Lead Opinion
Opinion by Judge D.W. NELSON; Dissent by Judge TROTT.
Juvеnile RRA-A appeals her conviction for juvenile delinquency, in violation of 18 U.S.C. § 5032, and for conspiring to knowingly and intentionally import and attempt to import marijuana, in violation of 21 U.S.C. §§ 952, 960, 963. She contends that the district court made three errors: (1) failing to suppress the fruits of a war-rantless arrest not based on probable cause; (2) finding no prejudicial violations of 18 U.S.C. § 5033’s notification requirements; and (3) failing to find that the government violated the timely arraignment provision of 18 U.S.C. § 5033. We hold that RRA-A was prejudiced by violations of 18 U.S.C. § 5033’s notification requirements and reverse the conviction.
FACTUAL AND PROCEDURAL BACKGROUND
On March 18, 1999, at approximately 9 a.m., RRA-A, a 16-year old, was the front seat passenger in a vehicle crossing from Mexico into the United States. Other than briefly showing the inspector her border crossing card, RRA-A read a newspaper at the primary inspection booth. Immediately after the inspector asked the rear passenger to move over, however, RRA-A put down her newspaper and invited the inspector to the party that the three vehicle occupants were throwing. As the rear passenger moved over, the inspector noticed that the seat under him had no indentations. The inspector moved the vehicle to secondary insрection, where the vehicle occupants were brought into an office and frisked. RRA-A testified that she felt free to go at that time.
While the vehicle occupants were being frisked, the inspector discovered 80.10 pounds of marijuana in the vehicle. RRA-A was subsequently handcuffed to a bench in a locked security office, where she remained for the next four hours. When Agent Jacobo arrived at approximately 12:00 p.m., he found out that RRA-A did not have a home telephone number. The agent then contacted Assistant United States Attorney Annie Gutierrez and told her that he had a minor in custody whose parents could not be reached because they did not have a telephone. He also told Gutierrez that the minor did not wish for her parents to be notified. Gutierrez told Agent Jacobo that she would notify the Mexican consulate to see if it could assist in locating RRA-A’s parents.
At approximately 1:30 p.m., Agent Jaco-bo, speaking in Spanish, told RRA-A that she was under arrest and gave her a form listing her Miranda rights in Spanish. Agent Jacobo asked RRA-A if she understood her rights, including the one regarding the right to a lawyer, and had her initial each paragraph of the form. The agent also inquired as to whether she had any questions about the rights but testified that hе did not recall RRA-A having any. Agent Jacobo then proceeded to question her for thirty to forty minutes. RRA-A testified that the agent, during the interrogation, spoke in a loud voice, repeatedly admonished her to tell the truth when she denied involvement, and warned her that she could go to jail for a long time. Agent Jacobo testified that he did not physically threaten her, raise his voice, point weapons at her, or make promises to her; he also noted that RRA-A appeared alert and responsive. After multiple denials, RRA-A cried and confessed to involvement in the crime. At the end of the interview, Agent Jacоbo asked RRA-A if she wished to use a telephone.
Meanwhile, at some unspecified time that day between 12:00 p.m. and 2:45 p.m.,
Early the next morning, on March 19, 1998, Consul Salinas called Gutierrez and told her that he had visited RRA-A the night before and convinced her to give him a neighbor’s telephone number. Through the neighbor, Salinas had reached RRA-A’s parents. Salinas called Gutierrez again later that morning and informed her that the parents lacked border crossing documents; Gutierrez assisted the parents in obtaining them.
Two days аfter her arrest, on March 20, 1998, RRA-A was arraigned. On April 3, 1998, RRA-A filed motions to suppress statements, compel discovery, and preserve evidence. On April 10, 1998, the United States responded and filed a reciprocal discovery motion. RRA-A filed a supplemental motion to dismiss based on improper certification pursuant to the Juvenile Delinquency Act. The district court held a motions hearing and bench trial on April 17, 1998. The judge found the pending discovery motions moot and denied RRA-A’s motions to suppress and dismiss. The judge then convicted her of juvenile delinquency, in violation of 18 U.S.C. § 5032 (Supp. IV 1998), and of conspiring to knowingly and intentionally impоrt and attempt to import marijuana, in violation of 21 U.S.C. §§ 952, 960 & 963 (Supp. IV 1998). RRA-A timely appeals.
