like, let’s talk this out then. Dude,
like, no.
Det. Sandoval: Nope, you had your chance, and you asked for a lawyer.
We can’t do it now.
Det. Bolton: I tried to talk to you smoothly, man, and hear your side
of it. We have some serious questions.
Lulei: Alright, I’ll rescind that then. I have serious—like,
get answers then, dude. Like come on, like, don’t
fucking arrest me right now. I have my fucking
motel paid for, for the next two weeks. I have to
go to work on Monday. Like, I’m down to talk to
you. Like, dude, like don’t fucking detain me and
shit like that. I thought I was going to be free to go
after this.
Det. Sandoval: Well, no one told you you were free to go after
this—
Det. Bolton: No one told you that, and also, I tried to get your
side of the story and figure it out, man, and you didn’t
want to talk.
Lulei: I’ll talk to you now, man.
Det. Bolton: Gimme a second.
(Emphases added.)

5
¶86 Detective Bolton subsequently re-Mirandized Lulei and proceeded to
question him for over two hours. In the course of this conversation, Lulei made
incriminating statements.
¶87 The People charged Lulei with one count of second degree murder and one
count of first degree assault. Lulei thereafter filed a motion to suppress his
statements to the detective, and the trial court conducted a hearing on this motion.
At the conclusion of the hearing, the trial court granted the motion. As pertinent
here, the court found that “defendant’s request for [an] attorney was not
scrupulously honored” when Lulei asked what was going on and the detective
responded, “I tried to talk to you to get your side of the story. Right now, you’re
going to be arrested, okay?”
¶88 The People then filed an interlocutory appeal in this court. Notably, at no
time did the People contend that Lulei was not in custody and therefore Edwards
did not apply. To the contrary, throughout their briefing, the People proceeded
on the premise that Edwards applied. They thus argued that the trial court had
erred in suppressing the statements that Lulei had made to Detective Bolton
because, in the People’s view, the police did not reinitiate any questioning.
Instead, the People maintained that they had scrupulously honored Lulei’s
unambiguous invocation of his right to counsel and they did nothing other than
answer Lulei’s questions about what was happening.

6
¶89 Lulei filed an answer brief, responding that Detective Bolton’s comments
referencing Lulei’s invocation of his right to counsel was reasonably perceived by
Lulei as punishment for invoking that right. Thus, in Lulei’s view, the detective
had improperly induced Lulei to reconsider his invocation of the right to counsel
to avoid the perceived punishment. Finally, Lulei argued that he did nothing to
reinitiate the interrogation.
¶90 The People then filed a reply, arguing that Detective Bolton had
scrupulously honored Lulei’s invocation of the right to counsel and that Lulei had
decided to reinitiate the interrogation.
¶91 In short, all of the briefing in this case presumed that Lulei was in custody
and proceeded on the premise that Edwards applies here. The parties disagreed
only as to the result of the Edwards analysis.
¶92 Notwithstanding the foregoing, at oral argument, the People argued, for the
first time, that Lulei was not in custody and that therefore Edwards does not
actually apply. In so arguing, the People cited case law that they had not cited in
any of their briefs, thereby ambushing Lulei’s counsel.
¶93 Thereafter, Lulei requested supplemental briefing to address the issues
newly raised at oral argument. We granted his motion and received simultaneous
supplemental briefs from both parties.

7
II. Analysis
¶94 I begin by addressing the party presentation principle and whether, in the
circumstances presented, the People waived or abandoned their contention that
Lulei was not in custody and that therefore Edwards does not apply here. After
concluding that the People waived or abandoned this contention, I address the
question that the People raised in their initial briefing before us.
A. The Party Presentation Principle, Waiver, and Abandonment
¶95 The Supreme Court has stated:
In our adversary system, in both civil and criminal cases, in the first
instance and on appeal, we follow the principle of party presentation.
That is, we rely on the parties to frame the issues for decision and
assign to courts the role of neutral arbiter of matters the parties
present. To the extent courts have approved departures from the
party presentation principle in criminal cases, the justification has
usually been to protect a pro se litigant’s rights. But as a general rule,
“[o]ur adversary system is designed around the premise that the
parties know what is best for them, and are responsible for advancing
the facts and arguments entitling them to relief.”
Greenlaw v. United States, 554 U.S. 237, 243–44 (2008) (alteration in original)
(footnote and citation omitted) (quoting Castro v. United States, 540 U.S. 375, 386
(2003) (Scalia, J., concurring in part and concurring in the judgment)).
¶96 In light of this settled law, we have long recognized “the basic principle of
appellate jurisprudence that arguments not advanced on appeal are generally
deemed waived.” Moody v. People, 159 P.3d 611, 614 (Colo. 2007). It has likewise
long been settled that a party may lose its right to assert an issue on appellate

8
review “when it has made contrary assertions in the courts below, when it has
acquiesced in contrary findings by those courts, or when it has failed to raise such
questions in a timely fashion during the litigation.” Steagald v. United States,
451 U.S. 204, 209 (1981); see also Compos v. People, 2021 CO 19, ¶ 35, 484 P.3d 159,
165 (acknowledging the force of the defendant’s argument that a court of appeals
division had erred in adopting a new crime exception to Miranda when no party
had advocated for such an exception, but not deciding that issue).
¶97 And in cases dating back nearly a century, we and divisions of our court of
appeals have consistently said that arguments not pursued on appeal or not
briefed are deemed abandoned. See, e.g., In re Stanley, 2025 CO 51, ¶ 17 n.3,
576 P.3d 171, 178 n.3; People v. Smith, 2024 CO 3, ¶ 18, 541 P.3d 1191, 1195; CenCor,
Inc. v. Tolman, 868 P.2d 396, 397 n.1 (Colo. 1994); Nicoloff v. Bloom Land & Cattle Co.,
66 P.2d 333, 334 (Colo. 1937); Armed Forces Bank, N.A. v. Hicks, 2014 COA 74, ¶ 38,
365 P.3d 378, 386; In re Marriage of Marson, 929 P.2d 51, 54 (Colo. App. 1996).
Indeed, in my almost eighteen years as an appellate judge, I have read numerous
briefs in which the People have asserted this very argument against criminal
defendants. As I have written previously, “[A]rguments regarding waivers and
forfeitures do not operate solely against criminal defendants; they work both
ways.” People v. Rigsby, 2020 CO 74, ¶ 47, 471 P.3d 1068, 1079 (Gabriel, J.,
dissenting).

9
¶98 Here, as noted above, in their opening and reply briefs before us, the People
framed their appellate issue based on the premise that Lulei was in custody during
the interrogations at issue and that Edwards applied. At no time in either their
opening or reply briefs did the People even suggest that Lulei might not have been
in custody. And this is so even though, as the plurality points out, Pl. op. ¶¶ 10–13,
33, 60, the issue of whether Lulei was in custody was discussed in the trial court.
Accordingly, the People were aware of a potential issue regarding whether Lulei
was in custody, but they chose not to raise that issue in their initial briefing before
us, despite the fact that it was their own interlocutory appeal and they controlled
the issues to be raised.
¶99 Under the long-settled principles of law set forth above, I would conclude
that by not advancing any argument in their initial briefs that Lulei was not in
custody and therefore Edwards does not apply (indeed, by taking precisely the
opposite position), the People waived or abandoned any such argument.
Assuredly, if, as we have recently concluded, a defendant waives an objection to
the belated setting of restitution by impliedly requesting that the trial court set
restitution after the statutory deadline for doing so, see Babcock v. People, 2025 CO
26, ¶ 30, 569 P.3d 850, 856, then the People must likewise be deemed to have
waived an argument when their briefing took a diametrically opposed position to
the one that they subsequently took for the first time in oral argument.

10
¶100 I am not persuaded otherwise by the fact that the People presented their
new position at oral argument, while the case was still under our consideration.
To my knowledge, we have never previously concluded that a party that has
waived or abandoned an argument can resurrect it by reversing course and
presenting the waived or abandoned contention at oral argument. To allow a
party to do so subverts the orderly appellate process established by our case law
and appellate rules and invites appellate advocacy by ambush. Indeed, the
plurality implicitly condones such a practice when it uses against Lulei statements
regarding the issue of custody that his counsel made at oral argument after being
ambushed. See Pl. op. ¶ 16 & n.4. The plurality does so notwithstanding the fact
that when Lulei’s counsel filed his supplemental brief, after being given an
opportunity to consider the question appropriately, he corrected his prior
statements and argued that Lulei was, in fact, in custody. In my view, condoning
the People’s taking a contrary position in oral argument from the one that they
took in all of their briefing before us while simultaneously using against Lulei a
statement that his counsel made after being surprised at oral argument (but that
he later corrected) is inconsistent and manifestly unjust.
¶101 Nor can I subscribe to the plurality’s approach based on our obligation to
“ascertain controlling law.” Id. at ¶¶ 26, 31. This case does not present any
question regarding the “controlling law” because the parties agree on the law.

11
Thus, addressing the issue that the parties initially briefed (i.e., whether the People
had scrupulously honored Lulei’s unambiguous invocation of the right to counsel)
would do no violence to the law. And if it were the case that we have an obligation
to reach the result that we believe to be the correct one, regardless of what the
parties argued, then we would never be bound by what the parties argue, and the
party presentation principle would cease to exist.
¶102 On this point, I take no comfort from the plurality’s apparent attempt to
cabin its novel approach to the circumstance in which the newly raised issue is
allegedly antecedent to and ultimately dispositive of the issue before the court. Id.
at ¶¶ 23, 32–36. In support of this effort, the plurality principally relies on United
States National Bank of Oregon v. Independent Insurance Agents of America, Inc.,
508 U.S. 439, 447 (1993), and People v. Kutlak, 2016 CO 1, 364 P.3d 199. But neither
of those cases applies here.
¶103 United States National Bank, 508 U.S. at 447–48, involved a question as to the
very existence of the statute at issue. There, trade associations representing
insurance agents challenged a decision by the Comptroller of the Currency relying
on a 1916 statute to permit certain banks to sell insurance to a particular class of
customers. Id. at 443–44. The Comptroller allowed the petitioner bank to do so,
and the trade associations challenged that ruling, contending that the
Comptroller’s determination was inconsistent with the statute. Id. In the course

12
of the proceedings in the trial and intermediate appellate courts, an issue arose as
to whether the statute had, in fact, been repealed. Id. at 444. Although the trade
associations did not make such an argument, the court of appeals concluded that
the statute had been repealed (thus undermining the Comptroller’s decision), and
the Supreme Court granted the bank’s petition to review that determination. Id.
at 444–45. It is in this context that the Court addressed whether the statute’s repeal
was properly before the intermediate appellate court. Id. at 447. Specifically, the
Court observed that the appellate court could, in the exercise of its discretion,
address an issue that was antecedent to and ultimately dispositive of the dispute
before it because “[t]here can be no estoppel in the way of ascertaining the
existence of a law.” Id. at 447–48 (alteration in original) (quoting Town of
S. Ottawa v. Perkins, 94 U.S. 260, 267 (1876)). In other words, it was perfectly
appropriate for the appellate court, in the circumstances before it, to determine
whether the statute at issue was even in effect.
¶104 United States National Bank is, thus, distinguishable from the present case.
That case, unlike the one before us, directly involved a scenario in which the courts
were required to ascertain the controlling law. (The Court ultimately determined
that the statute at issue had not, in fact, been repealed. Id. at 462–63.) As noted
above, the present case poses no such question. All parties agree on the controlling

13
law. The only issue is the application of the law to the facts before us, a matter of
error correction, not ascertainment of the applicable law.
¶105 Kutlak likewise does not support the plurality’s contention that it may
properly address any issue that it deems antecedent to the question presented,
even if the issue was waived. In Kutlak, ¶¶ 6–7, 364 P.3d at 202, the trial court
denied Kutlak’s motion to suppress statements that he had made in the course of
a custodial interrogation, and a division of the court of appeals reversed,
concluding that Kutlak had unambiguously invoked his right to counsel and did
not reinitiate further communications. We granted certiorari solely on the
question of whether Kutlak had reinitiated communications, but we ultimately
concluded, instead, that he had not unambiguously invoked his right to counsel.
Id. at ¶¶ 3, 8 n.2, 364 P.3d at 201, 202 n.2. We therefore reversed the division’s
judgment, id. at ¶ 3, 364 P.3d at 201, reaching that conclusion even though (1) we
did not grant certiorari on the question of whether the defendant’s invocation was
unambiguous; (2) the People had conceded at every stage of the proceedings that
the defendant’s invocation was sufficient; and (3) no party had briefed the
invocation question until we sua sponte requested supplemental briefing after the
case was at issue, id. at ¶ 35, 364 P.3d at 208 (Gabriel, J., dissenting).
¶106 Kutlak, too, is distinguishable. We began our analysis by noting that we
generally have discretion to affirm a trial court’s suppression ruling on different

