UNITED STATES of America, Appellee, v. David OQUENDO-RIVAS, Defendant, Appellant.
No. 11-2260
United States Court of Appeals, First Circuit.
April 18, 2014.
IV. Conclusion
Ultimately, by claiming that it is unconstitutional for Puerto Rico to abolish the Advocate position without an individualized hearing, Diaz is asking the federal court to constrain the Puerto Rico Legislature‘s ability to restructure its workforce. “Our Constitution, however, embodies no such federal constraint....” Mandel v. Allen, 81 F.3d 478, 482 (4th Cir.1996). “[I]n every perfect or competent government, there must exist a general power to enact and to repeal laws; and to create and change or discontinue, the agents designated for the execution of those laws.” Butler v. Pennsylvania, 51 U.S. 402, 416-17, 10 How. 402, 13 L.Ed. 472 (1850). Accordingly, we vacate the injunction entered by the district court and remand this case for any further action not inconsistent with this decision.
John A. Mathews II, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.
TORRUELLA, Circuit Judge.
David Oquendo-Rivas (“Oquendo“) appeals from the denial of his motion to suppress a series of inculpatory statements. First, he seeks suppression of a statement made to his arresting officer, arguing that he was questioned while in formal custody but prior to the receipt of Miranda warnings. Second, he seeks suppression of all statements made during his formal interrogation, arguing that questioning resumed impermissibly soon after his initial refusal to make a statement and continued even after his unambiguous request for counsel. None of these theories passes muster. Consequently, we affirm the denial of the motion to suppress.
I. Background
A. Arrest and Interrogation1
A shootout at La Tómbola, a bar near Toa Baja, Puerto Rico, left several patrons dead. In its aftermath, rumors led officers from the Puerto Rico Police Department (“PRPD“) to a nearby home, where several men involved in the murders were thought to be hiding. Arriving at the residence, officers observed three men standing in its fenced-in yard. Startled by the officers, one man—later identified as Oquendo—lifted his shirt to reveal a firearm in his waistband. All three men then fled. One, exiting the yard, successfully evaded the ensuing pursuit; he has never been identified. The other two, Oquendo and his co-defendant, Christian Ortiz-Rivera (“Ortiz“), ran up an exterior staircase and into the home‘s second-story interior. The officers gave chase.
Entering the home‘s upper level, Officer Rodríguez-Negrón (“Officer Rodríguez“) observed Oquendo toss a handgun out of
After being placed under formal arrest and verbally read his Miranda rights,2 Oquendo was taken to the police station in Bayamón, Puerto Rico for questioning. There, Officer Rodríguez provided him with a Spanish-language Miranda waiver form. This form set forth, in a bullet-point list, the nature of Oquendo‘s Miranda rights. Under that bulleted description, the form provided space for Oquendo to waive his rights by consenting to make a statement outside the presence of a lawyer, if he so desired. After reviewing the form, Oquendo indicated that he did not wish to make a statement. No questions were asked and, after signing and dating the form, Officer Rodríguez left the room.
Approximately twenty minutes later, Agent Julio Torres (“Agent Torres“) from the federal Alcohol, Tobacco, Firearms and Explosives Bureau (“ATF“) entered Oquendo‘s interrogation room. Agent Torres handed Oquendo another blank copy of the Spanish-language Miranda waiver form. After reviewing this duplicate form, Oquendo wrote next to the portion of the form related to waiver, “I do not understand this, my lawyer speaks.”3 Agent Torres then verbally read Oquendo his Miranda rights and, upon seeing the note, asked Oquendo what he did not understand. In response, Oquendo indicated that he was willing to speak without a lawyer present, but that he did not want to answer any questions about the deaths at La Tómbola. Agreeing to limit the scope of his questions, Agent Torres had Oquendo circle the portion of the waiver form consenting to speak without a lawyer. Both Oquendo and Agent Torres then signed the form, and questioning began. During the course of his interrogation, Oquendo made statements indicating that he knew Ortiz possessed a gun with an obliterated serial number.
