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United States of America v. Luis Osvaldo Torres Pimental (02


June 16, 2011


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge


On March 2, 2011, Defendant Luis Osvaldo Torres Pimental ("Defendant") was charged in a two count indictment with conspiracy to import marijuana in violation of 21 U.S.C. §§ 952, 960, and 963, and importation of marijuana and aiding and abetting in violation of 21 U.S.C. §§ 952 and 18 U.S.C. § 2. On March 8, 2011, Defendant entered a plea of not guilty to both charges. The matter is currently before the Court on Defendant's motion to suppress statements made to federal agents approximately 48 hours after his arrest. See Doc. No. 5. On May 31, 2011, the Court held an evidentiary hearing. Having considered the submissions of the parties, the testimony of witnesses, and the oral arguments of counsel, the Court DENIES the motion to suppress.


On January 14, 2011, at approximately 9:25 a.m., Defendant approached the San Ysidro Port of Entry as a passenger in a Dodge Durango. In the pre-primary area, a Canine Enforcement Officer inspected the Durango, and his canine alerted on the vehicle. Subsequent to primary and secondary inspection, officers recovered 37 packages of marijuana totaling 71.25 kilograms. Defendant was taken into custody and escorted to the holding cells in the security office at the Port of Entry. At approximately 9:30 a.m., Agent Aradanas advised Defendant of his Miranda rights. At approximately 11:54 a.m., Defendant invoked his right to an attorney. Agent Aradanas stopped questioning Defendant and informed him that an attorney would not be meeting with him while he was at the Port of Entry. Agent Aradanas signed a complaint on January 14, 2011, at approximately 5:00 p.m., and United States Magistrate Judge Peter C. Lewis approved the complaint on the same day at 8:14 p.m. Defendant remained in custody at the Port of Entry for almost 48 hours because of a lack of bed space at the federal facility in downtown San Diego ("MCC").

On the morning of Sunday, January 16, 2011, Agent Aradanas transported Defendant's co-defendant in a vehicle from the Port of Entry to the MCC, while Agent Sabas Torres contemporaneously transported Defendant from the Port of Entry to MCC in a separate vehicle. Agent Torres and Defendant were the only two individuals in the vehicle during the 15 to 20 minute trip to MCC. Agent Torres testified that he and Defendant spoke to one another during the car ride. Defendant initiated communication with Agent Torres by asking Agent Torres "how much time he was going to get." Agent Torres advised Defendant that he did not know the facts or details of Defendant's case and did not know what his likely sentence would be. Agent Torres spoke to Defendant about factors that impact sentencing generally, including the complicated point system, criminal history, declarations given at the time of arrest, case agent reports, and government recommendations. Agent Torres told Defendant that it can be difficult for an agent to talk to a defendant after he is appointed counsel. Agent Torres commented to Defendant that people make mistakes, and that it is part of life. Agent Torres testified that his conversation with Defendant during transport to MCC was not calculated to result in Defendant making incriminating statements.

As they were approaching MCC, Defendant then asked if he could speak with Agent Aradanas. Agent Torres advised Agent Aradanas, and she approached Defendant and asked him "what's up?" Defendant asked Agent Aradanas if it was too late to make a statement and she told him "no, go ahead." Defendant then asked Agent Aradanas what she wanted to know and told her to ask him questions. Agent Aradanas did not advise Defendant of his Miranda rights at that time.

She asked Defendant how much he was going to get paid; he replied $1500. She asked him where he was going; he replied Lynwood (California). She asked him who hired him; he replied Ruben. To her recollection, Agent Aradanas asked Defendant if he knew what was in the car; he replied marijuana. She then advised Defendant to tell his attorney that he wanted to speak to her, and she escorted Defendant into MCC for processing.

Defendant filed a declaration in support of the motion to suppress, in which he states that during his transport to MCC, Agent Torres talked about, inter alia, "how much better it is for defendants if they make a statement and how they get less time." See Def. Decl'n. ¶ 14. Defendant also states that "because of what Agent Torres was saying I felt I had to make a statement admitting guilt or else I was going to have to stay in jail for a long time." Id. ¶ 15.


1. Miranda Waiver

Defendant argues that Agent Torres improperly interrogated him after he invoked his Miranda rights by engaging in what has been termed as the "functional equivalent of interrogation." The "functional equivalent of interrogation" is "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Defendant asserts that Agent Torres made comments to him during the car ride to MCC with the purpose of eliciting an incriminating response from Defendant. See United States v. Foster, 227 F.3d 1096, 1103-1104 (9th Cir. 2000) (indirect comments can constitute interrogation); United States v. Padilla, 387 F.3d 1087, 1093 (9th Cir. 2004) (the statement that it was defendant's "last chance to cooperate" was the functional equivalent of interrogation). Defendant further argues that even if his exchange with Agent Torres is not considered an interrogation, Agent Aradanas also interrogated Defendant in violation of his Miranda rights.