14
grounds from those on which the trial court had relied. Id. at ¶ 11, 364 P.3d at 203
(majority opinion). That principle does not apply here, however, because in this
case, we are reversing the trial court’s ruling. Nor did Kutlak involve a question of
waiver or this Court’s ability to resurrect an issue that a party had previously
waived. (As noted above, although the People in that case had conceded a
sufficient invocation of the right to counsel, the People did not initiate a contrary
argument in this court; a majority of this court did so on its own.) And,
respectfully, I am not persuaded by the fact that, in a single case decided a decade
ago, a majority of this court departed from the ordinary appellate process, as it
does in an arguably even more expansive way today. I believed that we were
wrong to do so then, see id. at ¶¶ 33–40, 364 P.3d at 208–09 (Gabriel, J., dissenting),
and I believe that we should not do so now, particularly given that we have not
been consistent in so departing from our settled rules of procedure. (The present
case provides one illustration of such an inconsistency. Here, the plurality
repeatedly points out that Lulei allegedly conceded in the trial court that he was
not in custody, and it uses that concession to justify ruling for the People, despite
the fact that the People did not raise any issue regarding custody in their initial
briefing before us. Pl. op. ¶¶ 33, 60. In Kutlak, however, the People conceded in
both the trial court and on appeal that Kutlak had unambiguously invoked his
right to counsel, but the majority effectively disregarded that concession and ruled

15
that Kutlak had not, in fact, unambiguously invoked that right. Kutlak, ¶¶ 7, 32,
364 P.3d at 202, 207. If the People’s prior concessions in Kutlak became irrelevant
once we ordered supplemental briefing, then Lulei’s prior concessions should be
treated the same way here.)
¶107 Finally, I do not believe that it is fair or appropriate to use against Lulei the
fact that he was forced to seek supplemental briefing after being ambushed during
oral argument. See Conc. op. ¶¶ 63, 67. After the People raised the custody issue
for the first time at oral argument, a number of my colleagues expressed obvious
interest in that issue during the argument. As a result, Lulei had no choice but to
seek a reasonable opportunity to respond. Regardless, I take no solace in the fact
that the parties were offered the opportunity to file supplemental briefs. If we can
cure all waivers, abandonments, and party presentation problems simply by
authorizing supplemental briefs, then those important doctrines will be rendered
meaningless, at our discretion.
¶108 Notwithstanding the plurality’s effort to downplay the nature of its ruling
in this case, see Pl. op. ¶ 60, I believe that the harm to heretofore settled principles
of party presentation, waiver, and abandonment that the plurality’s opinion
would engender is manifest and significant. If it can be said that the question of
whether Lulei was in custody for Edwards purposes was properly before us
because this case related to an alleged Edwards violation and the issue of custody

16
was antecedent to Edwards’s application, then there is no longer any limit to what
a party can argue after filing its briefs. This is so because creative lawyers will
inevitably be able to develop an argument as to how a newly raised assertion was
related and somehow antecedent to a different contention that they actually
presented. In addition, allowing parties to change their approach in this way
would be inconsistent with the long line of authority providing that objecting on
one ground does not preserve an objection on another ground. See Udemba v.
Nicoli, 237 F.3d 8, 14–15 (1st Cir. 2001) (“It is a bedrock rule that a party who
unsuccessfully objects to the introduction of evidence on one ground cannot
switch horses in midstream and raise an entirely new ground of objection on
appeal . . . .”); People v. Rogers, 2012 COA 192, ¶ 24, 317 P.3d 1280, 1284 (“An issue
is unpreserved for review when an objection or request was made to the trial court,
but on different grounds than those raised on appeal.”).
¶109 For these reasons, I would conclude that by not advancing in their initial
briefing an argument that Lulei was not in custody and therefore Edwards did not
apply, the People waived or abandoned that argument. I would therefore limit
our analysis to the issue that the parties actually briefed, namely, whether the
People had scrupulously honored Lulei’s invocation of his right to counsel and
whether Lulei had reinitiated the interrogation.
¶110 I turn to that question next.

17
B. Edwards
¶111 The Fifth Amendment guarantees the right to counsel in the course of a
custodial interrogation. Miranda, 384 U.S. at 469; Leyba v. People, 2021 CO 54, ¶ 12,
489 P.3d 728, 732.
¶112 In Edwards, 451 U.S. at 483–85, the Supreme Court opined that when a
suspect invokes the right to counsel, interrogation must cease until counsel is
made available or the suspect voluntarily reinitiates communications with the
police and knowingly and intelligently waives his rights.
¶113 To invoke the right to counsel, a suspect’s request for counsel must be clear
and unambiguous. See Leyba, ¶ 13, 489 P.3d at 732. Upon a suspect’s clear
invocation of the right to counsel, police must “scrupulously honor[]” the request
and cease questioning until counsel has been provided. People v. Wood, 135 P.3d
744, 753 (Colo. 2006); accord Edwards, 451 U.S. at 484–85; Miranda, 384 U.S. at
473–74. This bright-line rule exists to “prevent police from badgering a defendant
into waiving his previously asserted right to counsel.” Kutlak, ¶ 14, 364 P.3d at
204.
¶114 Once the police cease interrogation upon a suspect’s invocation of the right
to counsel, the suspect may nonetheless subject himself to additional interrogation
by “initiat[ing] further communication, exchanges, or conversations with the
police.” Edwards, 451 U.S. at 484–85. To reinitiate questioning, however, the

18
suspect’s comments must “‘evince[] a willingness and a desire for a generalized
discussion about the investigation,’ and not merely question the reasons for
custody.” People v. Martinez, 789 P.2d 420, 422 (Colo. 1990) (alteration in original)
(quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045–46 (1983) (plurality opinion)).
¶115 Here, no party disputes that Lulei clearly and unambiguously invoked his
right to counsel. The question thus becomes whether the police then scrupulously
honored that invocation and, if they did, whether Lulei reinitiated the questioning.
¶116 Like the trial court, I would conclude that the police did not scrupulously
honor Lulei’s invocation of his right to counsel. As noted above, when Lulei
invoked his right and asked to reschedule for a time when he could have a lawyer
present, Detective Bolton initially said that they could do that. The detective,
however, did not allow Lulei to leave. Instead, the detective ordered Lulei to wait,
walked outside, and returned with Detective Sandoval and a uniformed officer to
arrest Lulei. Predictably, Lulei expressed surprise, and he inquired as to what was
happening. Contrary to the People’s position, the law enforcement officers did
not merely answer Lulei’s question. Instead, they repeatedly used his invocation
of his Fifth Amendment rights against him. For example, when an exasperated
Lulei offered to talk about what was happening, Detective Sandoval responded,
“Nope, you had your chance, and you asked for a lawyer. We can’t do it now.”
Detective Bolton then added, “I tried to talk to you smoothly, man, and hear your

19
side of it.” And when Lulei expressed his understanding that he would be free to
leave, Detective Bolton replied, “No one told you that, and also, I tried to get your
side of the story and figure it out, man, and you didn’t want to talk.”
¶117 In my view, this is the antithesis of scrupulously honoring Lulei’s invocation
of the right to counsel. Indeed, it is precisely the type of badgering of a defendant
into waiving his previously asserted right to counsel that the bright-line,
“scrupulously honor” rule seeks to prevent. See Kutlak, ¶ 14, 364 P.3d at 204. The
police expressly used Lulei’s invocation of his Fifth Amendment rights against
him and announced that they were arresting him for murder, apparently to
provoke him into waiving his rights, which, unsurprisingly, he did. See also
People v. Cerda, 2024 CO 49, ¶ 32 & n.3, 559 P.3d 206, 213–14, 213 n.3 (concluding
that the police did not scrupulously honor the defendant’s unambiguous and
repeated invocations of his right to counsel when, after the defendant’s
invocations, the police told him that he would be charged with murder, knowing
or reasonably anticipating in the circumstances presented that continuing the
interrogation in this manner was likely to elicit an incriminating response). In my
view, this was a blatant violation of Edwards and its progeny, and for that reason
alone, I would affirm the trial court’s suppression order.
¶118 Even were I to proceed to the question of whether Lulei reinitiated the
interrogation, I perceive no such reinitiation here. Lulei was obviously surprised

20
by the turn of events, having just been told that the interview would be
rescheduled for a time when he could have a lawyer present, and he initially did
nothing more than question the reasons for his custody. As noted above, this type
of question does not constitute reinitiation. See Martinez, 789 P.2d at 422. It was
only after the police threatened Lulei that he, under duress, sought to engage in
further dialogue. In no way do such circumstances constitute the kind of
voluntary reinitiation of conversation envisioned by the above-described case law.
¶119 Accordingly, like the trial court, I would conclude that after Lulei clearly
and unambiguously invoked his right to counsel, the police did not scrupulously
honor that invocation and Lulei did nothing to reinitiate conversation so as to
establish an intentional, knowing, and voluntary waiver of his rights.
III. Conclusion
¶120 For these reasons, I would conclude that the People waived or abandoned
any argument that Lulei was not in custody and that Edwards therefore does not
apply on the facts presented. Addressing, then, only the argument that the People
properly presented to us, which presumed Edwards’s applicability, I would further
conclude that the police did not scrupulously honor Lulei’s clear and
unambiguous invocation of his right to counsel, as Edwards required. I would
therefore affirm the trial court’s order suppressing Lulei’s statements to the
detective.

21
¶121 Accordingly, I respectfully dissent.

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
March 30, 2026

# 2026 CO 17

No. 25SA146, People v. Lulei-Constitutional Law-Fifth Amendment-
Custody - Party Presentation.

The supreme court holds that the district court erred as a matter of law when
it concluded that the defendant's invocation of the right to counsel outside of a
custodial interrogation setting was nevertheless effective because police had
attempted to advise him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
Citing People v. Kutlak, 2016 CO 1, 364 P.3d 199, a plurality of the supreme court
concludes that under the circumstances here, it may address whether the
defendant was in custody as a necessary antecedent to the Edwards v. Arizona,
451 U.S. 477 (1981), issue before it. The supreme court's review of the record
confirms the trial court's finding that the defendant was not in custody when he
requested counsel. Thus, the district court erred in suppressing Lulei's statements
under Miranda and Edwards. Accordingly, the supreme court reverses the district
court's suppression order and remands the case to the district court for further
proceedings.

# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 17

Supreme Court Case No. 25SA146
Interlocutory Appeal from the District Court
District Court, City and County of Denver, Case No. 24CR5907
Honorable Eric Johnson, Judge

Plaintiff-Appellant:
The People of the State of Colorado,

V.
Defendant-Appellee:
Dakotah J. Lulei.

Order Reversed
en banc
March 30, 2026

Attorneys for Plaintiff-Appellant:
John Walsh, District Attorney, Second Judicial District
Jeff M. Van der Veer, Senior Deputy District Attorney
Anya Havriliak, Deputy District Attorney
Denver, Colorado

Attorneys for Defendant-Appellee:

Megan A. Ring, Public Defender

Robert Swestka, Deputy Public Defender

Robert Halpern, Deputy Public Defender

Denver, Colorado

CHIEF JUSTICE MÁRQUEZ delivered the Opinion of the Court, in which
JUSTICE BOATRIGHT and JUSTICE SAMOUR joined.
JUSTICE BLANCO concurred in part and concurred in the judgment.
JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE
BERKENKOTTER, dissented.

CHIEF JUSTICE MÁRQUEZ delivered the Opinion of the Court.

