Case Commentaries on Interrogation Issues for January-February 2023

by James P. Manak

Mr. Manak is an Adjunct Professor of Law at the University of Illinois Law School at Chicago, formerly the John Marshall Law School; and has served on the faculty of Northwestern University and as consultant to the National District Attorneys Association. He is the present and former author/editor of several law enforcement publications, including Criminal Law and Its Administration, coauthored with professor Fred E. lnbau; the Illinois Law of Criminal Investigation; the Law Enforcement Legal Defense Manual; the Law Enforcement Legal Review; and Case Commentaries and Briefs formerly published by the National District Attorneys Association.

Keep in mind as you consider the following Case Commentaries for January 2023, that cases from the United States Supreme Court on the subject of interrogation set the federal constitutional minimum standards for law enforcement conduct. The states, through decisions of their highest courts of review, can interpret state constitutional provisions in a manner further restricting law enforcement conduct on the subject. They can do this by ruling that state constitutional provisions give defendants greater rights than those that exist under federal constitutional provisions. Interrogators, whether in the public or private sectors, must also be aware of cases in their state that involve state provisions similar to the Fifth and Sixth Amendments.

In addition, there are various department and local prosecution policies that may have an impact on law enforcement conduct. Consultation with your legal advisor is always advisable to be aware of any state law provisions or court cases that might apply to interrogation in your jurisdiction.

Note: Cases in this issue are edited by Professor Manak to eliminate non-interrogation issues in order to focus on distinct interrogation questions, usually involving Miranda and voluntariness points of interest to interrogators. For the full and unedited court opinion, the reader is directed to pull up the case citation.

Miranda: Admissibility of Statements; Fourth Amendment and Miranda Issues; Investigative Detention vs. Consensual Encounter; Factors to Determine Waiver of Rights; Use of Trickery and Deceit in Questioning as Not Invalidating Defendant’s Consent to Answer Questions; a Simple “I Will” as a Waiver of the Right to Counsel

United States v. Woody, No. 21-2007, United States Court of Appeals for the Tenth Circuit (2022).

https://law.justia.com/cases/f... SUMMARY, FACTS AND PROCEDURAL HISTORY

Defendant was convicted of aggravated sexual abuse and abusive sexual contact. He was

sentenced to life imprisonment.

Evidence against defendant included incriminating statements he made during two separate encounters with federal agents. Defendant appealed his convictions, asserting that the trial court should have suppressed his statements to the federal agents because the agents violated his constitutional rights.

The victim was an eight-year-old member of the Navajo Nation who lived with her mother and stepfather-defendant. While temporarily staying with her father, Jane Doe 1 told her father that defendant had been sexually abusing her. Her father brought her to a hospital, where she was examined in the emergency room. A doctor took Jane Doe 1’s medical history, at which point she told the doctor that defendant had been molesting her by kissing her and touching her genitals. The doctor examined Jane Doe and found no signs of physical injury. He then reported the sexual abuse to the Federal Bureau of Investigation (FBI).

FBI Special Agents Ross Zuercher and Thaddeus Clancy sought out defendant to follow up on the report and located him at his niece’s house in New Mexico. The agents drove an unmarked car and were dressed in plain clothes, with their firearms concealed. Upon arriving at the house, they saw a man lying under a car in the front yard, performing repairs. They approached the man and identified themselves as FBI agents looking for Defendant. The man identified himself as defendant. Agent Zuercher asked defendant if he would speak to them and suggested going somewhere with more privacy than the front yard, where defendant’s girlfriend was also present. Defendant agreed and led the agents inside his niece’s mobile home. The agents sat on one couch in the living room while defendant sat on the couch closer to the door, three or four feet away from the agents. The ensuing conversation was recorded by Agent Zuercher.

After preliminary questioning and general discussions about defendant and his family, Agent Zuercher asked defendant about the specific claims of abuse made by Jane Doe 1. Defendant denied the allegations at first. Agent Zuercher told Defendant that if the abuse was “a one-time thing,” it could be “explained away”and would be “no big deal.” Defendant said that he might have done it when he was drunk because he could not remember any of the alleged abuse. Agent Zuercher then assured defendant that he would not be arrested that day, but emphasized that the agents needed “to know what happened that night just so we can make sure that we’ve covered everything that we needed to cover.” Defendant eventually admitted that he once touched and partially penetrated Jane Doe 1’s vagina with his finger. At Agent Zuercher’s request, defendant drew a diagram of the penetration and wrote an apology letter to Jane Doe 1. Defendant denied any other instances of abuse against Jane Doe 1 or another alleged victim, however. The agents told defendant they might call him in later for further questioning or a polygraph test. Shortly thereafter, they shook defendant’s hand and left the residence.

After this April 25 interview, Agent Zuercher spoke with Jane Doe 2, whose mother had been married to defendant for about ten years until their separation in May 2006, when Jane Doe 2 was approximately thirteen years old. The three lived on the Navajo Nation in New Mexico during the marriage. Jane Doe 2 recalled multiple instances where she was sexually abused as a child by defendant, the earliest being a time when he touched her vagina over her clothes when she was

about six years old. The abuse continued until Jane Doe 2 and her mother left defendant’s house in 2006.

After interviewing Jane Doe 2, Agent Zuercher contacted defendant and asked him to meet again for more questioning. Defendant agreed and they scheduled a second meeting at a state police station, approximately thirty miles from defendant’s town. When defendant arrived at the station at 9:00 AM on October 23, Agent Zuercher let him in and shook his hand. He also introduced defendant to Agent Marcus McCaskill, an FBI polygraph examiner. Both agents were in plain clothes, and Agent Zuercher’s weapon was concealed while Agent McCaskill was unarmed. Their badges were likewise not visible. Defendant was not patted down, searched, handcuffed, or otherwise restrained.

Agent McCaskill led defendant to an interview room where the polygraph equipment had been set up. Agent McCaskill closed the door to the room behind them but did not lock it; Agent Zuercher waited outside the room. Agent McCaskill and defendant sat down facing each other at the table with the equipment. Agent McCaskill explained to defendant that he would make sure defendant understood his rights and confirmed that defendant was still willing to take the polygraph test. Agent McCaskill also told defendant that he was free to leave at any time if he did not wish to waive his rights or take the polygraph examination. Agent McCaskill then showed defendant a standard advice-of-rights form that explained the rights set forth in Miranda v. Arizona, 384 U.S. 436 (1966). Agent McCaskill read portions of the form aloud and explained it to defendant. After going through the form, Agent McCaskill asked defendant if he understood his rights, and defendant said that he did.

Next Agent McCaskill asked defendant if he wanted to answer questions without an attorney present. Defendant twice responded, “I guess,” and both times Agent McCaskill told him that he needed a clearer answer than that, stating, “If you want an attorney, if you don’t want to answer questions today, then that’s your right.” In response to Agent McCaskill’s request for a yes or no answer to whether defendant would answer questions without counsel, defendant said, “I will.” Defendant also signed the advice-of-rights form, which included a waiver of his Miranda rights, on Agent McCaskill’s computer screen.

Agent McCaskill then pulled up the FBI’s separate consent form for polygraph interviews and went over it with defendant. He reiterated that defendant did not have to take the polygraph and could leave at any time. Defendant signed the form and agreed to continue with the polygraph examination.

With the forms sorted out, Agent McCaskill began asking questions, but did not yet begin the polygraph test. He first asked defendant about his background, criminal history, alcohol use, health, and employment before asking about the specific sexual abuse allegations made by Jane Doe 2. Agent McCaskill expected Woody to deny the allegations, but instead defendant admitted to using Jane Doe 2’s hand to touch his penis. Because of this admission, Agent McCaskill decided not to continue with the polygraph and stepped out of the room to inform Agent Zuercher. The two agents came back in together and restarted the questioning of defendant without the polygraph, recording the conversation. Defendant repeated his admission of an

incident where he sexually abused Jane Doe 2 when she was about ten years old, and further admitted to a similar act on a second occasion during that same time period. Defendant also admitted to digitally penetrating Jane Doe 1’s vagina on one occasion when she was very young.