An arrested person has the right to have counsel present during questioning, and to have police explain this right to him before any interrogation begins. Miranda v. Arizona, 384 U.S. 436, 469-73 (1966). Under Miranda, a person may invoke his right to counsel at any time after being taken into custody, so long as it is in the context of an imminent custodial interrogation. Miranda states "if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, or if he states that he wants an attorney, the interrogation must cease." Id. at 473-474. The parties do not dispute that Defendant invoked his right to counsel on Friday, January 14, 2011 at 11:54 a.m.

The assertion of the right to counsel is a "significant event" that calls for the end of interrogation until counsel has been made available to the person in custody, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). Any statements a suspect makes after requesting an attorney and before being provided with one are not admissible unless it is clear that the suspect, and not the police, initiated the dialogue. Id. at 485-87. A statement made by a suspect to officers after the suspect's invocation of his right to counsel constitutes an "initiation" of further discussion under Edwards when it "evince[s] a willingness and a desire for a generalized discussion about the investigation." Oregon v. Bradshaw, 462 U.S. 1039 (1983) (plurality opinion) (holding that there was no violation of Edwards where an officer began questioning after a suspect, who had invoked his right to counsel, asked "Well, what is going to happen to me now?"). A defendant may change his mind and initiate communication; it is a factual question whether that has occurred. United States v. Michaud, 268 F.3d 728 (9th Cir. 2001).

A careful review of Defendant's declaration demonstrates that he does not directly challenge Agent Torres' testimony that Defendant initiated the conversation during transport to MCC. Agent Torres testified that Defendant initiated the conversation by asking him how much time he was going to get. The Court finds Agent Torres to be a credible witness. In addition, the Court finds that Agent Torres and Defendant engaged in a mutual conversation, initiated by Defendant, during the car ride to MCC. There is no evidence before the Court that Agent Torres interrogated Defendant, or that Agent Torres conversed with Defendant for the purpose of eliciting an incriminating statement. Agent Torres did not violate Defendant's Miranda rights.

Defendant asked to speak to Agent Aradanas, thereby initiating communication with her as well. This fact is not in dispute. However, Defendant argues that Agent Aradanas was obligated to advise him of his Miranda rights again prior to questioning him at MCC because it had been two days since he had been so advised at the Port of Entry. The Ninth Circuit has held repeatedly that the passage of time is not necessarily sufficient to demonstrate that the effectiveness of the earlier warning was diminished. See United States v. Rodriguez-Preciado, 399 F.3d 1118, 1130 (9th Cir. Or. 2005) (holding "that the failure to re-administer warnings on the second day does not automatically render any of the statements made that day inadmissible"), citing United States v. Andaverde, 64 F.3d 1305, 1313 (9th Cir. 1995) (approving a one day lapse); Puplampu v. United States, 422 F.2d 870 (9th Cir. 1970) (per curiam)(approving a two day lapse); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968) (finding a warning given three days earlier was adequate).

Here, the 48 hour lapse between Defendant's statements at MCC and his Miranda warning does not alone render Defendant's statements inadmissible, and other factors support a finding that his Miranda warning was not so stale as to be diminished in effectiveness. For instance, Defendant asked to speak to Agent Aradanas specifically, the same agent who advised him of his Miranda rights at the Port of Entry. Defendant understood those rights and did not hesitate to assert them in Agent Aradanas' presence and invoke his right to counsel. In addition, Agent Torres testified that he warned Defendant as they arrived at MCC, and before Defendant spoke with Agent Aradanas, that anything he may say to the agents had to be voluntary. As to this last point, Defendant argues that even if the actions by Agents Torres and Aradanas did not constitute interrogation, the Court must suppress his statements on grounds that he made them involuntarily.

