United States of America, Appellee, v. Rafael Vega-Rico, Appellant.
No. 04-3326
United States Court of Appeals FOR THE EIGHTH CIRCUIT
August 10, 2005
Submitted: March 15, 2005
SMITH, Circuit Judge.
Rafael Vega-Rico (“Vega-Rico“) pled guilty in the United States District Court for the District of South Dakota1 to illegal reentry in violation of
Officer Brad Parker (“Officer Parker“) of the Yankton Police Department in South Dakota stopped a vehicle driven by Loretta Zephier (“Zephier“). Officer Parker issued Zephier a cоurtesy warning for failing to signal a lefthand turn. Zephier informed Officer Parker that her driver‘s license was either revoked or suspended and that the vehicle belonged to Vega-Rico, who at the time of the stop was a passenger in the back seat. While Officer Parker called dispаtch for information regarding Zephier‘s license status, Officer Jason Foote (“Officer Foote“), along with Rex, a dog in Officer Foote‘s canine unit, arrived on the scene as routine backup. At the time of Zephier‘s stop, Officer Foote was not involved in any drug investigation and it was only hаppenstance that Officer Foote was in a canine unit.
While Officer Parker interviewed Zephier, Officer Foote approached and identified the three passengers in the vehicle. Officer Foote walked Rex around the exterior of the vehicle after the рassengers had exited. Rex alerted to the gas fill area on the driver‘s side of the vehicle. A search of this area revealed no drugs. Officer Foote then put Rex in his patrol vehicle and searched the interior of the vehicle, including the glove box. When Officer Foote located nothing in the interior of the vehicle, he retrieved Rex and put Rex in the backseat of the vehicle. Rex then went to the front seat of the vehicle and indicated to the glove box. This time, Officer Foote found leaves and stems of marijuana in the back corner of the glovе box.
Officer Foote then asked Vega-Rico if he had anything illegal on his person. Officer Foote arrested Vega-Rico and attempted to read Miranda rights to him in English, but Vega-Rico could not understand them. Vega-Rico was then searched. Officer Foote found an expired resident aliеn card and Vega-Rico was placed on deportation hold.
The Yankton Police Department advised DHS Agent Kenneth Baird (“Agent Baird“) that Vega-Rico was in their custody. Agent Baird began an investigation to
Agent Baird transported Vegа-Rico to the Sioux Falls Immigration Office where he was fingerprinted. Agent Baird conducted a query of the Automated Fingerprint Identification System Database and verified that Vega-Rico had been previously deported. Agent Baird gave Vega-Rico Miranda warnings in Spanish, which Vega-Rico understood. Vega-Rico agreed to speak with Agent Baird, and in a fifteen-minute interview, also conducted in Spanish, revealed his date and place of birth and the names of his parents. Vega-Rico also admitted to two prior deportations, two criminal convictions, and his failure tо receive permission to return to the United States. Agent Baird did not reveal to Vega-Rico the information he had on file regarding the deportations prior to or during the interview.
Vega-Rico brought motions to suppress the evidence obtained from the vehicle stop and, most rеlevant to this appeal, his post-Miranda statements to Agent Baird. The magistrate judge denied the motions. The district court reversed in part, and held that the search of Vega-Rico‘s vehicle violated the Fourth Amendment because Rex was not sufficiently reliable for drug detection. The district court then suppressed all evidence, except Vega-Rico‘s post-Miranda statements to Agent Baird. The district court held that his statements to Agent Baird were sufficiently an act of free will to purge the primary taint of the Fourth Amendment violation. Vega-Rico now timely appeals the dеnial of the motion to suppress his statements to Agent Baird.
II. Discussion
We review the motion to suppress de novo, but review the district court‘s factual findings in deciding the motion for clear error. United States v. Yousif, 308 F.3d 820, 827 (8th Cir. 2002).
“The giving of Miranda warnings, followed by the making of a voluntary statement, does not, in and of itself, mandate a statement‘s admissibility.” Ramos, 42 F.3d at 1164 (citing Brown v. Illinois, 422 U.S. 590, 602 (1975). “Instead, to decide whether a confession is the product of a free will, [we] consider Miranda warnings, the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and particularly, the purpose and flagrancy of the official misconduct.” Hernandez-Hernandez, 384 F.3d at 565; see also Brown, 422 U.S. at 602. The denial of a motion to suppress must be affirmed “unless the decision is unsupрorted by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made.” Hernandez-Hernandez, 384 F.3d at 564–65. Vega-Rico contends the government failed to carry its burden to show his statemеnts to Agent Baird were the result of an act of free will.
