United States v. Julio Valenzuela-Espinoza ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 10-10060
Plaintiff-Appellee, D.C. No.
v. 4:08-cr-00431-
JULIO ALFONSO VALENZUELA- CKJ-HCE-1
ESPINOZA,
Defendant-Appellant.  ORDER
AMENDING
OPINION AND
DENYING
REHEARING AND
AMENDED
 OPINION
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
October 11, 2011—San Francisco, California
Filed December 28, 2011
Amended October 4, 2012
Before: Betty B. Fletcher, Stephen Reinhardt, and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge B. Fletcher
12037
12040 UNITED STATES v. VALENZUELA-ESPINOZA
COUNSEL
Francisco Leon, Tucson, Arizona, for appellant Julio Alfonso
Valenzuela-Espinoza.
Dennis K. Burke, United States Attorney; Christina M.
Cabanillas, appellate Chief; and Bruce M. Ferg, Assistant
United States Attorney, Tucson, Arizona, for appellee United
States of America.
ORDER
This court’s opinion, filed December 28, 2011, is amended
by striking the words “United States v.” before “Liera” on
page 21390 of the slip opinion, replacing “1237,” with “at” in
UNITED STATES v. VALENZUELA-ESPINOZA 12041
the same line, and striking the words “(9th Cir. 2009)” in the
following line. It is further amended by replacing the word
“constitutional” with “longstanding” before the word “princi-
ple” on page 21392; by replacing the word “two” with “three”
after the word “identified” on page 21392; and by striking
“Here, the” on that page and inserting the following passage
before the words “district court”:

The opinion is further amended by striking the words
“create a” on page 21393 and replacing them with “make the
delay” and by striking the word “delay” in the same line,
before the word “under.”
Following the words “under McNabb-Mallory” on that
page, but before section C., the opinion is amended by insert-
ing the following passage:
638 F.3d 1226, 1230 (9th Cir. 2011). But in any event,
this argument is not supported by the record. The government
consistently asserted in its pleadings before the district court
that after Valenzuela-Espinoza exited the carport in “a cloud
of marijuana smoke” and told the officers that there was more
than ten pounds of marijuana inside the house, the govern-
ment “had probable cause to detain the defendant for a crimi-
nal offense, possession of marijuana.” The government
maintained that when Agent Van Holsbeke smelled and saw
the marijuana smoke, he not only had probable cause to
believe that there was marijuana inside the house “but was
witnessing a crime being committed in his presence.” The dis-
trict court accepted these arguments, expressly finding that
“[a]lthough Defendant Valenzuela-Espinoza was initially
arrested because of his presence in the United States illegally,
probable cause also existed regarding his involvement in
criminal activity.” There is simply nothing in the record to
support the claim that the officers needed to execute the
search warrant to determine whether they could charge
Valenzuela-Espinoza with possession of marijuana.>
The opinion is also amended by striking section III.C. in its
entirety. Finally, the first sentence in section IV., on page
21395, is struck as well. That section now begins with the
words “Rule 5(a).”
With the opinion as amended, the Appellee’s petition for
panel rehearing and petition for rehearing en banc, filed April
10, 2012, is denied. The full court has been advised of the
petition for rehearing and rehearing en banc and no judge has
UNITED STATES v. VALENZUELA-ESPINOZA 12043
requested a vote on whether to rehear the matter en banc. See
Fed R. App. P. 35. No subsequent petitions for rehearing,
rehearing en banc, or rehearing before the full court may be
filed.
OPINION
B. FLETCHER, Circuit Judge:
Julio Alfonso Valenzuela-Espinoza appeals his conviction
for possession of marijuana with intent to distribute and con-
spiracy to possess marijuana with intent to distribute, in viola-
tion of 21 U.S.C. §§ 841 and 846. Because the delay in
presenting Valenzuela-Espinoza to a magistrate was unrea-
sonable, his statements made more than six hours after his
arrest must be suppressed under the rule announced in both
McNabb v. United States, 318 U.S. 332 (1943), and Mallory
v. United States, 354 U.S. 449 (1957). We therefore
REVERSE the district court’s denial of Valenzuela-
Espinoza’s suppression motion, VACATE the conviction, and
REMAND for further proceedings. Because his conviction
must be vacated due to the McNabb-Mallory violation, we do
not address Valenzuela-Espinoza’s other challenges to his
conviction raised on appeal.
