United States v. Rodriguez-Preciado ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-30285
Plaintiff-Appellee, D.C. No.
v. CR-96-00311-
ANTONIO RODRIGUEZ-PRECIADO, aka  ALH-(2)
Tony Rodriguez-Preciado, ORDER AND
Defendant-Appellant. AMENDED
 OPINION
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted
September 13, 2004—Portland, Oregon
Filed March 4, 2005
Amended July 29, 2005
Before: J. Clifford Wallace, Ronald M. Gould, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Wallace;
Partial Dissent by Judge Berzon
8687
UNITED STATES v. RODRIGUEZ-PRECIADO 8691
COUNSEL
James F. Halley, Portland, Oregon, for the defendant-
appellant.
Karin J. Immergut, United States Attorney, and J. Russell
Ratto, Special Assistant United States Attorney, Portland,
Oregon, for the plaintiff-appellee.
ORDER
The court’s majority opinion filed March 4, 2005, slip op.
2539, and appearing at 399 F.3d 1118 (9th Cir. 2005), is
hereby amended as follows:
1. On page 2544, line 9, replace “We affirm.” with “We
affirm, but issue a limited remand pursuant to United
States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en
banc).”
2. On page 2562, line 3, delete “AFFIRMED” and add a
new Section V reading as follows:
We now address the impact of the recent en banc decision
in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en
8692 UNITED STATES v. RODRIGUEZ-PRECIADO
banc) on this case. Because we cannot “reliably determine
from the record whether the sentence imposed would have
been materially different had the district court known that the
Guidelines were advisory, we will remand to the sentencing
court to answer that question.” Id. at 1084. The mandate shall
issue forthwith.
AFFIRMED IN PART, REMANDED IN PART.
OPINION
WALLACE, Senior Circuit Judge:
Rodriguez-Preciado appeals from his conviction for various
narcotics-related offenses. He argues that the district court
improperly denied his pre-trial motion to suppress evidence
obtained from his person, his motel room, and his vehicle, as
well as statements that he made in the motel room and during
a subsequent two-day interrogation. In support of these
claims, he contends that the officers did not obtain a valid
consent to enter and search the motel room, and that they
began a custodial interrogation of him in the motel room with-
out giving the warnings prescribed by Miranda v. Arizona,
384 U.S. 436 (1966). Furthermore, he argues he did not val-
idly waive his right to remain silent after he was eventually
given Miranda warnings, the warnings became “stale” and
should have been re-administered at the outset of the second
day of interrogation, and the officers’ failure to advise him of
his right under Article 36 of the Vienna Convention requires
suppression. He also contends the officers did not obtain a
valid consent to search his person and vehicle, and these
searches exceeded the scope of any consent. In addition to
these suppression arguments, he asserts that the district court
violated the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), and
that the prosecutor improperly commented on his failure to
testify, in violation of Griffin v. California, 380 U.S. 609(1965).
UNITED STATES v. RODRIGUEZ-PRECIADO 8693
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231, and we have jurisdiction over this timely appeal pur-
suant to 28 U.S.C. § 1291. We affirm, but issue a limited
remand pursuant to United States v. Ameline, 409 F.3d 1073(9th Cir. 2005) (en banc).
I.
An ongoing narcotics investigation led law enforcement
officers to an Oregon motel room in search of Rodriguez-
Preciado, who was suspected to be involved in drug traffick-
ing. The officers had questioned Robert Glenn, another target
of the investigation, and learned that Rodriguez-Preciado
could be found at the motel room and would have contraband
in his car.
Five officers arrived at the motel without a warrant. At
least three officers went to the motel room door dressed in
plain clothes and carrying concealed weapons, including Offi-
cer Hascall and Deputy Lilley. They knocked on the door and
a man, later identified as Alberto Silva, answered. While
standing outside the door, Hascall displayed his badge, identi-
fied himself as a police officer, and asked Silva whether he
understood English. Silva replied that he did not. Hascall
spoke some Spanish and stated in Spanish that he was a police
officer and asked for permission to enter the room. Silva said
“Si,” backed away from the door, and motioned with his arms
for the officers to enter the room. Hascall also asked Silva in
Spanish whether the motel room was his; Silva replied that it
was.
Once inside the room, Hascall explained that the officers
were there to investigate suspected narcotics sales activity. He
asked Silva whether he sold narcotics, and Silva said he did
not. Hascall then asked Silva for permission to search the
room for drugs. Silva consented. Throughout this conversa-
tion, none of the officers had their hands on their weapons,
and Silva was not handcuffed or otherwise detained. At no
8694 UNITED STATES v. RODRIGUEZ-PRECIADO
point did the officers give Silva Miranda warnings, explain
that he had the right not to consent to the search, or state that
they could obtain a search warrant for the motel room. The
officers found no drugs or weapons during the search, but
they did find, among other things, a shipping label addressed
to Glenn’s business and a fax from Glenn.
Rodriguez-Preciado entered the motel room while the offi-
cers were still there. Hascall displayed his badge, told
Rodriguez-Preciado that he and the others were police offi-
cers, and asked Rodriguez-Preciado whether he understood
English. Rodriguez-Preciado said that he did, so Hascall
explained that the officers were there to investigate narcotics
activity, that Silva had consented to a search of the room, and
that the search had not produced “any weapons or drugs or
anything.” During this conversation, the officers did not dis-
play or touch their weapons, and did not surround, pat down,
or handcuff Rodriguez-Preciado. Rodriguez-Preciado
expressed no objection to either the officers’ presence in the
room or that Silva had consented to the search.
Hascall then asked Rodriguez-Preciado whether he had any
drugs in his possession. Rodriguez-Preciado said yes and pro-
duced a small paper bindle of cocaine from his shirt pocket.
Hascall immediately advised Rodriguez-Preciado of the
required Miranda warnings and asked whether Rodriguez-
Preciado understood them. Rodriguez-Preciado said that he
did. Hascall did not inform Rodriguez-Preciado of any right
that he, as a Mexican national, might have under the Vienna
Convention.
After Hascall requested permission to search Rodriguez-
Preciado’s person and his vehicle, Rodriguez-Preciado con-
sented and handed him the keys to the van he had been driv-
ing. Rodriguez-Preciado said the van contained no weapons
or drugs. Sergeant Romanaggi searched the van and discov-
ered $3,360 hidden in a child safety seat in the van. Hascall
also found $1,849 in cash in Rodriguez-Preciado’s wallet.
UNITED STATES v. RODRIGUEZ-PRECIADO 8695
Based on this and other evidence, the officers decided to
interview Rodriguez-Preciado in more detail. He was hand-
cuffed and taken to a Washington County Sheriff’s Office
substation. When he arrived at the interview room, his hand-
cuffs were removed and Hascall and Lilley began questioning
Rodriguez-Preciado, primarily about his relationship with
Glenn. During that conversation, Rodriguez-Preciado
described several instances in which he had sold marijuana
and methamphetamine to Glenn, including a sale of one
pound of methamphetamine that had occurred several days
earlier. Rodriguez-Preciado also described a failed attempt to
obtain the drug “ecstasy” for Glenn (the slang term for a drug
known as MDMA or MDA), and a sale of five kilograms of
cocaine to another individual.
According to Hascall, the officers’ conversations with
Rodriguez-Preciado at the motel room and while he was being
interrogated at the substation were conducted entirely in
English. Hascall testified the officers had “no difficulty” com-
municating with Rodriguez-Preciado, with the exception of
some initial confusion about the meaning of the word
“methamphetamine.” This confusion was dispelled after
Rodriguez-Preciado later asked the officers whether they
meant “crystal,” which is the slang term for methamphet-
amine.
At one point in the interview, the officers asked Rodriguez-
Preciado, “Where is the rest of the meth?” Rodriguez-
Preciado replied that a pound of methamphetamine was
behind the rear speaker of the van. The record is not clear
whether Hascall specifically sought Rodriguez-Preciado’s
permission to search that area of the van. Hascall informed
Romanaggi, who dismantled the rear speaker and found one
pound of methamphetamine. Earlier searches of the van,
including a canine search, had not uncovered the metham-
phetamine or any other contraband.
The officers then asked Rodriguez-Preciado whether he
would be “interested in helping [them] with [their] investiga-
8696 UNITED STATES v. RODRIGUEZ-PRECIADO
tion of narcotics trafficking and perhaps help himself at the
same time.” Rodriguez-Preciado said that he was interested,
which led to a discussion of various ways in which he might
be of service. When the officers ended their interview, they
placed Rodriguez-Preciado in custody on state narcotics
charges and moved him to the Washington County jail, where
he spent the night.
Lilley came to the jail the next day to resume the interview
with Rodriguez-Preciado. Lilley was accompanied by
Romanaggi, who understood that Rodriguez-Preciado wished
to cooperate. The officers did not re-advise Rodriguez-
Preciado of the Miranda warnings before initiating this inter-
view, which began approximately sixteen hours after he was
given Miranda warnings the previous day. Rodriguez-
Preciado discussed various drug transactions in which he had
engaged in the past, and gave the names of individuals he had
worked with or who he understood to be involved in the drug
trade. As before, the entire interrogation took place in
English.
