*1 Iowa, Appellant, STATE ORTIZ, Appellee.
Luis Fernando
No. 07-1707. of Iowa.
Supreme Court
May 2009. *3 Miller, Attorney General,
Thomas J. Tabor, Pettinger Mary Assis- Jean C. General, Attorneys Jennings, tant Patrick County Woodbury Attorney, and Jill R. Pitsenbarger, County Attorney, Assistant appellant. for Goff, Ruston, LA, Shelley appellee. WIGGINS, Justice. police brought suspect po-
The a to the suspect for questioning. lice station The spoke signing little or no After English. Spanish-language “voluntary waiver of rights,” he stated he did not understand offi- rights. Spanish-speaking his Then a cer read the advisory. his suspect waived to inappropriate and confessed contact charged the sus- with a child. State acts with a child. Pri- pect with lascivious own vehicle to the station. Rocha was not trial, or to the defendant filed motion to able to accompany Bertrand and Ortiz to statements, suppress alleging he did the station because he had things other knowingly, intelligently, and voluntari- do that morning. dropped Bertrand Ro- waive his ly rights. The district cha at his office and then took Ortiz to the motion, granted court and the State station. reversed, appealed. The court of appeals station, At the Bertrand took Ortiz to finding knowingly, intelligently, floor, the second using key card to access
voluntarily waived his Because we put elevator. Bertrand Ortiz in an agree with the district court that the State interview room equipped with recording *4 prove by preponderance failed to of the capabilities. Bertrand left Ortiz in alone evidence the defendant in- the room for approximately thirteen min- his telligently waived rights, we utes before he returned to the room with appeals, vacate the decision of the court of Sanchez, officer, Salvador City Sioux court, affirm judgment of the district spoke Spanish. who began interview and remand the for proceed- case further interpreting Sanchez for Bertrand ings. and Ortiz. The relevant substance of the interview as translated English by into Background I. Facts and Proceed- person certified as translator ings. United States District Court is as follows: July City On the Sioux Police Sanchez: How are you, friend?
Department report received a from a wom- Ortiz, Ortiz: Fine. asserting Luis who was working on remodeling projects various in uh, Okay, Bertrand: before I can begin, home, her seven-year-old had forced her I you need to let your rights. read It’s daughter penis. to touch his Because Or- part policy. of the unknown, tiz’s address was Detective Ber- Questions. you Sanchez: Can read arrange trand asked the woman to them? date, Ortiz to come to her home. On that Ortiz: Uh-huh. Bertrand went to the woman’s home to Sanchez: Yeah? attempt speak to Ortiz. Because Ber- [speaking Sanchez: in a low voice to spoke trand was aware Ortiz little or no Bertrand] English, brought Spanish-speaking Spe- Yeah, Bertrand: response to San- [in Agent cial Ricardo Rocha of the Federal chez] Immigration and Customs Enforcement
Agency with him to interpret. When Ortiz [speaking Sanchez: in a low voice to house, arrived at the Bertrand identified Bertrand] Ortiz, police himself as a officer and asked Bertrand: Uh-huh.