I.
Valenzuela-Espinoza was arrested on March 5, 2008, at a
house in Tucson, Arizona. On March 3, Immigration and Cus-
toms Enforcement (ICE) Agent Leon Van Holsbeke received
a tip from a confidential informant of “suspicious activity”
taking place at the house. After intermittently observing the
house on March 4 and the morning of March 5, Agent Van
Holsbeke decided to conduct what he described as a “knock
and talk.” Agent Van Holsbeke, along with two other officers
and a narcotics detection dog, approached the front door while
12044 UNITED STATES v. VALENZUELA-ESPINOZA
two officers positioned themselves around the back perimeter
of the property. Four additional officers waited down the
street.
Before Agent Van Holsbeke reached the front door, how-
ever, he heard someone shouting, “Stop, police, stop,” and he
ran to the side of the residence to investigate. The two officers
positioned behind the house had stopped two men attempting
to leave the house through the back door. The officers told
Agent Van Holsbeke that another man — who turned out to
be the defendant, Valenzuela-Espinoza — had tried to run
from the residence, but had run back inside when the police
shouted.
Agent Van Holsbeke returned to the front of the residence
and began walking toward the carport when he smelled burn-
ing marijuana. He approached a storage room at the back of
the carport, knocked, and announced himself as police.
Valenzuela-Espinoza opened the door and complied with
Agent Van Holsbeke’s direction to step out of the room.
Agent Van Holsbeke asked him if he lived at the residence;
if he was a U.S. citizen (because Valenzuela-Espinoza appar-
ently spoke no English); and if he was in the United States
illegally. Valenzuela-Espinoza admitted that he was a Mexi-
can national in the United States illegally. He was then
arrested, at approximately 11:15 a.m. Despite failing to
administer Miranda warnings, one of the other officers pro-
ceeded to ask him if there was contraband, weapons, or any-
one else in the residence. Valenzuela-Espinoza said that there
was “a lot” of marijuana in the residence, nodding affirma-
tively when asked if it was more than ten pounds.1
Agent Van Holsbeke then sought a search warrant, which
was issued at 3:25 p.m. While Agent Van Holsbeke got the
warrant, the other eight officers “sat on the house” to “make
1
The government later conceded that this statement was taken in viola-
tion of Miranda and did not introduce it at trial.
UNITED STATES v. VALENZUELA-ESPINOZA 12045
sure no one else would come or go.” The officers executed the
search at 4:00 p.m. and seized 99.75 kilograms of marijuana
(about 220 pounds), two handguns, a digital scale, and several
cell phones. During this time, Valenzuela-Espinoza was
detained at the residence. He was brought to an ICE station
around 5:00 p.m. and questioned at 7:32 p.m. after being
advised of his Miranda rights.
Valenzuela-Espinoza was given a Miranda waiver form
written in Spanish, and Agent Van Holsbeke, who speaks
Spanish, read the form to him as well. He refused to sign the
form. Agent Van Holsbeke testified that Valenzuela-Espinoza
explained that he had been told not to say anything and that
he was concerned about his family’s safety. At some point,
Valenzuela-Espinoza stated that he and the other suspects
knew about the marijuana, that another man had helped him
unload the marijuana into the house, and that he had agreed
to keep the marijuana at the house in exchange for $2500.
According to Agent Van Holsbeke, Valenzuela-Espinoza then
stated that perhaps he should speak to an attorney, and the
interview was terminated, at 7:50 p.m.. Valenzuela-Espinoza
was held in custody overnight and presented to a magistrate
judge the next day, March 6, 2008, at 2:00 p.m.
II.
A grand jury indicted Valenzuela-Espinoza on three counts:
(1) conspiracy to possess with intent to distribute marijuana;
(2) possession with intent to distribute marijuana; and (3) pos-
session of a firearm by an illegal alien. Valenzuela-Espinoza
filed a number of pre-trial motions, alleging among other
things that his refusal to sign the waiver form was an invoca-
tion of his Miranda rights; that he had been illegally seized
at the residence; that the affidavit in support of the search
warrant contained false and misleading information; and that
12046 UNITED STATES v. VALENZUELA-ESPINOZA
the delay in presenting him to a magistrate required suppres-
sion of his statements under the McNabb-Mallory rule.2
Magistrate Judge Hector C. Estrada held hearings on the
motions to suppress and issued a report and recommendation.
