UNITED STATES of America, Plaintiff-Appellee, v. Mario MINJARES-ALVAREZ, Defendant-Appellant.
No. 00-2004
United States Court of Appeals, Tenth Circuit.
July 27, 2001.
The district court relied upon two cases finding pepper spray to be of “limited intrusiveness,” but those cases were decided after the events in question and are easily distinguished because the pepper spray had been used in response to genuine threats by prisoners. Rec., vol. III, doc. 134, at 7 (citing Griffin v. City of Clanton, 932 F.Supp. 1359, 1369 (M.D.Ala.1996), and Healy v. Pena, 1996 WL 708595, at *7-8 (N.D.Cal.1996)). We have found no case discussing the use of pepper spray in a truly analogous situation, although one opinion has held that chemical agents like tear gas “become instruments of brutality when used indiscriminately against a defenseless prisoner.” Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984).
In the end, we believe this issue can be decided based not upon the specific characteristics of pepper spray but upon the requirement that an excessive use of force occur “maliciously and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078. This standard was already well established in 1994 and was easily met by Officer Bustos’ actions. As the Supreme Court explained in applying Whitley, “[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated ... whether or not significant injury is evident.” Hudson, 503 U.S. at 9, 112 S.Ct. 995. At this stage of the proceedings, when we assume Officer Bustos acted deliberately as a practical joke, his claim of qualified immunity must fail.
II
For the foregoing reasons, we REVERSE the grant of summary judgment against Mr. DeSpain and REMAND the case for further proceedings in the district court.
Sarah Y. Vogel, Assistant United States Attorney (Norman C. Bay, United States Attorney, with her on brief), Las Cruces, NM.
EBEL, Circuit Judge.
Appellant Mario Minjares-Alvarez (“Minjares“) challenges his conviction under
I. BACKGROUND
On December 23, 1998, Dona Ana County, New Mexico sheriff‘s deputy Guillermo Ruiz (“Deputy Ruiz“) stopped Minjares for suspicion of driving while intoxicated. Deputy Ruiz observed a twelve-pack of beer, several empty beer bottles, and a partially consumed beer in the car with Minjares. Deputy Ruiz smelled alcohol in the car and on Minjares. Although Minjares did not have a driver‘s license, he gave Deputy Ruiz his name and told Deputy Ruiz that he was a Mexican citizen without immigration documents. Deputy Ruiz ran a check for outstanding warrants and learned that an INS arrest warrant had been issued for a person matching Minjares‘s name and description. Deputy Ruiz then placed Minjares under arrest. Deputy Ruiz decided not to administer a roadside sobriety test, however. This was because Minjares did not appear to be significantly intoxicated, he was to be arrested in any case, and, given Minjares‘s condition as a paraplegic, Deputy Ruiz was unsure how to conduct the tests.
The sheriff‘s department notified the United States Border Patrol (“Border Patrol“) that Deputy Ruiz had arrested Minjares. Deputy Ruiz then took Minjares‘s keys and told him to remain in his own car until Border Patrol agents arrived. Deputy Ruiz cited Minjares for having an open container of alcohol, driving with a suspended license, and for a traffic infraction.
Border Patrol Agent Desi D. DeLeon (“Agent DeLeon“) responded to the sheriff department‘s notification that it had Minjares under arrest. Agent DeLeon arrived on the scene, verified Minjares‘s identity, and ran a second check for warrants which also came back positive. Agent DeLeon asked Minjares his name, date of birth, citizenship, and whether he had previously been deported. Minjares responded to each question, answering “yes” when asked if he had previously been deported. Agent DeLeon then drove Minjares approximately 30 minutes to a Border Patrol station without further questioning.
