NOT RECOMMENDED FOR PUBLICATION File Name: 17a0179n.06 No. 16-3177 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GREGORY ALLEN MAYS, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: BOGGS, ROGERS, a nd COOK, Circuit Judges. BOGGS, Circuit Judge. Gregory Mays was arrested in 2014 in a sting operation designed to catch sexual predators who prey on underage chil dren. After his arrest, he was brought to a local police station where he was in terviewed by police investigators. During that interview, Mays asked the office rs, “I really should have a lawyer, h uh?” Officers responded that he had the right to an attorney, but Mays did not press the issue further. He ultimately signed a search-waiver form authorizing police to access the contents of two cell phones that Mays carried with him when he was arrested. Police discove red images of Mays and an underage female engaged in sexual activity, which Ma ys had sent to others. Police subsequently charged Mays with two counts pertaining to th e enticement of a minor and the production of child pornography. Mays filed a preliminary moti on in district court s eeking to suppress the images taken from his phone as well as several of the incriminating statements he made duringNo. 16-3177, United States v. Mays

-2- his interrogation, argui ng that (1) he did not voluntarily waive his Fourth Amendment rights because he could not read the search-waiver form that he signed; and (2) he made an unambiguous request for counsel, which was ignore d. The district court denied his motion, and Mays entered a conditional guilty plea that preserved his right to challenge the district court’s denial of his suppression motion on appeal. This is that appeal . For the following reasons, we affirm the district court’s deni al of Mays’s suppression motion.
I
A In April 2014, appellant Gregory Mays posted an ad in the “Casual Encounters” section of the online classifieds website Craigslist. He sought a “[s]ubmissive and ready” female who desired to be “used and taken advantage of” and “be made to do many things.” The ad specified that he was open to all fantasies, ages, a nd races, but preferred “no games[,] just new experiences.” On April 16, 2014, an Alliance, Ohio Police Department officer, posing as a fourteenyear-old girl named “Ashley,” re sponded to the ad by email. A lthough she identified herself as an underage minor, Mays showed interest and be gan emailing her. The two exchanged messages for several weeks, during which Mays repeatedly asked to meet up with “Ashley” and inquired about her sexual experiences. Several of th e more explicit messages from Mays included descriptions of the various se xual acts Mays intended to perfor m, including promises that she would be “tied up and violated.” They also began communicat ing via text message, leading Mays to frequently encourage “A shley” to delete all incrimina ting text messages from her phone. On May 8, 2014, the two agreed to meet at “A shley’s” home to engage in sexual activity. On the day of their proposed rendezvous, Mays texted and called “Ashley” several times toNo. 16-3177, United States v. Mays

-3- express concern about getting caught by her nei ghbors and to ask for directions. When Mays arrived in the parking lot outside her home, he was immediately arrested by Alliance police. Upon the arrest, officers read Mays his Miranda rights and discovered two cell phones and a condom in his vehicle. The vehicle was towed, a nd officers confiscated the items found inside as part of a routine inventory search. The officers brought Mays and the confis cated cell phones to the Alliance Police Department, where he was placed in what detec tives call a “soft” in terview room. Equipped with comfortable furniture, a coffee table, and wa ter, the room was designed to set suspects at ease in order to elicit incriminating information. It work ed. Detectives read Mays his Miranda rights for a second time and presented him with a Miranda waiver form, which he quickly signed. Mays openly discussed his plans to meet up with “Ashley” as well as his interactions with another juvenile female. At some point later in the intervie w, the detectives presented Mays with a consent form for the sear ch of his two cell phones. The detectives explained what the form meant, including that anyt hing taken from his phones coul d be used against him in a criminal prosecution. Before he could finish signing the form, howe ver, Mays remarked aloud “I really should have a lawyer, huh?” The detectives indicated that they would have no problem providing Mays with an attorney if he requested one. This exchange triggered a pr olonged colloquy between Mays and the detectives that covered a vari ety of subjects. At one point during that conversation, the detectives presented Mays with a printed copy of his Cr aigslist ad and asked him if he could identify it. Ma ys responded that he could not tell without his glasses, which were left in his car. The officers never provided Mays with his glasses. Instead, they pressed him to finish signing the search-waiver form, telling Mays, “There’s [sic] no games here. You want toNo. 16-3177, United States v. Mays