STANDARD OF REVIEW
We review de novo a district court’s determination that probable cause supported a warrantless arrest and for clear error the finding of facts underlying the determination. See Ornelas v. United States,
DISCUSSION
I. PROBABLE CAUSE DURING WARRANTLESS ARREST
RRA-A claims that the government lacked the particularized probable cause required to arrest her as a passenger in the car. See Ybarra v. Illinois,
As a preliminary matter, the parties dispute when the arrest occurred. The standard for making this determination is when “a reasonable person would have believed that [RRA-A] was not free to leave.” United States v. Mendenhall,
Based on this case law, the district court properly determined the time of arrest as when RRA-A was handcuffed. RRA-A claims that she was arrested at the time of her detention in the security office, prior to the agents discovering the marijuana and handcuffing her. RRA-A’s argument fails, however, to address the fact that this court allows lawful detention during border searches, see Ogbuehi,
The government’s contention that RRA-A was not arrеsted until she was formally told she was under -arrest and read her Miranda rights is similarly flawed. RRA-A was handcuffed after the inspector discovered the narcotics in the vehicle, separating that detention from the search itself. A reasonable person handcuffed for four hours in a locked security office after a narcotics search “would have believed that [s]he was not free to leave.” Mendenhall,
B. Probable Cause
Having established the time оf arrest, we turn to the question of whether RRA-A’s behavior up to the time of her handcuffing provided particularized grounds sufficient to establish probable cause. RRA-A’s potentially suspicious behavior consisted of the following. She ignored the inspector, except for briefly presenting her documents, until he asked the rear passenger to move over to the other side of the car. RRA-A then looked up from the paper she was reading and invited the inspector to a party, an invitation which the rear passenger echoed. By moving, the rear passenger shifted from covering the drugs to uncovering them.
Wе hold that this behavior constituted sufficient grounds for probable cause. RRA-A, rather than being a mere passenger, changed her behavior in a potentially distracting way at the very moment when the inspector was likely to discover the unusual bulge in the seat. The arrest therefore did not rely upon RRA-A’s “mere propinquity to others independently suspected of criminal activity....” Ybarra,
The cases relied upon by RRA-A are distinguishable from the facts here. .In United States v. Soyland,
II. SECTION 5033 NOTIFICATION REQUIREMENT
RRA-A claims that the government violated 18 U.S.C. § 5033’s notification requirement in two main ways: (1) failing to notify her of her rights until four hours after she was taken into custody; and (2) failing to notify her parents or the consulate of her custody and rights prior to interrogation.
This circuit has a three-part test for reviewing Juvenile Delinquency Act claims. We first ask whether the government violated the Act’s requirements. See Doe II,
A. Violation of Section 5033
We find that two violations of § 5033 occurred. With respect to RRA-A’s immediaсy claim, § 5033 requires that the arresting officer “immediately advise [the] juvenile of his legal rights, in language comprehensive to a juvenile.... ” 18 U.S.C. § 5033 (1985). Because we have found that the arrest occurred at the point of handcuffing, RRA-A was in custody for four hours prior to being read her rights. Although no case law seems to interpret what “immediately” means in a § 5033 context, we do not hesitate in determining that a four-hour delay does not qualify as such.
RRA-A’s further claim that she was not read her rights in a language she understood is not, however, supported by the record. As noted above, RRA-A’s rights were administered in Spanish by an agent fluent in Spanish who reviewеd each paragraph of the form with her and asked her if she had any questions. The totality of circumstances thus suggests that her waiver of Miranda rights was knowing and voluntary. See United States v. Bernard S.,
With respect to RRA-A’s parental and consular notification claim, § 5033 states that “the arresting officer ... shall immediately notify ... 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.” 18 U.S.C. § 5033 (emphasis added). In interpreting this provision, this circuit has explained that “[r]easonable efforts should be made to notify the parents of any juvenile taken into custody. For those juveniles whоse parents live outside the United States, if it is not feasible to notify a parent or guardian, the government could alternatively notify a foreign consulate in the United States.” United States v. Doe,
We also find that the arresting-officer did not notify the consulate of RRA-A’s custody in a timely manner. In a recent opinion, this court explained that “parental notification of the juvenile’s Miranda rights must be given contemporaneously with the notification of custody.” Doe III,
A primary purpose of notifying the consulate of the juvеnile’s arrest is to facilitate contact with the parents. Arresting officers often have difficulty reaching parents in foreign countries, particularly when juveniles do not cooperate. Juveniles cannot, however, waive their right to parental notification even if they hinder
Another important function of consular notification is to permit diplomatic officials to become involved as surrogates for parents who are not in the country. In Doe III, we recognized the importanсe of parental involvement during interrogation if minors are “ ‘not to become the victim[s] first of fear, then of panic’.... ”
Because consulates generally can be reached expeditiously, the arresting officer must read the juvenile his or her Miranda rights but delay interrogation of the juvenile for a reasonable time to allow consular notification and response. We recognize, however, that the timely arraignment requirements of § 5033 require minimal delays. If consular notification and response cannot occur within a reasonable time, such as a few hours, the arresting officer may proceed with the juvenile’s interrogation and arraignment. Furthermore, delays due to consular notification constitute extenuating circumstances which may excuse a more lengthy wait for arraignment or interrogation.