At the Border Patrol station, Agent DeLeon read Minjares a form, written in Spanish, that notified him of his rights to counsel and to remain silent. Minjares signed the form and waived his rights in the presence of Agent DeLeon and two other Border Patrol agents. Agent DeLeon did not inform Minjares that the Vienna Convention afforded him a right of access to a Mexican consulate and a right to consult with a consul. Agent DeLeon interviewed Minjares, and Minjares signed a sworn statement that he had previously been deported and had last entered the United States on March 31, 1998. Agent DeLeon testified that Minjares “was attentive, answering willingly without hesitation,” that he did not slur his speech or
Minjares moved to suppress the statements he had made to police, asserting two separate theories. First, Minjares argued that his statements were not voluntary. Second, Minjares argued that his statements should be suppressed because he was never informed that he had a right to consult with consular officials from Mexico pursuant to the Vienna Convention. See 21 U.S.T. at 101. Although Minjares acknowledges he understood his constitutional rights, he testified at his suppression hearing that he would have had a better appreciation of the gravity of his situation had he known of his Vienna Convention rights. Minjares also submitted a letter from Anibal Gomez-Toledo, the Consul for Protection with the Mexican Consulate in El Paso, Texas, stating that he would have advised Minjares of his rights under U.S. law and that, generally, he advises Mexican citizens who are arrested in the United States to assert those rights. Minjares thus contends that he was prejudiced because the consul‘s advice would have influenced him to stand on his constitutional rights rather than make the incriminating statements that he now seeks to suppress.1
The district court denied Minjares‘s motion to suppress his statements, specifically concluding that he was not intoxicated during the interrogation.¹ Further, it made a factual finding that Minjares would not have asserted his consular rights had he known of them, and therefore held that he had not suffered prejudice despite the Government‘s admitted violation of the Vienna Convention.
Procedural History
After the district court denied Minjares‘s motion to suppress, he was tried in a three-day jury trial beginning July 15, 1999. A critical issue at trial was whether Minjares had actually left the United States, or whether he was instead merely subject to an order of deportation that was never properly exercised. To rebut Minjares‘s evidence that he never actually left the United States after he was ordered deported, the Government submitted Minjares‘s sworn statement that he had been deported and subsequently reentered the United States, as well as Agent DeLeon‘s testimony describing the interrogation. The jury convicted Minjares, and he was sentenced to 84 months in prison and ordered to pay a $100 special assessment.
Minjares now appeals that conviction on the ground that the trial judge erred in denying his motion to suppress, and he requests this court to vacate his conviction and order a new trial.
II. STANDARD OF REVIEW
“On appeal from a motion to suppress, we accept the district court‘s factual findings unless clearly erroneous, review questions of law de novo, and view the evidence in the light most favorable to the
III. DISCUSSION
A. Fifth Amendment Voluntariness
Minjares‘s first assignment of error is that the district court erred in refusing to suppress statements he made to Agent DeLeon of the Border Patrol. After receiving testimony from Minjares, Agent DeLeon, and Deputy Ruiz, the district court made a factual finding that Minjares was not intoxicated at the time he waived his Fifth Amendment right to silence. Further, the district court found that Minjares “clearly knew” he did not have to talk to the Border Patrol agents without an attorney present. The district court therefore denied Minjares‘s motion.
Minjares contends that, given the totality of the circumstances, the district court erred in concluding his statements were voluntary. Specifically, Minjares argues that the district court‘s finding that he was not intoxicated when he waived his rights was clearly erroneous. Moreover, he contends that his statements were coerced because he was arrested late at night after he had been drinking, he was fatigued during and after his arrest, he was not given Miranda warnings for approximately three hours after his arrest, and the interrogations took place in the company of armed, uniformed officers.