After the questioning and at the agents’ request, defendant wrote an apology letter to Jane Doe 2. The agents shook his hand and thanked him for talking to them. Defendant then left the station.

A grand jury charged defendant with aggravated sexual abuse of Jane Doe 1, and two counts of abusive sexual contact with Jane Doe 2, in violation of 18 U.S.C. §§ 1153, 2244(a)(5) and 2246(3).

Prior to his jury trial, defendant filed motions to suppress the statements he made during both the April 25 encounter with the agents and the October 23 encounter with agents, asserting that the agents violated his constitutional rights in obtaining the statements. The government opposed the motions, and the district court denied them.

Separately, the government sought to introduce testimony from a doctor regarding Jane Doe 1’s statements identifying defendant as her abuser. The government asserted that this testimony was admissible under the hearsay exception for statements made for the purpose of medical diagnosis. See Fed. R. Evid. 803(4). Defendant opposed the motion to admit, but the district court determined that the testimony was indeed admissible under Federal Rule 803(4).

As a result, during defendant’s two-day trial in August 2019, the jury heard evidence of defendant’s admissions to the agents and Jane Doe 1’s identification of him as her abuser. The jury convicted defendant of all three charged counts.

After the trial,.. . . [t]he district court sentenced defendant to life imprisonment on each count, to be run concurrently.

DISCUSSION OF THE ISSUES

Defendant raised two distinct issues. He appealed the denial of his motion to suppress the statements he made during the April 25 FBI interview, and the denial of his motion to suppress his October 23 statements to the FBI agents.

A. Motion to Suppress April 25 Statements

Defendant first argues that the district court erred in denying his motion to suppress the statements he made when the FBI agents interviewed him at his niece’s home, because his Fourth Amendment rights were violated when the agents seized him without his consent. In reviewing the denial of a motion to suppress, we examine the district court’s legal determinations de novo and its factual findings for clear error, United States v. Cook, 599 F.3d 1208, 1213 (10th Cir. 2010), though the facts here are largely undisputed. We also “view [] the evidence in the light most favorable to the district court’s [factual] finding.”

The Fourth Amendment protects citizens against “unreasonable searches and seizures.” U.S. Const. Amend. IV. In applying the Fourth Amendment to alleged seizures by law enforcement, this court has distinguished between “consensual encounters which do not implicate the Fourth Amendment”; “investigative detentions which are Fourth Amendment seizures of limited scope and duration”; and “arrests, the most intrusive of Fourth Amendment seizures.” United States v. Torres-Guevara, 147 F.3d 1261, 1264 (10th Cir. 1998) (quoting United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996)). Defendant asserts that his encounter with FBI agents on April 25 was an investigative detention—which required at least reasonable suspicion to be constitutional, while the government argues that the encounter was consensual and thus did not implicate the Fourth Amendment. Because the government has not asserted the existence of reasonable suspicion either on appeal or to the district court below, the only question before us is whether the encounter was consensual. If not, the encounter was an investigative detention by the agents without reasonable suspicion, thereby violating defendant’s Fourth Amendment rights. See Florida v. Royer, 460 U.S. 491, 500 (1983) (holding that the government bears the burden of demonstrating reasonable suspicion).

In order to determine whether this encounter was consensual, we must “consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Florida. v. Bostick, 501 U.S. 429, 439 (1991). This court has developed a non-exhaustive list of factors to consider in determining whether a suspect would feel free to terminate the encounter:

[(1)] the location of the encounter, particularly whether the defendant is in an open public place where he is within the view of persons other than law enforcement officers;

[(2)] whether the officers touch or physically restrain the defendant;

[(3)] whether the officers are uniformed or in plain clothes;

[(4)] whether their weapons are displayed;

[(5)] the number, demeanor and tone of voice of the officers;

[(6)] whether and for how long the officers retain the defendant’s personal effects such as tickets or identification; and

[(7)] whether or not they have specifically advised defendant at any time that he had the right to terminate the encounter or refuse consent.

United States v. Lopez, 443 F.3d 1280, 1284 (10th Cir. 2006) (quoting United States v. Spence, 397 F.3d 1280, 1283 (10th Cir. 2005)). No single factor is dispositive, but the “strong presence of two or three factors” may be sufficient to support the conclusion a seizure occurred. Id. at 1284–85 (quoting Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1203 (10th Cir. 2006)). We thus examine the presence of each factor in this case, as well as other facts

that defendant highlights to argue that the encounter was a seizure.

i. Location of the encounter

As defendant notes, his conversation with the FBI agents on April 25 took place inside his niece’s home, out of public view. This factor thus weighs in defendant’s favor to show that the encounter was not consensual. That said, we think the weight of this factor is minimal given that defendant specifically agreed to speak with the agents inside. See United States v. Spence, 397 F.3d 1280, 1284 (10th Cir. 2005) (finding that the defendant’s “agreement to allow the agents inside his home weighs toward the conclusion that the encounter was voluntary”).

Defendant also complains that the location of the agents’ initial approach, in the home’s front yard where defendant was lying under a car, weighs against a finding of consent because “the FBI agents showed their authority by going on to private property without any permission” and “ defendant could not just walk away as he was at someone else’s private residence in the midst of repairing a vehicle.” We do not find these facts relevant to the analysis. We have already accounted for the fact that defendant was interviewed at a private residence, and the fact that he could not “walk away” since he was in the middle of car repairs does not mean a reasonable person would have felt unable to “decline the officers’ request or otherwise terminate the encounter” there. Bostick, 501 U.S. at 429.

ii. Touching and physical restraints

The only touching between the officers and defendant were their handshakes at the beginning and end of the interaction, which were certainly not gestures that would indicate a person was not free to terminate the encounter. Though the conversation—to which defendant agreed—took place inside the niece’s house with the door closed, the record does not indicate that the door was locked, and indeed defendant was sitting closer to the door than the officers on the opposite couch. Thus, there were no physical restraints, and this factor does not weigh in favor of finding the encounter a seizure.

iii. Uniforms and weapons

The officers were in plain clothes and never showed their weapons. This factor, too, favors finding that the encounter was consensual.

iv. Number and demeanor of officers

Defendant does not contend that two officers were so many as to give a reasonable person the impression that he would be unable to decline their request to speak with them. Nor could he make such a contention, without more. See United States v. Jones, 525 F.3d at 1242 (stating that an encounter with four agents did not weigh in favor of concluding that the suspect was seized in light of officers’ appearance and demeanor). Furthermore, the district court found that Agents Zuercher and Clancy “spoke to defendant throughout the interview in conversational and respectful tones.” This factor thus does not favor seizure.

v. Retention of defendants’ personal effects

The agents here did not take any personal effects from defendant at any time, and so this factor is not relevant to our analysis.

vi. Advising of right to refuse

Defendant emphasizes that the agents did not specifically inform him that he had the right to refuse to speak to them. This factor thus favors a finding of seizure, but it is by no means dispositive. To the contrary, “[t]here is no per se rule requiring such an advisement.” United States v. Little, 18 F.3d 1499, 1505 (10th Cir. 1994) (en banc) (citations omitted).

vii. Totality of the circumstances

Viewed collectively, the above factors are not sufficient to establish that a reasonable person in defendant’s position would have felt that he “was not free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, 501

The fact that the conversation took place inside a private residence and the fact that the agents did not specifically tell defendant he was free to leave are simply not enough to turn the encounter into an investigative detention, when accounting for other factors such as defendant’s agreement to speak to the agents inside, the agents’ friendly demeanor and plain-clothes appearance, and the lack of any physical restraint on defendant.