with Rocha translating, if he would be 08:27:21: [Sanchez leaves the interview willing accompany him to cubicle] station for an At interview. the time of signed 08:28:06: [L. Ortiz the waiver] request, badge gun Bertrand’s you Bertrand: your Do understand were on his waist and full view of Ortiz. rights? explained Rocha to Ortiz that he was not But, my rights? Ortiz: what are under go. arrest and could refuse to agreed uh, without Okay, physical reluctance. Bertrand Bertrand: [makes did give Ortiz the choice of driving gesture to wait and then looks at the looks at you [sic.]. [Sanchez left a few understand Sanchez through which
door an- wait, waiting for an Uh, apparently witness we’ll wait. ago]. we’ll minutes swer] affirmatively] head [shakes Ortiz: license. Your
Bertrand: signed by waiver Ortiz was original It as fol- Spanish. translates written in front left hand [places Ortiz: Uh-huh. lows: and remove to retrieve wallet pocket left Bertrand] to hand
license WAIVER OF RIGHTS VOLUNTARY reenters the inter- [Sanchez 08:28:55: cubicle] view (WAIVER RIGHTS) OF you doing? How are Bertrand: declaring I read the [sic.] you what you understand Did Sanchez: I upon which am no- [non-word] [sic.] read? on the constitu- my rights [sic.] ticed of but, telling me Ortiz: He is completely and I legal tion and the [sic.] they? they, what are what are my rights are. I have understand what read them to going I am Sanchez: opportunity to use the tele- received the *5 you again. attorney notify to an or individual phone Uh-huh. Ortiz: my family. agree I to answer an from paper a Okay? takes [Sanchez Sanchez: and make an state- questions [sic.] [sic.] I have read- it] to read from starts I exactly doing I know what am ment. ...of ing the statement [sic.] doing I so as a volunteer [sic.] am pa- puts down 08:28:21 Sanchez [At my own will. [sic.] [sic.] and underneath signed ap- witness had per the an attor- I not want to consult with do his own reference pull to out peared ney and I don’t want to have source] here to inform me of be witnessed [sic.] rights. Statement of Sanchez: any I my rights. have not received any type immunity other promise Ortiz: Uh-huh. they any physically have not used asking questions, some Before Sanchez: any pressionment [sic.] force or [sic.] following. to understand the you have to make a statement. to force me Ortiz: Uh-huh. twice stated he did not un- right have the to After Ortiz Okay? You Sanchez: contained the waiver you say can be derstand Anything silent. remain signed, attempted Sanchez to read from in the Court. You he against you used uncomfortable signed an attor- waiver. He felt to consult with right have the warnings from the waiver reading and have ney asking questions before of the pulled copy during ques- form and attorney present this by used for the ser- translated you pay If cannot tioning.1 Drug Agency. Enforcement the Federal attorney, [unintel- one will be vices of warnings, Ortiz re- receiving After these you, you if so desire. You ligible] to ing questioning.” We believe the transla- English translation 1. The State contends the by by person the United right tion certified is "You have the to of this sentence Court, interpreting the sen- making any States District with an before consult "asking,” using is more credi- questions attorney present dur- tence the word and have said however, discrepancy, does not This ing than have the ble. the interview" rather "You bearing outcome of on the ultimate right asking have a with an consult case. questions attorney present dur- and have this that he understood. Sanchez randa sponded and that he made his state- stated, you right “Do have questions then voluntarily. ments replied, now?” “No. Not now. Ortiz [unintelligible].”
I want to know Sanchez Scope III. of Review. to cut off the rest of appeared We review the district good court’s by stating, answer “He understood his cause determination regarding the timeli I him if any ques- asked he has ness of a motion to suppress for an abuse tions, says he what going knows on.” Ball, of discretion. State v. 600 N.W.2d began interrogate Bertrand then Ortiz. (Iowa 1999). 604-05 We apply a dif- during At no time the interview at the ferent standard of review when we station did Bertrand tell Ortiz he was free review the merits of go. the district ruling court’s on suppress. motion to charged The State Ortiz with lascivious acts with a child. filed a motion to warnings protect in- suppress during statements made suspect’s Fifth Amendment terview based on the Fifth and Sixth against self-incrimination “ensuring that a Amendments to the United States Consti- may knows that he choose not to tution. Ortiz filed this motion after the officers, talk to law enforcement to talk granted court him an extension of time only present, with counsel or to discontin do Following hearing, so. the district talking ue time.” Colorado v. granted court suppress, Ortiz’s motion to Spring, 107 S.Ct. concluding the record failed to show *6 857, (1987). 