11 The People bring this interlocutory appeal under C.A.R. 4.1, challenging a
Denver District Court order suppressing Defendant Dakotah J. Lulei's statements
to law enforcement under Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (holding
that when an accused who is subject to custodial interrogation has invoked their
right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966), police may not
reinitiate interrogation until counsel has been made available). At the suppression
hearing, the district court acknowledged that the right to counsel under Miranda
applies to custodial interrogation. It further concluded (consistent with defense
counsel's position at the hearing) that Lulei was not in custody when he invoked
his right to counsel as police attempted to advise him of his Miranda rights.
Nevertheless, the district court ruled that Lulei's subsequent (albeit voluntary)
statements must be suppressed under Edwards because the police did not
scrupulously honor his request for a lawyer and instead reinitiated interrogation.

12 We conclude that the district court erred as a matter of law when it
concluded that Lulei's invocation of the right to counsel outside of a custodial
interrogation setting was nevertheless effective because police had attempted to
advise him of his Miranda rights. Because our review of the record confirms the
trial court's finding that Lulei was not in custody when he requested the presence
of an attorney, Miranda and Edwards are inapplicable here and the district court

therefore erred in suppressing Lulei's statements under those cases. Accordingly,
we reverse the district court's order and remand the case to the district court for
further proceedings.

## I. Facts and Procedural History

### A. The Incident and Subsequent Police Interview

13
Late one evening, Lulei called 911 to report that his motel roommate was
unconscious because of a possible overdose.1 When police arrived, they saw
emergency medical personnel performing CPR on the roommate, who died
shortly thereafter. At that point, Lulei was not a suspect, nor did officers suspect
foul play. Officers took Lulei's statement, processed the scene, and released the
room back to Lulei.

14
4 The following morning, Detective Bolton of the Denver Police Department
("DPD") attended the roommate's autopsy. The results of the autopsy, along with
evidence of additional 911 calls the evening before, led law enforcement to suspect
there had been a disturbance between the men. Detective Bolton and another
detective decided to reinterview Lulei as a witness. That afternoon, officers
brought Lulei to police headquarters, handcuffing him in front of his body during

1 We derive the facts from the transcript of the hearing on the motion to suppress
and from our review of body-worn camera footage and the video- and audio-
recorded events from the police interview room.

transportation for officer safety pursuant to DPD policy. Lulei was not under
arrest at that point.

15
At police headquarters, Lulei waited in the lobby until he was brought into
an interview room.2 During the interview, Lulei was not handcuffed, and he had
his cell phone and a water bottle with him. He took the seat closest to the door,
which was unlocked. Detective Bolton entered, wearing a shirt and tie and visibly
carrying a holstered firearm. He sat across a table from Lulei.

Det. Bolton:

What's up man?

Lulei:

Oh, ... , it's this guy!

Det. Bolton:

This guy. Got your water I see?

Lulei:

Oh thank you big sexy.

Det. Bolton:

I got you, bro. [Sitting.] Alright.

Lulei:

Alright, so, uh, we're going to keep this under two minutes.

Det. Bolton:

Two minutes huh?

Lulei:

Oh, yeah, cuz, you have my statement right?

Det. Bolton:

Ah, dude, listen -

Lulei:

So, you have my statement, [slaps the desk] that's what we're going by. [Gets up.] Thank you, have

2 The parties dispute how long Lulei waited before he was brought to the interview
room. Lulei contends it was at least forty-five minutes, while Detective Bolton
testified at the suppression hearing that it was less than fifteen minutes.

a good day. [Opens the door but remains in the room.]

Det. Bolton:

Wait, wait, are you for real? Wait, wait, hold on-

Lulei:

I am for real -

Det. Bolton:

You can't leave -

Lulei:

I am for real - [Stays in the room; closes the door and goes back to stand by his chair.]

Det. Bolton:

You can't leave until the cop gets here; hold on, I've got to get you out of here.

Lulei:

No, no, you have my statement -

Det. Bolton:

I don't have your statement.

Lulei:

The police have it, that's what happened, and I'm free to go now.

16
Lulei became agitated, telling Detective Bolton that he had been made to
wait for over an hour and a half. Detective Bolton maintained a calm tone, told
Lulei that it had not been that long, and that he just needed "to make sure we're
all on the same page." Lulei agreed to stay and sat.

Det. Bolton:

So, if you could give me just a little bit more of your time, I would appreciate it.

Lulei:

Alright, so, here's the deal, here's the deal, here's the deal - [Takes a cell phone out of his pocket.]

Det. Bolton:

I've been pretty smooth with you.

Lulei:

You have been so that's why I'm -

Det. Bolton:

Let's just start from scratch, and get this interview done, and be done.

Lulei:

Yep, and then uh . . . [Sets timer on cell phone and puts phone on the desk.]

Det. Bolton:

What do you want to show me?

Lulei:

You have six minutes.

Det. Bolton:

Six minutes? How'd you come up with that number?

Lulei:

Just cuz. You're wasting time.

Det. Bolton:

Alright buddy. Well listen, first of all, you're all the way down here at the police station, okay, and I know you talked to the cops a few times. I just have a couple follow-up questions for you really quick.

Lulei:

Keep going with it. Yeah.

Det. Bolton:

Alright. In order to do that, I want to read you your [Miranda] advisement form, alright? That way you feel protected, I feel protected, we all know we're on the same page, okay? I'll go through it line by line for you. But that's just, reading your rights. Have you ever had your rights read to you before? [Turns form toward Lulei.]

Lulei:

[Takes advisement form; reads.] Oh, so I'm allowed to have a lawyer present for this?

Det. Bolton:

Absolutely.

Lulei:

Oh ... yeah, let's reschedule this when I have a lawyer present.

Det. Bolton:

Okay, we can do that.

Lulei:

[Gets up and walks toward the door.] Yeah, reschedule this for when I have a lawyer present.

Det. Bolton:

Alright, sounds good.

Lulei:

And we'll do it at a time where you don't make me wait.

Det. Bolton:

[Stands.] Well, listen man, things take time.

Lulei:

[Opens the door.]

Det. Bolton:

Hold on one second, let me get the officer so we can get you transported back.

Lulei:

[Looking out into the hallway.] This guy right here?

Det. Bolton:

Yep, absolutely.

Lulei:

Oh, one hundred percent.

Det. Bolton:

Alright, let me chat with him for a second, and I'll get you out of here in just a second, okay?

Lulei:

No problem, and then, uh, you know, I want a lawyer present next time. And next time, I'm not waiting . . . .

17
Detective Bolton left the interview room and closed the door. After
conferring with Detective Sandoval in the hall, they decided that they had enough
information to arrest Lulei. Detective Bolton, Detective Sandoval, and a
uniformed officer entered the interview room. The officer held out handcuffs and
asked Lulei to turn around.

Lulei:

What?

Officer:

I'm just gonna put the cuffs on you; we did this before.

Lulei:

But you all put it on in front of me on the way here.

Det. Sandoval:

We did, yes. Not now.

Lulei:

What's going on now?

Det. Bolton:

Well, Dakotah, I tried to talk to you, get your side of the story. Right now, you're going to be arrested, okay?

Lulei:

What the . . . ? For what?

Det. Sandoval:

For murder.

Lulei:

Oh, dude, no. Like, let's talk this out then. Dude, like, no.

Det. Sandoval:

Nope, you had your chance, and you asked for a lawyer. We can't do it now.

Det. Bolton:

I tried to talk to you smoothly, man, and hear your side of it. We have some serious questions.

Lulei:

Alright, I'll rescind that then. I have serious - like, get answers then, dude. Like come on, like, don't .. . arrest me right now. I have my ... motel paid for, for the next two weeks. I have to go to work on Monday. Like, I'm down to talk to you. Like, dude, like don't . . . detain me . . . I thought I was going to be free to go after this.

Det. Sandoval:

Well, no one told you you were free to go after this -

Det. Bolton:

No one told you that, and also, I tried to get your side of the story and figure it out, man, and you didn't want to talk.

Lulei:

I'll talk to you now, man.

18
The officer escorted Lulei, still handcuffed, to a holding cell. Around twenty
minutes later, Detective Bolton brought Lulei back to the interview room. After

receiving a full Miranda advisement, Lulei signed a form waiving his rights.
During the approximately two-and-a-half-hour interview that followed, Lulei
made incriminating statements.

## B. The Suppression Hearing

19
Lulei later moved to suppress his statements made to Detective Bolton,
arguing that (1) officers failed to honor his invocation of the right to counsel and
(2) his subsequent statements to the police were involuntary.

110 At the suppression hearing, defense counsel acknowledged that the case law
in this context generally involves individuals who are under arrest, and that
"[h]ere we don't have that situation." Rather, Lulei "was told he wasn't under
arrest" and "was brought as a witness to make a statement." Defense counsel also
argued that "[w]hat make[s] this situation unique" is that Lulei had been told he
could leave after invoking the right to counsel, and moments later police arrested
him for murder. Defense counsel contended that this amounted to police coercion
because it prompted Lulei to rescind his request for counsel and proceed with the
interview.

111 The district court ruled on the motion from the bench. In its findings, the
court accepted -and pointed out that the defense accepted - that Lulei was not in
custody when he was brought to the police station. The district court then
acknowledged that Miranda applies to custodial interrogation. The court

continued, "If everyone has confessed he was not in custody initially does it even
really matter that he says I want a lawyer? I'm going to say yes. He was given his
Miranda rights. He clearly, unambiguously invoked his right[] to have an
attorney."

112 The court then found that the police failed to scrupulously honor Lulei's
request for an attorney when they arrested him and reinitiated interrogation. It
therefore granted Lulei's motion to suppress under Edwards because the police
failed to honor Lulei's invocation of the right to counsel. The court also concluded
that Lulei's subsequent statements to the police were voluntary and there was no
coercive police conduct. The court emphasized that it was not suppressing Lulei's
statements on voluntariness grounds.

[13 After the court ruled, the People asked the court to clarify if it was finding
that Lulei was not in custody when he was initially brought to the interview room.
The court confirmed that "the evidence has established that when he was brought
to the police station he was not in custody," but that the detective tried to read
Lulei his Miranda rights and Lulei invoked his right to counsel. The court then
reiterated that it was suppressing Lulei's statements because Lulei "asked for his
right for the attorney and he is not the one that reinitiated."

## C. The People's Appeal

114 After the suppression hearing, the People brought this interlocutory appeal
under C.A.R. 4.1 seeking review of the district court's suppression ruling.3

115 In their initial briefing to this court, the People focused their arguments on
the trial court's finding that the police violated Edwards by reinitiating
interrogation after Lulei unambiguously invoked the right to counsel. The People
contested this finding, arguing that when Lulei asked after being handcuffed,
"What's going on now?" the detectives' comments did not amount to
interrogation.

116 At oral argument, however, the People also pointed out that Lulei was not
in custody when he asserted a right to counsel, and therefore he was not entitled
to protections under Edwards. When offered an opportunity to respond on this
point, defense counsel acknowledged that co-counsel who argued the motion had
"conceded that point," and that, "at the time of the invocation [Lulei was] not per
se in custody." Defense counsel later reiterated this point,4 but argued that

3 The People raised a single issue:
Whether the district court erred in suppressing the defendant's
statements.

4 When asked if the record showed that Lulei was not in custody, defense counsel
replied, "I don't think I can in good faith make the argument that [Lulei] was in
fact - or felt like he was-restrained, or not free to leave, until after he invoke[d]
the right to counsel."

Detective Bolton's effort to administer the Miranda advisement effectively
triggered Lulei's Miranda rights regardless of his custodial status.

117 After oral argument, Lulei requested leave to file supplemental briefing on
the following issues:

(1) Whether the prosecution waived any argument that Mr. Lulei was not in
custody at the time of the invocation of the right to counsel.

(2) Whether Mr. Lulei was, in fact, in custody at the time he invoked his right
to counsel based on the totality of the circumstances, including the fact
that he had been advised of his Miranda rights.

(3) Whether the sum total of police conduct rendered Mr. Lulei's subsequent
Miranda waiver involuntary.

118 We granted Lulei's request and ordered both parties to submit simultaneous
supplemental briefing on the above issues. Having received this briefing, we now
turn to our analysis.

## II. Jurisdiction and Standard of Review

119 Under section 16-12-102(2), C.R.S. (2025), and C.A.R. 4.1, the prosecution
may immediately appeal a district court's order granting a defendant's pretrial
motion to suppress evidence.5 People v. Torres, 2026 CO 15, 1 17, _ P.3d _.