That said, the above list of factors is non-exhaustive. Lopez, 443 F.3d at 1284. Defendant argues that certain statements made by the agents during the encounter rendered it nonconsensual because they were deceptive. [Defendant also notes that Agent Zuercher “used imperative phrases” to convince defendant to talk, namely by saying “I gotta know what happened that night.” Defendant did not elaborate on how such statements might be coercive, though he did call them “accusatory,” But the district court found that those statements were “spoken gently and politely rather than aggressively or threateningly.” Consequently, we find that Agent Zuercher’s “imperative” statement that the agents needed to know what happened would not have made a reasonable person in defendant’s position feel he was not free to end the encounter.] Specifically, he complains that Agent Zuercher lied to him by stating that it would be “no big deal” if defendant had abused Jane Doe 1 just one time. Agent Zuercher was indeed lying to defendant with this statement. Even one instance of child sexual abuse is a major crime, and Agent Zuercher said he was aware of that fact in later testimony but told defendant otherwise in an effort to make him more comfortable talking about it.

Nonetheless, we hold that Agent Zuercher’s statement that one instance of abuse would be “no big deal” did not turn the consensual conversation into an investigative detention. Certain forms of deception by officers can be indicative of coercion, which would render consent to searches or seizures involuntary under the Fourth Amendment. See United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011). But “[n]ot all deceit and trickery is improper,” id. at 1280; the surrounding circumstances are significant to the analysis, and the operative

question is whether “deceit or trickery is used to imply an individual has no ability to refuse consent.” For example, in Harrison, the court found that an officer’s false suggestion that there might be bombs in the defendant’s apartment was coercive and vitiated the defendant’s consent to a search of the apartment, because the defendant was left “with two options: (1) deny consent to search and accept the risk that a bomb had been planted in the apartment; or (2) consent to the search”—hardly a choice at all.

In contrast, here, Agent Zuercher falsely telling defendant that one instance of abuse was “no big deal” did not affect defendant’s ability to decline to talk. Agent Zuercher’s only lie was to minimize the consequences of a confession. While this sort of deception may have ultimately induced defendant to keep talking, its mechanism for doing so was not to make a reasonable person feel he could not terminate the encounter; it was to make a reasonable person feel he had not so much to lose by continuing the encounter and being honest. In fact, depending on the circumstances, a reasonable person might feel freer to decline to speak with police after being told that the alleged crime was “no big deal.” This type of lie did not invalidate defendant’s consent. Thus, the “deception” here does not alter our conclusion that the April 25 encounter between defendant and the FBI agents was consensual and so did not implicate his Fourth Amendment rights.

B. Motion to Suppress October 23 Statements

In his other motion to suppress denied by the district court, defendant argued that his October 23, 2018, statements to the FBI agents must be excluded because the agents violated his Fifth Amendment right against self-incrimination. Here there is no genuine and material factual dispute, and we review the district court’s legal conclusions de novo, Cook, 599 F.3d at 1213, and affirm the denial of defendant’s motion.

The Fifth Amendment affords citizens the right to remain silent, to have an attorney present, and to be informed of these rights when the individual is both (1) in custody and (2) subject to interrogation by police. Miranda v. Arizona, 384 U.S. 436, 477–79 (1966). There is no dispute here that defendant was interrogated without an attorney present when he spoke with Agent McCaskill and Agent Zuercher at the state police station on October 23, 2018. Whether defendant was in custody at that time is disputed, however. Assessing whether an individual is in custody is a totality-of-the-circumstances inquiry involving many different factors. See United States v. Lamy, 521 F.3d 1257, 1259 (10th Cir. 2008). Though we have substantial doubts that defendant was in custody at all—which would mean his Fifth Amendment rights never attached—we need not wade into that fact-intensive issue because, even if he was in custody, defendant plainly waived his Miranda rights before making the incriminating statements at issue.

Citizens can waive their Miranda rights if the waiver is “made ‘voluntarily, knowingly, and intelligently.’” Smith v. Mullin, 379 F.3d 919, 932 (10th Cir. 2004) (quoting Miranda, 384 U.S. at 444). This requires that the waiver “was the product of a free and deliberate choice rather than intimidation, coercion, or deception,” and was “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it” based on the

totality of the circumstances. Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). “In determining whether rights were voluntarily waived, we consider: the suspect's age, intelligence, and education; whether the suspect was informed of his or her rights; the length and nature of the suspect’s detention and interrogation; and the use or threat of physical force against the suspect.” United States v. Smith, 606 F.3d 1270, 1276 (10th Cir. 2010).

In advance of any questioning at the October 23 interrogation, Agent McCaskill displayed and explained a form detailing defendant’s Miranda rights. Agent McCaskill then explicitly asked defendant if he wanted to answer questions without an attorney present. When Woody said, “I guess,” Agent McCaskill let Woody know that counsel could be appointed for him, but that he needed a clearer answer. After a second “I guess,” which Agent McCaskill again said was

insufficient to waive the right, defendant eventually responded, “I will.” This suffices as an unambiguous waiver of his right to an attorney. Defendant then signed the advice-of-rights form, which contained a formal waiver of all his Miranda rights.

Defendant has not identified any facts that would render his waiver involuntary or unintelligent, nor do we see any in the record. Agent McCaskill thoroughly explained defendant’s Miranda rights at the very beginning of the interrogation. There is no allegation of any deficiency in defendant’s mental state or mental capacity. The agents never threatened to use or used any physical force against defendant. Defendant argues only that his two responses of “I guess” to the waiver request, before the unambiguous “I will” response, “rendered the waiver of his Miranda rights invalid.” We are not persuaded. Clarifying whether the suspect is in fact waiving his rights does not take away from the suspect’s ultimate voluntary and intelligent choice to do so; to the contrary, Agent McCaskill made every reasonable effort to ensure defendant’s uncoerced willingness to continue with the interrogation here.

THE COURT’S CONCLUSION ON THE DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL

The waiver of his Miranda rights at the beginning of the October 23 interview was valid. His Fifth Amendment rights were therefore not violated, and his subsequent incriminating statements were admissible, so we affirm the district court’s denial of defendant’s motion to suppress the October 23 statements below.

PRACTICE POINTER

A suspect’s statement, “I guess,” is not sufficient to constitute a waiver of rights under Miranda. It is also questionable that repeated attempts to change the defendant’s statement of “I guess” to “I will” would be sufficient to constitute a voluntary waiver of rights under Miranda, in view of the defendant’s initial statement.

To some courts this process might appear to be no more than badgering until the suspect makes the desired affirmative response that constitutes a statement of waiver. In short, it may be doubtful that it “suffices as an unambiguous waiver of the right to an attorney” as deemed by the

court. A better practice might be to pause the interrogation process for a period of time to allow the defendant to consider his initial response.

In addition to this exercise by the officers, a concerted process to minimize the effect of the crime in order to encourage the suspect to waive his right to remain silent may well be a doubtful practice.

Miranda: Related Issues: Admissibility of Statements Made During Unreasonable Search or Frisk; Spontaneous Remarks of a Suspect; Giving Proper Miranda Warnings May Remove Effect of Prior Failure to Mirandize a Suspect; Harmless Error Rule on Motions to Suppress Statements on Fifth Amendment Grounds

United States v. James, No. 21-13689, United States Court of Appeals for the Eleventh Circuit (2022).

https://law.justia.com/cases/f... SUMMARY, FACTS AND PROCEDURAL HISTORY

Defendant appealed his conviction for possession of a firearm by a felon. Specifically, he appealed the denial of his motion to suppress evidence discovered as the result of a search of his person and the statements made following the search. Defendant argued that the police did not have reasonable suspicion to support the search, rendering it illegal, and that the evidence found on his person and resulting statements were poisonous fruits of the illegal search. He also argued that his statements to police resulted from a custodial interrogation started before Miranda warnings were given and should therefore have been suppressed. After review, the court affirmed his conviction.

I. BACKGROUND

A federal grand jury indicted defendant for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). He moved to suppress evidence and to dismiss the indictment. He sought the suppression of a firearm found on his person during a pat-down search following a traffic stop and his subsequent statements to police. While he did not contest the basis of the traffic stop or its duration, he argued that the officers did not have reasonable suspicion that he was armed and dangerous and the search of his person was therefore illegal. On this basis, he argued that the firearm and his statements about it were the products of an illegal search. Further, he argued that officers elicited statements from him during a custodial interrogation, prior to administering Miranda warnings to him.

