The opinion of the court was delivered by: DANA SABRAW, District Judge
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S
STATEMENT OF FACTS*fn1
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
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,
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.
A. THIS COURT SHOULD SUPPRESS MR. JUBILEE'S STATEMENTS.
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
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)
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 ...