120 "When reviewing a lower court's decision to suppress statements made by
a defendant, the question before the court is a mixed issue of law and fact."

5 Pursuant to C.A.R. 4.1(a), the People certify that this appeal is not taken for the
purpose of delay and that the suppressed evidence constitutes a substantial part
of the People's case against Lulei. Lulei does not object to this certification.

People v. Kutlak, 2016 CO 1, 1 13, 364 P.3d 199, 203. We defer to a district court's
factual findings if there is sufficient record evidence, and we review the legal effect
of those findings de novo. People v. Cerda, 2024 CO 49, 1 22, 559 P.3d 206, 212.
"[W]here the statements sought to be suppressed are audio- and video-recorded,
and there are no disputed facts outside the recording controlling the issue of
suppression, we are in a similar position as the trial court to determine whether
the statements should be suppressed." People v. Madrid, 179 P.3d 1010, 1014 (Colo.
2008). "[W]e may undertake an independent review of the audio or video
recording to determine whether the statements were properly suppressed in light
of the controlling law." Kutlak, 1 13, 364 P.3d at 203.

## III. Analysis

121 In Miranda, the United States Supreme Court "declared that an accused has
a Fifth and Fourteenth Amendment right to have counsel present during custodial
interrogation." Edwards, 451 U.S. at 482. In Edwards, the Court took steps to
safeguard this Fifth Amendment right to counsel, holding that "it is inconsistent
with Miranda and its progeny for the authorities, at their instance, to reinterrogate
an accused in custody if he has clearly asserted his right to counsel." Id. at 485.

122 Because the rule in Edwards serves to protect the right to counsel recognized
in Miranda, and because the right to counsel recognized in Miranda applies only in
the context of custodial interrogation, the rule in Edwards applies only when the

accused (1) is in custody, (2) is subject to interrogation, and (3) unambiguously
invokes their right to counsel. See Miranda, 384 U.S. at 444-45; Edwards, 451 U.S. at
484-85; Smith v. Illinois, 469 U.S. 91, 95 (1984). Indeed, the Court has observed that
Miranda and Edwards apply "only in the context of custodial interrogation," and
that "[i]f the defendant is not in custody then those decisions do not apply."
Montejo v. Louisiana, 556 U.S. 778, 795 (2009).

123 Here, the People seek review under C.A.R. 4.1, asking us to determine
whether the trial court erred in suppressing Lulei's statements under Edwards. We
first address whether we may consider the issue of custody in this case, given that
the People did not argue this point in their initial briefing. We conclude that under
our decision in Kutlak, we may do so because a defendant's custodial status is an
issue antecedent to and ultimately dispositive of the trial court's Edwards analysis
before us on appeal. Next, we independently review the audio- and video-
recorded interrogation and confirm that Lulei was not in custody when he asked
for a lawyer. Because Lulei's Fifth Amendment right to counsel had not attached,
and because Detective Bolton's initial, attempted Miranda advisement did not alter
Lulei's noncustodial status, we conclude that Edwards does not apply here. We
hold that the district court therefore erred in suppressing Lulei's statements on the
basis that police ran afoul of Edwards by reinitiating interrogation after Lulei
requested an attorney.

## A. Consideration of Custody as an Antecedent Issue

124 We first address whether we may consider the threshold issue of Lulei's
custodial status in resolving this appeal.

125 Lulei argues that the People waived the issue of custody, and because it has
not been properly presented, we should decline to consider it. He further contends
that by focusing their initial briefing on whether police reinitiated interrogation
under Edwards, the People effectively conceded that he was in custody for
purposes of this appeal.

126 The People counter that a party's omission of a particular legal argument
when addressing an issue is not a "waiver," but rather, that such an omission
implicates the party presentation principle. They further argue that the party
presentation rule does not constrain a court's fundamental obligation to ascertain
controlling law. See Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., 783 F.3d 976,
980 (4th Cir. 2015). Here, the People maintain, we may consider custody as
antecedent to the question of whether Lulei effectively invoked his right to counsel
under Miranda.

127 It is true that we typically refuse to address issues or arguments on appeal
that have been waived or abandoned. See, e.g., Moody v. People, 159 P.3d 611, 614
(Colo. 2007) (noting the "basic principle of appellate jurisprudence that arguments
not advanced on appeal are generally deemed waived"); CenCor, Inc. v. Tolman,

868 P.2d 396, 397 n.1 (Colo. 1994) (noting that the propriety of the trial court's
dismissal of certain claims was not briefed on appeal and thus was deemed
abandoned). Although our case law has used the terms "waiver" and
"abandonment" somewhat interchangeably, "waiver" has been more precisely
associated with "'the intentional relinquishment of a known right or privilege."
People v. Rediger, 2018 CO 32, 1 39, 416 P.3d 893, 902 (emphases added) (quoting
Dep't of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984); cf. Babcock v. People, 2025
CO 26, 1 29, 569 P.3d 850, 856 (waiver of statutory rights must be "voluntary, but
need not be knowing and intelligent" (quoting Finney v. People, 2014 CO 38, 1 16,
325 P.3d 1044, 1050)).6 Abandonment, by contrast, "typically arises from a party's
decision not to pursue or reassert a claim that the party had raised previously."
People v. Smith, 2024 CO 3, T1 18-19, 541 P.3d 1191, 1195 (emphasis added)
(deeming abandoned certain postconviction claims because they were neither
briefed nor argued during a hearing to the postconviction court).

128 Omissions like waiver and abandonment implicate the broader principle of
party presentation. See Jeffrey M. Anderson, The Principle of Party Presentation,
70 Buff. L. Rev. 1029, 1037-42, 1045-48, 1075-76 (2022). Under that principle,
courts "rely on the parties to frame the issues for decision." Greenlaw v. United

6 It is unclear what "right" or "privilege" Lulei believes the People are
relinquishing by omitting argument on the custody issue.

States, 554 U.S. 237, 243 (2008). This principle recognizes that courts "should not[]
sally forth each day looking for wrongs to right." Id. at 244 (quoting United States v.
Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in the denial of
rehearing en banc)). Instead, our adversarial system "is designed around the
premise that the parties know what is best for them, and are responsible for
advancing the facts and arguments entitling them to relief." Id. (quoting Castro v.
United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring
in the judgment)).

129 Fidelity to the party presentation principle therefore generally precludes a
court from spontaneously deciding an issue that the parties have not raised or had
the opportunity to address. See Clark v. Sweeney, 607 U.S. 7, 9 (2025) (reversing the
Fourth Circuit because it "transgressed the party-presentation principle by
granting relief on a claim that [the defendant] never asserted and that the State
never had the chance to address"); Galvan v. People, 2020 CO 82, 11 3, 5, 44-46,
476 P.3d 746, 750-51, 757-58 (concluding that a division of the court of appeals
violated the party presentation principle when it "sua sponte and without
briefing" addressed whether interpreting a statutory provision a certain way
rendered it unconstitutionally vague and overbroad).

130 But "[t]he party presentation principle is supple, not ironclad." United
States v. Sineneng-Smith, 590 U.S. 371, 376 (2020); cf. People in Int. of B.H., 2021 CO

39, 1 29 n.3, 488 P.3d 1026, 1034 n.3 (explaining that while the parties' briefs did
not explicitly address a particular statute, one party raised the statute at oral
argument; quoting Sineneng-Smith and concluding that our discussion of the
statute did not "run afoul of the party-presentation principle given the scope of
the issues that the parties [had] placed before us").

131 Importantly, the party presentation principle does not constrain a court's
fundamental obligation to ascertain controlling law. Dan Ryan Builders, Inc.,
783 F.3d at 980. "A party's failure to identify the applicable legal rule certainly
does not diminish a court's responsibility to apply that rule." Id. In other words,
"[w]hen an issue or claim is properly before the court, the court is not limited to
the particular legal theories advanced by the parties, but rather retains the
independent power to identify and apply the proper construction of governing
law." Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 94-95, 98-100, 108-09 (1991)
(concluding that while the petitioner did not raise an argument about the
applicable state corporate law until her reply brief to the Seventh Circuit, the
Seventh Circuit erred by disregarding that state law because it was required to
identify "the proper source of federal common law in this area"); see also Masterpiece
Cakeshop, Inc. v. Scardina, 2024 CO 67, 1 49, 556 P.3d 1238, 1250 ("[W]e have an
obligation to interpret and apply the law.").

132 Relevant here, the Supreme Court has expressly recognized that courts have
the discretion to consider an issue that is "antecedent to . . . and ultimately
dispositive of' the dispute before it, even an issue the parties fail to identify and
brief." U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 444-48
(1993) (omission in original) (quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77
(1990)) (concluding that although respondents argued that a ruling was
inconsistent with a particular federal statute that the parties had assumed was
valid, the District of Columbia Circuit was within its discretion to first consider
whether that statute was still in force); see also Lebron v. Nat'l R.R. Passenger Corp.,
513 U.S. 374, 378-82 (1995) (concluding that the Court had the authority to
consider an argument the petitioner had expressly disavowed in the courts below,
citing United States National Bank of Oregon, and explaining that "[w]hen a question
is, like this one, both prior to the clearly presented question and dependent upon
many of the same factual inquiries, refusing to regard it as embraced within the
petition may force us to assume what the facts will show to be ridiculous, a risk
that ought to be avoided"); United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia,
J., concurring in the judgment) ("[T]here must be enough play in the joints that the
Supreme Court need not render judgment on the basis of a rule of law whose
nonexistence is apparent on the face of things, simply because the parties agree
upon it . .. . ").

133 The Supreme Court's reasoning applies here. In addressing whether the
trial court erred in suppressing Lulei's statements under Edwards, we are not
obligated to ignore the district court's erroneous legal premise that a Miranda
advisement outside of a custodial interrogation triggers protections under Miranda
and Edwards, simply because the People failed in their initial briefing to flag this
particular basis for challenging the court's Edwards analysis. Likewise, the party
presentation principle is not so rigid that it must force us to ignore the district
court's factual finding (or defense counsel's concession) that Lulei was not in
custody when he invoked the right to counsel - a critical finding that underpinned
the district court's ruling. Rather, under the circumstances of this case, we may
exercise our discretion to consider the custody issue as a necessary antecedent to
the Edwards dispute before us because it is inherent to our review of the district
court's ruling.

134 Our decision in Kutlak is illustrative of this point. There, we chose to
consider an issue that was a necessary antecedent to the Edwards dispute before
us, even though it had not been raised by the parties. In that case, a division of the
court of appeals held that the police violated Edwards because they never stopped
the interrogation after the defendant made a reference to his attorney. Kutlak, 1 7,
364 P.3d at 202. On review, we observed that an Edwards analysis embodies two
distinct inquiries: first, whether the individual subjected to custodial interrogation

actually invoked their right to counsel, and second, whether they initiated further
discussions with the police and knowingly and intelligently waived the right they
previously invoked. Id. at 1 9, 364 P.3d at 202. Although it was undisputed that
Kutlak was subjected to custodial interrogation, we were still required to ensure
that "the suspect actually invoked his right to counsel." Id. at 11 9, 11, 364 P.3d at
202-03. The People had taken inconsistent positions on this point in the lower
courts, and they had not initially briefed the issue for our review. Id. at | 10,
364 P.3d at 202-03. Following oral argument to this court, we sua sponte ordered
supplemental briefing on the issue of whether Kutlak had unambiguously
invoked his right to counsel. Id. at [11, 364 P.3d at 203. We then ultimately
resolved the case "on the threshold inquiry of the Edwards analysis," concluding
that the defendant did not actually invoke his right to counsel. Id. at | 12, 364 P.3d
at 203. In sum, even though the People failed to initially brief the issue of
invocation of counsel, we chose to address it as "antecedent to .. . and ultimately
dispositive of" the Edwards issue directly before us. U.S. Nat'l Bank of Or., 508 U.S.
at 447 (omission in original) (quoting Arcadia, 498 U.S. at 77).