A. Evidentiary Hearing

The district court held an evidentiary hearing on defendant’s motion. At the hearing, the government called the two officers who conducted the traffic stop as witnesses and defendant cross-examined them. The court then heard arguments from defendant and the government before denying defendant’s motion.

1. Testimony of Officer Blake Russell

Officer Blake Russell testified that from 2018 to 2021, he was assigned to a “hot-spot area” in Mobile. Alabama. On the night of August 14, 2020, Officer Russell pulled over a black Ford Escape for a traffic violation in one of his assigned hot-spot areas. Officer Russell wore a body camera that recorded the events of the stop and the footage from the camera was shown at the hearing. The footage showed the following events:

After pulling over the black Ford Escape, Officer Russell, along with Officer Jorge Chiang, approached the vehicle. There were three people inside the car—a female driver, a female passenger in the front passenger seat, and defendant in the rear seat of the car. After requesting a license and proof of car insurance from the driver, Officer Russell asked the occupants if there were any weapons in the vehicle. The driver, handing over several documents, responded that there were no weapons in the vehicle. The video showed defendant speaking with Officer Chiang during the initial moments of the stop, showing his hands to Officer Chiang, moving them to his lap, and reaching towards his pockets. Officer Russell again asked whether there were any weapons in the vehicle and defendant responded that he had turned over his pocketknife to Officer Chiang. Defendant provided his identifying information to Officer Russell.

Officer Russell then asked each occupant individually if they had any weapons or narcotics in the vehicle. The driver admitted that she had an open container in the vehicle. Defendant responded for a second time that he had given his pocketknife to Officer Chiang: “I just gave him my knife, but what I’m trying to see is, y’all got probable cause to search? I don’t care. I don’t care. Is y’all got probable cause.”

The officers asked each occupant to exit the car and sit on the front bumper of the patrol vehicle. When defendant exited the car, Officer Russell informed him that he would pat him down. While James turned to put his hands on the car, he informed Officer Russell that he received a ride from

the female occupants to “take this back, somebody left it in my car.” Officer Russell handcuffed defendant, proceeded with the pat-down, and located a pistol in James’s right pant leg. Officer Russell asked defendant if he had a permit for the gun and defendant responded that he did not. Defendant informed Officer Russell that the pistol was not his and reiterated repeatedly that he was “taking it back.” Officer Russell placed James in the back seat of his patrol vehicle.

Several minutes later, Officer Russell read James his Miranda rights and questioned him about the firearm. Defendant told Officer Russell that the firearm belonged to his cousin, defendant did not have a pistol permit and he had a prior felony conviction.

At the evidentiary hearing, Officer Russell stated that upon approaching the vehicle, he immediately smelled marijuana, he observed open containers in the front seat, and he noticed the slurred speech and nervous behavior of the occupants. He testified that the occupants were speaking over each other, which he considered might have been an attempt to distract the officers.

As for defendant’s behavior, Officer Russell testified that when he asked defendant whether he

had any weapons or narcotics, he “hesitated” and questioned whether Officer Russell had probable cause to search. Officer Russell testified that as a result of his training and experience, he interpreted this as a sign that defendant was deceptive or hiding something.

Officer Russell explained that he asked defendant and the two females to step out of the vehicle “[f]or officer safety” due to the nervousness of the occupants and because the officers were outnumbered. He decided to pat down defendant because defendant displayed signs of nervousness and deception and defendant’s baggy clothes made it impossible for Officer Russell to tell if he was carrying a weapon. When Officer Russell began the pat down, defendant started apologizing and repeatedly stated that he was trying to “take it back,” which Officer Russell took to mean that James was attempting to admit that he was carrying a weapon. Officer Russell stated that defendant cooperated with the officers in providing accurate personal information and showing his hands when the officers approached the vehicle. No marijuana was found in the car or on any of the occupants.

2. Testimony of Officer Jorge Chiang

The government next called Officer Chiang to testify, showing footage from his body camera, which began shortly after defendant turned over his pocketknife to Officer Chiang. The footage was consistent with the footage from Officer Russell’s body camera.

After Officer Russell placed defendant in the back of the patrol vehicle, but prior to him receiving Miranda warnings, the footage shows Officer Chiang approaching the vehicle and asking defendant if he called out for him. Defendant responded, “Yes, sir” and Officer Chiang asked defendant, “What’s up, man?” Officer Chiang did not provide Miranda warnings to defendant upon approaching the vehicle. Defendant explained to Officer Chiang that his cousin, who defendant believed had a pistol permit, left the pistol in defendant’s girlfriend’s car. Defendant could not leave the firearm in his girlfriend’s car because his girlfriend had two children. Defendant’s cousin told James to bring the pistol back to him and, while walking the pistol back to his cousin, James called the female occupants for a ride. Defendant stated that there was “one in the clip” and reiterated that he does not “play with” firearms.

Officer Chiang then asked defendant, “So he let you put yourself in that spot?” Defendant responded that he did not want firearms around him and, because he typically walks from place to place, he did not want to walk around with a firearm on his person. Officer Chiang responded, “Right,” and asked defendant why he did not mention the pistol when he turned over his pocketknife. Defendant stated that he knew he was not supposed “to be around them” and that he would go to jail if found with a firearm. Defendant reiterated his explanation for having the gun, his attempts to return it to his cousin, and his understanding that he was not supposed to have it. Officer Chiang asked defendant if the pistol was stolen and defendant stated that he did not know.

On cross-examination, Officer Chiang testified that the area in which he and Officer Russell stopped defendant was a high-crime area known for burglaries but stated that he did not have crime statistics for the area on hand. Officer Chiang did not recall smelling marijuana when he

approached the vehicle.

B. District Court’s Findings and Rulings

Following argument from defendant and the government, the district court found that the officers had reasonable suspicion to initiate a frisk of defendant’s person based on concerns for officer safety. The court summarized its findings:

[T]here was sufficient evidence to support that the officer[s] had reasonable suspicion for the pat-down for officer safety based on the [fact that] the officers were outnumbered, particularly when they approached the car. The defendant had slurred speech. The smell of marijuana. He wouldn’t answer the questions. He evasively answered the questions. And then produced that he at least had one weapon. At that point—and also the fact that he was wearing the baggy clothes gave the officer more than what he needed to do an officer safety pat-down to—on him.

The court also found that defendant was in custody the moment that Officer Russell handcuffed him prior to patting him down. However, because the government stated on the record that it would not seek to use defendant’s pre-Miranda statement that he did not have a pistol permit, the court ruled that defendant’s motion to suppress that statement was moot. Similarly, because the government conceded that defendant’s pre-Miranda statement to Officer Chiang that he did not know whether the gun was stolen was not admissible, the court ruled that defendant’s motion to suppress that statement was also moot. Finally, the court ruled that defendant’s post-Miranda statements to Officer Russell were admissible.

As to the remaining statements, the court ruled that defendant had not made any incriminating statements to Officer Russell prior to receiving the Miranda warnings. Lastly, the court ruled that defendant’s statements to Officer Chiang, up until responding to Officer Chiang’s question of whether the gun was stolen, were also admissible. The court thus denied defendant’s motion.

C. Guilty Plea, Sentencing, and Appeal

Defendant pleaded guilty to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) reserving his right to appeal the district court’s denial of his motion to suppress. The district court sentenced defendant to 37 months’ imprisonment, adjusted to 32 months for time served, followed by a three-year term of supervised release. Defendant appealed his conviction, the district court’s judgment, and the denial of his motion to suppress.

II. ANALYSIS

On appeal, defendant made two arguments: (1) the officers did not have reasonable suspicion that defendant was armed and dangerous and thus the Terry frisk was unlawful; and (2) defendant’s statements were fruits of an illegal search and violated his Fifth Amendment rights. [Only the court’s discussion of the admissibility of the statements made by the defendant are considered here] . . .

* * *

Suppression of James’s Statement

Defendant argued that the district court erred in denying his motion to suppress the statements he made to Officer Chiang while seated in the rear of the patrol vehicle before receiving Miranda warnings. Specifically, he argued that, in response to Officer Chiang’s questions, he stated that he did not voluntarily produce the firearm when he produced the knife because he was a felon and knew he was not supposed to have a firearm. He argued that suppression of his statements to Officer Chiang was warranted for two reasons: (1) the statements were made following an illegal frisk; and (2) the statements were obtained in violation of his Fifth Amendment rights.

