UNITED STATES of America, Plaintiff-Appellee, v. C.M. (A Juvenile), Defendant-Appellant.
No. 05-50585.
United States Court of Appeals, Ninth Circuit.
Filed May 8, 2007.
487 F.3d 492
Argued Feb. 14, 2006. Submitted May 2, 2007.
I do agree with the majority, however, that qualified immunity precludes liability with respect to arrest pursuant to section 602(j). That statute lacks the specificity of section 602(n). As the majority notes, there is little pertinent California case law construing section 602(j), and none that makes clear that returning to property after having been permanently banned from it could not constitute an intent to interfere with business.
Further, as the majority explains, there is at least one theory on which an officer could reasonably believe that such a return demonstrates the requisite intent—that the security officers at The Block would likely have spent time interacting with Blankenhorn to get him to leave. Although I do not believe that the likelihood that a security officer would have to do what he is hired to do can support probable cause of an intent to interfere with The Block‘s business, there is no California case law to the contrary. See Peng v. Mei Chin Penghu, 335 F.3d 970, 980 (9th Cir. 2003) (“Even absent probable cause, qualified immunity is available if a reasonable police officer could have believed that his or her conduct was lawful, in light of the clearly established law....“). I therefore concur in the conclusion that there was qualified immunity with regard to whether there was probable cause to arrest Blankenhorn pursuant to section 602(j).
C. State Law False Arrest Claim
Finally, because I part ways with the majority with respect to probable cause for arrest, it follows that I must dissent from its conclusion that Blankenhorn‘s state law claim for false arrest is precluded by statutory immunity. In California, an officer cannot be held civilly liable in these circumstances if he or she, “acting within the scope of his or her authority,” made a “lawful” arrest, or “had reasonable cause to believe the arrest was lawful.”
Michelle Villasenor-Grant, Zandra L. Lopez, Federal Defenders of San Diego, San Diego, CA, for the defendant-appellant.
Christopher M. Alexander, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.
Opinion by Judge FERGUSON; Dissent by Judge CALLAHAN.
FERGUSON, Circuit Judge.
Title
We find that the government violated every requirement of
I. BACKGROUND
A. Arrest and Detention
Around 4:25 a.m. on May 20, 2005, seventeen-year old C.M., a Mexican national, approached the border patrol checkpoint on the I-8 westbound near Pine Valley, CA. He stopped his vehicle and the officer on duty observed two persons seated in the back with their heads down. C.M. responded briefly to the officer‘s questions and then proceeded forward without having been visibly flagged on. The officer yelled for deployment of a “spike mat,” which flattened the tires on the vehicle and brought it to a rest about a half-mile from the checkpoint. C.M. and the six other occupants of the vehicle were apprehended as they scattered into the nearby brush. The arresting agents, Saul Enriquez and Rebecca Brudnok, transported C.M. and the six other occupants of the vehicle to the checkpoint for processing. A keyless
At the checkpoint, arresting agents Enriquez and Brudnok locked C.M. in a holding cell and began processing the detainees, including asking each of them basic biographical questions. From the birthdate that C.M. gave the arresting agents, they realized he was a minor. Neither arresting agent, nor any other agent at the checkpoint, informed C.M. of his rights or attempted to contact his parents.
After two hours had elapsed, Agent Enriquez informed C.M. that he had the right to speak with the Mexican consulate. C.M. asked to exercise this right. Agent Enriquez called the consulate, but upon receiving no answer, hung up the phone without leaving a message. Agent Enriquez did not make any further attempts to contact the consulate. Instead, he called a supervisor, who told Agent Enriquez that they would try to contact the consulate “later.” Agent Enriquez testified that, “at the time,” he did not have an all-hour emergency number for the consulate and did not know “for sure” that such a number existed. Agent Brudnok, however, testified that an all-hour number for the Mexican consulate was kept at the border checkpoint. Agent Brudnok also testified that she never attempted to contact the consulate with that all-hour number.
Four hours later, at 10:15 a.m., Supervisory Border Patrol Agent David Holt contacted consular official Ivan Castillo and advised Castillo that C.M. was a juvenile being held for alien smuggling. C.M. was not concurrently given the opportunity to speak with the consulate.