At some point in the questioning, Romanaggi asked
Rodriguez-Preciado whether “he remembered receiving his
Miranda rights when he was interviewed the night before by
Officer Hascall.” Rodriguez-Preciado responded that he
“thought he had” been advised of his rights. Romanaggi gave
Rodriguez-Preciado a card reciting Miranda warnings in both
English and Spanish. Rodriguez-Preciado appeared to read the
card, and then stated, in response to a question by Romanaggi,
that “he understood his rights.” Romanaggi “then went over
everything” he had previously asked Rodriguez-Preciado.
A grand jury charged Rodriguez-Preciado with one count
of conspiracy to possess with intent to distribute and conspir-
acy to distribute methamphetamine, cocaine, MDMA and
MDA, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18
U.S.C. § 2; one count of distribution of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1); and one count of posses-
UNITED STATES v. RODRIGUEZ-PRECIADO 8697
sion with intent to distribute methamphetamine, in violation
of 21 U.S.C. § 841(a)(1). After failing to appear at his
arraignment, Rodriguez-Preciado was re-captured over four
years later. The trial date was delayed several times due to
continuances granted by the district court. Rodriguez-
Preciado never filed a motion to dismiss the case pursuant to
the Speedy Trial Act.
The district court held a pretrial hearing on Rodriguez-
Preciado’s motion to suppress, in which he asserted constitu-
tional and other violations and sought to exclude from trial the
evidence found in the motel room, the cocaine he gave to
Hascall in the motel room, the money found in the van and
on his person, the methamphetamine found in the van, and all
statements that he made in the motel room and during the
two-day interrogation. The district court denied the motion.
After a four-day trial, the jury found Rodriguez-Preciado
guilty of all three counts.
II.
We first address Rodriguez-Preciado’s motion to suppress.
We review the district court’s denial of the motion to suppress
de novo and the underlying factual findings for clear error.
United States v. Bynum, 362 F.3d 574, 578 (9th Cir. 2004).
A.
Rodriguez-Preciado’s first claim is that the officers unlaw-
fully entered and searched the motel room. He contends the
district court clearly erred in finding Silva validly consented
to their entry and search.
“We . . . review the validity of the warrantless entry and
warrantless search under the clearly erroneous standard,”
United States v. Rosi, 27 F.3d 409, 411 (9th Cir. 1994),
including the district court’s factual finding that Silva volun-
tarily and knowingly consented to the search. United States v.
8698 UNITED STATES v. RODRIGUEZ-PRECIADO
Patayan Soriano, 361 F.3d 494, 501 (9th Cir. 2004). “It is the
government’s burden to prove that the consent was freely and
voluntarily given. On appeal, evidence regarding the question
of consent must be viewed in the light most favorable to the
fact-finder’s decision.” Id. (internal quotation marks and cita-
tions omitted).
The district court found that Silva knowingly consented to
the entry and search: “Silva did invite Officer Hascall into the
room and gave consent for the search,” notwithstanding
Silva’s inability to speak English and Hascall’s limited Span-
ish. That finding was not clearly erroneous.
In addition, the district court found the consent was volun-
tary. Regarding the consent to the entry, the finding of volun-
tariness of consent was not clearly erroneous in light of
evidence that Silva welcomed the officers into the room.
Regarding the consent to search, voluntariness “is ‘to be
determined from the totality of all the circumstances,’ ” id.,quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973),
although we can examine five nonexclusive issues assisting
our inquiry:
(1) whether the defendant was in custody; (2)
whether the arresting officers had their guns drawn;
(3) whether Miranda warnings were given; (4)
whether the defendant was notified that she had a
right not to consent; and (5) whether the defendant
had been told a search warrant could be obtained.
United States v. Jones, 286 F.3d 1146, 1152 (9th Cir. 2002),
citing United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.
1989). “[T]hese factors are only guideposts, not a mechanized
formula to resolve the voluntariness inquiry.” Patayan Sori-
ano, 361 F.3d at 502.
[1] As Silva was not in custody, “Miranda warnings were
inapposite.” Id. at 504. The officers did not draw their guns
UNITED STATES v. RODRIGUEZ-PRECIADO 8699
or threaten to obtain a search warrant if consent was refused.
Furthermore, Hascall testified that after he asked Silva in
Spanish whether the officers could enter the room, Silva said
“si” and motioned for the officers to enter. Although Silva
was not advised he could withhold consent or told a search
warrant could be obtained, “[i]t is not necessary to check off
all five factors.” Id. at 502. Given these circumstances, the
district court did not clearly err in finding that Silva know-
ingly and voluntarily consented to the search. See United
States v. Cormier, 220 F.3d 1103, 1112-13 (9th Cir. 2000)
(affirming voluntariness finding in similar circumstances).
The district court also found that Silva had authority to
invite the officers into the room. We will not review that
determination because Rodriguez-Preciado did not “specifi-
cally and distinctly” challenge it in his opening brief. Int’l
Union of Bricklayers & Allied Craftsman Local Union No. 20
v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985).
B.
Next, Rodriguez-Preciado argues that the statements he
made should have been suppressed because of alleged
Miranda violations. He contends that the statements he made
before being given warnings were taken in violation of
Miranda because he was in “custody” for purposes of
Miranda from the moment he entered the motel room. Fur-
thermore, he asserts he did not validly waive his Miranda
rights after they were given to him because his difficulty with
English precluded a knowing and intelligent waiver, and the
“coercive effect of the officers’ presence in [his] motel room”
rendered his waiver involuntary. Finally, he argues the
Miranda warnings he was given at the motel room were
“stale” by the beginning of the interrogation the next day, due
to changed circumstances. We address each contention in
turn.
8700 UNITED STATES v. RODRIGUEZ-PRECIADO
1.
The district court determined that “when [Rodriguez-
Preciado] arrived at the room, he was not in custody.” We
review the custody determination de novo and the underlying
factual findings for clear error. See United States v. Kim, 292
F.3d 969, 973 (9th Cir. 2002). As we recently explained:
An officer’s obligation to administer Miranda warn-
ings attaches only where there has been such a
restriction on a person’s freedom as to render him in
custody. Whether a suspect is in custody turns on
whether there is a formal arrest or restraint on free-
dom of movement of the degree associated with a
formal arrest. This inquiry requires a court to exam-
ine the totality of the circumstances from the per-
spective of a reasonable person in the suspect’s
position.
United States v. Crawford, 372 F.3d 1048, 1059 (9th Cir.
2004) (en banc) (internal quotation marks, citations, and alter-
ations omitted).
[2] Judged by these standards, the district court did not err
in concluding that Rodriguez-Preciado was not in custody
when he entered the motel room. The officers explicitly
informed him that their search had turned up no incriminating
evidence, none of them displayed or otherwise brought atten-
tion to their weapons, and there was no intimation that they
would not permit him to leave if he so desired. Rodriguez-
Preciado’s admission to possessing cocaine was not made
during a custodial interrogation, and therefore the fact that he
was not given Miranda warnings prior to this admission does
not require suppression.
2.
Rodriguez-Preciado also challenges the determination that
he validly waived his Miranda rights by responding to the
UNITED STATES v. RODRIGUEZ-PRECIADO 8701
officers’ questions after receiving the required warning.
Waivers of Miranda rights need not be explicit; a suspect may
impliedly waive the rights by answering an officer’s questions
after receiving Miranda warnings. Terrovona v. Kincheloe,
912 F.2d 1176, 1179-80 (9th Cir. 1990). “For a waiver of
rights to be valid it must be voluntarily, knowingly, and intel-
ligently given. Whether there has been a valid waiver depends
on the totality of the circumstances, including the background,
experience, and conduct of defendant.” United States v. Doe,
155 F.3d 1070, 1074 (9th Cir. 1998) (en banc) (internal quota-
tion marks and citations omitted). “We review a district
court’s ruling on a Miranda waiver under two standards:
Whether the waiver was knowing and intelligent is a question
of fact that we review for clear error. Whether the waiver was
voluntary is a mixed question of fact and law, which we
review de novo.” United States v. Amano, 229 F.3d 801, 803
(9th Cir. 2000).
[3] The district court’s finding that Rodriguez-Preciado’s
alleged difficulty with English did not prevent him from
knowingly and intelligently waiving his Miranda rights was
not clearly erroneous. “A waiver is knowing and intelligent if,
under the totality of the circumstances, it is made with a ‘full
awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.’ ” Doe, 155
F.3d at 1074, quoting Moran v. Burbine, 475 U.S. 412, 421
(1986). Rodriguez-Preciado “indicated that he understood his
rights after they were explained to him,” United States v.
Bautista-Avila, 6 F.3d 1360, 1366 (9th Cir. 1993), and the dis-
trict court found that, except for some confusion regarding the
word “methamphetamine,” there was “no indication by any of
the officers that Mr. Rodriguez had difficulty understanding
English nor that the officers had trouble understanding his
English.” Thus, “[d]espite [any] language difficulties encoun-
tered by appellant, the evidence seems to indicate that he
understood his rights and . . . knowingly, and intelligently
waived them.” United States v. Bernard S., 795 F.2d 749, 752
(9th Cir. 1986).