The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” In Miranda, the Supreme Court established that statements made during a custodial [The district court found that defendant was in custody for purposes of Miranda when he was handcuffed by Officer Russell. Neither James nor the government argue that this finding was erroneous] interrogation are not admissible at trial unless the defendant was first advised of his rights, including the right against self-incrimination. A person in custody is subject to “interrogation” when they face “express questioning or its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980). This includes any “words or actions” by the police “other than those normally attendant to arrest and custody” that the police should have known were “reasonably likely to elicit an incriminating response.” Interrogation reflects a “measure of compulsion above and beyond that inherent in custody itself.” Id. at 300. A defendant’s volunteered statements are not barred by the Fifth Amendment. Miranda, 384 U.S. at 478. Accordingly, “a district court need not suppress spontaneous remarks that are not a product of interrogation.” United States v. Hall, 716 F.2d 826, 830 (11th Cir. 1983).

The court stated that the “simple failure to administer the [Miranda] warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will,” does not taint the investigatory process to the point that a subsequent voluntary and informed waiver is ineffective. Oregon v. Elstad, 470 U.S. 298, 301 (1985). “[C]ourts are not to presume that the existence of [an] earlier unwarned statement compelled the defendant to give another one, but instead should assume that ordinarily giving proper Miranda warnings removes the effect of any conditions requiring suppression of the unwarned statement.” United States v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006).

The court stated that harmless error review applies to decisions denying motions to suppress on Fifth Amendment grounds. United States v. Arbolaez, 450 F.3d 1283, 1292 (11th Cir. 2006). To find that an error was harmless on direct appeal, it must determine that the error was “harmless beyond a reasonable doubt.” United States v. Lall, 607 F.3d 1277, 1292–93 (11th Cir. 2010) (quotation marks omitted). In making that determination, it must determine whether there is a reasonable probability that the erroneously admitted evidence “might have contributed to the conviction.” Arbolaez, 450 F.3d at 1292–93. Importantly, the improper admission of statements made before an individual received Miranda warnings is harmless where the statements were encompassed by a subsequent, properly admitted statement. Street, 472 F.3d at

1315. The court stated: [“We recognize that harmless error review does not fit neatly with this case. It is difficult to discern whether denial of the motion to suppress made a difference to James’s conviction because he pleaded guilty. However, James does not argue on appeal that, but for denial of his motion, he would not have pleaded guilty. Furthermore, even assuming it was error to admit his statements to Officer Chiang, there was sufficient admissible evidence to convict him of possession of a firearm by a felon; namely, defendant admitted to Officer Russell after receiving Miranda warnings that he was a convicted felon, that he did not have a pistol permit, and that he knew he was not supposed to have a firearm in his possession.”]

Defendant challenged the admission of his pre-Miranda statement to Officer Chiang that he did not turn over the firearm at the same time as the pocketknife because he knew, as a felon, he was not supposed to have a firearm. Assuming that admission of this statement was error, the error is harmless. As demonstrated from Officer Russell’s body camera footage, James, after receiving his Miranda rights, informed Officer Russell that he was a convicted felon, that he did not have a pistol permit, and that he knew he was not supposed to have a firearm in his possession. Therefore, because the challenged information in defendant’s statement to Officer Chiang was also included in defendant’s post-Miranda statements to Officer Russell, any error in the admission of his pre-Miranda statements was harmless

Moreover, based on defendant’s post-Miranda statements, there was sufficient evidence to conclude that James was a felon, that he knew of his status of a felon, and that he knowingly possessed a firearm, which is all that is required for the offense of felon in possession of a firearm. See Rehaif v. United States, __ U.S. __, 139 S. Ct. 2191, 2200 (2019). Accordingly, there was no reasonable probability that James’s pre-Miranda statements might have contributed to conviction. Arbolaez, 450 F.3d at 1292–93.

Accordingly, the court ruled that the district court did not err in denying defendant’s motion to suppress the statements about the firearm made to Officer Chiang.

III. THE COURT’S CONCLUSION ON THE MIRANDA ISSUE

The district court did not err in denying defendant’s motion to suppress. Officer Russell’s pat down search was lawful because it was supported by reasonable suspicion that defendant was armed and dangerous. Additionally, even assuming that the trial court erred in failing to suppress some of defendant’s pre-Miranda statements, because defendant made the same admissions after receiving Miranda warnings, any such errors were harmless. As such, there was no reasonable probability that the Miranda statements contributed to his conviction.

PRACTICE POINTER

This case presents an application of the Harmless Error Rule. In order to have the benefit of the Rule where a constitutional error has been made, a police officer must act in good faith and not have intentionally engineered the application of the Rule.

More importantly, the objective of officers should always be to scrupulously follow the law and

rules pertaining to investigation and not rely upon the possibility of the Harmless Error Rule avoiding what would otherwise be reversible error. Adequate training of officers on the intricacy of interrogation rules and tactics should always be the objective of law enforcement agencies, and not reliance on the Harmless Error Rule.

Miranda: Interrogation of Foreign Language Defendants; Adequacy of Warnings; Effect of Long-Overnight Interrogation; Re-Advisement of Rights After Pause; Voluntariness

People v. Miranda-Guerrero, No. S118147, Supreme Court of California (2022). https://law.justia.com/cases/c...;

SUMMARY, FACTS AND PROCEDURAL HISTORY

Defendant Victor M. Miranda-Guerrero was charged with six crimes and convicted of five: kidnapping to commit rape, murder, attempted carjacking, assault with intent to commit rape, and receiving stolen property. The jury could not reach a verdict on an additional assault charge, and it was dismissed. Although Miranda-Guerrero pleaded not guilty to all counts, the defense contested only the murder and assault allegations at trial. The jury found true a special circumstance that the murder occurred during the commission or attempted commission of rape, and it returned a death verdict.

* * *

November 1999 Murder of Bridgette Ballas

a. Prosecution Case

On the night of November 26, 1999, Bridgette Ballas went out for drinks with a friend in downtown Huntington Beach. They went to Gallagher’s Bar for a while and then walked to Aloha Grill, where they met several other people. Ballas’s friend left around 1:00 or 1:30 a.m., but Ballas stayed at the bar. Her friend testified that, at that point, Ballas was not staggering or otherwise showing significant signs of impairment. She told police the next day that Ballas had five or six drinks during the time they were together.

Soon after her friend went home, Ballas left Aloha Grill with a small group of people, including an acquaintance with whom they had been sitting. The group walked a short distance to the house of Jason H., where they continued to hang out and drink. One woman who was part of that group testified that Ballas did not appear drunk and was not stumbling during the walk to Jason’s house. Ballas told her at one point that she felt “kind of funny” because she did not know anyone at Jason’s, and she left the house after 30 or 40 minutes.

Early in the morning of November 27, Richard B. heard someone scream “Oh my God” three times in quick succession. He looked out his window but did not see anything. When he went outside later that morning, he found Ballas lying partially in the street with her head on the curb. She was between two vehicles. Her pants were pulled down and her shirt was pulled up above her breasts, and she was nonresponsive when Richard tried to speak to her. The location where

he found her was about seven-tenths of a mile from Jason’s house and about a tenth of a mile from her apartment. He covered her with a blanket and called 911.

Ballas was breathing when Officer Juan Munoz arrived, so Munoz called for medical care. She was taken to Western Medical Center for emergency treatment. At that point, she was in a coma. A CT scan showed swelling of her brain and a blood clot on the left side of her brain, which was then surgically removed by Dr. Israel Chambi. Part of her temporal lobe was removed to provide more space for her brain to swell; it was damaged and soft. Dr. Chambi testified that he believed her injuries were consistent with blunt trauma resulting from likely more than one impact.