98 L.Ed.2d 966 Because preponderance of the evidence that Ortiz appeal the State’s of the district court’s knowingly intelligently and waived his Mi- ruling on the motion to suppress impli randa and that he made his state- issues, cates constitutional our review is voluntarily. ap- ments The State filed an Morgan, de novo. State v. 559 N.W.2d plication discretionary for of review (Iowa 1997). 603, 606 For Ortiz’s state district court’s ruling, granted. which we admissible, ments to be the State must We transferred the case to the court of prove first adequately Ortiz was informed appeals. appeals The court of reversed them, of his Miranda understood order, suppression district court’s con- knowingly intelligently and and waived cluding, adequately “Ortiz was advised of Burbine, them. Moran v. his under knowing- Miranda and he 1135, 1141, 106 S.Ct. ly, voluntarily, intelligently and waived (1986) (“[T]he 421 waiver must have been rights.” sought those Ortiz further review made with a full awareness of both the by this court. nature of being abandoned and consequences of the decision to aban
II. Issues. it.”); Morgan, don 559 N.W.2d 606. Second, prove gave the State must Ortiz appeal. State raises two issues on voluntarily. Morgan, his statement First, the district court in extending erred prove by N.W.2d 606. The State must the time for Ortiz to file his motion to preponderance Second, of the evidence that a suppress. the district court erred suspect knowingly, in finding intelligently, the record failed to and vol show preponderance untarily of the evidence that Ortiz waived his or her Miranda intelligently waived his Mi- Id. An Determination. filed no later than June 21. order Good Cause
IV. formalizing the June 7 conference was en- State contends Ortiz waived complied tered on June 8. The defendant objections by failing to his constitutional with the court order and filed his motion to suppress file his motion to accordance suppress on June 21. Iowa Rule of Procedure Criminal 2.11(4). requires The rule Ortiz to file his prior anything counsel did not do forty days arraign motion within exploring possibility furtherance of 2.11(4). P. If a ment. Iowa R.Crim. de Shortly filing suppress. a motion to motion fendant fails to file the within appear- after Ortiz’s last counsel filed her time, objection is waived. v. ance, State diligently explored possibility she (Iowa 1997). Terry, 569 N.W.2d filing go If such motion. the case did However, good if the court finds cause for ruling to trial without the court on the filing, the late the court can excuse the suppress, motion to would have had Ortiz untimeliness. Id. an ineffective-assistance-of-counsel claim against attorney that his would have to be August The trial information was filed litigated had he been convicted. See State guilty in a pled and Ortiz written Rhiner, (Iowa 352 N.W.2d arraignment August on 16. The initial 1984) (holding timely failure to file a mo- trial date was set November 28. This suppress tion to that the court should have times, multiple trial date was continued granted for an is cause ineffective-assis- agreeing with the State to each continu- claim tance-of-counsel reversal of ance. verdict). May In 2007 Ortiz filed a letter with the complaining attorney court had The district court considered the anything not done on the case. The court untimely motion due to the multiple removed Ortiz’s counsel and an- appointed changes of fail prior counsel counsel’s represent other Ortiz. At the ure to represent properly. The dis May, end moved to with- trict court that if knew Ortiz’s motion to draw, ap- and another filed an suppress granted should have been *7 pearance on Ortiz’s behalf. pretrial, any the court failed to consider it guilty may verdict case pretrial On 7 the court had a June con- subject been to reversal on an ineffective- with the present ference State and Ortiz’s claim. It pub assistance-of-counsel is the attorney regarding the June 26 trial date. policy lic litigation of this state that should appears This conference to be the first final possible be at the earliest date. To willing time an to the do litigation avoid additional in this matter necessary properly. work to defend Ortiz proper thing by the court did the consider conference, At the indicated ing the motion than waiting rather for its deposition she wished to take a in a postconvic merits to be determined police officers who interviewed Ortiz be- tion proceeding. Accordingly, relief question cause there was a as to whether court did not district abuse its discretion waived rights prior his to hearing the under the circum motion giving objection, his statement. Without stances of this case. July the court continued the trial to 10. granted attorney’s
The court also re- Suppress. V. Motion to quest to take the depositions and stated any suppress, that motion to A. Miranda. In Miranda v. together with Arizona, any interview, 436, 1602, translations of the 86 S.Ct. 16 should be 384 U.S.