B. Motion to Suppress
Oquendo was indicted for aiding and abetting in the possession of a firearm with an obliterated serial number, in violation of
At trial, the district court judge informed the parties that he wanted to revisit his prior order denying the motion to suppress. He explained that, in issuing the initial order, he had believed the motion to suppress to focus only on a single issue: whether Oquendo‘s purported attorney was wrongly denied access to his client at the time of arrest. Upon closer review of the rather muddled motion, however, he understood it also to allege that Agent Torres‘s interrogation violated Oquendo‘s Miranda rights. In order to treat this additional issue, the jury was excused and Agent Torres was called for questioning. At the end of this suppression hearing, the district court judge deemed Agent Torres‘s testimony credible and held that Oquendo‘s written statement was not an unambiguous request for counsel. Moreover, the district court judge determined that Agent Torres‘s decision to commence questioning approximately twenty minutes after Oquendo refused to make a statement to PRPD officers did not violate Oquendo‘s right to remain silent.
Oquendo appeals from the district court‘s determination that Agent Torres‘s interrogation neither violated his right to remain silent nor ignored an unambiguous request for counsel. He also forwards a new argument, seeking suppression of his initial admission to Officer Rodríguez that he did not possess a gun license. This latter claim is predicated on the theory that Oquendo, at the time of Officer Rodríguez‘s question, was in formal custody but had not been read his Miranda rights.
II. Discussion
In reviewing a district court‘s denial of a motion to suppress, “[w]e view the facts in the light most favorable to the district court‘s ruling.” United States v. Camacho, 661 F.3d 718, 723 (1st Cir.2011) (alteration in original) (quoting United States v. Soares, 521 F.3d 117, 118 (1st Cir.2008)). We assess questions of fact, as well as the district court‘s credibility determinations, for clear error. Id. at 723-24. These findings are susceptible to reversal only where we are definitely and firmly convinced that a mistake has been made. United States v. Nee, 261 F.3d 79, 84 (1st Cir.2001). Questions of law, in contrast, receive de novo review, as does the district court‘s application of law to its findings of fact. United States v. Werra, 638 F.3d 326, 330 (1st Cir.2011).
A. Statement to Officer Rodríguez
Oquendo seeks suppression of his statement to Officer Rodríguez that he did not hold a license to possess firearms. This statement was made while at the Toa Baja residence, after Oquendo was restrained on the floor. Oquendo asserts that it was elicited while he was formally in custody, see Berkemer v. McCarty, 468 U.S. 420, 438-39, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (establishing the test to determine whether detention prior to arrest is custodial), but prior to the receipt of any Miranda warnings.
We do not reach the merits of this claim, as it is not properly before us.
Our court has previously suggested that unpreserved suppression arguments may be merely forfeited rather than waived, engendering plain-error review. United States v. Nuñez, 19 F.3d 719, 723 n. 10 (1st Cir.1994); see also United States v. Pérez-González, 445 F.3d 39, 44 (1st Cir.2006). Recent precedent, however, shows a strong inclination against plain-error review. United States v. Lyons, 740 F.3d 702, 720 (1st Cir.2014) (reasoning that recent precedent strongly favors a finding of waiver); United States v. Crooker, 688 F.3d 1, 9-10 (1st Cir.2012) (refusing to review an untimely suppression argument for plain error). We have emphasized that, by its express terms, Rule 12(e) calls for waiver, and we have noted that ignoring this mandate would be “manifestly unfair” to the prosecution. United States v. Walker, 665 F.3d 212, 228 (1st Cir.2011). We see no grounds on which to treat Oquendo‘s claim differently.
Neither can Oquendo find refuge in Rule 12(e)‘s “good cause” exception, which allows the court to grant relief from waiver for a showing of good cause.
B. Statements to Agent Torres
Oquendo seeks suppression of his statements to Agent Torres on two grounds: (1) a violation of his right to remain silent based on the quick resumption of questioning after he initially refused to make a statement, and (2) a violation of his right to counsel based on continued questioning after what Oquendo argues was an unambiguous request for an attorney.
1. Right to Remain Silent
Unlike an unambiguous request for counsel, after which questioning must invariably cease until a lawyer is provided, an invocation of the right to remain silent does not automatically bar the resumption of questioning at a later time. See United States v. Andrade, 135 F.3d 104, 107 (1st Cir.1998). Rather, in determining the appropriateness of renewed questioning, our inquiry focuses on whether the suspect‘s “right to cut off questioning” was at all times “scrupulously honored.” Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). After an initial invocation of the right to remain silent, four factors are relevant to determining whether the resumption of questioning is permissible: (1) whether a reasonable period of time passed prior to the resumption, (2) whether the same officer resumed
Oquendo hangs his hat on the first Mosley factor, arguing that twenty minutes is too short a passage of time to make the resumption of questioning reasonable. And indeed, Agent Torres‘s timing gives us pause. While Mosley did not purport to set a floor, we note that twenty minutes is some six-times shorter than the time period found reasonable therein. Mosley, 423 U.S. at 104 (stating that “more than two hours” passed between interrogations); Andrade, 135 F.3d at 106 (same). It would be both unwise and unworkable, however, to try and demarcate a one-time-fits-all limit for assessing reasonableness, which at its worst might only send interrogating officers running for their stopwatches. Such a reading of Mosley has been previously rejected by our court, see United States v. Barone, 968 F.2d 1378, 1383 (1st Cir.1992), and we reaffirm that logic now.