The doctor who performed Ballas’s autopsy later came to a similar conclusion. Ballas also had an ear injury that appeared to come from pulling or tugging rather than from blunt trauma. No defensive wounds were found on her body, and no foreign DNA was found under her fingernails. Small pieces of gravel were found inside Ballas’s labia, and several abrasions were found inside her vagina that, in the opinion of the doctor who conducted the sexual assault examination, were consistent with injuries often seen in women who have been forcibly penetrated. Saliva collected from a swab of one of Ballas’s breasts matched Miranda-Guerrero’s DNA. Despite treatment, she died after a few days from the severity of the swelling of her brain.

Miranda-Guerrero presented an alternative narrative that Ballas fell down and hit her head on the curb after urinating in the street. Police swabbed an area of the street around where Ballas was found for evidence. Part of a nearby gutter appeared damp in crime scene photographs, but that area was not swabbed. No urine was found on the swabs that were collected.

Over Miranda-Guerrero’s motion to suppress statements to the police, several hours of video from his interviews with police were played for the jury, including a portion of interviews in which he told the officers that he had hit Ballas.

b. Defense Case

The theory of Miranda-Guerrero’s defense was that the brain injury that killed Ballas resulted from her falling and hitting her head on a curb because she was intoxicated. Defense counsel argued that Miranda-Guerrero had met Ballas after she left a friend’s house and that he was walking with her when she stopped to urinate between the two cars where she was found. After urinating, she stood up and fell over. Miranda-Guerrero conceded that he raped her after she was knocked unconscious by the fall.

* * *

The prosecutor’s case in aggravation consisted in part of victim impact testimony from Ballas’s parents and sisters. The prosecutor also discussed the facts of the circumstances of Ballas’s death.

Miranda-Guerrero’s case in mitigation consisted principally of testimony about his childhood in Mexico and testimony from five psychologists about his cognitive functioning. Miranda-

Guerrero was one of eight children and grew up very poor. His father drank too much and abused Miranda-Guerrero’s mother. Miranda-Guerrero started working at a restaurant when he was about eight years old and left school when he was eleven or twelve.

* * *

Admissibility of Statements to Police

Miranda-Guerrero challenged the admission at his trial of statements he made to police officers during three custodial interrogations, which collectively spanned 12 hours between May 26 and May 29, 2000. He argued that his statements were obtained in violation of Miranda v. Arizona and that they were involuntary in light of the totality of the circumstances. He expressed particular concern about the effect of admitting statements he made near the end of his second interview, in which he said he may have hit the victim “maybe two times.”

THE COURT FOUND NO ERROR

1. Facts

Miranda-Guerrero was arrested early in the morning on May 26, 2000. His first interview began about six hours later. He was interrogated by two detectives of the Huntington Beach Police Department, Dave Dierking and Sam Lopez. Miranda-Guerrero’s first question to the officers was whether they spoke Spanish. Early in the interview, before Miranda-Guerrero received his Miranda advisement, Dierking asked in which language he was more comfortable proceeding. Because his response — “maybe more I speak Spanish because maybe I don’t understand everything” — indicated that his command of English was uncertain; Lopez served as translator for the remainder of the interrogation.

After some preliminary questions, the detectives asked Miranda-Guerrero how long he had been in the United States. He said he had been in the country two or three years. Lopez then gave him an advisement as to his Miranda rights. The full transcript of the advisement is reproduced below as it appeared in the exhibits used at Miranda-Guerrero’s trial. The statements in brackets are translations included in the trial court’s exhibit that it used to evaluate whether Miranda Guerrero’s statements should be suppressed.

[LOPEZ]: Okay. Lo voy hacer dos modos, Ingles y Espanol, okay? You have the right to remain silent. Entiendes eso? [Do you understand that?]

“[MIRANDA-GUERRERO]: Of course.

“[LOPEZ]: Anything you say may be used against you in court. Entiendes eso? “[MIRANDA-GUERRERO]: Si, si antes estaba en la corte? [If, if I was in court before?] “[LOPEZ]: Todo que usted me dice, lo puedo usar en corte contra used. [Everything that

you say may be used in court against you.]

“[MIRANDA-GUERRERO]: Yeah.

“[LOPEZ]: Okay, primero Ingles y entonces Espanol, okay? [First English and then Spanish.] Usted tiene el derecho . . . usted tiene el derecho, uh . . . [You have the right . . . you have the right, uh . . .] or, or you have the right to remain silent. Anything you say may be used against you in court. You have the right to the presence of an attorney before and during any questioning. If you cannot afford an attorney, one will be appointed for you free of charge before any questioning if you want.

“De primero. Usted tiene el derecho para meser [sic] silencio. [First of all, you have the right to remain silent.] Usted no tienes que decir nada si quieres. Entiendes eso? Porque aqi [sic] en este los Estados Unidos tene [sic] derechos. Todo que usted me dice, lo puedo user . . . usar en corte contra used [sic] Entiendes eso? [You do not have to say anything if you want. Do you understand that? Because here in the United States you have rights. Everything that you tell me can be used, used in court against you. Do you understand that?] Okay.

“Usted tiene el derecho a tener un abogado. Y si no tienes dinero para un abogado, el corte de [sic] da uno gratris [sicde costa. Entiendes eso? Eh, eh . . . usted tiene el derecho obtener un abogado durante unos . . . unas preguntas. Entiendes eso? Si o no? Digame si. [You have the right to have an attorney. If you do not have money for an attorney, the court will provide one free of charge. Do you understand that? Eh, eh . . . you have the right to obtain an attorney during the, the questions. Do you understand? Yes or no? Tell me . . . yes.]

“[MIRANDA-GUERRERO]: Mm hm.

“[LOPEZ]: Okay, porque es importante [because it’s important].

“[DIERKING]: Just so I know, I speak a little, is that a si or no?

“[MIRANDA-GUERRERO]: Yeah.

“[LOPEZ]: Si. Si no tienes dinero por un abogado, el corte te da una gratis de costa. Entiendes eso? El corte te da uno. Entiendes eso? [If you do not have money for an attorney, the court will give you one free of charge. Do you understand that? The court will give you one. Do you understand that?]

“[MIRANDA-GUERRERO]: Mm hm.

“[LOPEZ]: Entonces con estos derechos en mento, quieres hablar con nosotros . . . sobre los cargos? [Then, with these rights in mind, do you want to talk with us . . . about the charges?]

“[MIRANDA=GUERRERO]: Pues no se . . . como de que? [Well, I don’t know . . . like about what?]

“[LOPEZ]: Si o no? Quires [sic] hablar sobre los cargos? Quires [sichablar con nosotros? [Yes or no? Do you want to talk about the charges? Do you want to talk with us?]

“[MIRANDA-GUERRERO]: Pues si pe [Well yes, but]

“[LOPEZ]: Okay.

“[DIERKING]: Okay, do you understand those? Okay? Now you, you sorta indicated that you were just walking?”

The interview proceeded for about two hours without further advisement. As the parties agreed during the superior court’s hearing on Miranda-Guerrero’s suppression motion, the officers did not inform him of any rights he may have had under the Vienna Convention on Consular Relations, and “the subject of consular consultations did not come up.”

Miranda-Guerrero’s second interview began when Dierking and Lopez woke him up shortly after midnight that evening. At the start of the interview, Lopez asked Miranda-Guerrero the following question: “Te acuerdas cuando hablamos de los derechos? Que tienes . . . permanecer silencio y todo eso.” The superior court’s exhibit indicates that Lopez’s Spanish was deficient, but it translates his question as “Do you remember when we talked about the rights? That you have . . . to remain silent and all that.” Miranda-Guerrero replied “Umhmm.” Lopez then asked in Spanish if Miranda-Guerrero wanted to talk to them again with those rights in mind. He said yes, and the interview proceeded.

The third interview was conducted two days later. At the beginning of the interview, Lopez read Miranda-Guerrero’s rights to him from a card on which they were correctly translated into Spanish. He had Miranda-Guerrero read the card as well.