251 (1966), Supreme suspect’s L.Ed.2d 694 Court free and deliberate choice intimidation, rather police suspects coercion, to advise than required the or de- Id. ception. rights under the Fifth and Four- their beginning
teenth Amendments question The of whether a sus interrogation. Supreme custodial pect in fact knowingly, intelligently, and required suspect that the must Court be voluntarily waived his or her Miranda told: rights is to be made inquiring into the silent, he has the to remain that totality of the surrounding circumstances anything says against can be used interrogation, to ascertain whether the law, him in a court that he has the suspect in forgo fact “decided to rights presence attorney, to the of an and to .remain silent and to have the assistance that if he cannot afford an one C., of counsel.” Fare v. Michael 442 U.S.
will him appointed prior any be 707, 724-25, 2560, 99 2571-72, S.Ct. 61 if questioning he so desires. (1979). L.Ed.2d 212 Statements made by a suspect during a Id. interroga at at custodial 86 S.Ct. 16 L.Ed.2d at tion are inadmissible unless a suspect is requirement police 726. The officers specifically warned of his or her Miranda of their Miranda suspects rights advise is rights freely forgo decides to those procedural nicety more than a mere or Quarles, rights. New York v. Id. legal technicality. S.Ct. 649, 654, 2626, 2630, 104 S.Ct. (“The
1629,
252 arrest).
(1) if to the formed he was not under Even language used summon individual; leave, transpor wanted to he had no Ortiz tation to return to his vehicle. (2) manner of place, and purpose, interrogation; to purpose interrogation of the was (3) to which the defendant is the extent In obtain Ortiz’s confession. furtherance of guilt; of confronted with evidence [his] asking prelimi- some purpose, after and nary questions, Bertrand confronts Ortiz (4) the defendant is free to whether allegations inappro- of with the mother’s questioning. of place leave the contact and her priate between Ortiz Id. Next, into daughter. Bertrand launches interrogation asking Ortiz how of these factors reveals application
An many inappropriate times he had contact Ortiz, approached Bertrand that when girl. with the accompany him to if he would asked Ortiz purpose being for the police station Although the State maintains Ortiz was request, of the interviewed. At the time custody, light not in in of all the circum- on badge gun Bertrand’s were his stances, we believe once Ortiz was trans- Although waist and in full view Ortiz. ported police put to the in station that he explained Rocha to Ortiz was person interview room a reasonable Or- go and could refuse to to the under arrest position tiz’s would have understood his station, agreed any without reluc- Ortiz Thus, custody. to be one of Ber- situation agreed go to to the tance. When Ortiz required give trand was to Ortiz his Mi- station, give Bertrand did not Ortiz the in- beginning randa driving his own vehicle to the choice of terrogation. Therefore, transportation station. away station. was miles from the Knowing Intelligent C. has the to station, Waiver. State burden took to At the Bertrand Ortiz prove by preponderance him evidence put floor and in an inter the second intelligently key view room. Bertrand had to use a elevator, rights. Morgan, the waived his Miranda 559 leaving card to access the impression key required Supreme card would be N.W.2d 606. The Court has required precise area as well. Prior to never formulation of the exit the attempted give questioning, police warnings. Eagan, Duckworth v. 2875, 2880, warnings, warnings re Ortiz his Miranda S.Ct. (1989). quired given prior to be to a custodial L.Ed.2d 176-77 To determine though suspect’s Even Bertrand nev whether a or interrogation. waiver her knowing er he was under arrest at the Miranda and intelli told Ortiz station, gent, inquire Bertrand also never told Ortiz he we must if the knew speak was free to the station. See United that he or she did not leave (8th F.2d Longbehn, police States v. without counsel and understood Cir.1988) (finding custody provided defendant statements to the could be him against where record reflected no evidence that used or her. United States v. *9 leave). Yunis, 290, suspect U.S.App.D.C. was free to But see Ore 273 859 F.2d (D.C.Cir.1988). Mathiason, 494-95, gon v. 429 U.S. 97 964-65 This does not 711, 713-14, the tacti suspect S.Ct. 719 mean a must understand (1977) (finding keeping silent in order to mitigated advantage of coercion where cal suspect in a waiver. Id. at 965. was free to leave and was make valid