8702 UNITED STATES v. RODRIGUEZ-PRECIADO
[4] The district court also concluded that Rodriguez-
Preciado’s choice to waive his Miranda warnings was volun-
tary. “A waiver is voluntary if, under the totality of the cir-
cumstances, the confession was the product of a free and
deliberate choice rather than coercion or improper induce-
ment.” Doe, 155 F.3d at 1074. Rodriguez-Preciado points to
no facts, other than the mere presence of officers in his motel
room, suggesting that his waiver of Miranda warnings was
involuntary. Indeed, we have upheld the validity of a waiver
of Miranda warnings in circumstances much more coercive
than those involved in this case. See Terrovona, 912 F.2d at
1179-80 (not specifically addressing issue of voluntariness,
but holding that suspect validly waived his Miranda rights by
speaking to officers, despite fact that questioning occurred in
suspect’s apartment after he had been handcuffed and arrested
without a warrant and while officers were conducting what he
“considered to be a warrantless search of his apartment”).
Here, we have a milder situation: the officers told Rodriguez-
Preciado that their search of the room had not produced any
weapons or drugs. The mere fact that he was questioned in the
motel room “was not ‘sufficiently compelling to overbear
[Rodriguez-Preciado’s] will in light of all attendant circum-
stances.’ ” United States v. Okafor, 285 F.3d 842, 847 (9th
Cir. 2002), quoting United States v. Leon Guerrero, 847 F.2d
1363, 1366 (9th Cir. 1988). Nor is there any evidence of coer-
cion or improper inducement at either the first or second cus-
todial interview. In these circumstances, the conclusion that
Rodriguez-Preciado’s waiver of Miranda rights was voluntary
was not erroneous.
3.
We now address the admissibility of statements made on
the second day of the interrogation. Rodriguez-Preciado con-
tends that the officers were required to re-advise him of
Miranda warnings before beginning the second day of ques-
tioning. But he does not cite a Supreme Court or Ninth Circuit
decision—and we are aware of none—holding that statements
UNITED STATES v. RODRIGUEZ-PRECIADO 8703
made after Miranda warnings are administered are nonethe-
less inadmissible if the warnings become “stale.”
[5] The Supreme Court has eschewed per se rules mandat-
ing that a suspect be re-advised of his rights in certain fixed
situations in favor of a more flexible approach focusing on the
totality of the circumstances. See Wyrick v. Fields, 459 U.S.
42, 48-49 (1982) (per curiam) (rejecting per se rule requiring
police to re-advise suspect of his rights before questioning
him about results of polygraph examination). Consistent with
Wyrick’s admonition against “unjustifiable restriction[s] on
reasonable police questioning,” id. at 49, “[t]he courts have
generally rejected a per se rule as to when a suspect must be
readvised of his rights after the passage of time or a change
in questioners.” United States v. Andaverde, 64 F.3d 1305,
1312 (9th Cir. 1995). Indeed, in a decision upholding the
admissibility of statements made nearly fifteen hours after
Miranda warnings were administered, see Guam v. Dela
Pena, 72 F.3d 767, 770 (9th Cir. 1995), we cited with
approval earlier decisions involving intervals of two days, id.,citing Puplampu v. United States, 422 F.2d 870 (9th Cir.
1970) (per curiam), and three days, id., citing Maguire v.
United States, 396 F.2d 327, 331 (9th Cir. 1968).
[6] Here, the district court found that Rodriguez-Preciado’s
second day statements were “close in time to the original
advice of rights,” despite the interval of approximately sixteen
hours, and that he “understood those rights as given to him in
English.” In light of our precedents approving delays of simi-
lar and greater length, it properly concluded that it was “not
[necessary] that he be advised of his rights” again. See, e.g.,
Andaverde, 64 F.3d at 1313 (statements made one day after
Miranda warning).
[7] Nor has Rodriguez-Preciado pointed to any other cir-
cumstances which “suggest the effectiveness of the earlier
Miranda warnings was diminished” on the second day of the
interrogation. Dela Pena, 72 F.3d at 770. “A rewarning is not
8704 UNITED STATES v. RODRIGUEZ-PRECIADO
required simply because there is a break in questioning.” Id.
at 769. Although Romanaggi took Hascall’s place at the sec-
ond interrogation, Lilley was present at both custodial interro-
gations and the questioning in the motel room. See
Andaverde, 64 F.3d at 1312-13 (presence of one officer
throughout two interrogations supported conclusion that fail-
ure to re-administer warnings did not require suppression,
notwithstanding presence of new interrogator at second round
of questioning). Nor is it determinative that there was a
change of one interrogator in conjunction with the change of
location (from the motel to the substation to the jail). See id.
at 1313 (repeat of warnings not required even though suspect
“had been moved into a different room and faced a new inter-
rogator”). It is also significant that Rodriguez-Preciado was in
custody continually from the time warnings were first admin-
istered through the second day interview. Cf. Dela Pena, 72
F.3d at 769 (Miranda warnings given before suspect in cus-
tody need not be re-administered before custodial interroga-
tion). Thus, there were no intervening events which might
have given Rodriguez-Preciado the impression that his rights
had changed in a material way. See id.Indeed, Rodriguez-Preciado’s own statements indicate that
he still understood his rights on the second day of question-
ing: when Romanaggi asked him whether he remembered
being advised of his Miranda rights the night before,
Rodriguez-Preciado replied that he “thought he had.” Con-
trary to the dissent’s suggestion, we do not hold that the “cen-
tral issue” is “what [Rodriguez-Preciado] remembered
concerning the earlier warnings.” Post at 8726 n.14. We agree
that “the issue is whether Rodriguez-Preciado could have rea-
sonably believed that the Miranda rights . . . of which he was
apprised the night before [were still effective], in light of the
changed circumstances.” Post at 8713. That Rodriguez-
Preciado appeared to remember having received warnings the
night before indicates that he did, in fact, understand that his
rights had not materially changed notwithstanding the change
in circumstances.
UNITED STATES v. RODRIGUEZ-PRECIADO 8705
At oral argument before us, counsel for Rodriguez-Preciado
asserted for the first time that Missouri v. Seibert, 124 S. Ct.
2601 (2004) (plurality opinion), should affect our analysis of
this issue. We need not decide whether we are bound to fol-
low the plurality opinion in Seibert or only that opinion as
limited by Justice Kennedy, because Seibert did not address
the issue raised in this case. Seibert dealt with the admissibil-
ity of statements made after the police give “midstream”
warnings, that is, when police begin a custodial interrogation
without advising the suspect of his Miranda rights, obtain
incriminating statements, and then continue questioning after
administering warnings in order to re-elicit the incriminating
statements. See id. at 2605. The plurality opinion acknowl-
edged that “giving the warnings and getting a waiver has gen-
erally produced a virtual ticket of admissibility” at trial for
statements made by a defendant, id. at 2608, but held that
“when interrogators question first and warn later,” the thresh-
old issue is “whether it would be reasonable to find that in
these circumstances the warnings could function ‘effectively’
as Miranda requires.” Id. at 2610.
In Seibert, it was undisputed that the officers had not given
the suspect Miranda warnings at the outset of the interroga-
tion. Id. at 2606. The Court therefore had no occasion to
address the question presented here: whether Miranda warn-
ings, once given, need to be re-administered due to changed
circumstances. Here, Hascall gave Miranda warnings in
advance of the custodial interrogations, which Rodriguez-
Preciado understood and which provided adequate notice
given the totality of circumstances. See, e.g., Dela Pena, 72
F.3d at 770. The plurality opinion in Seibert, which does not
cite Wyrick, casts no doubt on Wyrick’s totality of the circum-
stances test, or otherwise indicate that our own previous cases
have considered or emphasized the wrong factors in applying
that test. Thus, Seibert is inapposite.
[8] We hold that the failure to re-administer warnings on
the second day does not automatically render any of the state-
8706 UNITED STATES v. RODRIGUEZ-PRECIADO
ments made that day inadmissible. We reaffirm the Wyrick
and our own precedents totality of the circumstances
approach, and further emphasize that a district court’s factual
findings regarding the continued effectiveness of Miranda
warnings will not be set aside absent clear error. There was
none here. We therefore need not decide whether the second
day statements taken after Rodriguez-Preciado was re-advised
of his Miranda warnings are also admissible on the basis of
those warnings.
C.
[9] The next issue concerns Article 36 of the Vienna Con-
vention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77,
which requires law enforcement officials to notify arrested
foreign nationals of their right to contact their consulates.
Rodriguez-Preciado asks us to hold that the officers’ violation
of that provision requires exclusion of his statements. How-
ever, we have already squarely rejected this argument. See
United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th
Cir. 2000) (en banc) (“[A]ssuming that some judicial reme-
dies are available for the violation of Article 36, the exclusion
in a criminal prosecution of evidence obtained as the result of
post-arrest interrogation is not among them”). We are bound
by that decision. See Montana v. Johnson, 738 F.2d 1074,
1077 (9th Cir. 1984).
D.
