U.S. v. Plugh
| Decision Date | 31 July 2009 |
| Docket Number | Docket No. 07-2620-cr(L).,Docket No. 07-2746-cr(XAP). |
| Parties | UNITED STATES of America, Appellant-Cross-Appellee, v. Gordon J. PLUGH, Defendant-Appellee-Cross-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Stephen Baczynski, Assistant United States Attorney, for Kathleen M. Mehltretter, Acting United States Attorney for the Western District of New York, Buffalo, New York, for Appellant-Cross-Appellee.
Jeffrey Wicks, Rochester, New York, for Defendant-Appellee-Cross-Appellant.
Before: JACOBS, WESLEY, and HALL, Circuit Judges.
This appeal raises the question of whether a suspect in custody and informed of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is entitled to the prophylactic bar prohibiting police questioning established in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (right to counsel), and Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (right to silence), when he expresses uncertainty with regard to asserting his Fifth Amendment rights while contemporaneously refusing to sign a waiver of rights form. We believe he is entitled to the prophylaxis and affirm the district court. By unequivocally refusing to sign the waiver form in response to a custodial agent's instruction to sign the waiver form if defendant agreed with it, defendant in this case invoked his Fifth Amendment rights, and therefore his custodial agents were required to refrain from further interrogation.
Investigating child pornography possession and internet trafficking, FBI Special Agents Joseph McArdle and James McCaffery visited the home of Gordon Plugh in Rochester, New York, on July 14, 2005. The agents questioned Plugh regarding possession of child pornography on his computer and, upon obtaining Plugh's permission, searched the computer. Upon finding child pornography on the hard drive, the FBI obtained an arrest warrant for Plugh, and five special agents, including McArdle, arrested Plugh at his father's residence in Wayland, New York, on September 28, 2005. Upon handcuffing Plugh, McArdle read Plugh his Fifth Amendment rights and asked Plugh to sign an advice-of-rights form.1
According to McArdle, McArdle asked, "Is that true; are you willing to do that?" The district court found that McArdle had stated to Plugh that "[i]f you agree with the statement you can sign the form." United States v. Plugh, 522 F.Supp.2d 481, 487 (W.D.N.Y.2007). Plugh stated he understood his rights because he was a former Arizona2 Department of Corrections officer and according to McArdle stated, "I am not sure if I should be talking to you," and "I don't know if I need a lawyer." Plugh did not sign the waiver and stated that he did not want to sign anything at that time. Agent McArdle wrote "refused to sign" on the form and then signed the form himself. McArdle testified that Plugh's refusal to sign was unequivocal. None of the agents asked Plugh any further questions while in Plugh's father's home.
During the hour-and-fifteen-minute drive to the FBI office in Rochester, the agents transporting Plugh told Plugh he had been arrested because child pornography had been found on his hard drive. According to the FBI report dictated the day after Plugh's arrest and signed by McArdle, Plugh asked the agents several times "for advice on what to do." According to McArdle, the agents stated that they would relay any cooperation made by Plugh to the Assistant U.S. Attorney on the case. The agents then told Plugh that if Plugh wanted to talk about the case, the agents would again advise Plugh of his Miranda rights, but also told him that they were not going to talk about the case at that point.
When the agents and Plugh arrived at the FBI office, the agents placed Plugh in a back interview room. They informed Plugh that they were about to take him to the U.S. Marshals for booking and that "[i]f he wanted to make any statements this was the point...." Plugh then indicated he would make statements, and he was re-advised of his Miranda rights. Plugh did not ask for an attorney or indicate he wanted to speak to law enforcement. He then made inculpatory statements regarding downloading and possessing child pornography and admitted to lying to the agents about the existence of a Trojan virus on his computer.