135 Our decision in Kutlak applies with equal force here. In this case, the People
seek review under C.A.R. 4.1, asking us to determine whether the trial court erred
in suppressing Lulei's statements under Edwards. To properly resolve that issue,
we must first consider whether Lulei was in custody when he invoked his right to

counsel.7 If Lulei was not in custody, then the rule in Edwards is inapplicable. See
Montejo, 556 U.S. at 795 ("If the defendant is not in custody then [Miranda and
Edwards] do not apply."). If Edwards is inapplicable, then we need not consider
whether law enforcement violated Edwards by reinitiating the interrogation. See
Kutlak, T 12, 364 P.3d at 203.

136 Accordingly, guided by Kutlak, we proceed to consider whether Lulei was
in custody when he asserted the right to counsel because custody is a necessary
antecedent to the Edwards analysis presented on appeal.

## B. Miranda and Edwards

137 The Fifth Amendment to the United States Constitution provides that no
person "shall be compelled in any criminal case to be a witness against himself."8
U.S. Const. amend. V. To protect this privilege against self-incrimination, Miranda
requires law enforcement to employ procedural safeguards before subjecting an
individual to custodial interrogation. Miranda, 384 U.S. at 478-79. Among other

7 We also note that our consideration of custody in this case does not give rise to
concerns of unfairness or surprise. Here, the district court (and defense counsel)
addressed the custody issue at the suppression hearing, the People raised it at oral
argument to this court, where defense counsel had the opportunity to respond at
some length, and both parties addressed it in supplemental briefing at Lulei's
request. The latter two circumstances provide us with an even stronger basis to
address the custody issue than we had in Kutlak, where we raised the invocation
issue at oral argument and sua sponte requested supplemental briefing.

8 The Colorado Constitution provides a similar privilege against self-
incrimination. Colo. Const. art. II, § 18.

things, law enforcement must notify the individual of their right to remain silent
and to have an attorney present during custodial interrogation. Id .; see also
Edwards, 451 U.S. at 482 ("Miranda thus declared that an accused has a
Fifth ... Amendment right to have counsel present during custodial
interrogation.").

138 Miranda's prophylactic rule serves to "dissipate the compulsion inherent in
custodial interrogation and, in so doing, guard against abridgment of the suspect's
Fifth Amendment rights." Moran v. Burbine, 475 U.S. 412, 425 (1986). Critically,
"this extraordinary safeguard 'does not apply outside the context of the inherently
coercive custodial interrogations for which it was designed."" People v. Coke, 2020
CO 28, 1 14, 461 P.3d 508, 513 (quoting Minnesota v. Murphy, 465 U.S. 420, 430
(1984)).

139 In Edwards, the Court clarified Miranda's Fifth Amendment protections,
holding that when an individual is subject to custodial interrogation and
unambiguously invokes their right to counsel, law enforcement may not continue
the interrogation until counsel has been made available, unless the individual
reinitiates communication with the police. Edwards, 451 U.S. at 484-85. In other
words, "it is inconsistent with Miranda and its progeny for the authorities, at their
instance, to reinterrogate an accused in custody if he has clearly asserted his right
to counsel." Id. at 485.

140 Because an individual's rights under Miranda-and, by extension,
Edwards - attach only in the inherently coercive setting of custodial interrogation,
"[i]f the defendant is not in custody then those decisions do not apply." Montejo,
556 U.S. at 795; see also Coke, 17, 461 P.3d at 512 (concluding that because the
defendant was not in custody, she was not entitled to Miranda protections).

141 Importantly, a Miranda advisement does not itself create Miranda rights.
"[The] Court has 'never held that a person can invoke his Miranda rights
anticipatorily, in a context other than "custodial interrogation.""" Bobby v. Dixon,
565 U.S. 23, 28 (2011) (quoting McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991)).
Similarly, while Edwards provides that the Miranda right to counsel, once invoked,
is effective regarding future custodial interrogation, this does not mean that an
individual may initially assert a Fifth Amendment right to counsel outside the
context of custodial interrogation, with similar future effect. McNeil, 501 U.S. at
182 n.3.

142 Consistent with these principles, several states have recognized that a
defendant may not invoke a Fifth Amendment right to counsel outside of custodial
interrogation. See, e.g., State v. Bartelt, 906 N.W.2d 684, 700 (Wis. 2018) ("Because
[the defendant] was not in custody when he asked about counsel, his Fifth
Amendment right to counsel did not attach."); Commonwealth v. Libby, 32 N.E.3d
890, 900 (Mass. 2015) ("Given our conclusion that the defendant was not in

custody ... his interview on this date was simply not governed by Miranda.
Therefore . .. he did not effectively invoke a 'right' to counsel." (citation omitted));
State v. Pontbriand, 878 A.2d 227, 234 (Vt. 2005) ("[The defendant] was not in police
custody during the interview . . . [a]ccordingly, Miranda is inapplicable here, and
the police were not obliged to stop questioning [him] when he indicated he wished
to speak with a lawyer."); Hannon v. State, 84 P.3d 320, 337 (Wyo. 2004) ("[T]his
[c]ourt adheres to the principle that the rights recognized in Miranda, including
the right to counsel, apply only in the context of custodial interrogation.").

143 Moreover, administering a Miranda advisement does not create an
inherently coercive environment when the individual is otherwise not in custody.
Cf. Oregon v. Mathiason, 429 U.S. 492, 494-95 (1977) (holding that the defendant
was not in custody even after the police advised the defendant of his Miranda
rights and the defendant gave a taped confession). Indeed, other jurisdictions
have expressly concluded that a Miranda advisement does not, by itself, trigger a
suspect's Fifth Amendment right to counsel outside of custodial interrogation. See,
e.g., Commonwealth v. Morgan, 610 A.2d 1013, 1016, 1018 (Pa. Super. Ct. 1992)
(noting that "the police officer took the precautionary step of reading Miranda
rights to a non-custodial suspect, before they were exercised" and concluding that
"it is error for a court to consider a confession presumptively coerced merely
because a request for a lawyer is not honored where, as here, the suspect was not

in custody at the time"); State v. Stanley, 809 P.2d 944, 948 (Ariz. 1991) (concluding
that "there was neither a Miranda nor an Edwards violation because [the defendant]
was not in custody at the time of [the officer's] questioning" regardless of the fact
that police gave the defendant Miranda warnings).

144 Here, although the district court twice concluded that Lulei was not in
custody, it nevertheless ruled (consistent with defense counsel's contention at the
suppression hearing) that Lulei's invocation of his right to counsel was effective
because Detective Bolton attempted to give him a Miranda advisement. This ruling
was erroneous as a matter of law. As discussed above, Miranda applies only in the
context of custodial interrogation. The Fifth Amendment right to counsel is not
triggered merely because the police attempted to give a Miranda advisement
because a Miranda advisement, without more, does not create the context of
custodial interrogation. See McNeil, 501 U.S. at 182 n.3.

## C. The Record Confirms that Lulei Was Not in Custody When He Invoked the Right to Counsel

145 Our conclusion above does not end our inquiry. Rather, to determine
whether the district court erred in suppressing Lulei's statements under Edwards,
we must examine whether, under the totality of the circumstances, Lulei was in
custody when he invoked the right to counsel. Our independent review of the
audio- and video-recorded interrogation confirms the trial court's determination
that he was not.

146 A person is in custody for purposes of Miranda if, under the totality of the
circumstances, "a reasonable person in the suspect's position would have felt that
[their] freedom of action had been curtailed to a degree associated with formal
arrest." People v. Eugene, 2024 CO 59, 1 15, 555 P.3d 601, 605 (quoting People v.
Garcia, 2017 CO 106, 1 20, 409 P.3d 312, 317); see also Stansbury v. California, 511 U.S.
318, 322 (1994).

147 We consider a nonexhaustive list of factors to determine whether, from an
objective perspective, an individual was subjected to circumstances associated
with formal arrest:

(1) the time, place, and purpose of the encounter;

(2) the persons present during the interrogation;

(3) the words spoken by the officer to the defendant;

(4) the officer's tone of voice and general demeanor;

(5) the length and mood of the interrogation;

(6) whether any limitation of movement or other form of restraint was
placed on the defendant during the interrogation;

(7) the officer's response to any questions asked by the defendant;

(8) whether directions were given to the defendant during the
interrogation; and

(9) the defendant's verbal or nonverbal response to such directions.

People v. Matheny, 46 P.3d 453, 465-66 (Colo. 2002).

148 "A court may consider many factors, but no single factor is determinative,
and a court is not limited in the number of factors it may consider." Eugene, 1 15,
555 P.3d at 605 (quoting People v. Minjarez, 81 P.3d 348, 353 (Colo. 2003)). It is
irrelevant whether the individual is "actually arrested at the close of the
interview." People v. Willoughby, 2023 CO 10, 1 21, 524 P.3d 1186, 1192 (quoting
Matheny, 46 P.3d at 468 n.10).

149 Applying these factors here, our review of the record confirms that Lulei
was not in custody when he invoked his right to counsel.

150 We begin by noting that the time and purpose of the encounter weigh
against custody. The encounter took place in the early afternoon. See id. at 1 23,
524 P.3d at 1192 (noting that an encounter that takes place in daytime weighs
against custody). Detective Bolton told Lulei that he had "a couple follow-up
questions" regarding the roommate's death, indicating that the purpose of the
encounter was for Lulei to provide more information as a voluntary witness, not
a suspect. Cf. People v. Holt, 233 P.3d 1194, 1198 (Colo. 2010) (noting that the police
behaved as though the defendant was a prime suspect in a serious felony
investigation, a fact that was "an important consideration in our custody
determination").

151 Lulei went to the station voluntarily - nothing in the record indicates he was
taken against his will. Compare Mathiason, 429 U.S. at 495 (concluding that the fact

that the defendant went to the police station voluntarily and was told he was not
under arrest weighed against custody), with People v. Sandoval, 218 P.3d 307, 309-10
(Colo. 2009) (concluding that the defendant was in custody in part because the
officer informed the defendant that if he would not come to the station voluntarily,
he would be forced to go against his will). Although Lulei was handcuffed in front
of his body during transport to DPD headquarters, this was standard procedure
for officer safety.

152 The encounter took place in a windowless interview room at the station, but
the door was unlocked and Lulei was not in handcuffs or restrained in any way.
See People v. Clark, 2020 CO 36, 1 33, 500 P.3d 356, 362 (noting that the absence of
handcuffs during the interrogation weighed against custody); Mathiason, 429 U.S.
at 495 (holding that the defendant was not in custody despite being questioned at
the police station because "there is no indication that the questioning took place in
a context where [the suspect's] freedom to depart was restricted in any way").
Instead, he was free to get up, and he even opened the interview room door on
multiple occasions. See People v. Davis, 2019 CO 84, 1 31, 449 P.3d 732, 740
("Another 'well-recognized circumstance tending to show custody is the degree of
physical restraint used by police officers to detain' a person." (quoting People v.
Breidenbach, 875 P.2d 879, 886 (Colo. 1994))). Although Detective Bolton was
carrying a holstered firearm, he was dressed in plain clothes and sat farthest from

the unlocked door. See People v. Becker, 196 P.3d 264, 267 (Colo. 2008) (considering
the facts that the officer's weapon was concealed during the interrogation and the
officer made an effort with his physical presence to avoid the appearance that the
defendant was not free to leave in concluding that the defendant was not in
custody).

153 Detective Bolton's tone was calm, nonconfrontational, casual, and generally
deferential to Lulei, even when Lulei expressed his frustration that he was made
to wait. See Davis, 1 33, 449 P.3d at 741 ("We have also considered an officer's tone
of questioning particularly relevant to a custody determination."); People v. Padilla,
2021 CO 18, 1 24, 482 P.3d 441, 447 (considering the nonconfrontational, friendly
demeanor of the officer and the casual mood of the conversation as facts weighing
against custody).

154 The encounter was relatively brief; Lulei set a timer on his phone for six
minutes, telling Detective Bolton that he was "wasting time." See Padilla, 1 25,
482 P.3d at 448 ("[W]e place particular emphasis on the fact that [the defendant]
dictated the length of the interrogation ... because a reasonable person who sets
the length of an interrogation is unlikely to believe that his freedom of action has
been curtailed to a degree associated with formal arrest.").

155 Furthermore, Detective Bolton made no threats, commands, or any show of
force. See People v. Bohler, 2024 CO 18, 1 30, 545 P.3d 509, 516 (noting that the

officers "made no threats, they made no promises, and no one referenced criminal
liability" when concluding that the defendant was not in custody (footnote
omitted)). When Lulei indicated that he was leaving at the very beginning of the
interview, Detective Bolton directed Lulei to wait. However, this directive was
not accompanied by "force, threats of negative consequences for not complying,
or an aggressive tone." Id. at | 33, 545 P.3d at 517.