253 Third, both Ortiz and the Although language barriers State intro translation of the Mi duced the literal ability to know may have hindered Ortiz’s randa waive his Miranda warnings by as read Sanchez. Or ingly intelligently and Ortiz, Miranda tiz’s translation states Sanchez told the translation of the one, right “You have the to consult perfect long a so as rights need not be asking attorney before questions and have to that he did not need Ortiz understood attorney present during question this police without counsel and speak to the ing.” The State’s translation states San he made could be used any that statement Ortiz, Hernandez, right chez told “You have the to against him. United States v. making (10th Cir.1990). consult with an before F.2d How any questions and pres have said ever, is regardless language of what used during the interview.” Miranda re ent Ortiz, convey to the warn to “ informed, quires suspect that a be “that he susceptible and not to ings must ‘be clear ‘ ” “ right presence has the to the of an attor “meaningful equivocation’ provide and ney, and that if he cannot afford attor to the unlettered and unlearned advice prior ney appointed one will be for him comprehend can and language which [he] ’” any questioning if he so desires.” Mi act.” knowingly on which can [he] randa, 86 S.Ct. at Perez-Lopez, United States 348 F.3d added). Cir.2003) (9th (emphasis L.Ed.2d at 726 (quoting San Juan- Cruz, 387). 314 F.3d Both and the State’s translations convey English-speaking to an individual totality reviewing After of the question that before Ortiz or a asked made surrounding circumstances Ortiz’s interro right attorney present. he had a to have an gation, agree we with the district court conveys Neither translation to Ortiz that meet its burden that the State has failed to right he has the to an preponderance a of the evi to show being any questions. to answer If asked dence that Ortiz waived his Miranda warning, English, this as translated into First, rights knowingly intelligently. given English-speaking person, to an spoke the State failed to establish Ortiz not be ad- person’s statement would English. Because of this and understood given warning missible because the does barrier, it language upon was incumbent not contain the essence of Miranda. Mi- warnings given that the prove the State randa informed requires suspect be him Spanish provided meaning to Ortiz that he or she has a to counsel before language compre ful advice in a he could asked, being questions rather than before and on which he could act. hend asking making questions. warning or Ortiz received confuses the issue who Second, gave Bertrand Ortiz a written and fails to asking making questions or Although warning that made no sense. Miranda him of adequately inform the literal translation contains bits and rights. required warning, pieces of the testimony argue that due to any the record is devoid of The State seems syntax Spanish lan- Spanish-reading individual would read the nature suspect spoke who and understood warning glean guage the written indica- Mi- tion of his or her Spanish would understand the randa convey prior to or factually warning that after Ortiz record reveals waiver, interrogation by police, signed during any he asked not read once, to consult with but to what his were. would have twice as *10 argument may attorney. Although during made his interview at the Sioux merit, City police department. the record no
have some contains evidence that would allow us to find the Voluntary D. though Waiver. Even Spanish Miranda warning was sufficient. the district court found Ortiz not vol- did party interpreter Neither called an to tes- untarily waive his Miranda rights, we tify Spanish-speaking how a individual having need not decide this issue found the Spanish would understand the translation given knowingly waiver was not and intelli- of Miranda. only evidence of what gently. conveyed to copies
was Ortiz was of the Disposition. VI. translation was admitted into evi- dence. The bare translation of Sanchez’s agree Because we with the district court satisfy words does not the State’s burden knowingly that Ortiz did not and intelli- prove intelligently Ortiz waive his Miranda gently rights, va- we waived his Miranda rights. appeals cate the decision of the court of judgment
and affirm the of the district Finally, after Sanchez read Ortiz Therefore, court. we remand this case to Ortiz, then Sanchez asked “Do the district proceed court to in a manner you questions right now?” re Ortiz consistent with this decision.
plied, “No. Not now. I want to know DECISION OF OF AP- COURT [unintelligible].” appeared Sanchez to cut VACATED; PEALS DISTRICT COURT by telling off the rest of Ortiz’s answer JUDGMENT AFFIRMED AND CASE Bertrand, rights. “He understood his I REMANDED. asked him if he questions, says has going
he knows what on.” Bertrand justices All except concur STREIT and began then to interrogate CADY, JJ., Ortiz. We are who dissent. concerned about the haste used San STREIT, (dissenting). Justice begin chez and Bertrand to interroga The disagree. I warning read stated, tion after Ortiz “I want to know conveyed key require- Luis Ortiz [unintelligible].” areWe not convinced Miranda, ments of specifically unintelligible
that Ortiz’s
statement was
consult with an
and have the at-
request
not a
for further clarification.