The Supreme Court recently held that the advisements first required by Miranda v. Arizona, 384 U.S. 436 (1966), arise out of the constitution, and that a defendant‘s post-arrest statements must therefore be excluded unless the defendant was first notified of his Miranda rights. See Dickerson v. United States, 530 U.S. 428 (2000). Since Minjares did not receive any advisement of his rights at the scene of his arrest, those statements he made prior to being transported to the Border Patrol Station were inadmissible pursuant to Dickerson and Miranda. None of these statements, however, were submitted to the jury. Therefore whatever deprivation of rights Minjares may have suffered at that point did not affect his trial.2
The Government did, however, enter into evidence the statements Minjares made during his interrogation at the Border Patrol station. Minjares concedes that he made these statements after Agent DeLeon had fully advised him of his constitutional rights. He contends, however, that the circumstances surrounding his waiver of rights was so coercive as to render his statements involuntary despite the advisements. We have stated:
In determining whether a particular confession is coerced, we consider the following factors: (1) the age, intelligence, and education of the defendant; (2) the length of the detention; (3) the length and nature of the questioning; (4) whether the defendant was advised of [his] constitutional rights; and (5) whether the defendant was subjected to physical punishment.
Glover, 104 F.3d at 1579 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). None of these factors supports Minjares‘s contention that his statements were involuntary.
Nothing in the record demonstrates that the district court clearly erred in concluding that Minjares was not intoxicated when he waived his rights. The officers testified that Minjares was lucid, that he was physically able to move into and out of his wheelchair, and that he showed no signs of intoxication during Agent DeLeon‘s interrogation. Thus, the district court‘s finding is amply supported. Moreover, the evidence shows that Minjares was an adult high school graduate with some college education. Agent DeLeon conducted the interrogation in a polite and conversational manner. The interrogation lasted only a few minutes, and there is no allegation that Agent DeLeon ever threatened Minjares or made any promises in exchange for Minjares‘s statements. Both Deputy Ruiz and Agent DeLeon described Minjares as alert and attentive, and Agent DeLeon testified that Minjares participated willingly throughout the interrogation. Although Minjares testified during his suppression hearing, he said nothing to rebut this evidence. To the contrary, he told the court he was aware of and understood his rights at the time he waived them, and based his decision to do so on a misunderstanding concerning the severity of available sanctions for reentering the United States following a deportation. See Colorado v. Spring, 479 U.S. 564, 574 (1987)
Based on this record, we conclude there was sufficient evidence to support the district court‘s conclusion that Minjares was not intoxicated during his interrogation, and that his responses were voluntary.
B. Vienna Convention
Minjares next argues that his statements should be suppressed because they were taken in violation of his rights under the Vienna Convention. Article 36 of the Vienna Convention reads, in relevant part:
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending state....
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.
....
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.
It remains an open question whether the Vienna Convention gives rise to any individually enforceable rights. See Breard v. Greene, 523 U.S. 371, 376 (1998) (stating in dicta that the Vienna Convention “arguably confers on an individual the right to consular assistance following arrest“). In recent years several courts of appeals, including the Tenth Circuit, have considered this question and declined to address it directly, concluding that even if the Vienna Convention does create individual rights, suppression is not an appropriate remedy for a violation of those rights. See, e.g., United States v. Chanthadara, 230 F.3d 1237, 1255-56 (10th Cir. 2000); United States v. Li, 206 F.3d 56, 66 (1st Cir. 2000) (en banc); United States v. Page, 232 F.3d 536, 541 (6th Cir. 2000); United States v. Chaparro-Alcantara, 226 F.3d 616, 622 (7th Cir. 2000); United States v. Cordoba-Mosquera, 212 F.3d 1194, 1196 (11th Cir. 2000); United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir. 2000) (en banc); cf. United States v. Jimenez-Nava, 243 F.3d 192, 198-99 (5th Cir. 2001) (finding both that the Vienna Convention creates no individual rights and that suppression of evidence would be inappropriate if it did).