Rather, our analysis must account for the totality of the circumstances and must give appropriate attention to Mosley‘s other enumerated factors. Here, assessing the facts in their entirety, it is clear that Oquendo‘s right to cut off questioning was not impinged. Agent Torres, not Officer Rodríguez, conducted the second interrogation. Prior to commencing questioning, Agent Torres also provided Oquendo—both verbally and in writing—with a restatement of his Miranda rights. Moreover, the record is devoid of any indication that Agent Torres intimidated, threatened, or otherwise pressured Oquendo into offering a statement. Cf. Barone, 968 F.2d at 1384 (“[O]fficers repeatedly spoke to Barone for the purpose of changing his mind, failed to provide new Miranda warnings, applied pressure by emphasizing the danger he would face in Boston if he did not cooperate, and took advantage of a long delay in arraignment.“). Indeed, when Oquendo agreed to make a statement but asked that the scope of questioning be limited, it is uncontested that Agent Torres fully abided by those boundaries.
In sum, these facts support a finding that Oquendo retained control over his ability to choose whether or not to speak. Therefore, we find no violation of his right to remain silent. Nonetheless, this holding should not be read in any way to imply our acceptance of police practices that give suspects only a momentary respite after their refusal to make a statement. Although the broader context here makes clear that Oquendo‘s right to cut off questioning was appropriately preserved, that determination is fact dependent. Accordingly, our holding does not eliminate the very real possibility that, in another case, serious concerns may well arise when questioning resumes only twenty minutes after an initial invocation of the right to remain silent.
2. Right to Counsel
Immediately after a suspect has invoked the right to counsel, all questioning must cease until such counsel is provided. Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). This request for counsel must be clear and unambiguous. Davis v. UnitedStates, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Where a request, marred by ambiguity or equivocation, suggests only “that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” Id. Our test is objective, requiring that the statement be such that “a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id.; Obershaw v. Lanman, 453 F.3d 56, 64 (1st Cir.2006).
Oquendo argues that his statement—“I do not understand this, my lawyer speaks“—was “tantamount” to an invocation of the right to counsel. In concert with his earlier refusal to make a statement, he continues, this request was “certainly unambiguous.” Finding the meaning and intent of Oquendo‘s statement to be less than clear, we disagree. By its express terms, “my lawyer speaks” does not unequivocally demand assistance, request the lawyer‘s presence, or otherwise clearly indicate an unwillingness to make a statement absent presence of an attorney. Cf. Obershaw, 453 F.3d at 64-65 (concluding that the question “can I talk to a lawyer first?” was an “inquir[y as to] whether [the suspect] could talk to a lawyer” not an “assert[ion] that he in fact wanted to do so“).
Moreover, “when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney.” Davis, 512 U.S. at 461; see also Nom v. Spencer, 337 F.3d 112, 118 & n. 5 (1st Cir.2003). In response to Oquendo‘s statement that he did not understand, Agent Torres did not “ignore his answer and forge ahead with questions.” James v. Marshall, 322 F.3d 103, 109 (1st Cir.2003). Rather, Agent Torres asked what Oquendo did not understand. He then asked whether Oquendo was, in fact, willing to speak without a lawyer. Oquendo answered in the affirmative. Only then did Agent Torres begin his interrogation. Highly analogous facts have been characterized by our court as “precisely the kind of ‘good police practice’ described ... in Davis.” Id.
We need press no further; Oquendo did not invoke his right to counsel in a manner sufficiently unambiguous and direct as to require the cessation of questioning. Agent Torres, confronted with an ambiguous statement, sought clarification and continued questioning only after Oquendo made clear that he was willing to proceed without an attorney. This was not a violation of Oquendo‘s right to counsel.
III. Conclusion
Oquendo‘s motion to suppress was correctly denied; that decision is now affirmed.
Affirmed.
TORRUELLA
CIRCUIT JUDGE