U.S. v. Aguilar

• Decision Date: 13 September 2004
• Docket Number: No. 03-3892.,03-3892.
• Citation: 384 F.3d 520
• Parties: UNITED STATES of America, Appellant, v. Antonino Cedillo AGUILAR, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

384 F.3d 520

UNITED STATES of America, Appellant, v. Antonino Cedillo AGUILAR, Appellee.

No. 03-3892.

United States Court of Appeals, Eighth Circuit.

Submitted: June 15, 2004.

Filed: September 13, 2004.

Appeal from the United States District Court for the District of Minnesota, Donovan W. Frank, J Kartik K. Raman, argued, U.S. Dept. of Justice, Washington, DC, for appellant.

Daniel L. Gerdts, argued, Minneapolis, MN, for appellee.

Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

The government appeals the district court's¹ grant of the suppression of Antonino Cedillo Aguilar's confession to drug activity, asserting that the district court erred in determining that the circumstances of Aguilar's questioning rendered his confession involuntary. Relying on the United States Supreme Court's recent opinion in Missouri v. Seibert, ___ U.S. ___, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), we affirm the district court's suppression of Aguilar's statements.

I. BACKGROUND

Beginning in August 2002, Minneapolis police investigated a drug conspiracy, including sending in an undercover officer to participate in the conspiracy. On September 16, 2002, Minneapolis police officer Luis Porras, acting undercover, went to the home of a cooperating witness to buy a kilogram of cocaine in a previously arranged drug sale. Police videotaped the entire transaction. Officer Porras brought a bright orange lunch box, concealing $20,000 in drug buy money. Officer Porras gave the informant the lunch box containing the money. The informant then provided Officer Porras with a brick of cocaine. After the transaction, Aguilar arrived, entered the house, and departed with the orange lunch box. Aguilar then drove to a restaurant, which police also had under surveillance, and brought the lunch box inside. Police did not arrest Aguilar at this time.

Three months later on December 11, 2002, police arrested Aguilar. A plain-clothed officer took Aguilar to a basement office in the Minneapolis Police Department's narcotics division. Officers Porras, Bart Hauge, and Jose Francisco Gomez were present for most of Aguilar's interrogation. Both Porras and Gomez spoke Spanish. Officers asked Aguilar if he would prefer to proceed in Spanish or English, Aguilar responded that he would prefer to respond in Spanish.

Officers questioned Aguilar before providing him with a written copy of Miranda² warnings in Spanish. In giving the warnings, officers instructed Aguilar to read the warnings aloud and acknowledge that he understood them. Aguilar signed and dated the document in the presence of all three officers. Police officers then questioned Aguilar in Spanish for approximately twenty minutes, detailing Aguilar's participation in the drug conspiracy. Police recorded the questioning that occurred after providing Aguilar the Miranda warnings.

During the recorded interview, officers asked Aguilar about the events of September 16, 2002, the videotaped drug sale, and about his drug-trafficking activities in general. Aguilar responded with an appropriate, detailed answer to each of the questions posed about criminal activity that occurred three months prior to the interview.

Aguilar moved to suppress the statements that he made both prior to and after police provided him with Miranda warnings. The magistrate judge heard testimony on March 3 and 4, 2003, and additional testimony on April 18, 2003. Considering and relying on the additional evidence from the April 18, 2003 hearing, the magistrate judge recommended the suppression of Aguilar's statements to the police. The district court adopted the magistrate judge's report and recommendation on November 19, 2003.

The magistrate judge found that police conducted a lengthy interview of Aguilar prior to his recorded statements, and prior to giving Aguilar any Miranda warnings. The judge accepted Officer Gomez's statement that Aguilar's interview lasted approximately two hours, yet the tape-recorded portion only lasted approximately twenty minutes. Thus, the judge concluded that police interrogated Aguilar for approximately an hour and a half prior to giving him Miranda warnings. Accepting Aguilar's version of the unrecorded questioning, the judge explained that, unlike other witnesses, Aguilar offered an explanation for what took place during the prerecorded statements.