-4- talk, talk.” Mays ultimately relented, remark ing “I think lawyers are a waste of money,” and signed the search-waiver form. At no point did Mays complain abou t being unable to read either the Miranda form that he was presented at the start of his interview or the search-waiver form. A subsequent search of the phones revealed that, from June 14, 2013 through July 23, 2013, Mays produced digital phot ographs and videos of himself e ngaged in sexually explicit conduct with another minor female, which he later sent to others.
B Mays was ultimately charged with sexual expl oitation of children for the images found on his phone, in violation of 18 U.S.C. § 2251(a), and coercion and enticem ent of a 14-year-old girl to engage in illicit sexual activity, in violat ion of 18 U.S.C. § 2422(b). Mays filed several motions to suppress the information gathered from his interview with Alli ance Police detectives. Of relevance to this appeal, he ar gued (1) that he did not voluntar ily consent to the search of his cell phones because he could not read the fo rms he was signing, and (2) that he had unequivocally requested the presence of a lawyer , which the detectives did not provide. The district court held an evidentiary heari ng and denied Mays’s motion on the record: Well, the Court has listened carefully to testimony, reviewed the exhibits, listened to the argument of counsel. I’m denyi ng the Defendant’s moti on to suppress. I guess there are really two aspects. So firs t, I find that under the total[ity] of the circumstances, Mr. Mays’ statements were voluntary. First, he unquestionably was advised orally and in writing of all of his Miranda rights. He never indicated he coul dn’t read the forms or understand the question—the advice of rights. There wa s no physical coercion by the officers or in the environment. It’s a very comfortabl e room. He had water. It only went for about an hour. Obviously, no show of threats of any force, and Mr. Mays seems comfortable throughout. And at times, he gets up and even points out how to access his cell phones. So the statements were voluntary.No. 16-3177, United States v. Mays

-5- The only issue, substantial issue I see is whether at or around Page 58 of the transcript, sort of in th e middle of the interview, whether Mr. Mays makes an unequivocal request for counsel, which the officers ignored, and I find that that did not occur. First, there was no une quivocal request for counsel. Mr. Mays asks a question. Specifically, to reflect it on the transcript, “I really should have a lawyer, huh?” And Detective Rummell immediately responds, “You can do that at any time.” And Detective Welsh sa ys, “You want a lawy er, you can ask for a lawyer,” which is a absolutely correct response. And then Mr. Mays drops the subject, continues ta lking about various things, and then the only other reference to a lawyer is at Page 62, which is proba bly a minute or so later, when Mr. Mays, on his own, says, “You know, like I sai d, attorneys are basi cally a waste of money.” Detective Rummell says someth ing. It’s not clear. And Mr. Mays continues, “They are, I mean they’re so crooked. They are—they’re there to help you.” And that’s the last discussion of a lawyer. So I find that Mr. Mays asked a question, the officers gave a very appropriate response. Mr. Mays never said, “I want to stop. I want a lawyer now. Can I call a lawyer?” He drops it after expressing an opinion. He doesn’t think much of lawyers. And that’s the last mention of it. I don’t find anything in anythi ng that either of the o fficers, Officer Rummell or Officer Welsh, said or did that would cons titute inappropriate effort to pressure Mr. Mays to continue the que stioning, not to get a lawyer or anything of the like. So I find that his Sixth Amendment right to counsel was not violated by either of the officers. So I find no Fifth Amendment violation, nor Sixth Amendment violation. So I’m denying the Defendant’s motion. Mays subsequently entered into a conditio nal plea agreement whereby he pleaded guilty to both counts of the indictment, but reserved his ri ght to appeal the district court’s denial of his suppression motion. The agreement stipulated th at his total offense level under the Sentencing Guidelines was 35 and that his offenses carri ed a mandatory minimum of 180 months of imprisonment. On February 9, 2015, the district court held a sentencing hearing and concluded that Mays’s criminal-history category was II, which combined with his total offense level yielded an advisory Guidelines range of 188 to 235 m onths of imprisonment. After reviewing theNo. 16-3177, United States v. Mays

-6- sentencing factors contained in 18 U.S.C. § 3553(a), the district court sentenced Mays to 210 months of imprisonment, to be followed by 10 years of supervised release and a $200 special

assessment. Mays brings this timely appeal of the dist rict court’s denial of his suppression motion, again raising the Fourth and Fifth Amendment argum ents that he presented before the district

court.
II We adjudicate an appeal from the denial of a motion to suppress under a mixed standard of review, analyzing the district court’s factual findings for clea r error and its legal conclusions de novo