The magistrate recommended that Valenzuela-Espinoza’s
statements between 7:32 p.m. and 7:50 p.m. on March 5, 2008
be suppressed due to a McNabb-Mallory violation. The mag-
istrate found that when Valenzuela-Espinoza was arrested for
being in the country illegally at 11:15 a.m. on March 5, “any
number of available agents” could have taken him ten miles
to the nearest magistrate for the daily 2:00 p.m. initial appear-
ance. The magistrate concluded that the agents had instead
detained Valenzuela-Espinoza beyond the six-hour “safe har-
bor” of 18 U.S.C. § 3501(c) “in order to question him regard-
ing drug trafficking” and that this detention was unreasonable.
The magistrate also concluded that there had been no illegal
seizure but that the evidence obtained in the search should be
suppressed because the search warrant affidavit relied on false
statements and selective omissions.
Both parties filed objections to the magistrate’s report and
recommendation. The district court affirmed the magistrate’s
conclusion that there was no illegal seizure but rejected the
conclusion that the search warrant affidavit failed to establish
probable cause once all false or misleading statements were
excised.
The district court also rejected the magistrate’s conclusion
that there had been a McNabb-Mallory violation. The district
2
Federal Rule of Criminal Procedure 5(a) requires that an arrested per-
son be presented to a magistrate judge “without unnecessary delay.” The
McNabb-Mallory rule provides that “an arrested person’s confession is
inadmissible if given after an unreasonable delay in bringing him before
a judge.” Corley v. United States, 129 S. Ct. 1558, 1562 (2009). Congress
modified the remedy available for violations of Rule 5(a) in 18 U.S.C.
§ 3501(c) by providing that statements made within six hours after an
arrest cannot be excluded solely on the basis of a delay in presentment.
UNITED STATES v. VALENZUELA-ESPINOZA 12047
court found that the delay in presenting Valenzuela-Espinoza
to a magistrate was reasonable because it was the result of the
agents’ “other legitimate law enforcement duties” to secure
the scene and obtain and execute the search warrant. The dis-
trict court also took “judicial notice” of the fact that “it is its
policy that paperwork for initial appearances before the duty
magistrate is required . . . not later than 10:30 a.m. on the
morning of the appearance unless exceptional circumstances
are present.” Therefore, because Valenzuela-Espinoza was not
arrested until 11:15 a.m., the district court found he could not
have been processed in time for the 2:00 p.m. appearance. In
a later ruling, the district court also denied Valenzuela-
Espinoza’s motion to suppress his statements on the basis that
his refusal to sign the Miranda waiver form was an invocation
of his Miranda rights.
A bench trial was held on October 28 and 29, 2009. The
judge found Valenzuela-Espinoza guilty of conspiracy to pos-
sess marijuana with intent to distribute and possession of mar-
ijuana with intent to distribute. The judge found him not
guilty of the firearms charge. On February 8, 2010,
Valenzuela-Espinoza received concurrent sentences of thirty-
six months on each count and a three-year term of supervised
release. His notice of appeal was timely filed on February 16,
2010. He has completed his prison sentence and has been
deported to Mexico, but he remains subject to the terms of his
supervised release. We have jurisdiction pursuant to 28
U.S.C. § 1291.
On appeal, Valenzuela-Espinoza renews three arguments
made in his suppression motions: (1) that the attempted
“knock and talk” was an illegal seizure; (2) that his statements
made at the ICE office should be suppressed under the
McNabb-Mallory rule; and (3) that his refusal to sign the
Miranda waiver form was an invocation of his Miranda
rights. Additionally, he argues that the district court improp-
erly rejected the magistrate’s credibility findings regarding
the search warrant affidavit without conducting a de novo evi-
12048 UNITED STATES v. VALENZUELA-ESPINOZA
dentiary hearing and that there was insufficient evidence to
convict him on the conspiracy charge. Because the McNabb-
Mallory violation requires reversal of Valenzuela-Espinoza’s
conviction, we need not address his other arguments on
appeal.
III.
[1] Federal Rule of Criminal Procedure 5(a) provides that
“[a] person making an arrest within the United States must
take the defendant without unnecessary delay before a magis-
trate judge. . . .” The rule established in McNabb v. United
States, 318 U.S. 332 (1943), and Mallory v. United States,
354 U.S. 449 (1957), provides that “an arrested person’s con-
fession is inadmissible if given after an unreasonable delay in
bringing him before a judge.” Corley v. United States, 129 S.