We next address whether any of the evidence seized from
Rodriguez-Preciado’s person or the van should have been
suppressed. We hold that the district court’s conclusion that
“the production of the cocaine from [Rodriguez-Preciado’s]
shirt pocket was voluntary” was not error. We also conclude
that the district court’s finding that Rodriguez-Preciado val-
idly consented to the searches of both his person and the van
was not clearly erroneous. The district court found that
Rodriguez-Preciado had “no inability to communicate,”
UNITED STATES v. RODRIGUEZ-PRECIADO 8707
despite his alleged language difficulties. At the time he con-
sented, the officers’ guns were not in hand, he had already
been informed of his Miranda warnings, and no threat had
been made that a search warrant could be obtained if he
refused consent. The district court’s determination that
Rodriguez-Preciado knowingly and voluntarily consented to
the searches cannot be overturned.
The central issue, then, is whether the searches were within
the scope of his consent, an issue that we review for clear
error. See United States v. Huffhines, 967 F.2d 314, 319 (9th
Cir. 1992). Rodriguez-Preciado does not argue that the search
of his wallet was outside the scope of his consent, but does
make such a claim with respect to the searches of the van.
[10] “ ‘The standard for measuring the scope of a suspect’s
consent under the Fourth Amendment is that of ‘objective’
reasonableness—what would the typical reasonable person
have understood by the exchange between the officer and the
suspect?’ ” United States v. Cannon, 29 F.3d 472, 477 (9th
Cir. 1994), quoting Florida v. Jimeno, 500 U.S. 248, 251
(1991). The first search of the van, in which $3,360 was dis-
covered in a child seat, was valid. Because Rodriguez-
Preciado “placed no explicit limit on the scope of that
search,” and the child seat “reasonably could contain contra-
band,” the officers’ search of the seat was not outside the
scope of consent. United States v. Gutierrez-Mederos, 965
F.2d 800, 803-04 (9th Cir. 1992).
[11] Likewise, the district court properly refused to sup-
press the methamphetamine found behind the van’s speaker.
Although Rodriguez-Preciado did not explicitly give consent
to search that particular area, he informed the officers that
drugs could be found there and cannot seriously contend that
it would have been unreasonable to expect the officers to act
on that information, especially in light of his previous unqual-
ified and unrestricted consent to search the van. When an
individual gives general consent to search a vehicle, and
8708 UNITED STATES v. RODRIGUEZ-PRECIADO
thereafter volunteers that evidence may be found in a specific
area inside it, he thereby indicates that a search for that evi-
dence would be within the scope of the original consent. Cf.
Cannon, 29 F.3d at 477 (“Failure to object to the continuation
of a vehicle search after giving general consent to search is
properly considered as an indication that the search was
within the scope of the initial consent” (internal quotation
marks omitted)); United States v. Mines, 883 F.2d 801, 804-
05 (9th Cir. 1989) (“Mines might have withdrawn or limited
his consent, even during the search. His failure to do so indi-
cates he consented to the entire search and everything it
revealed”). Moreover, under the circumstances, Rodriguez-
Preciado’s statement that drugs would be found behind the
speaker itself constituted implied consent to search that area.
Cf. Rosi, 27 F.3d at 413-14 (where individual, after impliedly
consenting to agents’ request to enter condo, “volunteered to
an agent that pertinent evidence might be found in a lamp”
with the “full expectation that the agents would search it” and
“did not object when they proceeded to do so,” district court
did not clearly err in finding that individual “invited” agents
to look in the lamp).
In addition, the search of the van with a drug-sniffing dog
was within the scope of Rodriguez-Preciado’s consent. See
United States v. Perez, 37 F.3d 510, 515-16 (9th Cir. 1994).
In any event, nothing was found during that search.
[12] For the foregoing reasons, Rodriguez-Preciado’s
motion to suppress was properly denied. We now turn to his
remaining claims.
III.
[13] Rodriguez-Preciado argues that one of the continu-
ances granted by the trial court violated section 3161(c)(1) of
the Speedy Trial Act. See 18 U.S.C. § 3161(c)(1). Rodriguez-
Preciado waived his Speedy Trial Act claim by failing to
move for dismissal before trial. See 18 U.S.C. § 3162(a)(2)
UNITED STATES v. RODRIGUEZ-PRECIADO 8709
(“Failure of the defendant to move for dismissal prior to trial
. . . shall constitute a waiver of the right to dismissal”); United
States v. Brickey, 289 F.3d 1144, 1150 (9th Cir. 2002).
Although Rodriguez-Preciado contends that his lawyer’s fail-
ure to file a motion to dismiss should not be attributed to him,
he does not assert that his lawyer provided constitutionally
ineffective assistance or offer any other reason why he should
be excused from the statutory consequences of his lawyer’s
decision. His Speedy Trial Act claim was therefore waived.
IV.
Finally, we address Rodriguez-Preciado’s claim that the
prosecutor improperly commented on his decision not to tes-
tify. “Claims that a prosecutor committed misconduct during
summation are reviewed for plain error, when as here, trial
counsel did not object.” United States v. Tam, 240 F.3d 797,
804 (9th Cir. 2001). In his closing argument, defense counsel
stated:
Now, an example of how they hold back information
and don’t want you to really know what’s going on
is when Sara Abbott testifies about the fact that,
well, she wouldn’t socialize with [Rodriguez-
Preciado], but yet I believe she is the one who testi-
fied that, well, yeah, I would go get a tattoo, that sort
of thing.
Then, in the government’s rebuttal argument, the prosecu-
tor quoted defense counsel’s argument and stated:
So when counsel says, “What’s going on here,” the
Government agrees with him. But the defendant has
not addressed what’s really going on here.
He never did give you an explanation for what’s
really going on here in the trip receipts.
8710 UNITED STATES v. RODRIGUEZ-PRECIADO
Rodriguez-Preciado seizes on the reference to “the defen-
dant,” and argues that the prosecutor’s statement violated the
rule prohibiting prosecutorial commentary on a defendant’s
failure to testify. See Griffin, 380 U.S. at 615. “A prosecutor’s
comment is impermissible if it is ‘manifestly intended to call
attention to the defendant’s failure to testify or is of such a
character that the jury would naturally and necessarily take it
to be a comment on the failure to testify.’ ” Beardslee v.
Woodford, 358 F.3d 560, 586 (9th Cir. 2004), quoting United
States v. Tarazon, 989 F.2d 1045, 1051-52 (9th Cir. 1993).
[14] However, “we have held that a ‘comment on the fail-
ure of the defense as opposed to the defendant to counter or
explain the testimony presented or evidence introduced is not
an infringement of the defendant’s Fifth Amendment privi-
lege.’ ” United States v. Mares, 940 F.2d 455, 461 (9th Cir.
1991), quoting Castillo, 866 F.2d at 1083. See also Tam, 240
F.3d at 805 (“[W]hen the government refers to ‘defendant’s
arguments’ but obviously is addressing the arguments made
by defense counsel, there is no Griffin violation”). Taking the
prosecutor’s remarks in context, they were a response to
defense counsel’s closing argument, not a comment that was
“manifestly intended to call attention to [Rodriguez-
Preciado’s] failure to testify.” Beardslee, 358 F.3d at 586.
Instead, the prosecutor’s statements emphasized that the
defense had never rebutted the inference raised by the trip
receipts introduced by the prosecution to demonstrate that
Rodriguez-Preciado had previously traveled to the area to
meet with his co-conspirators. Indeed, Rodriguez-Preciado’s
brief explains that the prosecutor was “[r]esponding to
[defense] counsel’s rhetorical questions about what the evi-
dence meant.” “This argument was directed at the defense,
and did not constitute an infringement on [Rodriguez-
Preciado’s] Fifth Amendment rights.” United States v. Was-
serteil, 641 F.2d 704, 710 (9th Cir. 1981). There was no plain
error.
UNITED STATES v. RODRIGUEZ-PRECIADO 8711
V.
We now address the impact of the recent en banc decision
in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en
banc) on this case. Because we cannot “reliably determine
from the record whether the sentence imposed would have
been materially different had the district court known that the
Guidelines were advisory, we will remand to the sentencing
court to answer that question.” Id. at 1084. The mandate shall
issue forthwith.
AFFIRMED IN PART, REMANDED IN PART.
BERZON, Circuit Judge, dissenting in part:
With the exception of subsection II.B.3, I agree with the
majority’s opinion in its entirety. I cannot agree, however,
with the majority’s conclusion that the Miranda warning
administered to Rodriguez-Preciado on the night of June 26
was still effective the following afternoon.1 By the time of the
interrogation in question, Rodriguez-Preciado had been
1
I also disagree with the majority’s assertion that the district court’s
determination on this point was a “factual finding” warranting clear error
review. There is no case law in this circuit concerning the appropriate
standard of review for the district court’s determination of the continuing
“effectiveness” of Miranda warnings. The voluntariness of a confession,
by contrast, another area of Miranda law where we look to the totality of
the circumstances, is an issue that we have reviewed de novo since the
Supreme Court’s decision in Miller v. Fenton, 474 U.S. 104, 112-18
(1985). See, e.g., Tolbert v. Page, 182 F.3d 677, 682 n.8 (9th Cir. 1999)
(en banc). To the extent that the majority suggests only that purely factual
findings, such as what the defendant said, are reviewed for clear error, I
do not disagree. But United States v. Andaverde, 64 F.3d 1305 (9th Cir.