It
torney present during questioning. Ortiz’s
prove
is the State’s burden to
his unintelli
subsequent
waiver and
confession were
gible
request
statement was not a
for fur
voluntary considering
totality
of the
record,
ther clarification. Under this
we
circumstances.
I
affirm
would
the court of
cannot make a finding
unintelligible
appeals and reverse the district court.
statement
request.
such a
Background
I.
Facts.
Accordingly, under the totality of the
circumstances, the State has failed to meet
majority
does not take into account
its burden that Ortiz knowingly and intelli-
key
station,
some
facts. At the
waived his gently
Conse- Officer Bertrand took Ortiz to an interview
quently,
the district court
gave
was correct
room and
Rights”
‘Waiver
when it suppressed
Ortiz’s statements
form2 written in
and asked him to
(WAIVER RIGHTS)
expert
2. The defendant’s
translated the waiver
OF
form as follows:
declaring
I
[sic.]
have read the
upon
my
VOLUNTARYWAIVEROF RIGHTS
which I am noticed of
[non-word]
*11
exactly
going
a knew
what was
on. He had
by any means
was not
it. The form
read
rights.
not been told his
He asked with
Although it ac-
waiver.
valid
clarity
they were.
then be-
what
Sanchez
attorney, it did
right
the
to an
knowledges
reading
rights
out loud the waiver of
gan
silent or
right to remain
mention the
signed.
form that Ortiz had
Sanchez
if
cannot
you
attorney appointed
an
have
stopped reading (perhaps realizing the
Sanchez, of
one. Officer Salvador
afford
Rights
of
form would not ade-
Waiver
Department, was
City Police
the Sioux
him
quately
rights)
tell
and instead
interpreter. Sanchez asked
present as an
Spanish
advisory
Ortiz the
read
form,
the
and Ortiz
if he could read
Ortiz
by
Drug
federal
Enforce-
card used
then
that he could. Sanchez
responded
following
is a
ment Administration.3
moment, and Ortiz
for a
left the room
by
expert
translation
the defendant’s
of
After
of
form.
signed the waiver
advisory
Sanchez recited to Ortiz:
form, Bertrand asked
signed
Ortiz
asking
questions, you
Before
some
him,
your rights?”
you
“Do
understand
following. Okay?
to understand the
my
“But what are
responded,
to remain silent.
You have
Bertrand waited
Sanchez
rights?”
returned,
you say can
Anything
against
he asked
be used
return. When Sanchez
Ortiz,
you
you
the court. You have the
you understand what
“Do
attorney
asking
me
consult with an
responded,
telling
“He is
read?” Ortiz
questions
present
are
and have this
they,
are
what
but what
you
If
cannot
during
questioning.
as to
question
was a direct
they?” This
attorney,
an
pay
it said “I
for the services of
one
form meant when
what
you,
you
if
so
my rights
[unintelligible]
will be
understand what
completely
you?4
desire. You understand
anything,
If
this demonstrated Ortiz
are.”
legal
Estoy de acuerdo a contes-
de mi familia.
the constitution and the
[sic.]
on
y
completely
my
cualquier preguntas
what
hacer un declara-
I
understand
tar
[sic.] and
opportunity
que estoy
rights are.
I have received the
exactamente lo
hacien-
ción. Se
telephone
notify
y debajo
or
y
hago
mi
to use
do eso lo
de voluntario
family.
agree
my
I
to an-
quiero
individual from
propira voluntad. No
consultar con
questions
make an [sic.}
[sic.]
swer
y
quiero
no
tener un licencia-
un licenciado
doing
exactly
I
what I am
statement.
know
presenciarse aqui para avisarme de mis
do
doing
[sic.]
and I am
so as a volunteer
ninguna prome-
No he recibido
derechos.
my
I do
own
will.