Ct. 1558, 1562 (2009). In response to the McNabb-Mallory
rule, Congress enacted 18 U.S.C. § 3501(c), which provides
a six-hour “safe harbor” period during which a confession
will not be deemed inadmissible solely because of delay in
presentment to a magistrate. United States v. Liera, 585 F.3d
1237, 1242 (9th Cir. 2009).
The Supreme Court’s decision in Corley reaffirmed the
validity of the McNabb-Mallory rule. 129 S. Ct. at 1563. Not-
ing that the McNabb-Mallory rule “has always mattered in
very practical ways and still does,” the Court explained:
Today presentment is the point at which the judge is
required to take several key steps to foreclose Gov-
ernment overreaching: informing the defendant of
the charges against him, his right to remain silent,
his right to counsel, the availability of bail, and any
right to a preliminary hearing; giving the defendant
a chance to consult with counsel; and deciding
between detention or release.
Id. at 1570. These important consequences of prompt present-
ment “count[ed] heavily” against the government’s position
UNITED STATES v. VALENZUELA-ESPINOZA 12049
that § 3501(c) nullified McNabb-Mallory entirely, for “if
there is no McNabb-Mallory there is no apparent remedy for
delay in presentment.” Id. The Court concluded that § 3501(c)
“modified McNabb-Mallory without supplanting it.” Id.
[2] The Court went on to clarify the procedure for applying
McNabb-Mallory in light of § 3501(c):
[A] district court . . . must find whether the defen-
dant confessed within six hours of arrest (unless a
longer delay was reasonable considering the means
of transportation and the distance to be traveled to
the nearest available magistrate). If the confession
came within that period, it is admissible, subject to
the other Rules of Evidence, so long as it was made
voluntarily and the weight to be given it is left to the
jury. If the confession occurred before presentment
and beyond six hours, however, the court must
decide whether delaying that long was unreasonable
or unnecessary under the McNabb-Mallory cases,
and if it was, the confession is to be suppressed.
Id. at 1571 (internal quotation marks and alterations omitted);
see also United States v. Garcia-Hernandez, 569 F.3d 1100,
1105 (9th Cir. 2009) (describing Corley’s two-part test). “We
review a district court’s finding that a pre-arraignment delay
was reasonable for clear error.” Liera, 585 F.3d at 1243.
A.
[3] Here, there is no question that Valenzuela-Espinoza’s
incriminating statements were made before presentment and
beyond six hours. Valenzuela-Espinoza was arrested at 11:15
a.m., and his statements at the ICE station were made between
7:32 and 7:50 p.m., more than eight hours after his arrest. He
was not arraigned until 2:00 p.m. the following day. Follow-
ing the two-part inquiry outlined in Corley, we first consider
whether “a longer delay was reasonable considering the
12050 UNITED STATES v. VALENZUELA-ESPINOZA
means of transportation and the distance to be traveled to the
nearest available magistrate.” Corley, 129 S. Ct. at 1571.
[4] The nearest magistrate conducted a daily initial appear-
ance calendar at 2:00 p.m. and was located only ten miles
from the house where Valenzuela-Espinoza was arrested.
Nine law enforcement officers were involved in the “knock
and talk” that led to the arrest. Common sense dictates that
under these circumstances, there was no reason for delay due
to “the means of transportation and the distance to be trav-
eled” — indeed, after an evidentiary hearing, the magistrate
made a finding of fact that “any number of available agents”
could have taken Valenzuela-Espinoza to the 2:00 p.m.
arraignment calendar.
When reviewing the magistrate’s recommendation, how-
ever, the district court took judicial notice that “it is [the
court’s] policy that paperwork for initial appearances before
the duty magistrate is required . . . not later than 10:30 a.m.
on the morning of the appearance unless exceptional circum-
stances are present.” The district court did not refer to a court
rule or written policy and did not explain what exceptional
circumstances might alter its policy or why those circum-
stances were not present in this case. The district court con-
cluded that because Valenzuela-Espinoza was not arrested
until 11:15 a.m., its 10:30 a.m. paperwork policy prevented
him from being arraigned at the 2:00 p.m. calendar; in other
words, that the “nearest available magistrate,” Corley, 129 S.