1995), the case on which the majority principally relies for its conclusion
that the original warning remained effective in this case, treated that issue
as a question of voluntariness and reviewed it de novo. See id. at 1310. I
would do the same.
8712 UNITED STATES v. RODRIGUEZ-PRECIADO
moved twice since first being advised of his rights, and was
then incarcerated at the local county jail. The combination of
the lapse in time and the change in custodial circumstances is
sufficient that a suspect could well question whether the same
rights still obtained.
I therefore believe that we must address the midstream
Miranda warning given to Rodriguez-Preciado during his
interrogation on June 27. The propriety of those warnings —
and of the interrogation elicited thereafter — turns on what
rule, if any, the fractured Supreme Court handed down in Mis-
souri v. Seibert, 124 S. Ct. 2601 (2004). As I explain below,
because I would follow the reasoning of the Seibert plurality,
I would hold that the district court erred in not suppressing the
statements Rodriguez-Preciado made on June 27 and the evi-
dence discovered as a result of those statements.
The district court’s error in this regard may well have been
harmless beyond a reasonable doubt. The government, how-
ever, has not pressed that position here. At least one previous
panel of this circuit has suggested, albeit in passing, that the
failure to raise harmless error constitutes waiver. See United
States v. Vallejo, 237 F.3d 1008, 1026 (9th Cir. 2001).
Though some of our sister circuits have recognized limited
circumstances in which harmless error may be considered sua
sponte, see, e.g., United States v. Rodriguez Cortes, 949 F.2d
532, 542-43 (1st Cir. 1991). I do not believe that this is such
a case, for reasons I elaborate upon below. I would therefore
reverse Rodriguez-Preciado’s conviction and remand for a
new trial.
I.
As the majority recognizes, “[t]he courts have generally
rejected a per se rule as to when a suspect must be readvised
of his rights after the passage of time or a change in question-
ers.” United States v. Andaverde, 64 F.3d 1305, 1312 (9th Cir.
1995); see also United States v. Ross, 123 F.3d 1181, 1188
UNITED STATES v. RODRIGUEZ-PRECIADO 8713
(9th Cir. 1997) (“The caselaw does not delineate how long
Miranda warnings protect a defendant or at what point that
protection evaporates.”). Instead, we are charged with looking
at the totality of the circumstances in each individual case.
See Wyrick v. Fields, 459 U.S. 42, 48-49 (1982) (per curiam).
In framing our totality-of-the-circumstances inquiry, the
operative question is whether a reasonable defendant in
Rodriguez-Preciado’s position would consider that the
Miranda warning given to him the night before at the Satellite
Motel still applied to anything he said the following day, after
he had been booked and lodged at the county jail. In this case,
the majority and I agree that the issue is whether Rodriguez-
Preciado could have reasonably believed that the Miranda
rights — including the right to remain silent and to consult
with counsel — of which he was apprised the night before did
not still obtain on June 27, in light of the changed circum-
stances. We disagree, however, over the controlling import of
Rodriguez-Preciado’s statement that he “thought he had”
received the Miranda warnings the night before. The majority
holds that Rodriguez-Preciado’s statement “indicates that he
did, in fact, understand that his rights had not materially
changed notwithstanding the change in circumstances.” Ante
at 8704. In contrast, I believe that the statement says nothing
about whether Rodriguez-Preciado understood the earlier
warnings to apply to the current circumstances. And, in my
view, the totality of the other circumstances weigh in favor of
the conclusion that the police should have re-advised
Rodriguez-Preciado before beginning questioning on June 27.
The majority relies heavily on our decision in Andaverde,
where we held that a one-day time gap was not enough, on its
own, to vitiate the continuing effectiveness of the first
Miranda warning, see 64 F.3d at 1313, and on Guam v. Dela
Pena, 72 F.3d 767 (9th Cir. 1995), in which we held that a
fifteen-hour interval between a Miranda warning and a custo-
dial interrogation was acceptable, id. at 769-70.2 In Dela
2
Also of relevance is our earlier decision in United States v. Nordling,
804 F.2d 1466 (9th Cir. 1986), where the court found no requirement that
8714 UNITED STATES v. RODRIGUEZ-PRECIADO
Pena, however, the court emphasized that the relevant time
difference was not the fifteen hours that elapsed between the
Miranda warning and the interrogation, but the far shorter
time period that elapsed between the end of the first, non-
custodial interview (at the beginning of which the Miranda
warning had been given) and the custodial interrogation. See
id. at 769. Moreover, neither precedent involved other
changed circumstances to the degree presented here.
In Dela Pena, the central issue before the court was
whether Miranda warnings given to a suspect before he was
“in custody” needed to be repeated once the police began a
custodial interrogation. Two facts were central to the court’s
decision that they did not: First, the police reminded Dela
Pena of his waiver of his Miranda rights before the custodial
interrogation began. See id. The court held that “it was not
necessary to repeat the earlier Miranda warnings,” id. at 769
n.1 (emphasis added), yet it stressed several times the extent
to which the officers reminded Dela Pena of his earlier
waiver. See, e.g., id. at 770.
Second, the lapse of time was the only significant changed
circumstance. Although Dela Pena was not in custody at the
time he was first given his Miranda warnings, he was in the
police station, the same place where the custodial interroga-
tion eventually took place. Id. at 770 (“Other than this passage
of time, Dela Pena points to nothing to suggest the effective-
ness of the earlier Miranda warnings was diminished.”). The
same interrogator questioned him in the same room, and,
though fifteen hours elapsed from the initial provision of the
a suspect be readvised of his Miranda rights when the interrogation was
continued by different questioners and “[n]o appreciable time had
elapsed.” Id. at 1471. The Nordling court did not explicitly state what it
meant by “no appreciable time,” though it cited, with approval, an Eighth
Circuit case holding that a five-hour gap between interviews did not
require re-administration of the warnings. See id. (citing Stumes v. Solem,
752 F.2d 317 (8th Cir. 1985)).
UNITED STATES v. RODRIGUEZ-PRECIADO 8715
Miranda warnings to the beginning of the custodial interroga-
tion, only six-and-a-half hours elapsed between the two inter-
views. See id. at 769 (noting that questioning ended at 4:00
a.m., and recommenced at 10:35 that same morning). Here,
roughly fourteen hours elapsed between the end of the first
interrogation and the beginning of the second.3
Similarly, in Andaverde, the defendant was first questioned
by a police officer, who properly Mirandized him. Shortly
thereafter, he was questioned by a probation officer, who did
not re-advise Andaverde of his Miranda rights. The same pro-
bation officer interviewed Andaverde again the following day,
and, though the opinion is not lucid on this point, it appears
that both interviews took place in the same location.4 Relying
— somewhat erroneously — on Jarrell v. Balkcom, 735 F.2d
1242, 1254 (11th Cir. 1984),5 the court held that the probation
officer was not required to re-advise Andaverde of his
Miranda rights initially, since “the two interrogations were an
uninterrupted sequence of events,” Andaverde, 64 F.3d at
1312, and that the one-day6 interval, standing alone, was
3
Though the record in this case is not explicit, it appears that the
Miranda warning was administered to Rodriguez-Preciado at the Satellite
Motel shortly after 9:00 p.m. on June 26, and that the interrogation on
June 27 began shortly after 1:15 p.m. The interrogation at the county jail
conducted on the night of June 26 appears to have concluded by 11:30
p.m.
4
The court in Andaverde noted that “[t]he next day, October 28, Keeth
again questioned Andaverde at the jail.” 64 F.3d at 1308 (emphasis
added). Earlier in the opinion, the court suggests that the original question-
ing happened at the police station. See id. But the court’s use of the word
“again,” without noting any other change in circumstances, seems to indi-
cate that the two interviews were both conducted in the same general
place.
5
The Andaverde court miscited Jarrell as a Ninth Circuit decision. See
64 F.3d at 1312.
6
The facts in Andaverde are unclear concerning when the interrogations
took place on each day. Therefore, though the majority here reads
Andaverde as approving a “one day” delay, see ante at 8703, and though
Andaverde itself spoke of a period of “one day,” see 64 F.3d at 1313, it
is entirely possible that the actual delay between the end of the second
interrogation and the beginning of the third was closer to twelve hours, see
id. at 1308 & n.2, less than the interval in this case.
8716 UNITED STATES v. RODRIGUEZ-PRECIADO
insufficient to render the original warning ineffective, id. at
1313.
In Andaverde, then, as in Dela Pena, the only material con-
sideration detracting from the continued effectiveness of the
Miranda warnings was the time between the interviews. Even
at their broadest, Andaverde and Dela Pena, taken together,
thus hold that an interval of up to one day between question-
ing does not necessarily require officers to re-advise suspects
of their Miranda rights. At the same time, neither Andaverde
nor Dela Pena embraces the opposite holding — that an inter-
val of up to one day necessarily validates a later interview,
regardless of other circumstances.