Although various statements Miranda-Guerrero made during his interviews were introduced at trial, the most incriminating statement regarding his murder charge came during the second interrogation. Miranda-Guerrero’s explanation of the circumstances of Ballas’s death changed over the course of his interviews. He claimed at first that he had never seen Ballas, then that he was walking with her on the night she died but that he left before she was hurt, and eventually

that she fell and hit her head, the position he maintained at trial. At the end of his second interview, which spanned more than seven hours, he told the officers that he may have hit Ballas twice. On further questioning, he said he could not recall any other details with certainty. Asked when he hit her, he said, “Maybe when she had fallen down .... Maybe ... maybe that’s when maybe I . ..when maybe I hit her. Because I hadn’t remember [sic] that I had hit her.” Asked if he now remembered hitting her, he responded, “Well . . . you’re saying (I did). But I ....Really, I .... Well, I haven’t remembered, but ... but like, like, you’d say that (...?) ... no, no, no.” When the officers asked again if he remembered hitting Ballas, he responded, “No man.

But if I hit her maybe it was two. But no, I don’t remember.”

About three hours of video from the interviews were played during the trial. The prosecutor discussed Miranda-Guerrero’s statements and changing story, emphasizing them particularly in rebuttal to the defense’s closing argument. As he told the jury, “[i]t took hours and hours and hours of questions.... He didn’t admit anything.” The prosecutor pointed out that the first thing Miranda-Guerrero said when asked if he knew what had happened to Ballas, at a time when he was still denying that he had ever seen her, was “[p]erhaps she was killed.” “What innocent person in the position of the defendant would ever say that?” he asked. “He repeatedly tells the police he never saw her fall,”the prosecutor said. “And then only four hours into the second interview, six hours total, he finally tells the police the truth. And he tells the police, perhaps he hit her twice.

2. Miranda Analysis

The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” To safeguard a suspect’s Fifth Amendment privilege against self-incrimination from the “inherently compelling pressures” of the custodial setting (Miranda, supra, 384 U.S. at p. 467), the high court adopted a set of

prophylactic measures requiring law enforcement officers to advise a suspect of his right to remain silent and to have counsel present prior to any custodial interrogation (id. at pp. 444–445). “A suspect who has heard and understood these rights may waive them,” but the prosecutor “ ‘bears the burden of establishing by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary under the totality of the circumstances.’ ” (People v. Leon (2020) 8 Cal.5th 831, 843 (Leon).) “The totality approach permits — indeed, it mandates — inquiry into all the circumstances surrounding the interrogation,” including the defendant’s “age, experience, education, background, and intelligence,” and “whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” (Fare v. Michael C. (1979) 442 U.S. 707, 725.)

“A statement obtained in violation of a suspect’s Miranda rights may not be admitted to establish guilt in a criminal case.” (People v. Jackson (2016) 1 Cal.5th 269, 339.) When evaluating the admissibility of a defendant’s statements on appeal, we accept the trial court’s resolution of disputed facts if supported by substantial evidence, and we independently determine from the undisputed facts and the facts properly found by the trial court whether the statements were illegally obtained. (Ibid.) Miranda-Guerrero challenges the adequacy of the Miranda advisory and waiver only with respect to the first two of his three interviews, although he also challenges the voluntariness of his statements from the third interview.

Miranda-Guerrero did not argue before the trial court that his Miranda rights were violated due to a lack of English comprehension. But the record raises some question about whether his English fluency was adequate for him to understand his rights when he was advised of them in English. His response to the warning that what he said could be used against him—“if, if I was in court before?”— indicated that he did not grasp that relatively straight forward admonition. At several points, he struggled with questions put to him in English, for instance

responding “Uh, it’s where?” when asked with whom he lived, and answering “My brother?” when asked if he had ever had problems with women. When Dierking thanked him for cooperating with the officers during the first interview and said that the case would be given to the district attorney, Miranda-Guerrero admitted to Lopez that he didn’t understand what Dierking had said. When asked where he first saw [a companion], he answered,“Oh because, because she’s angry and because she said it.” At some points, however, Miranda-Guerrero did respond appropriately and was able to ask clarifying questions.

We need not decide whether the Miranda advisement given in English was sufficient. Recognizing the language barrier, Lopez advised Miranda-Guerrero in Spanish as well. Some translation difficulties made the Spanish advisement suboptimal; it is not clear why the officers, who had access to a printed card with properly translated Miranda advisements, chose to advise Miranda-Guerrero at the first interview with a Spanish translation developed on the fly. However, we conclude that under the totality of the circumstances, the Spanish admonition adequately informed Miranda-Guerrero of his rights.

As to the right to remain silent and the right to court appointment of counsel, Lopez’s Spanish advisement was sufficient. He explained that Miranda-Guerrero had the right to silence, that he did not have to say anything if he did not want to, and that whatever he said could be used against him. He instructed Miranda-Guerrero twice that he had the right to a court-appointed attorney if he could not pay for counsel, and he took steps to phrase the right in clear and simple terms.

It is a closer question whether Lopez adequately advised Miranda-Guerrero of his right to consult with an attorney prior to his interrogation and to have an attorney present throughout the interview. Miranda admonitions require no “talismanic incantation,” but they must contain each of the mandatory warnings, either as the high court set them out in Miranda itself or by some “‘fully effective equivalent.’” (California v. Prysock (1981) 453 U.S. 355, 359–360 (per curiam), quoting Miranda, supra, 384 U.S. at p.476.) Notifying a suspect that he or she has the right to a court-appointed attorney without explaining that this includes the right to have an attorney present before and during any custodial interviews is an insufficient admonition. (Duckworth v. Eagan (1989) 492 U.S. 195, 205.)

According to the translation in the superior court’s exhibit, Lopez instructed Miranda-Guerrero that “you have the right to obtain an attorney during the, the questions.” He did not specify which “questions” he was referring to, and nothing else in the advisement explained that Miranda-Guerrero’s right to an attorney applied not just during court proceedings, but before and during any interrogation. Nor did Lopez take any steps to clarify the ambiguous admonition, instead immediately asking Miranda-Guerrero to declare whether he understood the right.

In context, however, it would be reasonable for a suspect in Miranda-Guerrero’s position to presume that “the questions”to which Lopez referred were the questions that the detectives were about to ask him. And while Miranda-Guerrero may not have understood every aspect of the Miranda advisement he was given in English, the full and accurate recitation of his rights in

English may have helped clarify any ambiguity about what questions Lopez was referencing in the Spanish admonition. Perhaps most significantly, Miranda-Guerrero agreed at the beginning of the third interview that the rights he was advised of then—which included the right to have counsel present, explained multiple times and in accurate Spanish—were the same as the rights the detectives had discussed with him during the first interview. Considering the totality of the circumstances, we conclude that the admonition at the first interview was adequate to advise Miranda-Guerrero of his right to the presence of an attorney during the interrogation.

Miranda-Guerrero argues that even if he was adequately advised of his rights, he did not understand or waive them. He says he did not understand his rights because his initial response when asked if he understood them was “Mm hm” rather than something more affirmative. But when advised of his rights at the third interview, Miranda-Guerrero clearly indicated not only that he understood his rights, but that they were the same rights of which he had been advised at the first interview. Miranda-Guerrero similarly says he did not waive his rights because his initial response when asked if he wanted to talk to the detectives was “Pues si pe—,” which the court’s transcript translates as “Well yes, bu—.”But he proceeded immediately to speak with the officers, answered their questions without hesitation, and said nothing “‘that could be construed as an invocation of his’” Miranda rights. (People v. Flores (2020) 9 Cal.5th 371, 417.) Under these circumstances, we cannot conclude that his initial answers when asked at the first interview if he wanted to talk, standing alone, are sufficient to show he did not understand or waive his rights. (See ibid. [“‘A suspect’s expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights.’”].)

Miranda-Guerrero also argues that the totality of the circumstances suggests he did not knowingly and intelligently waive his rights, notwithstanding the proper advisement, because of his relative youth and limited education, his lack of experience with the American legal system, and his difficulty understanding English. As noted, he also claims he did not sufficiently express to the officers that he understood his rights because he answered “Mm hm” rather than something more affirmative when first asked whether he understood the advisement at his initial interview.