Ct. at 1571, was at the arraignment calendar on the following
day, almost twenty-seven hours after the arrest.
[5] Valenzuela-Espinoza argues that the paperwork policy
was not a proper subject for judicial notice. Federal Rule of
Evidence 201 provides that a “judicially noticed fact must be
one not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be ques-
UNITED STATES v. VALENZUELA-ESPINOZA 12051
tioned.” As Valenzuela-Espinoza points out, neither the dis-
trict court nor the government cited any official court rules or
records that could make the paperwork requirement “capable
of accurate and ready determination.” See, e.g., Daniels-Hall
v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010)
(taking judicial notice of official information posted on a gov-
ernmental website, the accuracy of which was undisputed).
Furthermore, the fact that the magistrate who initially consid-
ered Valenzuela-Espinoza’s motion to suppress did not dis-
cuss the 10:30 a.m. paperwork-requirement deadline
undermines the notion that it was either a controlling,
universally-observed policy or one “generally known within
the territorial jurisdiction of the trial court.” See Fed. R. Evid.
201.
After oral argument, the government, in a 28(j) letter,3 pro-
vided the court with a copy of a February 1998 internal mem-
orandum from the Tucson magistrate judges to the U.S.
Attorney’s office, describing the 10:30 a.m. requirement and
requesting that the U.S. Attorney’s office communicate the
requirement to all law enforcement agencies.4 The govern-
ment also provided a series of internal emails reiterating the
policy in 2010, as well as a 2002 case from this court recog-
nizing the policy’s existence. See United States v. Gamez, 301
F.3d 1138 (9th Cir. 2002).
[6] The district court did not mention any of these sources
when it took judicial notice of the paperwork requirement.
But even assuming without deciding that the policy was a
proper subject for judicial notice, we conclude that the 10:30
a.m. paperwork requirement, standing alone, does not estab-
3
Fed. R. App. P. 28(j) provides that a party may advise the circuit clerk
by letter of pertinent and significant authorities that come to the party’s
attention after the party’s brief has been filed or after oral argument but
before decision.
4
Ironically, the memo apparently was circulated because the agencies
were not uniformly observing the 10:30 a.m. deadline.
12052 UNITED STATES v. VALENZUELA-ESPINOZA
lish that a delay beyond six hours was “reasonable consider-
ing the means of transportation and the distance to be traveled
to the nearest available magistrate.” Corley, 129 S. Ct. at
1571.
Concluding otherwise would ignore Corley’s instruction
that delays must be reasonable. A hypothetical illustrates this
point. Imagine a defendant who is arrested on a federal war-
rant right outside the Tucson district court at 10:31 a.m. The
agents immediately bring the defendant before the magistrate
for arraignment. It has been a particularly quiet week for law
enforcement in Tucson, and no other arraignments are sched-
uled for that day. Because the court was not notified by 10:30
a.m., however, the agents are turned away, and the defendant
is detained for over twenty-seven hours before finally being
presented to a magistrate. This delay is not due to distance,
means of transportation, or the unavailability of the nearest
magistrate — instead, the delay is caused solely by the pre-
notification policy. Such a delay is, without question, unrea-
sonable and unnecessary.
Moreover, if the availability of a magistrate is determined
solely by an arbitrary notification deadline, nothing prevents
a district court from moving that deadline so early in the day
that it renders the prompt presentment requirement meaning-
less. When Congress enacted § 3501(c), it determined that a
safe harbor period of six hours struck the appropriate balance
between convenience for law enforcement and concern about
extended presentment delays. See id. at 1569 (discussing the
legislative history leading to the six-hour safe harbor period).
If a district court requires all paperwork requirements to be
satisfied early in the morning, many defendants will face rou-
tine presentment delays of over twenty-four hours. Allowing
such a policy to dictate whether a delay was “reasonable”
would strip Criminal Rule 5(a)’s presentment requirement —
as well as McNabb-Mallory’s remedy for delays in present-
ment — of any significance. An internal policy agreed upon
by prosecutors and magistrate judges cannot trump the
UNITED STATES v. VALENZUELA-ESPINOZA 12053
requirements of a federal statute and the Federal Rules of
Criminal Procedure. Instead, whether a delay was reasonable
due to distance, the means of transportation, or the availability
of the nearest magistrate must be determined by the facts of
the particular case. See, e.g., United States v. Redlightning,
624 F.3d 1090, 1107-08 (9th Cir. 2010) (discussing whether
Redlightning could have been presented to a magistrate at the
start of the arraignment calendar or before the arraignment
calendar ended); Liera, 585 F.3d at 1240 (discussing the time
of the daily calendar call and location of the courthouse fif-
teen miles from where Liera was arrested); see also United
States v. Perez, 733 F.2d 1026, 1035 (2d Cir. 1984) (examin-
ing the latest time the magistrate was available).