156 Additionally, Detective Bolton had not told Lulei that he was under arrest
at any point before Lulei invoked the right to counsel. See Willoughby, 1 28,
524 P.3d at 1192 ("Courts place great weight on whether police tell a suspect that
they are under arrest."). Instead, Detective Bolton repeatedly reassured Lulei that
he would help Lulei leave and that he just wanted a little bit of Lulei's time. Cf.
Matheny, 46 P.3d at 467 (concluding that the fact that the officer told the defendant
he was free to go at any time weighed against custody). Finally, although
Detective Bolton attempted to administer a Miranda advisement, this alone did not
transform the situation into a custodial setting. See United States v. Bautista,
145 F.3d 1140, 1148 (10th Cir. 1998) (acknowledging that "the reading of the
Miranda warning to a suspect does not create a custodial interrogation").

157 In sum, our review of the record confirms that, under the totality of the
circumstances, a reasonable person in Lulei's position would not have felt that his
freedom of movement was curtailed to a degree associated with formal arrest.

158 Because Lulei was not in custody when he invoked his right to counsel,
Miranda and Edwards are inapplicable here. Montejo, 556 U.S. at 795. Put
differently, because Lulei's Fifth Amendment right to counsel under Miranda had
not attached, the district court erred in suppressing Lulei's statements under
Edwards on grounds that law enforcement failed to scrupulously honor Lulei's
request for an attorney by reinitiating the interrogation.

## D. Voluntariness

159 Finally, we decline to consider Lulei's supplemental briefing arguments
related to the voluntariness of his Miranda waiver and his post-Miranda statements
because "interlocutory relief under C.A.R. 4.1 is not available to defendants."
People v. Brown, 2022 CO 11, 1 13, 504 P.3d 970, 974-75. The district court
concluded that Lulei's statements were voluntary and there was no police
coercion. "[I]f the district court resolves a suppression issue against the defendant,
we have no jurisdiction to address it in an interlocutory appeal." People v. Weston,
869 P.2d 1293, 1297 (Colo. 1994).

## IV. Conclusion

160 This unusual case is illustrative of why the party presentation principle "is
a 'supple' rule, not an intransigent one." Galvan, 1 46, 476 P.3d at 758 (quoting
Sineneng-Smith, 590 U.S. at 376). Here, we have a finding by the trial court, based
in part on a concession by defense counsel, that Lulei was not in custody. The

record supports that finding. Rigid adherence to the party presentation principle
would require us to disregard that finding, not to mention the trial court's
undisputable legal error premised on that finding. In all, it would force a
resolution of the Edwards issue before us that is untethered to the facts or the law.
But the principle is not ironclad, and we are not shackled to such an outcome.
Instead, under the circumstances here, we follow our decision in Kutlak and
exercise our discretion to address the issue of custody as a necessary antecedent to
the Edwards issue before us. We perceive no unfairness in doing so here,
particularly given that the issue of custody was expressly addressed (and
conceded by the defense) below, it was discussed at oral argument, and the parties
filed supplemental briefing on the issue in this court.

161 In sum, we reverse the district court's order suppressing Lulei's statements
on the basis that law enforcement violated Lulei's Miranda rights under Edwards,
and we remand the case for further proceedings.

JUSTICE BLANCO concurred in part and concurred in the judgment.

JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE
BERKENKOTTER, dissented.

JUSTICE BLANCO, concurring in part and concurring in the judgment.

162 I write separately to address an apparent injustice: Today the People prevail
on an argument they failed to advance. Specifically, this court rules in favor of the
People because Dakotah J. Lulei "was not in custody [under Miranda] when he
invoked his right to counsel," Pl. op. [ 49, even though the People failed to brief
that issue prior to oral argument before this court.

163 But that is not the whole picture, and the party presentation principle
remains vital. Although Lulei indicates the People unfairly ambushed him at oral
argument, the parties also presented the Miranda custody issue in two other ways:
the People's C.A.R. 4.1 Notice of Interlocutory Appeal (the "Notice") and the
supplemental briefing requested by Lulei. These presentations from the parties
collectively (if barely) placed the custody issue before this court despite the
People's failure to do so in their pre-argument briefing.

164 Therefore, I agree with the plurality's conclusions regarding party
presentation. I depart from its reasoning, however, because I do not rely on a
"fundamental obligation to ascertain controlling law." Pl. op. at [ 31.
Consequently, I respectfully agree with the plurality that we may address the
custody issue, concur in part with its reasoning, and join this court's judgment.

## I. Discussion

165 This court is unanimous in finding that the People failed to address the
Miranda custody issue in their Opening Brief or in their Reply Brief. Pl. op.
11 15-16; Diss. op. 11 88, 90. The People did present the issue, however, by way
of (1) the Notice, (2) oral argument, and (3) supplemental briefing.

166 First, the Notice framed the "Issues to be Raised on Appeal" as "Did the
district court err in suppressing [Lulei's] statements?" Although it is preferable
for issues to be framed with greater specificity, the People limited the Notice's
citations to two cases: Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v.
Arizona, 451 U.S. 477 (1981). Both cases recognize custody as a prerequisite to their
holdings. See Miranda, 384 U.S. at 478 ("To summarize, we hold that when an
individual is taken into custody ... and is subjected to questioning, the privilege
against self-incrimination is jeopardized."); Edwards, 451 U.S. at 485-86 ("The Fifth
Amendment right identified in Miranda is the right to have counsel present at any
custodial interrogation. Absent such interrogation, ... there would be no occasion
to determine whether there had been a valid waiver."). Thus, the issue of custody
was fairly encompassed by the Notice. The Notice, however, is insufficient to end
my inquiry.

167 Second, during oral argument, the People addressed the custody issue by
arguing, "[L]et's take a step back . ... At the time that Mr. Lulei invoked [his right

to counsel,] he actually wasn't in custody .... That is what the trial court found."
Indeed, the district court found that "everyone has confessed [Lulei] was not in
custody [when he was brought to the police station,]" and Lulei did not contest
this finding in his pre-oral argument Answer Brief. Even then, the Notice and the
oral argument were insufficient to present the custody issue.

168 Finally, Lulei requested supplemental briefing after oral argument. This
court then ordered briefing for, among other issues, "Whether Mr. Lulei was, in
fact, in custody at the time he invoked his right to counsel .... " Thus, both Lulei
and the People presented the Miranda custody issue to this court.

169 Importantly, this court did not address the custody issue on its own
initiative. We do not permit courts below to reach an issue "sua sponte and
without briefing" when "neither party raise[d] it," Galvan v. People, 2020 CO 82,
TT 44-47, 476 P.3d 757-58, so I apply the same principle here. I find it significant
that Lulei-rather than this court-requested supplemental briefing on the
custody issue. But see People v. Kutlak, 2016 CO 1, TT 10-12, 364 P.3d 199, 202-03
(ruling in favor of the People after sua sponte requesting supplemental briefing on
an issue the People raised in response to this court's questions during oral
argument even when the People did not present the issue in pre-argument briefs).
In my opinion, which follows the more recent Galvan to the extent that case
conflicts with Kutlak, it took the sum of the Notice, oral argument, and

supplemental briefing to present this issue despite the People's failure to do so in
their pre-argument briefing.

170 I also acknowledge this court facilitated the parties' presentations of the
custody issue by ordering oral argument and supplemental briefing.1 But those
orders followed the Notice and Lulei's unopposed request for supplemental
briefing, respectively, and there is no question this court had discretion to issue
the orders. See C.A.R. 4.1(g) ("Oral argument is not permitted unless ordered by
the court."). Now, the oral argument cannot be unheard; the supplemental
briefing cannot be unfiled. Nor did either party ask this court to reconsider the
orders. Therefore, I take this case as I find it, after the district court addressed the
custody issue, which was then presented to this court through the sum of the
Notice, oral argument, and supplemental briefing.

## A. Agreement with the Plurality/Majority

171 Under these circumstances, I agree with the plurality's conclusions
regarding party presentation, waiver, and abandonment. Having determined the
custody issue was permissibly reached, I join this court's reasoning and conclusion
that Lulei was not in custody when he requested an attorney. Pl. op. 11 37-58. I

1 The orders were issued before I joined this court.

also join this court's decision to reverse the suppression order and to remand this
case to the district court for further proceedings.

## B. Disagreement with the Plurality

172 I do not agree with three aspects of the plurality's opinion. First, I do not
join its discussion of courts' "fundamental obligation to ascertain controlling law."
Id. at TT 31-36. I cannot square this proposed obligation with parties'
responsibility to advance "the facts and argument entitling them to relief." See
Galvan, 1 45, 476 P.3d at 757 (quoting United States v. Sineneng-Smith, 590 U.S. 371,
375-76 (2020)). Although the plurality's opinion may be interpreted to avoid this
conflict, courts should not place the cart (deciding legal questions) before the horse
(confining decisions to contested issues). In my view, courts must first assure
themselves that litigants have presented a disputed issue before considering the
merits of the issue. A "fundamental obligation to ascertain controlling law" runs
the risk of conflating issue presentation with merits determinations.

173 Even in Masterpiece Cakeshop, Inc. v. Scardina, 2024 CO 67, 1 21, 556 P.3d
1238, 1245, which the plurality cites, this court ruled on an issue preserved and
presented by the petitioner: whether a particular statute barred the district court
from hearing a claim. Only after we determined the issue was "squarely before
us" did we interpret the statute. Id. Although we interpreted the statute
differently than the parties, that was beside the point of whether the parties

presented the issue. See id .; see also Lucero v. People, 2017 CO 49, 1 26, 394 P.3d 1128,
1134 ("[C]ourts 'rely on the parties to frame the issues for decision' .... This
principle, however, does not prevent a court from properly characterizing an issue
that has been improperly characterized by a party." (quoting Greenlaw v. United
States, 554 U.S. 237, 243 (2008))). Thus, this court's legal determination properly
followed the parties' issue presentation.

174 Accordingly, in assessing whether the custody issue is before this court, I
considered the parties' presentations. I did not consider the issue's merits, nor did
I follow a fundamental obligation to ascertain controlling law.

175 Second, I would specify that this court does not hold against Lulei the
custody-related statements his counsel made during oral argument. See Diss. op.
100. But see Pl. op. 11 16 & 16 n.4, 60. In my view, litigants generally should not
raise unbriefed issues during oral argument and adverse parties should not be
penalized for good-faith responses to such arguments. I would seek to avoid any
chilling effect on responses to objectively unexpected questions during oral
argument.

176 Third, although I agree with the plurality's conclusions, I would be remiss
to overlook the wisdom of the dissent and the value we must place on adhering to
the party presentation principle. We rely on these procedures to provide a fair
opportunity for preparation and to keep the judiciary in its adjudicatory lane.

There is a dire cost to everyone when courts deviate from these principles, which
are only worthwhile if they are actively maintained. I differ from the dissent,
however, because the parties in this matter did eventually present the custody
issue to this court.

## II. Conclusion

177 Accordingly, I respectfully concur in part and concur in the judgment.

JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE BERKENKOTTER,
dissenting.

178 Today, a majority of this court reverses the district court's suppression order
on the ground that Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), and Edwards v.
Arizona, 451 U.S. 477 (1981), do not apply because Dakotah J. Lulei was not in
custody during the interrogation at issue. Pl. op. 11 2, 23, 37-58; Conc. op. 1 71.
In so ruling, the plurality adopts (and substantially develops over many pages) an
argument that the People made for the first time in oral argument (during which
the People relied on case law not cited in any of their briefs). And the plurality
does so notwithstanding the fact that the People's new argument was completely
inconsistent with the argument presented in their briefing before this court.

179 The plurality's analysis largely sidesteps long-settled principles of waiver
and abandonment, and it substantially erodes the party presentation principle.
After today, it would appear that any party may present at oral argument

positions not argued in their briefs and this court may address those new
assertions if they have some relationship to the issue actually raised and a majority
of this court believes that addressing the new contentions will allow the majority
to reach what it has determined to be the correct result.