In addition, the magistrate judge observed that Officer Hauge's version of events was not credible because he did not understand Spanish, and he omitted the fact that other questioning took place before the recorded questioning. The judge also questioned the credibility of Officer Gomez. Officer Gomez said that prior to giving Aguilar Miranda warnings, they only gathered routine booking information. The court rejected this testimony as not credible because Officer Gomez failed to explain why it took officers over an hour and a half to gather routine biographical information from Aguilar. The judge doubted the officers' version of events, namely that during the unrecorded interview they only asked for biographical information, because it did not explain how Aguilar could recall precisely events that occurred three months prior to his arrest in the brief recorded interview.

The magistrate judge also found that during the unrecorded interview Officer Porras became angry, kicked his desk, and swore at Aguilar when Aguilar did not respond in a manner anticipated by Officer Porras. Officers also informed Aguilar that they would release him if he cooperated. Prior to giving Aguilar a copy of his Miranda rights and recording his confession, officers informed Aguilar that if he behaved incorrectly in the recorded interview none of the previous interrogation would do him any good.

The magistrate judge suppressed the confession based on the totality of the circumstances and that, under Streetman v. Lynaugh, 812 F.2d 950, 957 (5th Cir.1987), the promise of immediate release made the resulting confession involuntary. As previously stated, the district court adopted the report and recommendation of the magistrate judge. The government timely appeals.

II. ANALYSIS

When reviewing a suppression order, we review a district court's factual findings for clear error and review its conclusion as to whether the search violated the Fourth Amendment de novo. United States v. Hessman, 369 F.3d 1016, 1019 (8th Cir.2004). This case turns on the voluntariness of Aguilar's confession. "A statement is involuntary when it was extracted by threats, violence, or express or implied promises sufficient to overbear the defendant's will and critically impair his capacity for self-determination." Simmons v. Bowersox, 235 F.3d 1124, 1132 (8th Cir.2001). Courts weigh the voluntariness of a confession based on the totality of the circumstances. United States v. LeBrun, 363 F.3d 715, 724 (8th Cir.2004) (en banc). The government bears the burden of persuasion and must prove by a preponderance of the evidence the voluntariness of the challenged statements. Id.

Considering the facts and circumstances, the government asserts that Aguilar voluntarily confessed. Thus, the district court's contradictory determinations should be reversed. We note two recent decisions, one by the United States Supreme Court and the other by our court sitting en banc, which guide our review. Subsequent to submission of this appeal, the United States Supreme Court issued its decision in Missouri v. Seibert, ___ U.S. ___, 124 S.Ct. 2601, 159 L.Ed.2d 643 (June 28, 2004), which held that Miranda warnings given mid-interrogation, after the defendant gave an unwarned confession, were ineffective, and thus a confession repeated after warnings were given was inadmissible at trial. Further, after appealing the district court's suppression of Aguilar's statements and after parties completed briefing in this case, this court, en banc, decided United States v. LeBrun, 363 F.3d 715 (8th Cir.2004), which addressed the voluntariness of a confession after officers used psychological pressure to facilitate the confession. We comment on each case.

A. Missouri v. Seibert

The ruling in Seibert limits Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), on which the government relies here, to its facts. In Elstad, police went to a young suspect's house to take him into custody on a burglary charge. Before the arrest, one officer spoke with the suspect's mother while another officer conducted a brief stop of the suspect in the living room. Id. at 301, 315, 105 S.Ct. 1285. The suspect acknowledged that he was present at the scene of the burglary. Id. Later, at the police station, after receiving the Miranda warnings, the suspect made a full confession. The Court acknowledged that the first brief encounter did not have any "earmarks of coercion." Id.

In Seibert, the Court limited Elstad's holding to the facts of the case, defining a voluntary statement as one given absent the pressure of techniques and methods used by law enforcement that are offensive to due process. The Court in Seibert, however, addressed the police tactic of questioning a suspect, then providing Miranda warnings, and then re-questioning. According to the findings by the district court, the police used a similar tactic in this case.

The following are the circumstances in Seibert. Patrice Seibert had a young son with cerebral palsy. Seibert, ___ U.S. at ___, 124 S.Ct. at 2605. The son died in his sleep, but Seibert feared that police would arrest her for neglect. She recruited her two teenage sons to conceal the death by burning the family's mobile home. The two boys left a mentally-ill teenager in the trailer. This person died in the fire. Id. at 2605-06. Later, police questioned Seibert about the fire. The questioning officer, upon instruction, refrained from giving Seibert the Miranda warnings. Id. at 2606. Police took Seibert to an interviewing room, where police left her alone for thirty to forty minutes....