Our previous decision in Gamez does not compel a differ-
ent result. In Gamez, a suspect was arrested at 7:30 a.m. at the
Nogales Border Patrol station over sixty miles from Tucson.
301 F.3d at 1143. Because he spoke only Spanish, the agents
could not question Gamez or determine what offense he
would be charged with until a Spanish-speaking agent arrived
later that morning. His arraignment was therefore delayed
until the following day. Id. Although the opinion mentioned
the Tucson court’s 10:30 a.m. notification policy, its holding
was based on the need to wait for a Spanish-speaking agent,
and it did not address whether the notification policy alone
was a reasonable cause for delay. Our subsequent cases citing
to Gamez in the McNabb-Mallory context describe it in this
manner; that is, as a delay in presentment of a defendant due
to the unavailability of Spanish-speaking federal agents. In
Garcia-Hernandez, we described Gamez as “holding that a
day-and-a-half delay was reasonable due to the unavailability
of Spanish-speaking federal agents.” 569 F.3d at 1106. Simi-
larly, in Liera we described Gamez as “holding that a thirty-
one hour pre-arraignment delay was necessary because the
defendant spoke only Spanish, and the first available Spanish-
speaking agent did not arrive until [several] hours after defen-
dant’s arrest.” 585 F.3d at 1243 (internal quotation marks
omitted). The court in Gamez did not specifically consider the
12054 UNITED STATES v. VALENZUELA-ESPINOZA
reasonableness of the 10:30 a.m. paperwork policy on its own,
and our subsequent cases have not interpreted Gamez as mak-
ing any such determination.
[7] Here, Valenzuela-Espinoza was arrested just ten miles
from the courthouse almost three hours before the scheduled
arraignment calendar. The delay here was not reasonable
“given the means of transportation and the distance to be trav-
eled to the nearest available magistrate.” Corley, 129 S. Ct. at
1571. The 10:30 a.m. notification policy cannot by itself
create a reasonable delay. To hold otherwise would stand the
McNabb-Mallory rule on its head. It is not the longstanding
principle embodied in McNabb-Mallory that must give way to
local paperwork needs, but the local paperwork policy that
must be tailored to the requirements of McNabb-Mallory, its
implementing statute, and rule.
B.
We thus turn to the second part of our inquiry and consider
whether the delay “was unreasonable or unnecessary under
the McNabb-Mallory cases.” Id. Our cases have identified
three categories of reasonable delay apart from transportation,
distance, and the availability of a magistrate. First, delay for
humanitarian reasons is reasonable. See, e.g., Redlightning,
624 F.3d at 1109 (allowing defendant to retrieve his medica-
tion); United States v. Manuel, 706 F.2d 908, 914 (9th Cir.
1983) (allowing an extremely intoxicated man to sleep and
have a meal). Second, “delays due to the unavailability of
government personnel . . . necessary to completing the
arraignment process” are also reasonable. Liera, 585 F.3d at
1242 (quoting Garcia-Hernandez, 569 F.3d at 1106).
Finally, delays necessary to determine “whether [a suspect]
should be criminally charged” are also reasonable. Garcia-
Hernandez, 569 F.3d at 1106; see also Gamez, 301 F.3d at
1143 (explaining that delay was reasonable where it “was
impossible to determine with what kind of offense Gamez
UNITED STATES v. VALENZUELA-ESPINOZA 12055
would be charged” prior to questioning by Spanish-speaking
agents).
The delay in presenting Valenzuela-Espinoza does not fall
into any of these categories and was not reasonable. First,
there is no suggestion that the delay was for humanitarian rea-
sons.
[8] Second, there were plenty of law enforcement person-
nel available to complete Valenzuela-Espinoza’s arraignment.