180 I cannot subscribe to such a precedent, which undermines the orderly
appellate process long prescribed by our rules and case law. Contrary to the
plurality, I believe that, by arguing in their briefs only that the trial court

erroneously suppressed Lulei's statements because the police did not reinitiate
questioning (an argument that presumed Lulei's custody and Edwards's
applicability in this case), the People waived or abandoned any contention that
Lulei was not in custody and that Edwards did not apply. I would thus address
only the issue that the People actually raised in this case, and I would conclude
that after Lulei clearly and unambiguously invoked his right to counsel, the police
did not scrupulously honor that invocation.

181 Accordingly, I would affirm the trial court's suppression order, and
therefore, I respectfully dissent.

## I. Factual and Procedural Background

182 After Lulei and another man spent time together in a motel room drinking
and smoking pot, Lulei called 911 to report a medical emergency. Medical
personnel and the police responded, but the other man (the "victim") was
pronounced dead at the scene. An autopsy revealed that the victim had suffered
severe internal trauma. The police thus commenced an investigation.

183 Lulei later agreed to come to police headquarters to give a statement, and
the police transported him there in a police vehicle. Pursuant to department
policy, Lulei was handcuffed (with his hands in front of him) while being
transported.

184 Lulei was eventually brought to an interview room for questioning by
Detective Bolton. Lulei told the detective that the police already had his statement,
but the detective responded that he had a couple of follow-up questions. The
detective then began going through a Miranda advisement form with Lulei. The
detective provided the form to Lulei, who began reading it to himself. After
reading the form for a brief time, Lulei asked, "Oh, so I'm allowed to have a lawyer
present for this?" The detective responded, "Absolutely," at which point Lulei
replied, "Oh, hell yeah, let's reschedule this when I have a lawyer present." The
detective then said, "Okay, we can do that."

185 Lulei stood and opened the interview door to leave, but the detective told
him to wait until he could talk to his colleagues. The detective left the room and
conferred with another detective (Detective Sandoval) and a deputy district
attorney, and the three of them decided to arrest Lulei. Detective Bolton then
reentered the room with Detective Sandoval and a uniformed officer, and the
officer asked Lulei to turn around. The following conversation ensued:

Lulei:

What?

Officer:

I'm just gonna put the cuffs on you; we did this before.

Lulei:

But you all put it on in front of me on the way here.

Det. Sandoval:

We did, yes. Not now.

Lulei:

What's going on now?

Det. Bolton:

Well, Dakotah, I tried to talk to you, get your side of the story. Right now, you're going to be arrested, okay?

Lulei:

What the fuck? For what?

Det. Sandoval:

For murder.

Lulei:

Oh, dude, no. Like, let's talk this out then. Dude, like, no.

Det. Sandoval:

Nope, you had your chance, and you asked for a lawyer. We can't do it now.

Det. Bolton:

I tried to talk to you smoothly, man, and hear your side of it. We have some serious questions.

Lulei:

Alright, I'll rescind that then. I have serious -like, get answers then, dude. Like come on, like, don't fucking arrest me right now. I have my fucking motel paid for, for the next two weeks. I have to go to work on Monday. Like, I'm down to talk to you. Like, dude, like don't fucking detain me and shit like that. I thought I was going to be free to go after this.

Det. Sandoval:

Well, no one told you you were free to go after this -

Det. Bolton:

No one told you that, and also, I tried to get your side of the story and figure it out, man, and you didn't want to talk.

Lulei:

I'll talk to you now, man.

Det. Bolton:

Gimme a second.

(Emphases added.)

186 Detective Bolton subsequently re-Mirandized Lulei and proceeded to
question him for over two hours. In the course of this conversation, Lulei made
incriminating statements.

187 The People charged Lulei with one count of second degree murder and one
count of first degree assault. Lulei thereafter filed a motion to suppress his
statements to the detective, and the trial court conducted a hearing on this motion.
At the conclusion of the hearing, the trial court granted the motion. As pertinent
here, the court found that "defendant's request for [an] attorney was not
scrupulously honored" when Lulei asked what was going on and the detective
responded, "I tried to talk to you to get your side of the story. Right now, you're
going to be arrested, okay?"

188 The People then filed an interlocutory appeal in this court. Notably, at no
time did the People contend that Lulei was not in custody and therefore Edwards
did not apply. To the contrary, throughout their briefing, the People proceeded
on the premise that Edwards applied. They thus argued that the trial court had
erred in suppressing the statements that Lulei had made to Detective Bolton
because, in the People's view, the police did not reinitiate any questioning.
Instead, the People maintained that they had scrupulously honored Lulei's
unambiguous invocation of his right to counsel and they did nothing other than
answer Lulei's questions about what was happening.

189 Lulei filed an answer brief, responding that Detective Bolton's comments
referencing Lulei's invocation of his right to counsel was reasonably perceived by
Lulei as punishment for invoking that right. Thus, in Lulei's view, the detective
had improperly induced Lulei to reconsider his invocation of the right to counsel
to avoid the perceived punishment. Finally, Lulei argued that he did nothing to
reinitiate the interrogation.

190 The People then filed a reply, arguing that Detective Bolton had
scrupulously honored Lulei's invocation of the right to counsel and that Lulei had
decided to reinitiate the interrogation.

191 In short, all of the briefing in this case presumed that Lulei was in custody
and proceeded on the premise that Edwards applies here. The parties disagreed
only as to the result of the Edwards analysis.

192 Notwithstanding the foregoing, at oral argument, the People argued, for the
first time, that Lulei was not in custody and that therefore Edwards does not
actually apply. In so arguing, the People cited case law that they had not cited in
any of their briefs, thereby ambushing Lulei's counsel.

193 Thereafter, Lulei requested supplemental briefing to address the issues
newly raised at oral argument. We granted his motion and received simultaneous
supplemental briefs from both parties.

## II. Analysis

194 I begin by addressing the party presentation principle and whether, in the
circumstances presented, the People waived or abandoned their contention that
Lulei was not in custody and that therefore Edwards does not apply here. After
concluding that the People waived or abandoned this contention, I address the
question that the People raised in their initial briefing before us.

### A. The Party Presentation Principle, Waiver, and Abandonment

195
The Supreme Court has stated:

In our adversary system, in both civil and criminal cases, in the first
instance and on appeal, we follow the principle of party presentation.
That is, we rely on the parties to frame the issues for decision and
assign to courts the role of neutral arbiter of matters the parties
present. To the extent courts have approved departures from the
party presentation principle in criminal cases, the justification has
usually been to protect a pro se litigant's rights. But as a general rule,
"[o]ur adversary system is designed around the premise that the
parties know what is best for them, and are responsible for advancing
the facts and arguments entitling them to relief."

Greenlaw v. United States, 554 U.S. 237, 243-44 (2008) (alteration in original)
(footnote and citation omitted) (quoting Castro v. United States, 540 U.S. 375, 386
(2003) (Scalia, J., concurring in part and concurring in the judgment)).

196 In light of this settled law, we have long recognized "the basic principle of
appellate jurisprudence that arguments not advanced on appeal are generally
deemed waived." Moody v. People, 159 P.3d 611, 614 (Colo. 2007). It has likewise
long been settled that a party may lose its right to assert an issue on appellate

review "when it has made contrary assertions in the courts below, when it has
acquiesced in contrary findings by those courts, or when it has failed to raise such
questions in a timely fashion during the litigation." Steagald v. United States,
451 U.S. 204, 209 (1981); see also Compos v. People, 2021 CO 19, 1 35, 484 P.3d 159,
165 (acknowledging the force of the defendant's argument that a court of appeals
division had erred in adopting a new crime exception to Miranda when no party
had advocated for such an exception, but not deciding that issue).

197 And in cases dating back nearly a century, we and divisions of our court of
appeals have consistently said that arguments not pursued on appeal or not
briefed are deemed abandoned. See, e.g., In re Stanley, 2025 CO 51, 1 17 n.3,
576 P.3d 171, 178 n.3; People v. Smith, 2024 CO 3, 1 18, 541 P.3d 1191, 1195; CenCor,
Inc. v. Tolman, 868 P.2d 396, 397 n.1 (Colo. 1994); Nicoloff v. Bloom Land & Cattle Co.,
66 P.2d 333, 334 (Colo. 1937); Armed Forces Bank, N.A. v. Hicks, 2014 COA 74, 1 38,
365 P.3d 378, 386; In re Marriage of Marson, 929 P.2d 51, 54 (Colo. App. 1996).
Indeed, in my almost eighteen years as an appellate judge, I have read numerous
briefs in which the People have asserted this very argument against criminal
defendants. As I have written previously, "[A]rguments regarding waivers and
forfeitures do not operate solely against criminal defendants; they work both
ways." People v. Rigsby, 2020 CO 74, 1 47, 471 P.3d 1068, 1079 (Gabriel, J.,
dissenting).

98 Here, as noted above, in their opening and reply briefs before us, the People
framed their appellate issue based on the premise that Lulei was in custody during
the interrogations at issue and that Edwards applied. At no time in either their
opening or reply briefs did the People even suggest that Lulei might not have been
in custody. And this is so even though, as the plurality points out, Pl. op. [1 10-13,
33, 60, the issue of whether Lulei was in custody was discussed in the trial court.
Accordingly, the People were aware of a potential issue regarding whether Lulei
was in custody, but they chose not to raise that issue in their initial briefing before
us, despite the fact that it was their own interlocutory appeal and they controlled
the issues to be raised.

199 Under the long-settled principles of law set forth above, I would conclude
that by not advancing any argument in their initial briefs that Lulei was not in
custody and therefore Edwards does not apply (indeed, by taking precisely the
opposite position), the People waived or abandoned any such argument.
Assuredly, if, as we have recently concluded, a defendant waives an objection to
the belated setting of restitution by impliedly requesting that the trial court set
restitution after the statutory deadline for doing so, see Babcock v. People, 2025 CO
26, 1 30, 569 P.3d 850, 856, then the People must likewise be deemed to have
waived an argument when their briefing took a diametrically opposed position to
the one that they subsequently took for the first time in oral argument.

1100 I am not persuaded otherwise by the fact that the People presented their
new position at oral argument, while the case was still under our consideration.
To my knowledge, we have never previously concluded that a party that has
waived or abandoned an argument can resurrect it by reversing course and
presenting the waived or abandoned contention at oral argument. To allow a
party to do so subverts the orderly appellate process established by our case law
and appellate rules and invites appellate advocacy by ambush. Indeed, the
plurality implicitly condones such a practice when it uses against Lulei statements
regarding the issue of custody that his counsel made at oral argument after being
ambushed. See Pl. op. 1 16 & n.4. The plurality does so notwithstanding the fact
that when Lulei's counsel filed his supplemental brief, after being given an
opportunity to consider the question appropriately, he corrected his prior
statements and argued that Lulei was, in fact, in custody. In my view, condoning
the People's taking a contrary position in oral argument from the one that they
took in all of their briefing before us while simultaneously using against Lulei a
statement that his counsel made after being surprised at oral argument (but that
he later corrected) is inconsistent and manifestly unjust.

1101 Nor can I subscribe to the plurality's approach based on our obligation to
"ascertain controlling law." Id. at TT 26, 31. This case does not present any
question regarding the "controlling law" because the parties agree on the law.

Thus, addressing the issue that the parties initially briefed (i.e., whether the People
had scrupulously honored Lulei's unambiguous invocation of the right to counsel)
would do no violence to the law. And if it were the case that we have an obligation
to reach the result that we believe to be the correct one, regardless of what the
parties argued, then we would never be bound by what the parties argue, and the
party presentation principle would cease to exist.

1102 On this point, I take no comfort from the plurality's apparent attempt to
cabin its novel approach to the circumstance in which the newly raised issue is
allegedly antecedent to and ultimately dispositive of the issue before the court. Id.
at TT 23, 32-36. In support of this effort, the plurality principally relies on United
States National Bank of Oregon v. Independent Insurance Agents of America, Inc.,
508 U.S. 439, 447 (1993), and People v. Kutlak, 2016 CO 1, 364 P.3d 199. But neither
of those cases applies here.