At 10:20 a.m., Border Patrol Agent Luis Gutierrez arrived at the checkpoint from San Diego to assist with processing C.M. Forty minutes later, around 11 a.m., Agent Gutierrez first notified C.M. of his Miranda rights in Spanish. C.M. waived his right to remain silent and Agent Gutierrez proceeded to question him. Sometime after beginning the interrogation, Agent Gutierrez asked C.M. whether he had contact information for his parents. C.M. responded that he did not.
Around 12:40 p.m., Agent Gutierrez re-advised C.M. of his Miranda rights. The record does not indicate whether C.M. waived his rights this time. Nonetheless, Agent Gutierrez continued questioning C.M., who again asked to speak with the Mexican consulate. Agent Gutierrez ignored C.M.‘s request, telling C.M. that he would get a chance to speak with the consulate and an attorney later. During the second period of questioning, C.M. indicated that he was living with his uncles in Los Angeles. Presentence Report (“PSR“) 2. Agent Gutierrez did not attempt to contact C.M.‘s uncles, but instead continued to question C.M., who ultimately gave a sworn statement incriminating himself.
The government used C.M.‘s incriminating statements to support a juvenile information that it filed against C.M. that afternoon, alleging six counts of delinquency. After obtaining C.M.‘s incriminating statement, the government transported the juvenile to San Diego, where he was arraigned around 4 p.m. on the information. The information charged C.M. with three counts of transporting an illegal alien in violation of
On June 1, 2005, C.M. filed motions to suppress statements, to suppress evidence, and to dismiss the information due to multiple violations of
The motion hearing and trial were conducted together on June 15, 2005. The District Court granted the government‘s motions in limine, except the motion to admit Rule 404(b) evidence of prior misconduct. The District Court concluded there were violations of the JDA, but that these violations did not deny C.M. due process. As such, the Court denied C.M.‘s motion to dismiss the information. The District Court also discussed prejudice, but declined to make a specific finding as to whether the violations of the JDA prejudiced C.M., indicating that the remedy for such prejudice would be “suppression of the statement,” which, in the District Court‘s view, had already occurred because the government stipulated it would not use C.M.‘s post-arrest statements in its case-in-chief.
During trial, the government called three occupants of the vehicle as material witnesses. The witnesses testified to substantially similar stories of how they crossed the border into the United States and waited for transport along the side of a highway. The witnesses also testified to their understanding that they would have to pay for their transport—either to a friend, or a friend of a friend. The witnesses generally did not know how much they would owe, when payment was due, or how they were expected to pay. None saw the driver of the vehicle or knew C.M.
At the close of the government‘s case, C.M. made a Fed.R.Crim.P. 29 motion on all counts, which the District Court denied. The District Court found C.M. delinquent on the six counts and sentenced him to twenty-one months in custody and three years of supervised release. C.M. timely appeals to this Court, contending that his juvenile information should be dismissed due to multiple, egregious violations of the JDA, which prejudiced his statutory rights and amounted to a denial of due process. C.M. also claims there was insufficient evidence presented at trial to find him delinquent.
II. STANDARD OF REVIEW
Compliance with the JDA is a question of statutory interpretation reviewed de novo. United States v. Jose D.L., 453 F.3d 1115, 1120 (9th Cir. 2006). We review de novo whether the juvenile and his or her parents or guardian were notified “immediately” of the juvenile‘s rights, since such questions “turn on the legal interpretation of ‘immediate.‘” United States v. Doe, 219 F.3d 1009, 1014 (9th Cir. 2000) (Doe IV). Whether the parents or guardian of a juvenile have been properly notified pursuant to
III. DISCUSSION
This Court has repeatedly held that a juvenile is entitled to relief under
A. The Government Violated the JDA
The JDA provides in relevant part:
Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer shall immediately advise such juvenile of his legal rights, in language comprehensive to a juvenile, and shall immediately notify the Attorney General and the juvenile‘s parents, guardian, or custodian of such custody. The arresting officer shall also notify the parents, guardian, or custodian of the rights of the juvenile and of the nature of the alleged offense.
