UNITED STATES оf America, Plaintiff-Appellee, v. JUVENILE (RRA-A), Defendant-Appellant.
No. 98-50368.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 8, 1999. Filed Oct. 3, 2000.
229 F.3d 737
REVERSED and REMANDED for further proceedings consistent with this opinion.
Rene M. Bunker, Assistant U.S. Attorney, San Diego, California, for the appellee.
Opinion by Judge D.W. NELSON; Dissent by Judge TROTT.
D.W. NELSON, Circuit Judge:
Juvenile RRA-A appeals her conviction for juvenile delinquency, in violation of
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 inspection, 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 minоr 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 Jacobo, 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 tеstified that he 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 Jacobo asked RRA-A if shе 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 after her arrest, on March 20, 1998, RRA-A was arraigned. On April 3, 1998, RRA-A filed motions to supрress 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
STANDARD OF REVIEW
We review de novo a district court‘s determination that prоbable cause supported a warrantless arrest and for clear error the finding of facts underlying the determination. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Mixed questions of fact and law are generally reviewed de novo but mixed questions in which factual issues predominate are reviewed for clear error. See United States v. McConney, 728 F.2d 1195, 1200-04 (9th Cir.1984). We view parental notification under the Juvenile Delinquency Act as a predominantly factual question, which we therefore review for clear error. See United States v. Doe, 862 F.2d 776, 779 (9th Cir.1988) [hereinafter Doe II]. A “statutory claim based on the speedy arraignment provision presents a mixed question of law and fact for which de novo review is appropriate.” Id. This court, at its discretion, can review for plain error issues raised for the first time on appeal when the development of nеw facts is unnecessary. See United States v. Tisor, 96 F.3d 370, 378 (9th Cir.1996).
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, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (“Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person.“). RRA-A‘s contention fails, however, because the district court did not err in finding probable cause based on her party invitation at the moment at which the inspector asked the rear passenger to move over to the other side of the car. See Ornelas, 517 U.S. at 699, 116 S.Ct. 1657.
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, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The government has more latitude to detain people in a border-crossing context, see United States v. Ogbuehi, 18 F.3d 807, 812-13 (9th Cir.1994), but such detentions are acceptable only during the time of extended border searches, see, e.g., id. (detained and searched soon after crossing border); United States v. Caicedo-Guarnizo, 723 F.2d 1420, 1422 (9th Cir.1984) (detained and x-rayed after entering United States by plane).
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 officе, 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, 18 F.3d at 812-13; Caicedo-Guarnizo, 723 F.2d at 1422, and that she believed herself free to go at that time. Although frisking RRA-A in a security office certainly constituted a detention, the government‘s actions did not rise to the level of an arrest until she was handcuffed.
The government‘s contention that RRA-A was not arrested 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 rеasonable 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, 446 U.S. at 554, 100 S.Ct. 1870. Given the totality of circumstances, then, we conclude that RRA-A‘s handcuffing was the clearest indication that she was no longer free to leave and therefore find it to be the point of arrest.
B. Probable Cause
Having established the time of 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 insрector, 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.
We 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, 444 U.S. at 91, 100 S.Ct. 338. Her “relationship, attitude, conduct, [and] utterance” provided a “basis for a rational attribution that [s]he had some interest in the marijuana itself....” Bettis v. United States, 408 F.2d 563, 568 (9th Cir.1969); see also United States v. Buckner, 179 F.3d 834, 837-40 (9th Cir.1999).
The cases relied upon by RRA-A are distinguishable from the facts here. In United States v. Soyland, 3 F.3d 1312, 1314 (9th Cir.1993), Soyland was merely present in a vehicle being searched before he was personally searched. Unlike RRA-A, he did not make any suspicious utterances. See id. Similarly, in United States v. Robertson, 833 F.2d 777, 782 (9th Cir.1987),
II. SECTION 5033 NOTIFICATION REQUIREMENT
RRA-A claims that the government violated
This circuit has a three-part test for reviewing Juvenile Delinquency Aсt claims. We first ask whether the government violated the Act‘s requirements. See Doe II, 862 F.2d at 779. If so, we then inquire as to whether the government‘s conduct was so egregious that it deprived the juvenile of due process of law. See id. If the answer is yes, reversal is required. See United States v. L.M.K., 149 F.3d 1033, 1035 (9th Cir.1998). If the answer is no, we must still decide whether the error was prejudicial. See Doe II, 862 F.2d at 779. If the defendant was prejudiced, and irrespective of whether the government‘s conduct undermined the fundamental fairness of the proceedings, we have discretion to reverse the conviction so as to ensure that the “prophylactic safeguard for juveniles not be eroded or neglected....” Id. at 781. We conclude that the government viоlated the Juvenile Delinquency Act‘s requirements and, although RRA-A was not deprived of due process, find that the statutory violations were prejudicial. We therefore reverse the conviction.
A. Violation of Section 5033
We find that two violations of
RRA-A‘s further claim that she was not reаd 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 reviewed 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., 795 F.2d 749, 753 (9th Cir.1986).
With respect to RRA-A‘s parental and consular notification claim,
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, 170 F.3d at 1167. This timing sequence is necessary to ensure that
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 importance of parental invоlvement during interrogation if minors are “not to become the victim[s] first of fear, then of panic....” 170 F.3d at 1167 (citing Haley v. Ohio, 332 U.S. 596, 600, 68 S.Ct. 302, 92 L.Ed. 224 (1948)). Where, as here, the juvenile is a foreign national, the potential discombobulation may be even more resonant due to language differences and an exacerbated sense of isolation and helplessness. Consular notification of the juvenile‘s custody and rights must thus occur as soon as reasonably possible after the arresting officer has difficulty contacting the foreign national juvenile‘s parents so that the minor has access to meaningful support and counsel. See Doe II, 862 F.2d at 781 (noting that isolation from family, friends, representаtives of the minor‘s country, or an attorney could result in harmful error).
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
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 would have been able to determine whether the parents could be located еxpeditiously and, while they were being found, consular officials could have provided RRA-A with the support and counsel intended by the
B. Due Process Violation
Having established two violations of
First, although a four-hour delay in reading rights violates the immediacy requirement of
The second
Because the
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 a 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 fоr 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
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 circumstances, we have no doubt that the errors were prejudicial. See Doe II, 862 F.2d at 779. RRA-A‘s confession should, accordingly, have been suppressed. See United States v. Doe, No. 219 F.3d 1009, 1018 (9th Cir.2000).
III. SECTION 5033 TIMELY ARRAIGNMENT
RRA-A claims thаt the 48-hour delay in arraigning her violates
For the foregoing reasons, we REVERSE the district court‘s conviction and REMAND.
TROTT, Circuit Judge, dissenting:
My colleagues’ astringent reading of “the arresting officer” in
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. Delegаtion 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 arresting 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 behind this rule? We have found lurking in the penumbra of this case a new enemy of the law—double delegation.
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, 170 F.3d 1162 (9th Cir.1999) (“Doe III“) as the culprit. In Doe III, we noted in discussing
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. Thе clear point of the sentence is
To erase any lingering doubt about what Doe III stands for, I have rеtrieved 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
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 arrеsting 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 statute 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.