Our opinion in Chanthadara held, under a plain-error standard of review, that suppression is not an appropriate remedy for a violation of Article 36 of the Vienna Convention, see 230 F.3d at 1255 (citing Lombera-Camorlinga, 206 F.3d at 886; Li, 206 F.3d at 60), and we now reaffirm that holding in this case under a de novo standard of review. Accordingly, once again we need not decide whether the Vienna Convention creates individually enforceable rights. Several considerations support the outcome that suppression is not an appropriate remedy. First, “[t]he exclusionary rule was not fashioned to vindicate a broad, general right to be free of agency action not authorized by law, but rather to protect specific, constitutionally protected rights.” Page, 232 F.3d at 540 (quotation mark omitted); see also Li, 206 F.3d at 61 (“Historically, [suppression has] been available only in cases implicating the most fundamental of rights. This class has heretofore been limited to those paramount protections secured by the Fourth, Fifth, and Sixth Amendments to the United States Constitution.“). Since the Vienna Convention does not create fundamental rights on par with those set forth in the Bill of Rights, see Jimenez-Nava, 243 F.3d at 199; Page, 232 F.3d at 541; Li, 206 F.3d at 61, we are unwilling to enforce Article 36 with the judicially created remedy of suppression.
Further, “[d]efendants who assert violations of a statute or treaty that does not create fundamental rights are not generally entitled to the suppression of evidence unless that statute or treaty provides for such a remedy.” Li, 206 F.3d at 61. As courts reviewing the Vienna Convention have consistently recognized, the treaty does not expressly incorporate a suppression remedy. See id. at 61-62 (citing cases). There is no evidence that the Vienna Convention‘s drafters intended to
In addition, courts have given weight to the United States Department of State‘s interpretation of the Vienna Convention arguing against a suppression remedy. See, e.g., Lombera-Camorlinga, 206 F.3d at 887-88 (noting the State Department believes suppression is an inappropriate remedy for a violation of the Vienna convention); Page, 232 F.3d at 541 (“In the opinion of the State Department, ‘[t]he only remedies for failure of consular notification under the [Vienna Convention] are diplomatic, political, or exist between states under international law.‘” (quoting Li, 206 F.3d at 63 (alterations in original))); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (“While courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.“).
Finally, we find that even if suppression were an appropriate remedy for a violation of the Vienna Convention, it would not be appropriate in this case because Minjares has not demonstrated he was prejudiced by a violation of the treaty.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s order denying Minjares‘s motion to suppress his statements to Agent DeLeon.
LUCERO, Circuit Judge, concurring.
I join in the majority‘s resolution of Minjares-Alvarez‘s Fifth Amendment claim and write separately to concur in the majority‘s resolution of defendant‘s Vienna Convention claim.
Like the majority, I would have resolved Minjares-Alvarez‘s Vienna Convention claim based upon the holding in United States v. Chanthadara that “[e]ven presuming the Vienna Convention creates individually enforceable rights,” defendant Minjares-Alvarez, like Chanthadara, “has not demonstrated that denial of such rights caused him prejudice.” 230 F.3d 1237, 1256 (10th Cir.2000). As the majority notes, “the district court made a factual finding that Minjares‘s assertion that he would have contacted the consulate had he been aware of his Vienna Convention rights lacked credibility.” Majority Op. at 988. Having decided the case on that basis, I would not reach the remaining issues.
Particularly in matters of international concern, I think it appropriate to reach only those issues necessary for resolution of the dispute before us.
UNITED STATES of America, Plaintiff-Appellant, v. Michael Lee HANSON, Defendant-Appellee.
No. 00-5094
United States Court of Appeals, Tenth Circuit.
Aug. 9, 2001.
Notes
In addition, we note that on June 27, 2001, the International Court of Justice held that two German nationals prosecuted for murder in Arizona suffered a deprivation of individual rights created by the Vienna Convention because they were not informed of their right to consular access, and because they were denied a review and reconsideration of their convictions for murder in light of Arizona‘s procedural bar. See generally Germany v. United States of America, 2001 I.C.J. -, available at http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm. It does not appear that the International Court of Justice considered the applicability of the exclusionary rule to violations of the Vienna Convention, however.