By contrast, at least two district courts have suggested that
re-administration of Miranda would have been necessary in a
case presenting facts analogous to those here. Of perhaps
most interest is the Middle District of Pennsylvania’s decision
in United States v. Vasquez, 889 F. Supp. 171 (M.D. Pa.
1995), in which the court applied a five-factor test to deter-
mine whether a statement made after a significant delay since
Miranda warnings were given should be admissible. Borrow-
ing from the Pennsylvania Supreme Court’s decision in Com-
monwealth v. Hughes, 555 A.2d 1264 (Pa. 1989), Vasquez
spelled out five considerations:
“(1) the time lapse between the last Miranda warn-
ings and the appellant’s statement; (2) interruptions
in the continuity of the interrogation; (3) whether
there was a change of location between the place
where the last Miranda warnings were given and the
place where the appellant’s statement was made; (4)
whether the same officer who gave the warnings also
conducted the interrogation resulting in the appel-
lant’s statement; and (5) whether the statement elic-
ited during the complained-of interrogation differed
significantly from other statements which had been
preceded by Miranda warnings.”
UNITED STATES v. RODRIGUEZ-PRECIADO 8717
Vasquez, 889 F. Supp. at 177 (quoting Hughes, 555 A.2d at
1276); see also id. at 178 (“[W]e believe [this list] provides
an excellent barometer against which to at least begin the
review of the circumstances in a particular case.”).7
A host of district courts have since relied on the Vasquez
factors. In particular, the Eastern District of Michigan applied
Vasquez to a case factually similar to this one, concluding in
United States v. Jones, 147 F. Supp. 2d 752 (E.D. Mich.
2001), that statements from a subsequent interrogation eigh-
teen hours after the Miranda warnings, by a different law
enforcement officer, and in a different place, should not be
admissible:
More than eighteen hours had passed . . . between
the Miranda warnings that Sgt. Payer gave Defen-
dant on February 14 and Defendant’s interview with
Agent Kendall on February 15. During that period,
there was an interruption in the continuity of the
interrogation, as Sgt. Payer had ceased his question-
ing at 1:13 a.m. on February 15 and Agent Kendall
did not begin his interview earlier than 6:00 p.m.
There was a change in location between the inter-
view that Sgt. Payer conducted and the interrogation
done by Agent Kendall. The former was at the police
station; the latter was at the federal building. Agent
Kendall, who conducted the interview of Defendant
on February 15, was not the same officer who
administered the warnings on February 14. All of
these factors militate toward the conclusion that
7
The Vasquez court concluded that the five factors weighed in favor of
admitting Vasquez’s statements. Its determination turned on the short time
delay, the fact that Vasquez knew he was going to be interviewed by dif-
ferent officers, and Vasquez’s “long experience and frequent contact with
the criminal justice system.” 889 F. Supp. at 178. At most, only one of the
five factors weighed in Vasquez’s favor, and the court found that factor
— the interview by different officers — negligible given Vasquez’s prior
knowledge that such a change was to occur.
8718 UNITED STATES v. RODRIGUEZ-PRECIADO
Defendant could not fully appreciate a waiver of his
Miranda rights when he spoke to Agent Kendall on
February 15 and that his statements to Agent Kendall
must therefore be suppressed. The Court apprehends
no factors militating toward the opposite conclusion.
Jones, 147 F. Supp. 2d at 761-62 (citations omitted).
What is notable about Vasquez and Jones is that in both
cases, the court looked at the various factors from the per-
spective of the suspect, centering on whether he could reason-
ably believe that the first warning did not still have force —
that is, on whether the original warning was still fully effec-
tive. As discussed in more detail below, this is the core princi-
ple enunciated, albeit in a different context, by the Supreme
Court plurality in Seibert. Interpreting this case through the
reasonableness lens, and applying the Vasquez factors, I con-
clude that a suspect could reasonably believe that the rights of
which he was earlier advised no longer obtained.
First, fourteen hours passed between the end of the second
June 26 interview by Officer Hascall and the beginning of
Rodriguez-Preciado’s June 27 interview by Sergeant
Romanaggi. During this period, there was a significant inter-
ruption in the interrogation, as Officer Hascall had concluded
his two separate interrogations of Rodriguez-Preciado the
night before. There was a change in location,8 as the June 27
interview was conducted at the county jail, where Rodriguez-
Preciado had been booked and lodged the night before. And
the interrogating officer, Sergeant Romanaggi, was not the
officer who had provided Miranda warnings the night before,
nor was he in the motel room when the warnings were given.
On these facts alone, Vasquez and Jones suggest that the
8
In point of fact, there had been two changes in location since the warn-
ings were first administered — from the Satellite Motel to the police sub-
station, and from the substation to the jail.
UNITED STATES v. RODRIGUEZ-PRECIADO 8719
Miranda warning given to Rodriguez-Preciado at the Satellite
Motel on the night of June 26 was no longer effective on the
afternoon of June 27. Add to this Rodriguez-Preciado’s fun-
damental change in status, from a suspect arrested in his own
motel room to an incarcerated defendant taken from his cell
in a county jail for interrogation, and the case for suppressing
his June 27 statements is all the stronger.
Once a suspect is subjected to pretrial detention — as
opposed, for example, to arrested but released while awaiting
trial — he is obligated to follow the directions and orders he
is given, declining to do so at his peril. See Bell v. Wolfish,
441 U.S. 520, 537-40 (1979). Under those circumstances, a
suspect in Rodriguez-Preciado’s position could reasonably
doubt the efficacy of the original warning, positing that the
same rules might not apply after being booked and incarcer-
ated as applied before he became, in effect, a prisoner. While
an individual learned in the law would know otherwise,
Miranda warnings assume that the suspect is a tabula rasa,
lacking knowledge of his or her legal rights. To that end,
Miranda provides prophylactic warnings so as to avoid the
need for later inquiry into subjective voluntariness. That being
the case, it is inconsistent with the preventative nature of the
Miranda requirement to assume that a suspect is aware of the
diverse circumstances in which the rights covered by Miranda
warnings obtain.
I conclude that, taking all of the pertinent factors together,
as Wyrick instructs, a reasonable person receiving the
Miranda warning issued by Officer Hascall on the night of
June 26 in the motel room would not necessarily assume that
the same ground rules applied regarding interrogation con-
ducted the next day, under quite different custodial circum-
stances and by different interrogators. I would therefore hold
that all statements made during the June 27 interrogation
before Romanaggi re-advised Rodriguez-Preciado of his
Miranda rights should have been suppressed.
8720 UNITED STATES v. RODRIGUEZ-PRECIADO
II.
The question remains whether the statements made after
Romanaggi delivered the Miranda warning are admissible.
Their admissibility is an open question in this circuit.
We are no longer bound by United States v. Orso, 266 F.3d
1030 (9th Cir. 2001) (en banc), as the Supreme Court explic-
itly overruled that decision in Missouri v. Seibert, 124 S. Ct.
at 2607,9 last Term. Seibert did not, however, create a per se
rule barring the admissibility of all statements taken subse-
quent to mid-interrogation Miranda warnings.
Instead, a plurality of the Court carved out an objective
exception to Oregon v. Elstad, 470 U.S. 298 (1985), which
had held that statements taken subsequent to midstream
Miranda warnings should only be suppressed if they were not
knowingly or voluntarily made. Id. at 309. For the Seibert
plurality, the admissibility of statements taken post-Miranda
in such a case turns on whether a midstream warning was
effective under the circumstances.
As Justice Souter wrote for the four-member plurality,
The threshold issue when interrogators question first
and warn later is . . . whether it would be reasonable
to find that in these circumstances the warnings
could function “effectively” as Miranda requires.
Could the warnings effectively advise the suspect
that he had a real choice about giving an admissible
statement at that juncture? Could they reasonably
9
The Court granted certiorari in Seibert to resolve a circuit split between
Orso and a similar holding by the First Circuit, on the one hand, and the
Eighth and D.C. Circuit decisions in conflict with Orso, on the other. See
Seibert, 124 S. Ct. at 2607 (plurality opinion) (citing United States v.
Gale, 952 F.2d 1412, 1418 (D.C. Cir. 1992); United States v. Carter, 884
F.2d 368, 373 (8th Cir. 1989); Orso, 266 F.3d at 1034-39; and United
States v. Esquilin, 208 F.3d 315, 319-21 (1st Cir. 2000)).
UNITED STATES v. RODRIGUEZ-PRECIADO 8721
convey that he could choose to stop talking even if
he had talked earlier? For unless the warnings could
place a suspect who has just been interrogated in a
position to make such an informed choice, there is
no practical justification for accepting the formal
warnings as compliance with Miranda, or for treat-
ing the second stage of interrogation as distinct from
the first, unwarned and inadmissible segment.
Seibert, 124 S. Ct. at 2610 (plurality opinion) (emphasis
added); see also id. at 2611 (“When [Miranda] warnings are
inserted in the midst of coordinated and continuing interroga-
tion, they are likely to mislead and ‘deprive a defendant of
knowledge essential to his ability to understand the nature of
his rights and the consequences of abandoning them.’ ” (quot-
ing Moran v. Burbine, 475 U.S. 412, 424 (1986))). Whether
statements given after midstream Miranda warnings should
be admissible, the plurality concluded, turned entirely on
“whether Miranda warnings delivered midstream could be
effective enough to accomplish their object.” Id. at 2612.
