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September 16, 2005.


The opinion of the court was delivered by: DANA SABRAW, District Judge

Mr. Jubilee was arrested on August 12, 2005, when he made application to enter the United States through the San Ysidro, California Port of Entry. The primary inspector was not able to complete a search of the vehicle and referred Mr. Jubilee to secondary inspection. At secondary inspection, the inspectors noticed two non-factory compartments. Ultimately, the inspectors found two women in the compartments.

  Mr. Jubilee was arrested. Agent Sergio Guzman from Customs and Border Protection interviewed Mr. Jubilee. Agent Guzman's report indicated that he read Mr. Jubilee his Miranda rights and that Mr. Jubilee made unsolicited incriminating statements. Agent Guzman's report does not indicate whether Mr. Guzman invoked his right to remain silent or whether he waived those rights. The videotape of the interrogation, however, reveals that Mr. Jubilee did, indeed, invoke his right to remain silent.

  Mr. Jubilee was charged in a six-count indictment, charging him with Bringing in Illegal Aliens for Financial Gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and Bringing in Illegal Aliens without Presentation, in violation of § 1324(a)(2)(B)(iii). The indictment charged incidents arising out of three separate dates.*fn2 The indictment charges counts arising out of the following dates: August 5, 2005, August 7, 2005 and August 12, 2005.

  On August 5, 2005, Mr. Jubilee made incriminating statements. The discovery, however, does not reveal that he was ever Mirandized. The same is true of the August 7, 2005 incident. The August 12, 2005 incident is summarized above.




  1. The Government Must Demonstrate Compliance With Miranda.

  a) Miranda warnings must precede custodial interrogation.

  The Supreme Court has held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from a custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id. See Orozco v. Texas, 394 U.S. 324, 327 (1969). A suspect will be held to be in custody if the actions of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably have led him or her to believe that he or she could not freely leave. See United States v. Lee, 699 F.2d 466, 468 (9th Cir. 1982); United States v. Bekowies, 432 F.2d 8, 12 (9th Cir. 1970).

  Once a person is in custody, Miranda warnings must be given prior to any interrogation. See United States v. Estrada-Lucas, 651 F.2d 1261, 1265 (9th Cir. 1980). Those warnings must advise the defendant of each of his or her "critical" rights. United States v. Bland, 908 F.2d 471, 474 (9th Cir. 1990), cert. denied, 506 U.S. 858 (1992). If a defendant indicates that she wishes to remain silent or requests counsel, the interrogation must cease. Miranda, 384 U.S. at 474. See also Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

  Here, Mr. Jubilee was clearly in custody when statements were taken from him on all the counts in the indictment. The discover indicates that Mr. Jubilee was questioned after the material witnesses had been found. Therefore, clearly he was in custody. Moreover, Mr. Jubilee's statements are incriminating and relate to the incidents for which he was detained. Miranda rights, therefore, were required for each of three incidents alleged in the indictment and the failure of the government to provide such, requires the suppression of Mr. Jubilee's statements.

  b) The Government Must Demonstrate That Mr. Jubilee Alleged Waiver Was Voluntary, Knowing, and Intelligent.

  When "interrogation continues without the presence of an attorney, and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda, 384 U.S. at 475 (emphasis added) (citation omitted). It is undisputed that a waiver of the right to remain silent and the right to counsel must be made knowingly, intelligently, and voluntarily in order to be effective. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The standard of proof for a waiver of this constitutional right is high. Miranda, 384 U.S. at 475. See United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984) (the burden on the government is great; the court must indulge every reasonable presumption against waiver of fundamental constitutional rights) (emphasis added).

  The validity of the waiver depends upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S. 477, 472 (1981); Johnson v. Zerbst, 304 U.S. 458, 464 (1938). See also United States v. Heldt, 745 F.2d at 1277; United States v. McCrary, 643 F.2d 323, 328-29 (5th Cir. 1981).

  In Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990), cert. denied, 502 U.S. 853 (1991), the Ninth Circuit confirmed that the issue of the validity of a Miranda waiver requires a two prong analysis; the waiver must be both: (1) voluntary, and (2) knowing and intelligent. Id. at 820. The voluntariness prong of this analysis "is equivalent to the voluntariness inquiry under the [Fifth] Amendment. . . ." Id. The second prong, however, requiring that the waiver be "knowing and intelligent," mandates an inquiry into whether "the waiver [was] made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." Id. at 820-21 (quoting Colorado v. Spring, 479 U.S. 564, 573 (1987)). This inquiry requires that the court determine whether "the requisite level of comprehension" existed before the purported waiver may be upheld. Id. Thus, "[o]nly if the `totality of the circumstances surrounding the ...

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