U.S. v. Lopez Diaz

• Decision Date: 08 August 1980
• Docket Number: No. 79-1437,D,LOPEZ-DIA,79-1437
• Citation: 630 F.2d 661
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymondefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 661

630 F.2d 661

UNITED STATES of America, Plaintiff-Appellee, v. Raymond LOPEZ-DIAZ, Defendant-Appellant.

No. 79-1437.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 12, 1979.

Decided Aug. 8, 1980.

Stuart I. Teicher, Portland, Or., for defendant-appellant.

Kenneth C. Bauman, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before KILKENNY and CHOY, Circuit Judges, and GRANT, ^* District Judge.

CHOY, Circuit Judge:

Raymond Lopez-Diaz appeals from his conviction of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a), 18 U.S.C. § 2. He contends that incriminating

statements made after his arrest were elicited in violation of his Miranda rights. We reverse.

I. STATEMENT OF FACTS

On December 21, 1978, an unidentified informant told Special Agent Van Horn of the Drug Enforcement Administration (DEA) that Ralph Cawley would be returning to Salem, Oregon, in possession of heroin. Van Horn asked Detectives Wan and Weber of the Marion County Sheriff's Office to maintain surveillance of Cawley's house and to search his van upon its arrival.

Cawley arrived in Salem at 1:40 a. m. on December 22, accompanied by appellant Lopez-Diaz. Detectives Wan and Weber frisked and handcuffed them and read them their Miranda rights from a prepared card. Cawley consented to a search of the van which belonged to his wife. In the back of the van, Wan found two pillow cases, one inserted inside the other. The inner pillow case contained Lopez-Diaz's personal belongings. Between the two cases Wan discovered a ball of tin foil containing packets of heroin and cocaine.

At approximately 2:00 a. m., Agent Olson of the DEA arrived and placed Lopez-Diaz and Cawley under arrest. He recited the Miranda warnings from memory, erroneously asserting the right to remain silent was contingent upon requesting counsel.

Lopez-Diaz was then taken to the sheriff's office. Detective Weber again read him his Miranda rights from a prepared card, which Lopez-Diaz signed with a fictitious name. Weber questioned Lopez-Diaz briefly. Agent Olson then took over the questioning and asked Lopez-Diaz if he wanted to tell the true story about the drugs found in the van. Lopez-Diaz stated that he did not want to talk about the drugs in the van, but that he would be willing to talk about other illegal drug activity and drug dealers. He proceeded to do so.

At the end of the conversation, Agent Olson asked if everything Lopez-Diaz had told him was the truth, stating that it was important that Lopez-Diaz tell the truth if they were going to discuss anything. Lopez-Diaz revealed that he had given Olson a fictitious name and that he was an escapee from federal prison. Olson then asked whether there were any other drugs in the van. Lopez-Diaz responded, "No just the one piece of heroin and three pieces of cocaine and some cut."

Lopez-Diaz moved to suppress his statements on the ground that they were taken in violation of his Miranda rights. He also moved to suppress the cocaine on the ground that, notwithstanding Cawley's consent to search the van, a warrant was required to search the pillow cases. The district court denied both motions and found Lopez-Diaz guilty.

II. DISCUSSION

A. Lopez-Diaz's Miranda Rights

Miranda v. Arizona, 384 U.S. 436, 467-68, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966), requires that a person subject to custodial interrogation be advised in clear and unequivocal language of, inter alia, his right to remain silent. If a person indicates in any manner the desire to exercise that right, the interrogation must cease. Id. at 473-74, 86 S.Ct. at 1627.

1. Adequacy of the Miranda Warnings

Lopez-Diaz contends that because the second of the three warnings given to him erroneously conditioned his right to remain silent upon his requesting counsel, he was deprived of the opportunity knowingly and intelligently to exercise his right not to incriminate himself.

A defective Miranda warning does not necessarily require reversal of a conviction. See United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 897, 21 L.Ed.2d 792 (1969).