Effectiveness, the plurality suggested, was a question of what
the suspect reasonably believed. Depending on the circum-
stances, midstream warnings can “be seen as challenging the
comprehensibility and efficacy of the Miranda warnings to
the point that a reasonable person in the suspect’s shoes
would not have understood them to convey a message that she
retained a choice about continuing to talk.” Id. at 2613.
Concurring in the judgment, however, Justice Kennedy
concluded that such a reasonableness test, which “envisions
an objective inquiry from the perspective of the suspect, and
applies in the case of both intentional and unintentional two-
stage interrogations. . . . cuts too broadly.” Id. at 2615-16
(Kennedy, J., concurring in the judgment). Justice Kennedy
believed that Elstad should govern absent a showing that the
law enforcement officers deliberately attempted an end-run
around Miranda, as in Seibert. See id.
8722 UNITED STATES v. RODRIGUEZ-PRECIADO
That no opinion in Seibert commanded the agreement of a
majority of the Justices creates a difficulty in determining
which rule to apply here. Generally, where there is no major-
ity opinion, the narrowest opinion adhered to by at least five
Justices controls. See Marks v. United States, 430 U.S. 188,
193 (1977); see also Townsend v. Quasim, 328 F.3d 511, 519
n.3 (9th Cir. 2003) (citing Smith v. Univ. of Wash., Law Sch.,
233 F.3d 1188, 1199 (9th Cir. 2000)). Applying the Marks
rule to Seibert, however, is not a straightforward endeavor.
Justice Kennedy concurred in Seibert on a ground arguably
narrower10 than that relied upon by the plurality. He stated
that deliberateness on the part of the police — or the lack
thereof — should guide the inquiry, not the objective effec-
tiveness factors outlined in Justice Souter’s plurality opinion.11
But three of the four Justices in the plurality and the four dis-
senters decisively rejected any subjective good faith consider-
ation, based on deliberateness on the part of the police.12 In
10
Justice Kennedy characterized his opinion as “narrower.” See Seibert,
124 S. Ct. at 2616 (Kennedy, J., concurring in the judgment).
11
Leaving aside its substantive analysis, Justice Kennedy’s opinion cre-
ated a clear fifth vote for overruling our en banc decision in Orso, in
which we had held that a confession after a midstream Miranda warning
should be suppressed only if the pre-warning confession was “involuntary,
and any taint therefrom had not dissipated by the time [the defendant] was
read the Miranda warnings.” 266 F.3d at 1039. This position, echoed in
Justice O’Connor’s dissent in Seibert, is at odds with Justice Kennedy’s
conclusion that, subject to deliberateness on the part of the police, “post-
warning statements that are related to the substance of prewarning state-
ments must be excluded absent specific, curative steps.” 124 S. Ct. at 2615(Kennedy, J., concurring in the judgment). Because Justice Kennedy
agreed that the Elstad-based voluntariness approach that Orso approved
could not stand, there can be no question as to whether Orso remains the
law of the circuit. The operative issue is why it does not.
12
Arguably, Justice Breyer’s concurring opinion, though he fully con-
curred in (and joined) Justice Souter’s opinion for the plurality, differs
from the plurality on the deliberateness point. See, e.g., Seibert, 124 S. Ct.
at 2614 (Breyer, J., concurring) (joining Justice Kennedy’s opinion “inso-
far as it . . . makes clear that a good-faith exception applies”). Accepting
this position for the sake of argument, the tally is seven to two against the
subjective-intent-of-the-interrogator position.
UNITED STATES v. RODRIGUEZ-PRECIADO 8723
dissent, Justice O’Connor, joined by the Chief Justice and
Justices Scalia and Thomas, repeatedly agreed with the plural-
ity that the subjective intent of the interrogator cannot control.
See, e.g., Seibert, 124 S. Ct. at 2616 (O’Connor, J., dissent-
ing) (“[T]he plurality correctly declines to focus its analysis
on the subjective intent of the interrogating officer.”); id. at
2617 (“The plurality’s rejection of an intent-based test is also,
in my view, correct.”); id. (“Because voluntariness is a matter
of the suspect’s state of mind, we focus our analysis on the
way in which suspects experience interrogation. . . . Thoughts
kept inside a police officer’s head cannot affect that experi-
ence.”); id. at 2618 (“[R]ecognizing an exception to Elstad for
intentional violations would require focusing constitutional
analysis on a police officer’s subjective intent, an unattractive
proposition that we all but uniformly avoid.”). Most definitive
is Justice O’Connor’s statement at the end of Part I of her dis-
sent: “[T]he approach espoused by Justice KENNEDY is ill
advised. . . . This approach untethers the analysis from facts
knowable to, and therefore having any potential directly to
affect, the suspect.” Id. at 2618-19.
The dissenters went on to disagree with the plurality over
the force of Elstad: The plurality, along with Justice Kennedy,
favored creating an exception to Elstad, although the opinions
differed fundamentally as to the nature of the exception. The
dissent, in contrast, took issue with the extent to which the
plurality “devour[ed]” Elstad. Id. at 2616. Under Elstad, the
dissent suggested, “if [the defendant’s] first statement is
shown to have been involuntary, the court must examine
whether the taint dissipated through the passing of time or a
change in circumstances . . . .” Id. at 2619. In so maintaining,
however, the dissent also necessarily disagreed with the plu-
rality that the relevant standard should be the objective effec-
tiveness of the warnings. Instead, Justice O’Connor suggested
that question-first interrogations should be analyzed “under
the voluntariness standards central to the Fifth Amendment
and reiterated in Elstad.” Id.8724 UNITED STATES v. RODRIGUEZ-PRECIADO
This analysis of the Seibert opinions indicates that while
Justice Kennedy’s was the crucial fifth vote for the result, and
for the proposition that Elstad does not strictly govern cases
with midstream Miranda warnings, Justice Kennedy’s opin-
ion is not the narrowest opinion embodying a position sup-
ported by at least five Justices in the majority. It embodies a
position supported by two Justices, at most.
The Marks rule is not helpful under these circumstances.
As several circuits have convincingly explained, “the Marks
rule is applicable only where ‘one opinion can be meaning-
fully regarded as “narrower” than another’ ” and “can ‘repre-
sent a common denominator of the Court’s reasoning.’ ”
Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161,
170 (3d Cir. 1999) (quoting King v. Palmer, 950 F.2d 771,
781 (D.C. Cir. 1991) (en banc)); see also United States v.
Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir. 2003);
A.T. Massey Coal Co., Inc. v. Massanari, 305 F.3d 226, 236
(4th Cir. 2002). The D.C. Circuit further explained this point
in King v. Palmer:
Marks is workable — one opinion can meaningfully
be regarded as “narrower” than another — only
when one opinion is a logical subset of other,
broader opinions. In essence, the narrowest opinion
must present a common denominator of the Court’s
reasoning; it must embody a position implicitly
approved by at least five Justices who support the
judgment . . . . When . . . one opinion supporting the
judgment does not fit entirely within a broader circle
drawn by the others, Marks is problematic. If applied
in situations where the various opinions supporting
the judgment are mutually exclusive, Marks will turn
a single opinion that lacks majority support into
national law.
950 F.2d at 781-82.
UNITED STATES v. RODRIGUEZ-PRECIADO 8725
“In such a case,” the Third Circuit has suggested, “the only
binding aspect of a splintered decision is its specific result.”
Anker Energy, 177 F.3d at 170. Seibert, however, is not a
splintered decision in which “a fragmented Court [has]
decide[d] a case and no single rationale explaining the result
enjoys the assent of five Justices.” Marks, 430 U.S. at 193.
Broken into separate holdings, all but one of the central points
of Seibert enjoys the support of five Justices: The rejection of
subjective intent enjoys the assent of at least seven Justices.
The overruling of Orso enjoys the support of five Justices.
The existence of exceptions to Elstad enjoys the support of
five Justices. The only point not enjoying the assent of five
Justices is the appropriate admissibility standard to apply, on
which the Court is split 4-1-4.
As I read it, in agreement with the other circuits’ opinions
discussed above, Marks does not prescribe the adoption as
governing precedent of a position squarely rejected by seven
Justices.13 Justice Kennedy’s opinion on the admissibility
standard therefore cannot govern.
If Justice Kennedy’s opinion does not govern, then what
does? There are three possibilities: The dissent controls; the
plurality controls; or there is no controlling position, and we
are free to start from scratch — with Orso no longer binding
precedent.
The Seibert dissent cannot govern because the holding that
Elstad does not control in a case like this one received five
votes. The dissent’s position in Seibert is therefore irreconcil-
13
A rule that Marks does not apply to cases where the result of applying
it is indiscernible or illogical finds contemporary support in a brief pas-
sage of Justice O’Connor’s opinion in Grutter v. Bollinger, 539 U.S. 306(2003). Commenting on whether Justice Powell’s solo opinion in Bakke
controlled, the Grutter Court concluded that “it does not seem ‘useful to
pursue the Marks inquiry to the utmost logical possibility when it has so
obviously baffled and divided the lower courts that have considered it.’ ”
Id. at 325 (quoting Nichols v. United States, 511 U.S. 738, 745-46 (1994)).
