State v. Ortiz, 07-1707.

• Decision Date: 29 May 2009
• Docket Number: No. 07-1707.,07-1707.
• Citation: 766 N.W.2d 244
• Parties: STATE of Iowa, Appellant, v. Luis Fernando ORTIZ, Appellee.
• Court: Iowa Supreme Court

766 N.W.2d 244

STATE of Iowa, Appellant, v. Luis Fernando ORTIZ, Appellee.

No. 07-1707.

Supreme Court of Iowa.

May 29, 2009.

Thomas J. Miller, Attorney General, Jean C. Pettinger and Mary Tabor, Assistant Attorneys General, Patrick Jennings, Woodbury County Attorney, and Jill R. Pitsenbarger, Assistant County Attorney, for appellant.

Shelley Goff, Ruston, LA, for appellee.

WIGGINS, Justice.

The police brought a suspect to the police station for questioning. The suspect spoke little or no English. After signing a Spanish-language "voluntary waiver of rights," he stated he did not understand his rights. Then a Spanish-speaking officer read the suspect a Spanish Miranda advisory. The suspect waived his rights and confessed to inappropriate contact with a child. The State charged the suspect with lascivious acts with a child. Prior to trial, the defendant filed a motion to suppress his statements, alleging he did not knowingly, intelligently, and voluntarily waive his Miranda rights. The district court granted the motion, and the State appealed. The court of appeals reversed, finding Ortiz knowingly, intelligently, and voluntarily waived his rights. Because we agree with the district court that the State failed to prove by a preponderance of the evidence the defendant knowingly and intelligently waived his Miranda rights, we vacate the decision of the court of appeals, affirm the judgment of the district court, and remand the case for further proceedings.

I. Background Facts and Proceedings.

On July 15, 2006, the Sioux City Police Department received a report from a woman asserting that Luis Ortiz, who was working on various remodeling projects in her home, had forced her seven-year-old daughter to touch his penis. Because Ortiz's address was unknown, Detective Bertrand asked the woman to arrange for Ortiz to come to her home. On that date, Bertrand went to the woman's home to attempt to speak to Ortiz. Because Bertrand was aware Ortiz spoke little or no English, he brought Spanish-speaking Special Agent Ricardo Rocha of the Federal Immigration and Customs Enforcement Agency with him to interpret. When Ortiz arrived at the house, Bertrand identified himself as a police officer and asked Ortiz, with Rocha translating, if he would be willing to accompany him to the police station for an interview. At the time of this request, Bertrand's badge and gun were on his waist and in full view of Ortiz. Rocha explained to Ortiz that he was not under arrest and could refuse to go. Ortiz agreed without any reluctance. Bertrand did not give Ortiz the choice of driving his own vehicle to the station. Rocha was not able to accompany Bertrand and Ortiz to the station because he had other things to do that morning. Bertrand dropped Rocha at his office and then took Ortiz to the station.

At the station, Bertrand took Ortiz to the second floor, using a key card to access the elevator. Bertrand put Ortiz in an interview room equipped with recording capabilities. Bertrand left Ortiz alone in the room for approximately thirteen minutes before he returned to the room with Salvador Sanchez, a Sioux City officer, who spoke Spanish. The interview began with Sanchez interpreting for Bertrand and Ortiz. The relevant substance of the interview as translated into English by a person certified as a translator by the United States District Court is as follows:

Sanchez: How are you, friend?

Ortiz: Fine.

Bertrand: Okay, uh, before I can begin, I need to let you read your rights. It's part of the policy.

Sanchez: Questions. Can you read them?

Ortiz: Uh-huh.

Sanchez: Yeah?

Sanchez: [speaking in a low voice to Bertrand]

Bertrand: Yeah. [in response to Sanchez]

Sanchez: [speaking in a low voice to Bertrand]

Bertrand: Uh-huh.

08:27:21: [Sanchez leaves the interview cubicle]

08:28:06: [L. Ortiz signed the waiver]

Bertrand: Do you understand your rights?

Ortiz: But, what are my rights?

Bertrand: Okay, uh, [makes physical gesture to wait and then looks at the door through which Sanchez left a few minutes ago]. Uh, we'll wait, we'll wait.

Ortiz: [shakes head affirmatively]

Bertrand: Your license.

Ortiz: Uh-huh. [places left hand in front left pocket to retrieve wallet and remove license to hand to Bertrand]

08:28:55: [Sanchez reenters the interview cubicle]

Bertrand: How are you doing?

Sanchez: Did you understand what you read?

Ortiz: He is telling me the rights, but, what are they, what are they?