The juvenile shall be taken before a magistrate judge forthwith. In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate judge.
1. Advising C.M. of his rights
C.M. was placed in custody shortly before 5 a.m. on May 20, 2005, when he was apprehended in the field and locked in a holding cell at the I-8 checkpoint. See Doe IV, 219 F.3d at 1014 (a juvenile is taken into custody when he would have reasonably believed “he was not free to leave“) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). C.M. was therefore in custody for six hours before being advised of his rights at 10:55 a.m., which violates
2. Parental notification
The District Court did not determine whether the government violated
Additionally, by its own terms,
Here, while C.M. did not have his parents’ contact information, he told his interrogators that he was living with his uncles in Los Angeles. PSR 2. As soon as Agent Gutierrez discovered this fact, he had a duty to halt the interrogation and make reasonable efforts to provide immediate notification to C.M.‘s uncles, as parental surrogates. This would include asking C.M. for his uncles’ contact information, which the record demonstrates C.M. could have provided, had he been notified of his right to speak with a responsible adult prior to interrogation. Agent Gutierrez‘s
3. Consular notification
In the event parental notification is not possible and the juvenile‘s parents live abroad, adequate consular notification consists of “reasonable efforts to notify the consulate of the juvenile‘s custody and rights prior to interrogation.” RRA-A, 229 F.3d at 745. As we explained in RRA-A, the primary functions of consular notification are to “facilitate contact with the parents ... by providing an in-country mechanism for locating [them],” id. at 745-46, and “to permit diplomatic officials to become involved as surrogates for parents who are not in the country,” id. at 746. Consular notification “must thus occur as soon as reasonably possible after the arresting officer has difficulty contacting the [ ] parents so that the minor has access to meaningful support and counsel,” as contemplated by
The supervisor of C.M.‘s arresting officers, Agent Holt, notified the Mexican consulate of C.M.‘s custody and alleged offense around 10:15 a.m., over five hours after C.M.‘s arrest and almost four hours after C.M. had explicitly asked to speak with a representative of his consulate. This notification was patently inadequate. First, the notification was not timely. C.M.‘s arresting officers failed to use reasonable efforts to notify the consulate as soon as possible, see id., by using the 24-hour hotline that Agent Brudnok testified was kept at the border checkpoint; see Dist. Ct. Rec. 16. Second, the notification was substantively inadequate. When Agent Holt finally contacted the consulate, he did not notify the consulate of any of C.M.‘s legal rights, as we have held is required under the JDA. See id. at 745.
4. Right to speak with the consulate
The District Court found, and we agree, that the arresting officers did not comply with C.M.‘s request to speak with the Mexican consulate prior to being Mirandized. This finding is not clearly erroneous; rather, it fairly reflects the record. The only evidence the government provides that C.M. spoke with the consulate is C.M.‘s statement to Agent Gutierrez during questioning to the effect that “he had spoken with the consulate before.” But C.M. said this immediately after asking Agent Gutierrez when in fact he would be able to speak with the Mexican consulate that day. Read in context, it is abundantly clear that C.M. meant by his statement not that he had already had the opportunity to speak with the consulate on May 20, but that he had on a previous occasion been able to speak with the consulate. Moreover, the government fails to show when C.M. would have had the opportunity to speak with the consulate while in custody on May 20. Instead, Agents Brudnok, Enriquez, and Gutierrez all testified that they did not put C.M. in touch with the consulate. Indeed, the record shows that the only person to speak with the consulate on May 20 was the supervisor of the arresting agents, who did not concurrently afford C.M. his right to speak with a country representative.2
The record reflects that the agents repeatedly ignored C.M.‘s request to speak with the Mexican consulate. Such disregard constitutes a violation of
5. Prompt arraignment
Section 5033 provides that a juvenile in federal custody “shall be taken before a magistrate judge forthwith. In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate judge.”