8726 UNITED STATES v. RODRIGUEZ-PRECIADO
able with the conclusion of the majority of the Court. The plu-
rality opinion is not binding precedent either, at least as to the
admissibility standard, for no fifth vote supporting its ratio-
nale is to be found. Instead, I suggest that Seibert leaves this
court in a situation where there is no binding Supreme Court
or Ninth Circuit precedent as to the governing standard.
Nothing bars this court, however, from adopting the Seibert
plurality’s standard as the law of the circuit. See United States
v. Hearst, 563 F.2d 1331, 1345 n.10 (9th Cir. 1977) (follow-
ing as “persuasive” the Supreme Court’s plurality opinion in
Lanza v. New York, 370 U.S. 139 (1962)). Various of our sis-
ter circuits have also adopted the decisions of Supreme Court
pluralities as the law of the circuit. See, e.g., Kirsch v.
Plovidba, 971 F.2d 1026, 1028-29 (3d Cir. 1992) (adopting a
three-Justice plurality in Scindia Steam Nav. Co. v. De Los
Santos, 451 U.S. 156 (1981), as the law of the circuit); accord
Davis v. Portline Transportes Maritime Internacional, 16
F.3d 532, 536 n.4 (3d Cir. 1994) (recognizing Kirsch as so
holding). Absent any governing law to the contrary, I would
follow a similar path here and adopt the rule advocated by the
Seibert plurality as the law of this circuit.
Applying the Seibert plurality’s standard, the admissibility
of statements given subsequent to midstream Miranda warn-
ings turns on whether “a reasonable person in the suspect’s
shoes could have seen the station house questioning as a new
and distinct experience, [and] the Miranda warnings could
have made sense as presenting a genuine choice whether to
follow up on the earlier admission.” 124 S. Ct. at 2612 (plu-
rality opinion).14 The factors the plurality identified as rele-
14
Adopting this standard would also reduce the complexity of the first
issue considered in this opinion — whether the original Miranda warnings
were still effective at the outset of the June 27 interview. As the Seibert
plurality/dissent emphasizes, the central issue is what the suspect could
reasonably have believed, based on the totality of circumstances, regard-
ing the continued effectiveness of the earlier warnings — not, as the
majority would have it here, what he remembered concerning the earlier
warnings.
UNITED STATES v. RODRIGUEZ-PRECIADO 8727
vant to this inquiry are “the completeness and detail of the
questions and answers in the first round of interrogation, the
overlapping content of the two statements, the timing and set-
ting of the first and the second [interrogations], the continuity
of police personnel, and the degree to which the interrogator’s
questions treated the second round as continuous with the
first.” Id.In cases such as this one, where the warning was delivered
in the midst of the same interrogation in the same place by the
same officer, and where the officer goes back over the very
same questions he asked before re-advising the suspect of his
Miranda rights, the Seibert plurality approach results in
exclusion of the statements taken after the midstream warn-
ing. I would so hold.
III.
It is possible, however, that the district court’s error in not
suppressing Rodriguez-Preciado’s June 27 statements is
harmless beyond a reasonable doubt. The error is certainly
harmless as it pertains to Rodriguez-Preciado’s sentence,
since the sentence was calculated based on drug quantity
levels that, even without his June 27 statements, would still
have resulted in the same base offense level under section
2D1.1(c)(2) of the U.S. Sentencing Guidelines.15
15
Rodriguez-Preciado confessed to being in possession of — and dis-
tributing — various drug quantities, including at least six pounds of
methamphetamine (five or six to Glenn and one to Jim Grenfell), a half-
kilo of cocaine (to Grenfell), a quarter-pound of cocaine (in another
instance), and nineteen to twenty-three pounds of marijuana. The police
were able independently to tie various other drug quantities to Rodriguez-
Preciado, but as the Presentence Report (PSR) makes clear, at least thirty-
five pounds of marijuana, thirteen and one-quarter pounds of methamphet-
amine, and five kilograms of cocaine were attributed to Rodriguez-
Preciado based solely on the statements he made to the police, nearly all
of which came on June 27.
Because these statements should have been suppressed, the quantities
should not have figured into Rodriguez-Preciado’s sentence. As the PSR
8728 UNITED STATES v. RODRIGUEZ-PRECIADO
The government never suggested, however, in its briefs or
at argument, that such error was harmless as to either the sen-
tence or the underlying conviction. Whether we can review
for harmless error sua sponte is, perhaps surprisingly, a ques-
tion that the Ninth Circuit has never directly considered,
though most circuits to reach this question have answered it
in the affirmative, subject to considerations including “the
length and complexity of the record, whether the harmless-
ness of the error or errors found is certain or debatable, and
whether reversal will result in protracted, costly, and ulti-
mately futile proceedings in the district court.” United States
v. Giovannetti, 928 F.2d 225, 227 (7th Cir. 1991).16 The only
Ninth Circuit case even remotely on point, United States v.
identifies, the drug quantities based entirely on Rodriguez-Preciado’s
statements add up to a total of 7,025 kilograms of marijuana. Rodriguez-
Preciado’s total sentence was based on a total drug quantity of 22,739
kilograms of marijuana. Therefore, absent the drug quantities that were
attributed to him based on his June 27 statements, Rodriguez-Preciado’s
sentence should have been based on a total quantity of 15,714 kilograms
of marijuana. But this quantity nets the exact same base offense level —
36 — under U.S.S.G. § 2D1.1(c)(2) as the 22,739 kilograms actually
relied upon by the district court. Because recalculation of the quantity
based on the admissible evidence would not lead to a lesser base offense
level, the district court’s error in not suppressing Rodriguez-Preciado’s
June 27 statements, as it pertains to sentencing, was objectively harmless.
See United States v. Alvarez, 358 F.3d 1194, 1213 (9th Cir. 2004); see also
United States v. Scheele, 231 F.3d 492, 499-500 & n.4 (9th Cir. 2000).
16
Though none of the Giovannetti line of cases cite to them, the manda-
tory language contained in the corresponding provisions of the Federal
Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and
the Judicial Code, supports the notion that harmless error may be reviewed
sua sponte. Compare FED. R. CIV. P. 61 (“The court at every stage of the
proceeding must disregard any error or defect in the proceeding which
does not affect the substantial rights of the parties.”), and FED. R. CRIM.
P. 52(a) (“Any error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.”), with 28 U.S.C. § 2111 (“On the
hearing of any appeal or writ of certiorari in any case, the court shall give
judgment after an examination of the record without regard to errors or
defects which do not affect the substantial rights of the parties.”). See gen-
erally Chapman v. California, 386 U.S. 18, 21-24 & n.5 (1967) (discuss-
ing the background and purpose of these provisions).
UNITED STATES v. RODRIGUEZ-PRECIADO 8729
Vallejo, tersely held that failure to raise harmless error consti-
tutes waiver, without reaching whether a court could consider
the issue sua sponte. See 237 F.3d at 1026 (“The Government
does not argue that this error was harmless and thus waives
that argument.”);17 see also Calvert v. Wilson, 288 F.3d 823,
835-37 (6th Cir. 2002) (Cole, J., concurring in the judgment)
(citing Vallejo and summarizing the extant harmless error/
waiver case law).
As the First Circuit has explained, the approach outlined in
Giovannetti is sensible because, “[i]n a case of clearly harm-
less error it would be a waste of judicial resources to require
a new trial where the result is likely to be the same. In a com-
plex case, it would be equally wasteful of judicial resources
to require the appellate bench to delve independently into a
complex record without the aid of the government’s brief and
the defendant’s responses to it.” Rodriguez Cortes, 949 F.2d
at 543. Put another way, the touchstone of whether courts
should reach harmless error sua sponte is the extent to which
the harmlessness of the error is open to question.
Here, though the harmlessness is clear for Rodriguez-
Preciado’s sentence, I believe that is unclear as to his convic-
tion, particularly for the third count of the indictment, con-
spiracy to possess with intent to distribute. A substantial
amount of the evidence introduced at trial concerning the
existence of a conspiracy — and Rodriguez-Preciado’s role
therein — came from Sergeant Romanaggi’s testimony con-
cerning his June 27 interrogation of Rodriguez-Preciado. It is
entirely possible that the jury would still have found
Rodriguez-Preciado guilty without that evidence. The salient
point, however, is that the harmlessness of Romanaggi’s testi-
mony with respect to the conspiracy charge is at the very least
“debatable.” That is enough, under the Giovannetti line of
cases, to bar sua sponte harmless error review.
17
In Vallejo, the court concluded that the error was not harmless in any
event. See 237 F.3d at 1026.
8730 UNITED STATES v. RODRIGUEZ-PRECIADO
* * *
Because I would not reach whether the district court’s
refusal to suppress Rodriguez-Preciado’s June 27 statements
constitutes harmless error as to his conviction, I would reverse
and remand for a new trial. I therefore respectfully dissent
from subsection II.B.3 of the majority’s opinion, and, because
of the above harmless error discussion, from the result its
analysis necessarily compels.