Plugh was indicted on January 11, 2007, under 18 U.S.C. § 2252A(a)(2)(A) () and 18 U.S.C. § 2252A(a)(5)(B) (). Plugh moved to suppress his July 14, 2005, and September 28, 2005, statements to the FBI, as well as physical evidence seized on July 14, 2005. Plugh argued that his statements were "involuntary, the product of coercion and violative of the right to counsel." The United States District Court for the Western District of New York (Siragusa, J.) denied the motion to suppress the July 14 statements and physical evidence but granted the motion to suppress the September 28 statements. Plugh, 522 F.Supp.2d at 493-96. The district court held that Plugh's refusal to sign the waiver form was an "unequivocal" invocation of Plugh's right to counsel and to remain silent, and that suppression of Plugh's statements was proper because the officers did not scrupulously honor Plugh's rights when they "repeatedly [told Plugh] that any cooperation would be brought to the attention of the AUSA and by telling [Plugh] that he was about to be taken to the Marshal's office." Id. at 496. The district court noted that even if Plugh "invoked his right to counsel and his right to remain silent equivocally or ambiguously. suppression [was] nonetheless required since [the agents], at least as to the defendant's right to remain silent, failed to limit themselves to narrow questions only for the purpose of clarifying the ambiguity, as required by this Circuit" under United States v. Ramirez, 79 F.3d 298, 304 (2d Cir.1996). Plugh, 522 F.Supp.2d at 495-96 (internal quotation marks omitted).
On appeal the government acknowledges that Plugh "was clear he did not wish to sign anything," including the waiver, at the time he was arrested at his father's home. Regardless of that acknowledgment, the government contends that Plugh's invocation of his Fifth Amendment rights was not "unequivocal and unambiguous." The government constructs its argument on the language the Supreme Court employed in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).
We are called upon to determine whether Plugh retained his right to remain silent3 and his right to counsel by refusing to sign the advice-of-rights form when asked by Agent McArdle to sign the form if he agreed with its contents, notwithstanding his statements immediately prior that he was not certain he wanted to talk to a lawyer or that he should talk to the interrogating agents. As we see it, we must answer two questions: (1) whether Plugh's refusal to sign the waiver form in this context was an invocation of his Fifth Amendment rights; and (2) if yes, whether the agents, subsequent to Plugh's refusal to sign the waiver form, properly complied with the prophylactic rules requiring the police to refrain from questioning. We find that the prophylactic rules were applicable to Plugh and that the agents did not properly abide by those rules.4 We therefore affirm the district court's order suppressing the September 28, 2005, statements.
A suspect cannot be required to incriminate himself. U.S. CONST. amend. V. Encapsulated in this protection are certain well-known rights: (1) the right to remain silent; and (2) the right to an attorney, either appointed or retained. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). More than forty years ago, the Miranda Court noted that the prosecution may not use statements made by a suspect under custodial interrogation unless: (1) the suspect has been apprised of his Fifth Amendment rights; and (2) the suspect knowingly, intelligently, and voluntarily waived those rights. Id. at 444-45, 86 S.Ct. 1602. The Supreme Court in the years following Miranda fleshed out the judicial mechanisms for ensuring the viability of these constitutional protections. Included among them is the principle that "courts must presume that a defendant did not waive his rights," North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), until the government proves otherwise by a preponderance of the evidence, Colorado v. Connelly, 479 U.S. 157, 169, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Put differently, unless the suspect validly waived his rights, we presume he retains them.
Cases in this area of the law are fact intensive because of the number of combinations of: (1) the circumstances preceding a suspect's interrogation; (2) the method and manner by which a suspect is informed of his or her Miranda rights; and (3) the timing of the suspect's invocation — at the time he receives the warnings or later during the interrogation following an initial waiver.6
To honor a suspect's Fifth Amendment rights, custodial officers must abide by several prophylactic rules designed to protect the Fifth Amendment rights that come into play once the suspect is in custody. "Under Miranda's prophylactic protection of the right against compelled self-incrimination, any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests, and to be advised of that right." Montejo v. Louisiana, ___ U.S. ___, 129 S.Ct. 2079, 2089, 173 L.Ed.2d 955 (2009).
There are additional layers of prophylactic protection. Once a suspect invokes his Fifth Amendment rights he is entitled to a second layer of prophylaxis that has its roots in ...
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