Here, there was a delay of eleven hours in bringing C.M. before a magistrate judge. The government does not cite any extenuating circumstances to justify this delay, but rather points to the routine tasks of processing, interrogating, and transporting the juvenile. Red Br. at 22. In comparing the amount of time it took to perform these routine tasks with the total amount of time that elapsed before C.M. was arraigned, we find that the government has not met its burden of showing that it acted with the expediency required by
The record indicates that C.M. was processed between 5 and 6:30 a.m., interroga-
B. The Violations of the JDA Were Not Harmless
Having determined that the government violated
Our first inquiry is whether the violations of the JDA were a cause of C.M.‘s confession. In other words, did C.M.‘s confession result in part from “[his] isolation from family, friends, [or] representatives of [his] country or an attorney“? RRA-A, 229 F.3d at 747. Here, prior to being interrogated, C.M. was locked in a holding cell for six hours without any notification of his rights. During this time, his request to speak with a country representative went unheeded. Seven hours later, after his interrogation had begun, C.M. repeated his request to contact his consulate, which Agent Gutierrez flatly refused. Only after Agent Gutierrez unlawfully denied C.M.‘s request to speak with his consulate did C.M. finally confess. Moreover, when C.M. was finally afforded contact
The only remaining question is the prejudice caused by C.M.‘s confession. Here, the government relied on C.M.‘s statements, obtained in deprivation of his statutory rights, to procure the juvenile information and initiate proceedings against C.M. The record is clear that the delay in arraigning and charging C.M. was incurred in order to permit a senior officer, Agent Gutierrez, to travel to the checkpoint and interrogate C.M. When the information was filed, C.M.‘s incriminating statements were the only evidence the government presented of C.M.‘s awareness that the occupants of the vehicle were illegal immigrants, and C.M.‘s intent to facilitate transport for financial gain—both essential elements of the crimes with which C.M. was charged. See
Our conclusion that dismissal is warranted derives not only from this Court‘s holdings in Doe II and Jose D.L., but also from our obligations under the JDA. In remedying violations of
The harm that flows from such conduct extends beyond the prejudicial impact on the individual of any improperly elicited statements. The harm also erodes the comprehensive system of juvenile justice that Congress has established through the federal juvenile laws.5 As we noted in
[O]ver thirty years after the JDA was enacted, government law enforcement agents trample even the most basic requirements of the JDA.... We do not believe that it furthers Congress‘s intent to allow the government, in case after case, to ignore with impunity the protective requirements of the JDA. Courts should not close their eyes to these continuing violations by mindlessly reciting the rubric of harmless error as an overarching excuse for ignoring what Congress has clearly ordained....
Jose D.L., 453 F.3d at 1125 (citations omitted).
IV. CONCLUSION
C.M. was deprived of his rights under
CALLAHAN, Circuit Judge, dissenting:
I question whether the government agents violated
I
Accepting that the record supports a determination that the Government‘s violations of the JDA were a cause of C.M.‘s statements, the remaining issue is whether the procurement of the confession, which was not admitted or referred to at C.M.‘s trial, was harmless or prejudicial. The majority concludes that it was prejudicial because C.M.‘s statements that he was aware that the occupants of the vehicle were illegal immigrants and that he was driving the vehicle in order to reduce the fee he would have to pay for being smuggled into the United States were set forth in the declaration of the agent supporting the juvenile information. The majority, however, fails to give any weight to the other evidence that supported the initiation of proceedings.
This evidence included that C.M. drove up to a border patrol check point at 4:25 a.m. Although C.M. initially stopped at the check point, he then rapidly accelerated away from the check point, without authority to leave. The agent activated a controlled tire deflation device, and the vehicle, with two flattened tires, came to a stop one-half mile from the check point. The driver of the vehicle was identified as wearing something orange and when C.M. was discovered hiding in some nearby brush after abandoning the vehicle, he was wearing a shirt with orange sleeves. C.M. had on his person the keyless remote entry for the abandoned vehicle. In addition, three passengers that the border agent had spotted crouched in the back of the vehicle were also discovered hiding nearby and they testified that they were attempting to enter the United States illegally. When C.M.‘s fingerprints were taken, he was identified as having failed to yield at a border check point four months earlier. Thus, the Government had sufficient evidence on which to initiate juvenile proceedings without the mention of C.M.‘s confession.