[sic.}
[sic.]
underneath
tipo y
cualquier
inminudad ni de
otro
sa de
I
with an
not want to consult
ninguna
ni
han usado
fuerza físicamente
no
attorney be witnessed
don’t want to have an
cualquier tipo para
de
presura de
forzarme
my
I
here to inform me of
[sic.]
hacer una declaración.
any promise
immunity
have not received
type
they
any
have not used
other
drug
joint
task force.
3. Sanchez works on
physically
pressionment
any
force or
[sic.]
He testified that he is more comfortable
make a state-
to force me to
[sic.]
Drug
form used
Enforce-
the Miranda
ment.
13A,
Administration, form
a card which
ment
original Spanish
reads:
warning
English
on
includes a Miranda
DE LOS DEREC-
RENUNCIA VOLUNTARIA
other
and a
version on the
one side
HOS
side.
(WAIVER RIGHTS)
OF
de advertiso en
He leído el declaración
advisory
original Spanish
Sanchez re-
4. The
que estoy
de
derechos del
avisado
mis
cited to Ortiz is as follows:
jurídico y
y del
entiendo com-
constitución
algunas preguntas, usted
hacer
Antes de
derechos. He
pletamente cuales son mis
Okay,
siguiente:
que entender de lo
oportunidad
tiene
de usar el telefone
recibido la
permanecer calla-
de
persona
usted tiene el derecho
para
licenciado o una
notificar un
*12
added.)
First,
responded
that
(Emphasis
relinquishment
right
the
questions.
voluntary
He then confessed to
must have been
in the sense
he had no
product
that
it was the
of a
girl
penis.
touch his
free and
making the
deliberate choice
than
rather
intimi-
Knowing
Intelligent
II.
Waiver.
dation, coercion,
Second,
deception.
or
Arizona,
436,
Miranda
In
384 U.S.
86
the waiver must have been made with a
1602,
(1966),
Advising
he has
Ortiz, provides
read to
the Miranda warn-
during
of an
presence
ques-
See,
Spanish.
ing
e.g.,
United
States
precisely
key
tioning
conveys
more
*14
Labrada-Bustamante,
428 F.3d
requirements
simply
of
in-
Miranda than
(9th Cir.2005) (“A
n. 3
DEA Form
forming
right
he
a
to
13A
the
has
the
Here,
the
presence
attorney
general.
warnings
of an
in
states
Miranda
in both En-
warnings given
Spanish.”).
the
to Ortiz “touched all
and
glish
requirements
aspects and
Miranda.”
of
“clearly
Ortiz was
informed that he has
Schwartz,
trict involuntary, relied on
and confession were translation of the interview.
a written reviewing the video-recorded7 waiv
Upon (and confession accom
er *15 interpretation), it is clear
panying Ortiz’s an product were “the essen statements Trampas Leigh POWELL, choice, tially free and unconstrained made Applicant-Appellee, will was not over by the defendant whose v. or whose for self-determi capacity borne State critically impaired.” was not nation Iowa, Respondent-Appellant. STATE (Iowa 325, 328 Payton, v. 481 N.W.2d No. 07-0812. 1992). about an hour. The interview lasted intimidate, deceive, did not The officers Appeals Court of Iowa. threaten, promise anything or to Ortiz to Aug. 2008. him to or waive his confess. induce Although transcript reads somewhat the officers cut off
choppy suggests occasions, a few the video
Ortiz on record the officers allowed Ortiz time
ing reveals questions.
to both answer and ask There no haste. Ortiz even allowed to
was was (or girlfriend) his wife on his cell
call questioning of the
phone.8 tone Considering
neither harsh nor coercive. circumstances, totality of confession subsequent
waiver were voluntarily, knowingly,
“made intelli call, During example he admitted there was This case is excellent 8. 7. electronically daughter value of recorded inter "she problem and that Hajtic, rogations. See 724 N.W.2d State are not touched me.” These statements (Iowa 2006) ("We believe electronic appeal. issue in this videotaping, recording, particularly of custo interrogations should be encour dial aged-”).