Of course, a defendant can establish a constitutional violation by showing that a confession was involuntary. Dickerson v. United States, 530 U.S. 428, 432 (2000). When a suspect waives previously invoked rights by reinitiating a conversation with law enforcement officers, the waiver must be knowingly and intelligently made, based on a totality of the circumstances. Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). The government must establish the voluntariness of a defendant's statements by a preponderance of the evidence. United States v. Kelley, 953 F.2d 562, 564 (9th Cir. 1992). The test is whether, considering all the circumstances, the government obtained the statement by physical or psychological coercion or by inducement so that the suspect's will was overcome. United States v. Coutchavlis, 260 F.3d 1149, 1158 (9th Cir. 2001), citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963). Courts consider the defendant's age, education, the nature of any questioning, and the use of any physical punishment such as the deprivation of food or sleep to determine voluntariness. United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003), citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

There is nothing in the record indicating that Defendant was coerced, either psychologically or physically, into answering Agent Aradanas' questions. Likewise, there is no evidence before the Court to suggest Defendant was threatened, harassed, or induced into making statements to Agent Aradanas. In his declaration, Defendant states that the holding cell at the Port of Entry was cold and he had to sleep on the floor. However, he does not claim to have been purposefully deprived of sleep, food, or any other essential needs while waiting transport to MCC. And although his conversation during the car ride with Agent Torres may have inspired him to cooperate with Agent Aradanas, there is nothing in the record to suggest that Agent Torres said or did anything to render Defendant's decision involuntary. The Court finds that Defendant's statements were voluntary. Looking at the totality of the circumstances, the agents' actions were not threatening, intimidating, improperly influential, or psychologically coercive. Colorado v. Spring, 479 U.S. 564, 573 (1987).

2. Delay in Presentment

Defendant argues that his statements must be suppressed because they were made more than six hours after his arrest and the government failed to arraign him without unnecessary delay as required by Federal Rule of Criminal Procedure 5(a)(1)(A), which states that "[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge. . ." Although Defendant was taken into custody on Friday, January 14, 2011 at approximately 9:30 a.m., his initial appearance was not held until Tuesday, January 18, 2011.

The admissibility of Defendant's statements is governed by 18 U.S.C. § 3501(c), which creates a "safe harbor" for voluntary confessions made within six hours of an arrest.*fn1 With respect to voluntary confessions made more than six hours after an arrest but before presentment to a magistrate judge, the admissibility of the confession turns on whether the delay in presentment was unreasonable or unnecessary. The Supreme Court recently held that, in evaluating a motion to suppress based on a delay in presentment, "[i]f the confession occurred before presentment and beyond six hours . . the court must decide whether delaying that long was unreasonable or unnecessary . . . and if it was, the confession is to be suppressed." Corley v. United States, 129 S.Ct. 1558, 1571, 173 L. Ed. 2d 443 (2009). This is true even if the confession was voluntary. Id. at 1563. The primary purpose of the prompt presentment requirement is to prevent law enforcement officials from secretly detaining individuals for lengthy periods and presenting them to a magistrate only after obtaining a confession. Id. at 1562-63.

The Ninth Circuit has not hesitated to exclude a defendant's statements where presentment was delayed for the purpose of interrogation. United States v. Liera, 585 F.3d 1237 (9th Cir. 2009). However, the circuit court has also recognized that magistrate judges are not expected to be available over the weekend hours, United States v. VanPoyck, 77 F.3d 285, 289 (9th Cir. 1996) (holding that weekend delay due to the unavailability of a magistrate judge is not unreasonable), and that "administrative delays due to the unavailability of government personnel and judges necessary to completing the arraignment process are reasonable and necessary and therefore do not violate the prompt presentment requirement of Rule 5(a)." United States v. Garcia-Hernandez, 569 F.3d 1100, 1106 (9th Cir. 2009) (holding that delay caused by a shortage of personnel necessary to process the defendant and determine whether he should be criminally charged was reasonable and necessary).

The government argues that there was no violation of Rule 5 in this case because Defendant was arraigned at the earliest possible time, considering his arrest was on a Friday before a three-day weekend, and the magistrate judge was presented with the complaint Friday evening after 5:00 p.m., and did not sign it until after 8:00 p.m. The Court agrees. See United States v. Redlightning, 624 F.3d 1090 (9th Cir. 2010) (holding overnight presentment delay was reasonable when "no magistrate judge was reasonably available until 2:30 p.m. on [the following day], when the next arraignment calendar commenced"); United States v. Murray, 197 F.R.D. 421, 423 (S.D. Cal. 2000) (availability of magistrate judge can be a factor in determining whether delay was reasonable). There is nothing in the record to suggest that the delay in arraignment was deliberate, and it was certainly not designed to obtain Defendant's confession, as he invoked his right to counsel and agents did not question him again until he reinitiated communication with Agent Aradanas. See United States v. Padilla-Mendoza, 157 F.3d 730, 732 (9th Cir. 1998). Here, the delay was clearly due to the court's schedule, was not unreasonable or unnecessary under the circumstances, and does not compel the suppression of Defendant's statements.*fn2


Based on the foregoing, the Court DENIES Defendant's motion to suppress. IT IS SO ORDERED.

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