The majority cites Doe II as supporting its conclusion that “the government‘s reliance on the fruits of its misconduct to initiate proceedings against C.M. was not harmless beyond a reasonable doubt,” but the facts in Doe II were very different. There, although the Government did not use Doe‘s statements in its case-in-chief, the statements were introduced through defense cross-examination of a Government agent. 862 F.2d at 778. This use of the statements is the predicate on which the court determined that the statutory violations “must be said to have prejudiced Doe.”1 Id. at 781. Indeed, the fact that the statements were used at trial was criti-
The majority attempts to bolster its determination of prejudice by arguing that the Government‘s failure to follow the JDA erodes “the comprehensive system of juvenile justice that Congress has established through the federal juvenile laws.” This concern, however, must be balanced with the Supreme Court‘s decision in United States v. Morrison, 449 U.S. 361 (1981). Judge Alarcon explained in his concurring and dissenting opinion in D.L.:
In Morrison, the Court held that when the Government has improperly obtained incriminating information from an accused “the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence or to order a new trial if the evidence has been wrongfully admitted and the defendant convicted.” Id. Here, the District Court dutifully complied with Morrison by excluding Jose‘s statements. The Supreme Court instructed in Morrison that where evidence has been obtained in violation of the Fourth, Fifth, or Sixth Amendments, “[t]he remedy in the criminal proceeding is limited to denying the fruits of the transgression.” Id. at 366. The Court also stated:
Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.
My review of the record indicates that the district court correctly determined that on balance, the violations did not require the dismissal of the juvenile information when it stated:
Obviously, the prejudice would stem principally from the use of any such confession, but that is absent here since there is no evidence being received of his confession. And there is not any other prejudice or constitutional violation arising simply from the other conduct attributed to the border patrol agents; that is the consulate issue and the delay in mirandizing Mr. M.
This ruling does not reward the Government for failing to abide by the JDA. Rather, as the Government recognized, the misconduct deprived it of the use of C.M.‘s statements at trial. Where, however, the Government proves its case at trial beyond a reasonable doubt without the use of, or reference to, the juvenile‘s statement, justice does not require that the guilty defendant be absolved just because he is a juvenile.
II
Even if there was some question as to whether the violations of the JDA were prejudicial, the appropriate remedy is a remand, not an order vacating the adjudication of delinquency and dismissing the juvenile information. In D.L. we stated that “where the record does not satisfy us, beyond a reasonable doubt, that a violation of the JDA was harmless, a remand to the district court is appropriate.” 453 F.3d at 1126 (emphasis omitted). In RRA-A, even though we found that RRA‘s confession “was the primary basis of evidence on which she was convicted,” and should have been suppressed, we reversed and remanded, but did not direct the dismissal of the juvenile information. 229 F.3d at 747. Similarly, in Doe IV we determined that the improperly obtained statements used against Doe “were highly prejudicial and should have been suppressed,” but we did not direct the dismissal of the juvenile information, but reversed and remanded “for further proceedings not inconsistent with this opinion.” 219 F.3d at 1018. Also in Doe II, when the statements were introduced through cross-examination, we nonetheless remanded “for the district court to make all findings relevant to a determination of whether the government‘s violations of the notice and speedy arraignment provisions of the Federal Juvenile Delinquency Act prejudiced Doe‘s defense.” 862 F.2d at 781.4
Based on these precedents—where the use of statements procured in violation of the JDA were clearly more adverse to the defendants than the statement in this case was to C.M.—the proper remedy is a remand, not the vacation of the juvenile information. Moreover, the district court on the remand should focus, as we held in Doe II, on whether the violations prejudiced C.M.‘s defense.
For the foregoing reasons I dissent. I would affirm C.M.‘s conviction because the violations of the JDA did not prejudice C.M.‘s defense to the juvenile information. Moreover, even if I had some question as to whether the violations were harmless, our precedent instructs that the appropriate remedy is a remand for the district court to consider the appropriate remedy, not a direction to vacate the adjudication of delinquency and dismiss the juvenile information.
WARREN J. FERGUSON
UNITED STATES CIRCUIT JUDGE