399 F.3d 1118 (9th Cir. 2005), 03-30285, United States v. Rodriguez-Preciado
| Citation | 399 F.3d 1118 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Antonio RODRIGUEZ-PRECIADO, aka Tony Rodriguez-Preciado, Defendant-Appellant. |
| Case Date | March 04, 2005 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit |
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Argued and Submitted Sept. 13, 2004
As amended on July 29, 2005.
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James F. Halley, Portland, OR, for the defendant-appellant.
Karin J. Immergut, United States Attorney, and J. Russell Ratto, Special Assistant United States Attorney, Portland, OR, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CR-96-00311-ALH-(2).
Before WALLACE, GOULD, and BERZON, Circuit Judges.
Partial Dissent by Judge BERZON.
WALLACE, Senior Circuit Judge.
Rodriguez-Preciado appeals from his conviction for various narcotics-related offenses. He argues that the district court improperly denied his pre-trial motion to suppress evidence obtained from his person, his motel room, and his vehicle, as well as statements that he made in the motel room and during a subsequent two-day interrogation. In support of these claims, he contends that the officers did not obtain a valid consent to enter and search the motel room, and that they began a custodial interrogation of him in the
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motel room without giving the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Furthermore, he argues he did not validly waive his right to remain silent after he was eventually given Miranda warnings, the warnings became "stale" and should have been re-administered at the outset of the second day of interrogation, and the officers' failure to advise him of his right under Article 36 of the Vienna Convention requires suppression. He also contends the officers did not obtain a valid consent to search his person and vehicle, and these searches exceeded the scope of any consent. In addition to these suppression arguments, he asserts that the district court violated the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), and that the prosecutor improperly commented on his failure to testify, in violation of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm, but issue a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).
I.
An ongoing narcotics investigation led law enforcement officers to an Oregon motel room in search of Rodriguez-Preciado, who was suspected to be involved in drug trafficking. The officers had questioned Robert Glenn, another target of the investigation, and learned that Rodriguez-Preciado could be found at the motel room and would have contraband in his car.
Five officers arrived at the motel without a warrant. At least three officers went to the motel room door dressed in plain clothes and carrying concealed weapons, including Officer Hascall and Deputy Lilley. They knocked on the door and a man, later identified as Alberto Silva, answered. While standing outside the door, Hascall displayed his badge, identified himself as a police officer, and asked Silva whether he understood English. Silva replied that he did not. Hascall spoke some Spanish and stated in Spanish that he was a police officer and asked for permission to enter the room. Silva said "Si," backed away from the door, and motioned with his arms for the officers to enter the room. Hascall also asked Silva in Spanish whether the motel room was his; Silva replied that it was.
Once inside the room, Hascall explained that the officers were there to investigate suspected narcotics sales activity. He asked Silva whether he sold narcotics, and Silva said he did not. Hascall then asked Silva for permission to search the room for drugs. Silva consented. Throughout this conversation, none of the officers had their hands on their weapons, and Silva was not handcuffed or otherwise detained. At no point did the officers give Silva Miranda warnings, explain that he had the right not to consent to the search, or state that they could obtain a search warrant for the motel room. The officers found no drugs or weapons during the search, but they did find, among other things, a shipping label addressed to Glenn's business and a fax from Glenn.
Rodriguez-Preciado entered the motel room while the officers were still there. Hascall displayed his badge, told Rodriguez-Preciado that he and the others were police officers, and asked Rodriguez-Preciado whether he understood English. Rodriguez-Preciado said that he did, so Hascall explained that the officers were there to investigate narcotics activity, that Silva had consented to a search of the room, and that the search had not produced "any weapons or drugs or anything." During this conversation, the officers did not display or touch their weapons, and did not surround, pat down, or
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handcuff Rodriguez-Preciado. Rodriguez-Preciado expressed no objection to either the officers' presence in the room or that Silva had consented to the search.