Miranda-Guerrero was 22 years old at the time of his police interviews, and he had left school when he was eleven or twelve. In Leon, we upheld the waiver of a defendant of similar age who had failed sixth grade, “consistently performed in the borderline range on intelligence tests,” whose “knowledge of the legal system came mainly from Mexican soap operas,” and who answered “‘uhm-hm’”when first asked if he understood his rights. (Leon, supra, 8 Cal.5th at pp.840–841.) Certain aspects of the record in Leon were more indicative of a knowing and intelligent waiver than the evidence before us here. In particular, the Spanish advisement in that case was given from a pre-printed form, and the interviewer, a native Spanish speaker, took care to give the advisement in a Spanish dialect with which the defendant was familiar. (Id. at p.840.) But there are additional, affirmative indications in this case that Miranda-Guerrero understood the advisement he was given. Most notably, Miranda-Guerrero made clear at the start of the third interview that his understanding of the rights Lopez read him then from an accurately translated Spanish-language form was the same as his understanding from the first

interview. We conclude that under these circumstances Miranda-Guerrero’s waiver at the first interview was knowing and intelligent.

The Attorney General does not dispute that Miranda-Guerrero was not fully advised of his rights at the beginning of the second interview; the sole admonition provided was the question, in what the translator termed deficient Spanish, “Do you remember when we talked about the rights? That you have ... to remain silent and all that.” However, no readvisement was required.

Readvisement is not necessary following a valid admonition and waiver when the “subsequent interrogation is reasonably contemporaneous.” (People v. Spencer (2018) 5 Cal.5th 642, 668.) “In determining whether a subsequent interrogation is reasonably contemporaneous, we consider the totality of the circumstances. Relevant considerations include: ‘1) the amount of time that has passed since the initial waiver; 2) any change in the identity of the interrogator or location of the interrogation; 3) an official reminder of the prior advisement; 4) the suspect’s sophistication or past experience with law enforcement; and 5) further indicia that the defendant subjectively understands and waives his rights.’” (Ibid., quoting People v. Smith (2007) 40 Cal.4th 483, 504.)

We have held that interrogations taking place as long as 40 hours after a Miranda warning and waiver do not require readvisement when conducted by the same officers in the same location with an experienced defendant who “evinced no reluctance to be interviewed.” (People v. Williams (2010) 49 Cal.4th 405, 434–435.) Miranda-Guerrero did not have experience with the criminal justice system at the time of his interviews, and he expressed some hesitation about proceeding when he was advised of his Miranda rights at the first interview. But his second interview took place fourteen hours after the first interview, in the same location and with the same detectives. He was also reminded, albeit briefly, of the original Miranda admonition at the beginning of the second interview. Considering all of the circumstances, we conclude that no readvisement was required at the second interview.

3. Voluntariness Analysis

Miranda-Guerrero also argues that his statements to officers were involuntary because the officers’ methods were coercive, because he was not advised of his consular rights under the Vienna Convention, and because of his personal characteristics, including his limited education, inexperience with the criminal justice system, and lack of English proficiency. Under our precedents, his confession was not involuntary.

Involuntary statements to police are inadmissible for all purposes. (People v. Peevy (1998) 17 Cal.4th 1184, 1193.) Statements are involuntary when they are not the product of “‘a rational intellect and free will.’” (People v. Maury (2003) 30 Cal.4th 342, 404, quoting Mincey v. Arizona (1978) 437 U.S. 385, 398.) To use a defendant’s statements to police at trial, the prosecutor must prove by a preponderance of the evidence that they were voluntary. (People v. Peoples (2016) 62 Cal. 4th 718, 740 (Peoples).) On appeal, the voluntariness of the statements “is reviewed independently in light of the record in its entirety, including ‘all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.’”

(People v. Benson (1990) 52 Cal.3d 754, 779.) We ‘examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden.’ (Maury, at p.404.) When testimony in the record is conflicting, we ‘must accept that version of events which is most favorable to the People, to the extent that it is supported by the record.’ (Ibid.)

“[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’... .” (Colorado v. Connelly (1986) 479 U.S. 157, 167.) Coercion is not limited to physical abuse; it may involve “more subtle forms of psychological persuasion.” (Id. at p.164.) These techniques include “repeated suggestion and prolonged interrogation.” (People v. Hogan (1982) 31 Cal.3d 815, 843. . . . They also include deprivation of sleep and food (Greenwald v. Wisconsin (1968) 390 U.S. 519, 521 (per curiam)), as well as “deception or communication of false information” (Hogan, at p.840).

If coercive police conduct is present, we evaluate the totality of the circumstances to determine whether a defendant’s statements were freely given. (People v. Maury, supra, 30 Cal.4 that p. 404.) Factors that we consider include the coercion discussed above, as well as “the length of the interrogation and its location and continuity, and the defendant’s maturity, education, and physical and mental health.” (Peoples, supra, 62 Cal. 4th at p.740.) A defendant’s “inexperience” and “low intelligence” may weigh against a finding of voluntariness, as do“deprivation and isolation imposed on [the] defendant during his confinement.” (People v. Neal (2003) 31 Cal.4th 63, 68).

Miranda-Guerrero asserts that several circumstances of the second interview raise concerns about the voluntariness of his confession at the end of that interview. The officers began interviewing him just after midnight, and the interrogation continued for more than seven hours until Miranda-Guerrero said he might have hit Ballas twice. Miranda-Guerrero notes that he “showed some signs of fatigue” (Peoples, supra, 62 Cal.4th at p.741), telling the detectives at one point that he was “very sleepy.” Further, the officers repeatedly emphasized Miranda-Guerrero’s isolation and referred to the absence of any relationships in Miranda-Guerrero’s life and the distance from his family as reasons why he might have attacked Ballas. In repeated accusations over the course of the night, the officers asserted dozens of times that he “beat,” “hit,”or “punched” Ballas.

While these aspects of the second interrogation of Miranda-Guerrero are relevant, they ultimately do not distinguish this case from prior cases in which we have declined to find involuntary a confession given in response to overnight questioning. In Peoples, for instance, we affirmed a finding of voluntariness in a case involving a twelve-hour overnight interview in which the police questioned the defendant “constantly for the first 10 hours of the interview.” (Peoples, supra, 62 Cal.4th at p.739.) An expert testified in that case that “the detectives used coercive techniques ... over 50 times during the 12-hour interrogation.” (Id. at p.740.) The interview in Peoples was both longer and more coercive than Miranda-Guerrero’s second interview. Moreover, as in Peoples, Miranda-Guerrero “was given numerous breaks, drinks, and food,” and the officers “never offered him leniency for his confession and never threatened a harsher penalty if he remained silent.” (Id. at p.741.) The defendant in Peoples

also showed considerably greater signs of exhaustion than Miranda-Guerrero—“sweating, pulling out his hair, rubbing his skin, twitching his facial muscles, grinding his teeth, and at times appearing to fall asleep.” (Id. at p.739.

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THE COURT’S CONCLUSION ON

THE ADMISSIBILITY OF DEFENDANT’S STATEMENTS

Considering the totality of the circumstances and our independent review of the video of Miranda-Guerrero’s interrogation, we cannot conclude that his confession during his second custodial interview was involuntary.

Furthermore, the first and third interviews exhibited few of the troubling features of the second interview. The first interview took place at 8:00a.m. and lasted just over two hours. The third took place several days later at 10:00 a.m. and also lasted only a few hours. The questioning during the first interview was not aggressive or coercive, and while there were periods of insistent questioning in the third interview, they were relatively brief. We therefore conclude that Miranda-Guerrero’s statements from the first and third interviews were voluntarily given as well.

PRACTICE POINTER

Interrogation of defendants who have limited English language poses special problems for law enforcement. It is best to have such individuals interrogated by officers who are fluent in the defendant’s language. In many cases this is not possible or limited.

In this case the officers were mindful of the special challenges that exist in interrogating foreign language suspects. These challenges should be treated as special cases, and every attempt should be made to have interpreters available for such cases, especially homicide cases where the need for skillful interrogation of suspects is most important.