Sanchez: I am going to read them to you again.

Ortiz: Uh-huh.

Sanchez: Okay? [Sanchez takes a paper and starts to read from it] I have reading [sic.] the statement of . . .

[At 08:28:21 Sanchez puts down the paper the witness had signed and appeared to pull out his own reference source]

Sanchez: Statement of rights.

Ortiz: Uh-huh.

Sanchez: Before asking some questions, you have to understand the following.

Ortiz: Uh-huh.

Sanchez: Okay? You have the right to remain silent. Anything you say can be used against you in the Court. You have the right to consult with an attorney before asking questions and have this attorney present during the questioning.¹ If you cannot pay for the services of an attorney, one will be [unintelligible] to you, if you so desire. You understand you [sic.]. [Sanchez looks at witness apparently waiting for an answer]

The original waiver signed by Ortiz was written in Spanish. It translates as follows:

VOLUNTARY WAIVER OF RIGHTS

(WAIVER OF RIGHTS)

I have read the declaring [sic.] of the [non-word] [sic.] upon which I am noticed of my rights on [sic.] the constitution and the legal [sic.] and I completely understand what my rights are. I have received the opportunity to use the telephone to notify an attorney or individual from my family. I agree to answer an [sic.] questions and make an [sic.] statement. I know exactly what I am doing and I am doing so as a volunteer [sic.] and underneath [sic.] my own [sic.] will. I do not want to consult with an attorney and I don't want to have an attorney be witnessed [sic.] here to inform me of my rights. I have not received any promise of immunity of any other type and they have not used any physically [sic.] force or pressionment [sic.] of any to force me to make a statement.

After Ortiz twice stated he did not understand his rights contained in the waiver he signed, Sanchez attempted to read from the signed waiver. He felt uncomfortable reading the warnings from the waiver form and pulled a copy of the Miranda warnings translated in Spanish used by the Federal Drug Enforcement Agency. After receiving these warnings, Ortiz responded that he understood. Sanchez then stated, "Do you have questions right now?" Ortiz replied, "No. Not right now. I want to know [unintelligible]." Sanchez appeared to cut off the rest of Ortiz's answer by stating, "He understood his rights. I asked him if he has any questions, he says he knows what is going on." Bertrand then began to interrogate Ortiz. At no time during the interview at the station did Bertrand tell Ortiz he was free to go.

The State charged Ortiz with lascivious acts with a child. Ortiz filed a motion to suppress statements made during the interview based on the Fifth and Sixth Amendments to the United States Constitution. Ortiz filed this motion after the court granted him an extension of time to do so. Following a hearing, the district court granted Ortiz's motion to suppress, concluding the record failed to show by a preponderance of the evidence that Ortiz knowingly and intelligently waived his Miranda rights and that he made his statements voluntarily. The State filed an application for discretionary review of the district court's ruling, which we granted. We transferred the case to the court of appeals. The court of appeals reversed the district court's suppression order, concluding, "Ortiz was adequately advised of his rights under Miranda and he knowingly, voluntarily, and intelligently waived those rights." Ortiz sought further review by this court.

II. Issues.

The State raises two issues on appeal. First, the district court erred in extending the time for Ortiz to file his motion to suppress. Second, the district court erred in finding the record failed to show by a preponderance of the evidence that Ortiz knowingly and intelligently waived his Miranda rights and that he made his statements voluntarily.

III. Scope of Review.

We review the district court's good cause determination regarding the timeliness of a motion to suppress for an abuse of discretion. State v. Ball, 600 N.W.2d 602, 604-05 (Iowa 1999). We apply a different standard of review when we review the merits of the district court's ruling on the motion to suppress.

The Miranda warnings protect a suspect's Fifth Amendment right against self-incrimination "ensuring that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time." Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 857, 93 L.Ed.2d 954, 966 (1987). Because the State's appeal of the district court's ruling on the motion to suppress implicates constitutional issues, our review is de novo. State v. Morgan, 559 N.W.2d 603, 606 (Iowa 1997). For Ortiz's statements to be admissible, the State must first prove Ortiz was adequately informed of his Miranda rights, understood them, and knowingly and intelligently waived them. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410, 421 (1986) ("[T]he waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it."); Morgan, 559 N.W.2d at 606. Second, the State must prove Ortiz gave his statement voluntarily. Morgan, 559 N.W.2d at 606. The State must prove by a preponderance of the evidence that a suspect knowingly, intelligently, and voluntarily waived his or her Miranda rights. Id.

IV. Good Cause Determination.

The State contends...