Hascall then asked Rodriguez-Preciado whether he had any drugs in his possession. Rodriguez-Preciado said yes and produced a small paper bindle of cocaine from his shirt pocket. Hascall immediately advised Rodriguez-Preciado of the required Miranda warnings and asked whether Rodriguez-Preciado understood them. Rodriguez-Preciado said that he did. Hascall did not inform Rodriguez-Preciado of any right that he, as a Mexican national, might have under the Vienna Convention.
After Hascall requested permission to search Rodriguez-Preciado's person and his vehicle, Rodriguez-Preciado consented and handed him the keys to the van he had been driving. Rodriguez-Preciado said the van contained no weapons or drugs. Sergeant Romanaggi searched the van and discovered $3,360 hidden in a child safety seat in the van. Hascall also found $1,849 in cash in Rodriguez-Preciado's wallet.
Based on this and other evidence, the officers decided to interview Rodriguez-Preciado in more detail. He was handcuffed and taken to a Washington County Sheriff's Office substation. When he arrived at the interview room, his handcuffs were removed and Hascall and Lilley began questioning Rodriguez-Preciado, primarily about his relationship with Glenn. During that conversation, Rodriguez-Preciado described several instances in which he had sold marijuana and methamphetamine to Glenn, including a sale of one pound of methamphetamine that had occurred several days earlier. Rodriguez-Preciado also described a failed attempt to obtain the drug "ecstasy" for Glenn (the slang term for a drug known as MDMA or MDA), and a sale of five kilograms of cocaine to another individual.
According to Hascall, the officers' conversations with Rodriguez-Preciado at the motel room and while he was being interrogated at the substation were conducted entirely in English. Hascall testified the officers had "no difficulty" communicating with Rodriguez-Preciado, with the exception of some initial confusion about the meaning of the word "methamphetamine." This confusion was dispelled after Rodriguez-Preciado later asked the officers whether they meant "crystal," which is the slang term for methamphetamine.
At one point in the interview, the officers asked Rodriguez-Preciado, "Where is the rest of the meth?" Rodriguez-Preciado replied that a pound of methamphetamine was behind the rear speaker of the van. The record is not clear whether Hascall specifically sought Rodriguez-Preciado's permission to search that area of the van. Hascall informed Romanaggi, who dismantled the rear speaker and found one pound of methamphetamine. Earlier searches of the van, including a canine search, had not uncovered the methamphetamine or any other contraband.
The officers then asked Rodriguez-Preciado whether he would be "interested in helping [them] with[their] investigation of narcotics trafficking and perhaps help himself at the same time." Rodriguez-Preciado said that he was interested, which led to a discussion of various ways in which he might be of service. When the officers ended their interview, they placed Rodriguez-Preciado in custody on state narcotics charges and moved him to the Washington County jail, where he spent the night.
Lilley came to the jail the next day to resume the interview with Rodriguez-Preciado. Lilley was accompanied by Romanaggi, who understood that Rodriguez- Preciado
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wished to cooperate. The officers did not re-advise Rodriguez-Preciado of the Miranda warnings before initiating this interview, which began approximately sixteen hours after he was given Miranda warnings the previous day. Rodriguez-Preciado discussed various drug transactions in which he had engaged in the past, and gave the names of individuals he had worked with or who he understood to be involved in the drug trade. As before, the entire interrogation took place in English.
At some point in the questioning, Romanaggi asked Rodriguez-Preciado whether "he remembered receiving his Miranda rights when he was interviewed the night before by Officer Hascall." Rodriguez-Preciado responded that he "thought he had" been advised of his rights. Romanaggi gave Rodriguez-Preciado a card reciting Miranda warnings in both English and Spanish. Rodriguez-Preciado appeared to read the card, and then stated, in response to a question by Romanaggi, that "he understood his rights." Romanaggi "then went over everything" he had previously asked Rodriguez-Preciado.
A grand jury charged Rodriguez-Preciado with one count of conspiracy to possess with intent to distribute and conspiracy to distribute...
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