Applying this logic to the instant case, Agent Jacobo, the arresting officer, provided insufficient notification. In addition to failing to contact the consulate directly, Agent Jacobo did not wait a reasonable amount of time to allow contact with the consulate. Gutierrez’s secretary reached the consulate just over an hour after RRA-A’s interrogation began. By delaying a few hours, Agent Jacobo wоuld have been able to determine whether the parents could be located expeditiously and, while they were being found, consular officials could have provided RRA-A with the support and counsel intended by the § 5033 notification requirement.
B. Due Process Violation
Having established two violations of § 5033, the question becomes whether either constitutes government conduct so egregious that it deprived RRA-A of due process of law. See Doe II,
First, although a four-hour delay in reading rights violates the immediacy requirement of § 5033, RRA-A was read her rights before any interrogation took place. Because the primary purpose of Miranda is to provide a procedural protection against self-incrimination, see Miranda v. Arizona,
The second § 5033 violation involves timeliness of parental and consular notification. In In re Gault,
C. Harmlessness
Because the § 5033 violations here are not egregious enough to constitute due process violations, we must now determine whether RRA-A was prejudiced by the errors. See Doe II,
The arresting officer’s failure to fully notify the consulate prior to interrogation “needlessly isolated [RRA-A] in a strange environment and deprived [her] of support and counsel during the pre-arraignment period.” Id. at 781. Prior to being interrogated, RRA-A was handcuffed to a bench in а locked security office where she remained for four hours. During interrogation, Agent Jacobo warned RRA-A to tell the truth and apprised her that she could go to jail for a long time. After being questioned for approximately thirty to forty minutes, RRA-A began to cry and confessed her involvement in the crime. Only after the interrogation did Agent Jacobo offer RRA-A the opportunity to make a phone call. We cannot know for sure that the government’s notification failure was the cause of RRA-A’s confession nor is such a finding required. We look to see whether the confession was in part a result of the § 5033 violations or, in other words, a cause of the confession. Despitе RRA-A’s apparent maturity, we keep in mind that this 16-year old was handcuffed, arrested, interrogated, and threatened with jail by law enforcement agents of a country foreign to her, and she faced this sequence of events alone. On these facts, we can presume that RRA-A’s isolation from family, lawyers, and country representatives — individuals who may have been able to provide counsel and support— was, at the very least, a cause of her confession.
Our final inquiry is whether RRA-A’s prosecution resulted from her confession. The record is clear that RRA’s confession was the primary basis of evidence on which she was convicted. Under these сircumstances, we have no doubt that the errors were prejudicial. See Doe II,
III. SECTION 5033 TIMELY ARRAIGNMENT
RRA-A claims that the 48-hour delay in arraigning her violates § 5033’s timely arraignment provision. This claim has merit as we have held that a delay of 36 hours without extenuating circumstances violates § 5033’s arraignment provision. See L.M.K.,
For the foregoing reasons, we REVERSE the district court’s conviction and REMAND.
Notes
. The dissent asks us to clarify the reasoning behind the rule of restricting the notification duty to the arresting officer. First and foremost, we adhere to the established principle of giving effect to the unambiguously expressed intent of Congress. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Congress, in § 5033, specifically requires the "arresting officer" to make the requisite notifications and we have no statutory or legal basis to conclude that a prosecuting officer — in this case an Assistant United States Attorney — or a secretary of the prosеcuting officer qualify as representatives. Second, we abide by circuit precedent. See Morton v. De Oliveira,
Dissenting Opinion
dissenting:
My able colleagues’ astringent reading of “the arresting officer” in § 5033 is patently wrong as illustrated by its strange consequences. It turns the law into a formalistic dance where the importance of the form becomes where one puts one’s foot rather that what the dance is intended to convey. I respectfully believe that who notifies an arrestee’s parents or a consulate is unimportant; what matters is the timing and the content of the message.