. United States v. Woods , 711 F.3d 737, 740 (6th Cir. 2013) (citation omitted). In addition, we construe the evidence in the light most favorable to the government. Ibid.
A The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, agains t unreasonable searches and seizures.” U.S. Const. amend. IV. It is well-settled law that a “search conducte d without a warrant issu ed upon probable cause is ‘per se unreasonable . . . subject only to a fe w specifically established and well-delineated exceptions.’” Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973) (omission in original) (quoting Katz v. United States , 389 U.S. 347, 357 (1967)). One su ch exception permits police to search a suspect with the suspect’s consent. Ibid. Valid consent must be given freely and voluntarily, which the court will determine by examining the totality of the circumstances. United States v. Riascos-Suarez , 73 F.3d 616, 625 (6th Cir. 1996) (citing Schneckloth , 412 U.S. at 226). It is the government’s burden to prove that “consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina , 391 U.S. 543, 548 (1968). Courts should examine severalNo. 16-3177, United States v. Mays

-7- factors to determine whether consent was valid, including “the age, intelligence, and education of the individual; whether the individual understand s the right to refuse to consent; whether the individual understands his or her constitutional rights; the length and nature of detention; and the use of coercive or punishing conduct by the police.” Riascos-Suarez , 73 F.3d at 625 (citations omitted). As an initial matter, Mays argues that the district court’s holding with respect to his Fourth Amendment claim is insufficient to satisf y Rule 12(d) of the Federal Rules of Criminal Procedure. Rule 12(d) requires a district court deciding a pretrial motion to “state its essential findings on the record.” As Mays correctly notes, the district court’s statements on the record are almost exclusively focused on Mays’s Fifth Amen dment suppression claim. At no point does the court refer to the Fourth Amendment or the cont ested search-waiver form. The district court does, however, analyze Mays’s Miranda waiver, using the same voluntariness approach utilized in a Fourth Amendment consent analysis. Much of this language, particularly the court’s observation that Mays “never indi cated he couldn’t read the fo rm or understand the question,” would apply with equal force to Mays’s Fourth Amendment argument. We need not reach this issue, however, as our case law makes clear that we can affirm a district court’s denial of a motion to suppress “if the district co urt’s conclusion can be justified for any reason supported by the record , including reasons not considered by the district court.” United States v. Sain , 421 F. App’x 591, 593 (6th Cir. 2011) (empha sis added) (citation omitted). The record makes clear that Mays’s Fourth Amendment argument is meritless. Mays signed the search-waiver form in three separate places. At no point did he inform the officers that the print on the form was too small to read, in sharp contrast to his response to the printed copy of his Craigslist ad. It stands to reas on that, if Mays felt comfortable telling theNo. 16-3177, United States v. Mays

-8- investigators that he was unable to read the Crai gslist ad, he would have felt just as comfortable telling them that he could not r ead the search-waiver form. That he never did complain suggests that Mays found the form to be legible. The po lice never threatened Mays; in fact, the record reflects that police intentionally adopted a “good cop” approach when they placed Mays in a “soft” interview room and engaged him in casual conversation. At one poi nt, the district court noted, Mays even volunteered to show his inve stigators how to operate his cell phones. These are not the actions of a man who was coerced or tricked into signing a waiver of his Fourth Amendment rights. Because Mays knowingly an d voluntarily signed the search-waiver form, we affirm the district court’s denial of his Fourth Amendment challenge.
B Mays’s Fifth Amendment argument is equally meritless. The Fifth Amendment protects “persons suspected or accused of crime . . . [from] inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak” by informing him of his rights and honoring them once exercised. Miranda v. Arizona , 384 U.S. 436, 467 (1966). The right applies to persons “in all settings in which their freedom of action is curtailed in any significant way,” including custodial interrogation. Ibid. If, during questioning, an “individual states that he wants an attorney, the interroga tion must cease until an attorney is present.” Id. at 474. Consequently, “any statemen t taken after the person invokes his privilege cannot be other than the product of compulsion” and is thus ba rred from being introduced against him in a criminal proceeding. Ibid. The consequence of such a “‘rigid’ prophylacti c rule” is that courts require a suspect to “unambiguously request counsel.” Davis v. United States , 512 U.S. 452, 458–59 (1994). “[A] statement either is such an assertion [of the right to counsel] or it is not.” Smith v. Illinois ,No. 16-3177, United States v. Mays

