United States v. Devaughn Dorsey , 364 F. App'x 367 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30145
Plaintiff - Appellant, D.C. No. 2:08-cr-00245-RSL-1
v.
MEMORANDUM *
DEVAUGHN DORSEY, also known as
Buster,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Chief District Judge, Presiding
Argued and Submitted December 8, 2009
Seattle, Washington
Before: GOULD and TALLMAN, Circuit Judges, and BENITEZ, ** District Judge.
The United States appeals the district court’s order suppressing Devaughn
Dorsey’s incriminating statements made during an interrogation on May 22, 2008.
The district court conducted an evidentiary hearing, including review of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
videotaped interview, before ruling. It determined that Dorsey was arrested on the
morning of May 22, 2008, and the arresting officers read him his Miranda rights.
See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966). That afternoon, he was
taken to the Seattle Police Department and escorted to an interview room, where he
was again read his Miranda rights. At that time, Dorsey signed the
acknowledgment of rights form.
During the subsequent interrogation, the Government concedes that Dorsey
unequivocally invoked his right to counsel. Rather than immediately ending the
interview, the detectives attempted to clarify whether Dorsey had invoked his right
to counsel. When they were satisfied that he was willing to speak without counsel
they continued the interrogation for a few minutes before one of the officers asked
to speak to the other outside the room. The detectives told Dorsey that they had to
make a phone call and that they would be right back.
A half hour later, Dorsey asked to use the restroom and upon his return
asked a detective unconnected to the interrogation, “They tell you they comin’
back in? . . . I mean, they said they was comin’ back. I mean, what they gonna
do?” After another half hour, one of the interrogating detectives returned and
asked, “What do you need, Dorsey?” After some discussion back and forth about
whether Dorsey had asked to speak with the detective, Dorsey said, “I been told
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ya’ll that. Ya’ll left. I didn’t tell you guys to leave. Ya’ll left.” When the
detective asked again, “Well do you wanna talk to us then?” Dorsey replied, “I
signed the paper to talk to you, didn’t I?” At that time, the detectives all returned
to the room and read Dorsey his Miranda warnings for a third time. Dorsey
indicated that he understood his rights and signed the acknowledgment and waiver
of rights form. During the subsequent interrogation Dorsey made several
incriminating statements.
The district court suppressed these statements, holding that as a matter of
fact, the first interrogation did not end when the detectives left the room and told
Dorsey that they would be right back, and as a matter of law that all subsequent
incriminating statements were products of a violation of Miranda and Edwards v.
Arizona, 451 U.S. 477, 484–85 (1981). “Whether the exclusionary rule applies to
a given case is reviewed de novo, while the underlying factual findings are
reviewed for clear error.” United States v. Crawford, 372 F.3d 1048, 1053 (9th
Cir. 2004) (en banc) (citing United States v. Hammett, 236 F.3d 1054, 1057 (9th
Cir. 2001)).
Whether or not the detectives ended the interview when they left the room is
a very close question. Although we might have decided the issue differently had
we been the decision maker, we cannot hold that the determination that the
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interrogation did not end was illogical, implausible, or without support in the
record. Because the district court found the interrogation did not end immediately
after Dorsey asked for his lawyer or even after the detectives left the interview
room, all incriminating statements made thereafter were obtained in violation of
Edwards, 451 U.S. at 484–85, and were properly excluded.
AFFIRMED.
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