In Maguire, we held that where an adequate Miranda warning was given by a police officer three days before a second In Pheaster, we held that even an inaccurate warning may be sufficient if there is direct evidence that the defendant was aware of his rights. The police officer in Pheaster failed to advise the defendant of his right to have counsel present during questioning. However, the defendant stated that he knew his rights and repeatedly demanded an attorney. Under these circumstances, we refused to find a Miranda violation. 544 F.2d at 366.

officer interrogated the defendant, "even if the warning given by (the second officer) was insufficient, the appellant could not claim he had not been apprised of the Miranda warnings." 396 F.2d at 331 (emphasis in original).

Here, Lopez-Diaz was accurately apprised of his Miranda rights on two occasions both before and after the defective warning was given. This is not a case where the defendant never received a full and complete Miranda warning before making inculpatory statements, as in, e. g., United States v. Garcia, 431 F.2d 134 (9th Cir. 1970). Moreover, it is apparent from Lopez-Diaz's selective refusal to talk about the drugs in the van that he understood his right to remain silent was not contingent on his requesting counsel.

Thus, even though the second of the three warnings given to Lopez-Diaz was inaccurate, he was adequately apprised of his Miranda rights.

2. The Right to Remain Silent

Lopez-Diaz contends that the incriminating statements about the drugs in the van that were elicited from him after he had invoked his right to remain silent on that subject were inadmissible. We agree.

Under Miranda, once a person in custody indicates "that he wishes to remain silent, the interrogation must cease." 384 U.S. at 473-74, 86 S.Ct. at 1627. The Supreme Court has rejected a literal interpretation of Miranda, however, holding that the exercise of the right to remain silent does not preclude all further questioning. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Statements obtained after an initial exercise of the right to remain silent are admissible where the individual's "right to cut off questioning" has been "scrupulously honored." Id. at 104-07, 96 S.Ct. at 326-328.

In Mosley, after being fully advised of his rights, the defendant stated that he did not wish to discuss the offense for which he was being held. The police "immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been the subject of the earlier interrogation." Id. at 105-06, 96 S.Ct. at 327. The Court held that statements made during the second interrogation were admissible.

Lopez-Diaz's invocation of his right to remain silent, on the other hand, was not "scrupulously honored." Lopez-Diaz said that he did not want to talk about the drugs in the van, but that he would be willing to provide other information. After a short conversation during which Lopez-Diaz revealed his true identity as an escaped prisoner, ¹ he was asked about the drugs in the van. This question was on the very subject Lopez-Diaz had said he did not wish to discuss. ² No significant period of time had elapsed, nor had fresh warnings been given.

There is a critical distinction between, on the one hand, an inquiry for the limited purpose of clarifying whether the defendant is invoking his right to remain silent or has changed his mind regarding an earlier assertion of the right and, on the other hand, questioning aimed at eliciting incriminating statements concerning the very subject on which the defendant has invoked his right. Compare United States v. Davis, 527 F.2d 1110 (9th Cir. 1975) cert. denied, 425 U.S. 953, 96 S.Ct. 1729, 48 L.Ed.2d 196 (1976), with United States v. Barnes, 432 F.2d 89 (9th Cir. 1970).

In Davis, we held that a defendant's confession was properly admitted into evidence where the defendant was initially asked only if he wanted to reconsider his decision to remain silent in light of photographic evidence clearly, implicating him in the crime. The questioning resumed only after the defendant signed a waiver and voluntarily agreed to talk. 527 F.2d at 1111.

By contrast, in Barnes, the defendants had specifically invoked the right to remain silent and refused to sign waivers. The authorities nonetheless confronted them with the confession of an accomplice and asked, "What about it, is this true or not?" The defendants then confessed. 432 F.2d at 91. We held that the confrontation and interrogation, "for the obvious purpose of getting defendants to abandon their self-imposed silence, were in flagrant violation of the rule as set forth in Miranda." Id.

The question to Lopez-Diaz was not merely for the limited purpose of determining whether he wanted to reconsider his decision to remain silent, as in Davis ; it was, like the question in Barnes, for the obvious purpose of eliciting incriminating evidence. Thus, the question violated Miranda.

3. Waiver of the Right to Remain Silent

The Government contends that by voluntarily making other incriminating statements during the interrogation, Lopez-Diaz implicitly waived his right to remain silent about the drugs in the van.

Waiver may be inferred from the actions and words of the person interrogated, but "(t)he courts must presume that a defendant did not waive his rights; the prosecution's burden is great." North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979); ac...