-9- 469 U.S. 91, 97–98 (1984) (second alteration in origin al) (citation omitted). We have held that “a suspect must assert his [right to counsel] with sufficient clarity that a reasonable officer would perceive it as such under the circumstances.” Franklin v. Bradshaw , 545 F.3d 409, 414 (6th Cir. 2008) (citing United States v. Hurst , 228 F.3d 751, 759 (6th Cir. 2000) (holding that the Davis standard for invocation applies e qually to the right to counsel a nd the right to remain silent)); see also Berghuis v. Thompkins , 560 U.S. 370, 381 (2010) (holding that “there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel”). “Simply mentioning the prospect of talking with an attorney, or waiting to talk until one is present, is not sufficient to put the agent on notice that a suspect has invoked his right to remain silent” or his right to an attorney. United
States v. Amawi , 695 F.3d 457, 485 (6th Cir. 2012). Thus, where a suspect merely “makes an ambiguous or equivocal reference to an attorney[,] there is no requirement that law enforcement cease questioning.” Ibid. (quoting United States v. Montes , 602 F.3d 381, 385 (5th Cir. 2010)).
In Davis , the Supreme Court dealt with a suspect who remarked, “Maybe I should talk to a lawyer.” Davis , 512 U.S. at 462. There, the Court held that the request was not sufficiently unambiguous to be a request for counsel. Ibid. In Amawi , we dealt with a suspect who, after arrest but prior to boarding a flight to the Unite d States, asked his prospective interviewers if there was a lawyer onboard. Amawi , 695 F.3d at 484. We similarly held that simply inquiring about the presence of an a ttorney “is neither a clear nor unequivocal invocatio n of the . . . right to counsel.” Id. at 485. In United States v. Delaney , 443 F. App’x 122 (6th Cir. 2011), we held that the inquiry, “I think I should talk to a lawyer , what do you think?” di d not constitute an unambiguous request for counsel. Id. at 130. In Delaney , just as in this case, the interviewingNo. 16-3177, United States v. Mays

-10- officers informed the suspect that he was free to have an attorney if he desired one, but the suspect chose not to press the issue. Ibid. Mays points to the Supr eme Court’s decision in Smith , where the Supreme Court held that a suspect unequivocally invoke d counsel when he stated, in response to a question asking whether he wanted an attorney, “Yeah and no, uh, I don’t know what’s what, really.” 469 U.S. at 93; see also Appellant’s Br. at 22–23. Mays misreads Smith , however, by inadvertently focusing on the wrong statement in the suspect’s exchange with interr ogating officers. The Court in Smith largely focused on the suspect’s earlier conversation with interrogators when he stated, “Uh, yeah. I’d like to do that” in response to a ques tion asking whether he desired a lawyer. 469 U.S. at 93. Smith was concerned with whether the suspect’s subsequent “yeah and no” statement, which clearly was equivocal and ambiguous, could be taken into account in analyzing the ambiguity of his fi rst statement. The Court in Smith held that, because the first statement was unequivocal, the inte rrogation should have ceased a nd that therefore the second, more ambiguous statement could not be taken into account. Id. at 96–99. That holding has no bearing on a case such as this, where our analysis turns on the ambiguity of a single statement. Stated simply, Mays’s statement that “I re ally should have a lawy er, huh?” most strongly mirrors the language that courts f ound to be ambiguous and equivocal in Davis , Amawi , and Delaney . Merely asking the intervie wing officers whether one should have an attorney present, as Mays did, is not an unambiguous and unequivo cal request for legal re presentation. Nor did the investigators’ responses suggest that they were improperly pre ssuring Mays to continue with the interrogation. On the contra ry, one of the officers expressly told Mays “You want a lawyer, you can ask for a lawyer.” At no point did Mays make a statement “with sufficient clarity that a reasonable officer would perceive it as [a request for counsel ] under the circumstances.”No. 16-3177, United States v. Mays

-11- Franklin , 545 F.3d at 414 (citation omitted). Becau se Mays did not make an unambiguous and unequivocal request for legal representation, we a ffirm the district court’s denial of Mays’s suppression motion on this ground as well.
III Appellant Mays was repeatedly informed of his constitutiona l rights, but chose to waive them. We therefore AFFIRM the decision of the district court to deny Mays’s suppression motion.