1103 United States National Bank, 508 U.S. at 447-48, involved a question as to the
very existence of the statute at issue. There, trade associations representing
insurance agents challenged a decision by the Comptroller of the Currency relying
on a 1916 statute to permit certain banks to sell insurance to a particular class of
customers. Id. at 443-44. The Comptroller allowed the petitioner bank to do so,
and the trade associations challenged that ruling, contending that the
Comptroller's determination was inconsistent with the statute. Id. In the course

of the proceedings in the trial and intermediate appellate courts, an issue arose as
to whether the statute had, in fact, been repealed. Id. at 444. Although the trade
associations did not make such an argument, the court of appeals concluded that
the statute had been repealed (thus undermining the Comptroller's decision), and
the Supreme Court granted the bank's petition to review that determination. Id.
at 444-45. It is in this context that the Court addressed whether the statute's repeal
was properly before the intermediate appellate court. Id. at 447. Specifically, the
Court observed that the appellate court could, in the exercise of its discretion,

address an issue that was antecedent to and ultimately dispositive of the dispute
before it because "[t]here can be no estoppel in the way of ascertaining the
existence of a law." Id. at 447-48 (alteration in original) (quoting Town of
S. Ottawa v. Perkins, 94 U.S. 260, 267 (1876)). In other words, it was perfectly
appropriate for the appellate court, in the circumstances before it, to determine
whether the statute at issue was even in effect.

1104 United States National Bank is, thus, distinguishable from the present case.
That case, unlike the one before us, directly involved a scenario in which the courts
were required to ascertain the controlling law. (The Court ultimately determined
that the statute at issue had not, in fact, been repealed. Id. at 462-63.) As noted
above, the present case poses no such question. All parties agree on the controlling

law. The only issue is the application of the law to the facts before us, a matter of
error correction, not ascertainment of the applicable law.

1105 Kutlak likewise does not support the plurality's contention that it may
properly address any issue that it deems antecedent to the question presented,
even if the issue was waived. In Kutlak, 11 6-7, 364 P.3d at 202, the trial court
denied Kutlak's motion to suppress statements that he had made in the course of
a custodial interrogation, and a division of the court of appeals reversed,
concluding that Kutlak had unambiguously invoked his right to counsel and did
not reinitiate further communications. We granted certiorari solely on the
question of whether Kutlak had reinitiated communications, but we ultimately
concluded, instead, that he had not unambiguously invoked his right to counsel.
Id. at TT 3, 8 n.2, 364 P.3d at 201, 202 n.2. We therefore reversed the division's
judgment, id. at 1 3, 364 P.3d at 201, reaching that conclusion even though (1) we
did not grant certiorari on the question of whether the defendant's invocation was
unambiguous; (2) the People had conceded at every stage of the proceedings that
the defendant's invocation was sufficient; and (3) no party had briefed the
invocation question until we sua sponte requested supplemental briefing after the
case was at issue, id. at 1 35, 364 P.3d at 208 (Gabriel, J., dissenting).

1106 Kutlak, too, is distinguishable. We began our analysis by noting that we
generally have discretion to affirm a trial court's suppression ruling on different

grounds from those on which the trial court had relied. Id. at | 11, 364 P.3d at 203
(majority opinion). That principle does not apply here, however, because in this
case, we are reversing the trial court's ruling. Nor did Kutlak involve a question of
waiver or this Court's ability to resurrect an issue that a party had previously
waived. (As noted above, although the People in that case had conceded a
sufficient invocation of the right to counsel, the People did not initiate a contrary
argument in this court; a majority of this court did so on its own.) And,
respectfully, I am not persuaded by the fact that, in a single case decided a decade
ago, a majority of this court departed from the ordinary appellate process, as it
does in an arguably even more expansive way today. I believed that we were
wrong to do so then, see id. at 11 33-40, 364 P.3d at 208-09 (Gabriel, J., dissenting),
and I believe that we should not do so now, particularly given that we have not
been consistent in so departing from our settled rules of procedure. (The present
case provides one illustration of such an inconsistency. Here, the plurality
repeatedly points out that Lulei allegedly conceded in the trial court that he was
not in custody, and it uses that concession to justify ruling for the People, despite
the fact that the People did not raise any issue regarding custody in their initial
briefing before us. Pl. op. 11 33, 60. In Kutlak, however, the People conceded in
both the trial court and on appeal that Kutlak had unambiguously invoked his
right to counsel, but the majority effectively disregarded that concession and ruled

that Kutlak had not, in fact, unambiguously invoked that right. Kutlak, 11 7, 32,
364 P.3d at 202, 207. If the People's prior concessions in Kutlak became irrelevant
once we ordered supplemental briefing, then Lulei's prior concessions should be
treated the same way here.)

1107 Finally, I do not believe that it is fair or appropriate to use against Lulei the
fact that he was forced to seek supplemental briefing after being ambushed during
oral argument. See Conc. op. 11 63, 67. After the People raised the custody issue
for the first time at oral argument, a number of my colleagues expressed obvious
interest in that issue during the argument. As a result, Lulei had no choice but to
seek a reasonable opportunity to respond. Regardless, I take no solace in the fact
that the parties were offered the opportunity to file supplemental briefs. If we can
cure all waivers, abandonments, and party presentation problems simply by
authorizing supplemental briefs, then those important doctrines will be rendered
meaningless, at our discretion.

1108 Notwithstanding the plurality's effort to downplay the nature of its ruling
in this case, see Pl. op. 1 60, I believe that the harm to heretofore settled principles
of party presentation, waiver, and abandonment that the plurality's opinion
would engender is manifest and significant. If it can be said that the question of
whether Lulei was in custody for Edwards purposes was properly before us
because this case related to an alleged Edwards violation and the issue of custody

was antecedent to Edwards's application, then there is no longer any limit to what
a party can argue after filing its briefs. This is so because creative lawyers will
inevitably be able to develop an argument as to how a newly raised assertion was
related and somehow antecedent to a different contention that they actually
presented. In addition, allowing parties to change their approach in this way
would be inconsistent with the long line of authority providing that objecting on
one ground does not preserve an objection on another ground. See Udemba v.
Nicoli, 237 F.3d 8, 14-15 (1st Cir. 2001) ("It is a bedrock rule that a party who
unsuccessfully objects to the introduction of evidence on one ground cannot
switch horses in midstream and raise an entirely new ground of objection on
appeal .... "); People v. Rogers, 2012 COA 192, 1 24, 317 P.3d 1280, 1284 ("An issue
is unpreserved for review when an objection or request was made to the trial court,
but on different grounds than those raised on appeal.").

1109 For these reasons, I would conclude that by not advancing in their initial
briefing an argument that Lulei was not in custody and therefore Edwards did not
apply, the People waived or abandoned that argument. I would therefore limit
our analysis to the issue that the parties actually briefed, namely, whether the
People had scrupulously honored Lulei's invocation of his right to counsel and
whether Lulei had reinitiated the interrogation.

1110 I turn to that question next.

### B. Edwards

1111 The Fifth Amendment guarantees the right to counsel in the course of a
custodial interrogation. Miranda, 384 U.S. at 469; Leyba v. People, 2021 CO 54, 1 12,
489 P.3d 728, 732.

1112 In Edwards, 451 U.S. at 483-85, the Supreme Court opined that when a
suspect invokes the right to counsel, interrogation must cease until counsel is
made available or the suspect voluntarily reinitiates communications with the
police and knowingly and intelligently waives his rights.

1113 To invoke the right to counsel, a suspect's request for counsel must be clear
and unambiguous. See Leyba, 113, 489 P.3d at 732. Upon a suspect's clear
invocation of the right to counsel, police must "scrupulously honor[]" the request
and cease questioning until counsel has been provided. People v. Wood, 135 P.3d
744, 753 (Colo. 2006); accord Edwards, 451 U.S. at 484-85; Miranda, 384 U.S. at
473-74. This bright-line rule exists to "prevent police from badgering a defendant
into waiving his previously asserted right to counsel." Kutlak, 1 14, 364 P.3d at
204.

1114 Once the police cease interrogation upon a suspect's invocation of the right
to counsel, the suspect may nonetheless subject himself to additional interrogation
by "initiat[ing] further communication, exchanges, or conversations with the
police." Edwards, 451 U.S. at 484-85. To reinitiate questioning, however, the

suspect's comments must "'evince[] a willingness and a desire for a generalized
discussion about the investigation,' and not merely question the reasons for
custody." People v. Martinez, 789 P.2d 420, 422 (Colo. 1990) (alteration in original)
(quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983) (plurality opinion)).

1115 Here, no party disputes that Lulei clearly and unambiguously invoked his
right to counsel. The question thus becomes whether the police then scrupulously
honored that invocation and, if they did, whether Lulei reinitiated the questioning.
1116 Like the trial court, I would conclude that the police did not scrupulously
honor Lulei's invocation of his right to counsel. As noted above, when Lulei
invoked his right and asked to reschedule for a time when he could have a lawyer
present, Detective Bolton initially said that they could do that. The detective,
however, did not allow Lulei to leave. Instead, the detective ordered Lulei to wait,
walked outside, and returned with Detective Sandoval and a uniformed officer to
arrest Lulei. Predictably, Lulei expressed surprise, and he inquired as to what was
happening. Contrary to the People's position, the law enforcement officers did
not merely answer Lulei's question. Instead, they repeatedly used his invocation
of his Fifth Amendment rights against him. For example, when an exasperated
Lulei offered to talk about what was happening, Detective Sandoval responded,
"Nope, you had your chance, and you asked for a lawyer. We can't do it now."
Detective Bolton then added, "I tried to talk to you smoothly, man, and hear your

side of it." And when Lulei expressed his understanding that he would be free to
leave, Detective Bolton replied, "No one told you that, and also, I tried to get your
side of the story and figure it out, man, and you didn't want to talk."

1117 In my view, this is the antithesis of scrupulously honoring Lulei's invocation
of the right to counsel. Indeed, it is precisely the type of badgering of a defendant
into waiving his previously asserted right to counsel that the bright-line,
"scrupulously honor" rule seeks to prevent. See Kutlak, [ 14, 364 P.3d at 204. The
police expressly used Lulei's invocation of his Fifth Amendment rights against
him and announced that they were arresting him for murder, apparently to
provoke him into waiving his rights, which, unsurprisingly, he did. See also
People v. Cerda, 2024 CO 49, 1 32 & n.3, 559 P.3d 206, 213-14, 213 n.3 (concluding
that the police did not scrupulously honor the defendant's unambiguous and
repeated invocations of his right to counsel when, after the defendant's
invocations, the police told him that he would be charged with murder, knowing
or reasonably anticipating in the circumstances presented that continuing the
interrogation in this manner was likely to elicit an incriminating response). In my
view, this was a blatant violation of Edwards and its progeny, and for that reason
alone, I would affirm the trial court's suppression order.

1118 Even were I to proceed to the question of whether Lulei reinitiated the
interrogation, I perceive no such reinitiation here. Lulei was obviously surprised

by the turn of events, having just been told that the interview would be
rescheduled for a time when he could have a lawyer present, and he initially did
nothing more than question the reasons for his custody. As noted above, this type
of question does not constitute reinitiation. See Martinez, 789 P.2d at 422. It was
only after the police threatened Lulei that he, under duress, sought to engage in
further dialogue. In no way do such circumstances constitute the kind of
voluntary reinitiation of conversation envisioned by the above-described case law.
1119 Accordingly, like the trial court, I would conclude that after Lulei clearly
and unambiguously invoked his right to counsel, the police did not scrupulously
honor that invocation and Lulei did nothing to reinitiate conversation so as to
establish an intentional, knowing, and voluntary waiver of his rights.

## III. Conclusion

1120 For these reasons, I would conclude that the People waived or abandoned
any argument that Lulei was not in custody and that Edwards therefore does not
apply on the facts presented. Addressing, then, only the argument that the People
properly presented to us, which presumed Edwards's applicability, I would further
conclude that the police did not scrupulously honor Lulei's clear and
unambiguous invocation of his right to counsel, as Edwards required. I would
therefore affirm the trial court's order suppressing Lulei's statements to the
detective.

1121 Accordingly, I respectfully dissent.

2026 CO 17, 25SA146, People v Lulei, Dakotah2026 CO 18, 23SC927, Amanda Burbaker v Colorado Sun

Gesamter Gesetzestext

OCR transcription for search; preserved printed pages are authoritative

Setzen Sie Ihre Recherche in ChatGPT oder Claude fort