ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS
M. JAMES LORENZ, District Judge.
Pending before the Court is Victor Haak's, (Defendant), Motion to Suppress Statements. [ECF No. 16.] The Government has filed a Response in Opposition, accompanied by an audio CD and video DVD of the custodial interrogation. [ECF No. 17;17-1.] On November 18, 2013, the Court held a hearing on the matter.
Defendant was arrested on September 1st, 2013, at the San Ysidro Port of Entry. He was the sole occupant of a 2001 Ford Expedition which was found to contain packages of methamphetamine concealed in the spare tire of the vehicle. Department of Homeland Security Investigation Special Agents A. Rios and J. Donaher, interviewed the Defendant. At that time, Defendant signed a Miranda  waiver and then made statements to the Agents. The interview was audio and videotaped. On September 12, 2013, a federal grand jury in the Southern District of California returned an Indictment charging Defendant with importation of methamphetamine, in violation of 21 U.S.C. §§ 952, 960. On September 17, 2013, Defendant was arraigned on the indictment.
MOTION TO SUPPRESS
Defendant claims that he made post-arrest statements denying his knowledge of the drugs in the spare tire, which he contends should be suppressed because during the interview he indicated that he wanted to speak to a lawyer but his request was not honored, and the agents inferred Defendant might be released from custody if he spoke to the agents. (Mot. 3.) According to Defendant, his waiver was not knowing and voluntary because the above conduct 1) violated his Miranda rights, and 2) the inference by the agent that he might be released if he spoke to them renders his statements involuntary. ( Id. )
The Government counters that Defendant's Miranda waiver was knowing, intelligent and voluntary based on the totality of the circumstances because the Agents advised Defendant of his rights both orally and in writing before the interview, Defendant agreed to waive his rights and signed a Miranda waiver form, he understood his rights despite his youth, Defendant had been arrested as a juvenile making him familiar with his Miranda rights, and there was no time lapse between the waiver and the interview. (Oppo 13.)
There is a presumption against waiver, which the Government must prove by a preponderance of the evidence. United States v. Garibay, 143 F.3d 534, 536 (9th Cir.1998). "To meet this burden, generally, the Government must prove that, under the totality of the circumstances, the defendant was aware of the nature of the right being abandoned and the consequences of such abandonment. Several factors to consider are (i) the defendant's mental capacity; (ii) whether the defendant signed a written waiver; (iii) whether the defendant was advised in his native tongue or had a translator; (iv) whether the defendant appeared to understand his rights; (v) whether the defendant's rights were individually and repeatedly explained to him; and (vi) whether the defendant had prior experience with the criminal justice system." United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007)(internal citation omitted).
Under a totality of the circumstances review of the interrogation audio and video, it is not clear that Defendant fully understood his rights, and the consequences of his arrest, despite the signed Miranda waiver. Unlike the defendant in Crews, it appears that here, Defendant was at least temporarily diminished in his mental capacity to comprehend that he would not be released, and what a waiver of his rights encompassed. See Crews, 502 F.3d at 1140 (despite no written waiver, defendant knowingly and voluntarily waived his rights because there was "nothing in the record to suggest that defendant was of any diminished mental capacity that prevented him from understanding the nature of his rights or the consequences of abandoning them.")
The following excerpt demonstrates Defendant's apparent inability to understand that he would not be released:
Agent Rios: I'm gonna have you read the waiver out loud, state your name... actually state your name and then read the waiver out loud and then print and sign... if you'd like...
(Agent Rios then handed Defendant the Statement of Rights Form)
Defendant: Okay, it says, I Victor Haak have read, or someone has read to me, the statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer present.
Agent Rios: So you understand your rights.
Defendant: Yeah. Yeah, I mean, I ain't never been involved in anything like this.
Agent Rios: But you understand your rights though, right?
Defendant: Yeah, I got my rights. You guys read em. Yeah, I got you. And the waiver. I, honestly, I don't know what to do, if like, I've never done this, you know what I mean, so I don't ...