The context of this case and the discrete issue we address encompasses parents who live outside the United States and who most probably do not speak English, yet according to my colleagues, only the “arresting officer” may talk to them. Delegation is not lawful, even from an arresting officer who does not speak the requisite language to someone who does. Apparently, the “investigating officer” to whom the “arresting officer” reports, or for that matter the arrеsting officer’s partner or immediate supervisor, is now legally prohibited — short of undefined exigent circumstances — from taking over the task because — and only because — that person is not the “arresting officer.” If I the arresting officer ask my Spanish speaking partner to make the call, and she gets through and accomplishes the notification, is it defective because I, the “arresting officer,” did not do the talking? What happened to common sense? To agency? To the real world? The reason for restricting the notification duty to “the arresting officer” escapes me. What is the principle bеhind this rule? We have found lurking in the penumbra of this case a new enemy of the law — double delegation.
Section 5033 says also that the “arresting officer” “shall immediately notify the Attorney General,” does this mean Officer Ox has to talk personally to Janet Reno? We have construed in other contexts “the Attorney General” to mean her representatives, but we do extend that minimal courtesy to arresting officers. For example, in 8 U.S.C. § 1326 prosecutions for illegal reentry into the United States after deportation following conviction for an aggravated felony, one of the elements of the crime is that the entry be “without the exрress consent of the Attorney General for such entry; ... ”. § 1326(a) and (b)(2). Notwithstanding this tight language calling for the express consent of the Attorney General, courts have uniformly allowed the delegation by the Attorney General of this function to the INS. United States v. Blanco-Gallegos,
The majority here disclaim any responsibility for this outlandish holding, asserting that they are merely following precedent. They point to a sentence in our opinion in United States v. Doe,
There are two problems with the majority’s reliance on this sentence.
First, it is not a holding that only the arresting officer may handle the notification. The clear point of the sentence is
To erase any lingering doubt about what Doe III stands for, I have retrieved and examined the briefs filed in that case and confirmed and discovered the following.
As described in the opinion, the “arresting officer” in Doe III, one Agent Plitt, did contact the juvenile’s mother in that case and told her that he had arrested Doe in connection with a vehicle loaded with narcotics that her son was driving. What Agent Plitt did not do was advise the juvenile’s mother of the juvenile’s Miranda rights. The relevant issue in Doe III was whether the law and § 5033 required Plitt to include Miranda information in £he parental notification. Doe III held that such information was required. The issue of who must accomplish the notification appeal’s nowhere in the briefs, nor could it in view of the fact that the arresting officer was the one who made the contact. Moreover, Agent Plitt told the juvenile, as the panel’s opinion recommends, that he would see an attorney within one or two days of his arrest, depending upon who prosecuted him. This wayward advice explains the panel’s reference to a “subsequent official who might handle the judicial phases of the matter.... ” To quote the panel, “Plitt’s response [to the juvenile] addressed when, in the course of the judicial process, Doe would be appointed counsel.” (Emphasis added).
The second problem is simply that if this sentence is a holding that binds us as precedent, it is dead wrong. As Doe III recognizes, all the purposes of parental and surrogate consular notification are accomplished in the substance, content, and timing of the notification, not in who actually speaks to the parents. Can anyone imagine an opinion by a panel of this court reversing a conviction because the arresting officer’s partner instead of the arresting officer called the juvenile arrestee’s parents at the very moment of the arrest and fully notified them of everything required by the law? Of course not, but this odd result is precisely what would be required by this case. My colleagues’ holding gives new meaning to “form over substance.”
In passing, I would note that Agent Plitt, the arresting officer, did not actually talk to the “parents” as required by the statute, but to a second family member who served as an interpreter. Under my colleagues’ approach, I would assume that this deviation, too, from the statutory language would be a fatal defect. After all, the statutе says “parents,” not “or their interpreter.”
Finally, the “failure” to notify in this case was harmless beyond all doubt. Buried in the majority’s opinion is a telling fact: Gutierrez knew how to reach her parents but told “the arresting officer” that she did not want them involved. It was RRA-A who kept her parents out of this case, not the agents. Her wishes and her state of mind were the combined independent cause of her confessions, not “the violation.” The district court specifically found her to be mature and intelligent, and not timid. During the inspection, for instance, she was calm and collected as she sought to divert the inspector from the marijuana, while her cohorts were visibly nervous. She knowingly and voluntarily waived her rights. This “-error” was harmless because it had no effect on her confession. I respectfully dissent.