This case tracks the facts of Hernandez-Hernandez, where defendant was arrested after he revealed during a traffic violation that he was working during his immigration status. Id. at 564. Defendant was then transferred to the custody of Immigration and Naturalization Service (“INS“) agents. Id. After being given Miranda warnings and signing an advice of rights form, dеfendant admitted to INS agents that “he had been deported six or seven months earlier, and had reentered the United States illegally a couple of months later.” Id. The district court denied defendant‘s motion to suppress the statements after it had been determined that defendant was illegally detained. Id. We affirmed the denial of the motion to suppress, reasoning that
the INS questioning was conducted five days after the initial questioning . . . and there is no evidence Hernandez-Hernandez was questioned or coerced during those five days in jail. Further, the INS questioning was conducted at the INS office, not аt the scene of the first round of questioning, and was conducted by an INS agent who had no involvement in the earlier questioning. Finally, the INS agent did not treat his questioning as continuous with the earlier questioning during the traffic stop. The different methods and distant timing of the interrogations do not indicate intentional, сalculated conduct by the authorities.
In this case, Vega-Rico‘s post-Miranda statements were made four days after the Fourth Amendment violation occurred. The interview was conducted in a different city by an agent from a separate law enforcement agency, and neither agent nor agency had any involvеment in the initial Fourth Amendment violation. The interview was conducted for purposes unrelated to the circumstances surrounding the Fourth Amendment violation. In addition, the official misconduct in this case—reliance on an unreliable drug-sniffing dog—was not flagrant. While Vega-Rico incorrectly
Vega-Rico also argues that Hernandez-Hernandez was decided under the Fifth Amendment rather than the Fourth Amendment‘s exclusionary rule. We disagree, as Hernandez-Hernandez relied upon Ramos and Yousif, which analyzed the admissibility of Hernandez-Hernandez‘s statements under the test set forth in Wong Sun and Brown, all of which were cited by Vega-Rico in support of his motion to suppress. We affirm the district court‘s denial of Vega-Rico‘s motion to suppress his statements to Agent Baird.
BYE, Circuit Judge, concurring.
I concede that United States v. Hernandez-Hernandez, 384 F.3d 562 (8th Cir. 2004) controls the outcome of the present case, but I write separately to voice my disagreement with its holding. Initially, something must be said in regards to the court‘s confusing analysis in Hernandez-Hernandez. The court began by classifying the issue as one involving an illegal detention in violation of the Fourth Amendment. Id. at 565. The court then, after acknowledging the distriсt court‘s application of factors relevant to a Fourth Amendment analysis (Ramos factors), id., proceeded to analyze the case as one controlled by the Fifth Amendment, id. at 565-67 (discussing the Fifth Amendment cases of Oregon v. Elstad, 470 U.S. 298 (1985) and Missouri v. Seibert, 124 S. Ct. 2601 (2004)). The court completed its discussion by inexplicably concluding factors seemingly relevant to the Fourth Amendment intеrvened between the unwarned questioning (i.e., a Fifth Amendment Miranda issue) and the subsequent postwarning statements. Id. at 567.
This confusing analysis prompted Vega-Rico to argue Hernandez-Hernandez was decided under the Fifth Amendment‘s exclusionary rule rather than the Fourth
Without this concession, the court held the five-day delay between the initial illegality and the postwarning statement, along with the change in interrogating location and personnel were sufficient intervеning circumstances to purge the taint of the initial illegality. Id. at 567. This holding has served to whittle away important
The court‘s holding first whittled away important constitutional protections by overlooking the fact that the five-day interval between the Fourth Amendment violation and the postwarning statements was spent in custody. Id. at 564. This prolonged five-day period of incarceration cuts against the confession being of free will and constitutes a more serious violation than the initial illegal seizure. Dunaway v. New York, 442 U.S. 200, 220 (1979) (Stevens, J., concurring). In fact, “where no intervening circumstances are present, a long and illegal detention may in itself impel the defendant to confess.” People v. White, 512 N.E.2d 677, 688 (Ill. 1987). During this five-day period of isolation, Hernandez-Hernandez had little or no contact with anyone other than law enforcement. This isolation and other jailhouse conditions are less than ideal for the rational decision-making processes required to decide voluntarily and intelligently whether to confess. Cf. Clewis v. Texas, 386 U.S. 707, 712 (1967). Thus, without an intervening circumstance, a court must assume the confession was, at least in part, prompted by these less than ideal jailhouse conditions. Dunaway, 442 U.S. at 220 (Stevens, J., concurring).
The court then further whittled away important constitutional protections by expanding the definition of intervening circumstances to include unilateral acts of law enforcement. Prior to Hernandez-Hernandez I can find no other court which held unilateral acts of law еnforcement to be intervening circumstances. See, e.g., Taylor v. Alabama, 457 U.S. 687, 692-93 (1982) (rejecting an arrest warrant obtained by law enforcement ex parte as an intervening circumstance). All other intervening circumstance cases focus on the conduct of the suspect as in Wong Sun v. United States, 371 U.S. 471, 491 (1963), or the on the actions of a neutral party such as the judiciary as in Johnson v. Louisiana, 406 U.S. 356, 365 (1972). Despite the government‘s contention otherwise, the INS agent‘s actions in seizing Hernandez-Hernandez and transporting him to another location for additional investigatory