The district court found that the agents involved with
Valenzuela-Espinoza’s arrest were unavailable to take him to
the arraignment because they were conducting “other legiti-
mate law enforcement duties” such as securing the scene and
obtaining and executing the search warrant. This finding was
clearly erroneous. Agent Van Holsbeke testified that his time
had been occupied preparing the search warrant affidavit and
obtaining the warrant. One other ICE Agent testified that dur-
ing that time, he and the other agents “basically sat on the
house until the warrant” to “make sure no one else would
come or go.” There is no basis in this testimony for the con-
clusion that all nine law enforcement officers involved in the
operation were too busy to take Valenzuela-Espinoza to the
magistrate. Rather, as the magistrate who conducted the evi-
dentiary hearing observed, “any number of available agents”
could have transported Valenzuela-Espinoza. We conclude
that in this case, the fact that one officer out of nine was ful-
filling his responsibility to obtain a search warrant did not
make the delay reasonable under McNabb-Mallory.
Third, the record demonstrates that it was not necessary to
conduct any further investigation to determine whether
Valenzuela-Espinoza could be criminally charged. In its peti-
tion for rehearing, the government asserts that Valenzuela-
Espinoza was arrested only for being in the United States ille-
gally, and that until the search warrant was executed it could
not be determined if he would be charged with a criminal
drug offense or merely turned over to immigration authorities.
12056 UNITED STATES v. VALENZUELA-ESPINOZA
As a preliminary matter, the government did not raise this
argument in its initial briefing before this court, and its “fail-
ure to brief the issue results in waiver.” United States v.
Ewing, 638 F.3d 1226, 1230 (9th Cir. 2011). But in any event,
this argument is not supported by the record. The government
consistently asserted in its pleadings before the district court
that after Valenzuela-Espinoza exited the carport in “a cloud
of marijuana smoke” and told the officers that there was more
than ten pounds of marijuana inside the house, the govern-
ment “had probable cause to detain the defendant for a crimi-
nal offense, possession of marijuana.” The government
maintained that when Agent Van Holsbeke smelled and saw
the marijuana smoke, he not only had probable cause to
believe that there was marijuana inside the house “but was
witnessing a crime being committed in his presence.” The dis-
trict court accepted these arguments, expressly finding that
“[a]lthough Defendant Valenzuela-Espinoza was initially
arrested because of his presence in the United States illegally,
probable cause also existed regarding his involvement in
criminal activity.” There is simply nothing in the record to
support the claim that the officers needed to execute the
search warrant to determine whether they could charge
Valenzuela-Espinoza with possession of marijuana.
IV.
Rule 5(a) and McNabb-Mallory are important procedural
safeguards that protect against “the evil implications of secret
interrogation” and “insure that a defendant is brought ‘before
a judicial officer as quickly as possible so that he may be
advised of his rights and so that the issue of probable cause
may be promptly determined.’ ” Liera, 585 F.3d at 1243(quoting McNabb, 318 U.S. at 344, and Mallory, 354 U.S. at
454). As the Supreme Court reminded us just two years ago,
“Justice Frankfurter’s point in McNabb is as fresh as ever:
‘The history of liberty has largely been the history of obser-
vance of procedural safeguards.’ ” Corley, 129 S. Ct. at 1570(quoting McNabb, 318 U.S. at 347).
UNITED STATES v. VALENZUELA-ESPINOZA 12057
[9] We hold that the district court erred by not suppressing
under the McNabb-Mallory rule the statements made by
Valenzuela-Espinoza at the ICE station. The agents here
unnecessarily delayed presenting Valenzuela-Espinoza to a
magistrate in violation of Rule 5(a) and McNabb-Mallory. His
statements at the ICE office amounted to a confession, and the
government does not argue that the admission of those state-
ments was harmless error.5 Valenzuela-Espinoza’s convic-
tions are vacated and we remand for further proceedings.
VACATED and REMANDED.
5
Even had the government argued that admission of the confession was
harmless, we would reject such an argument. “A confession is like no
other evidence. Indeed, the defendant’s own confession is probably the
most probative and damaging evidence that can be admitted against him
. . . .” Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (internal quotation
marks and citation omitted). Admission of a full confession, “ ‘in which
the defendant discloses the motive for and means of the crime[,]’ . . . will
seldom be harmless.” United States v. Williams, 435 F.3d 1148, 1162 (9th
Cir. 2006) (quoting Fulminante, 499 U.S. at 296).