Argued and Submitted, Pasadena, California May 8, 2013.
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-00794-MMA-2. Michael M. Anello, District Judge, Presiding.
The panel reversed the denial of a motion to suppress a defendant's incriminating statements, vacated his conviction for importation of marijuana, and remanded the case for further proceedings.
The panel held that under the McNabb-Mallory rule, the statements the defendant made to a federal agent forty-eight hours after his arrest, but before he was presented to a magistrate judge, must be suppressed because the four-day delay in presenting him to a magistrate was unreasonable and unnecessary.
Devin Burstein (argued) and Zandra L. Lopez, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Steve Miller and Mark R. Rehe (argued), Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee.
Before: Harry Pregerson and Raymond C. Fisher, Circuit Judges, and Wiley Y. Daniel, Senior District Judge.[*]
PREGERSON, Circuit Judge:
Luis Osvaldo Torres Pimental appeals his conviction following a conditional guilty plea to one count of importation of over fifty kilograms of marijuana, in violation of 21 U.S.C. § § 952 and 960 and 18 U.S.C. § 2.
Torres Pimental entered his guilty plea on the condition that he retain his right to appeal the district court's denial of his motion to suppress incriminating statements he made to a federal agent forty-eight hours after his arrest, but before he was presented to a magistrate judge. Torres Pimental now seeks reversal of the denial of his motion to suppress.
Because the delay in presenting Torres Pimental to a magistrate was unreasonable and unnecessary, Torres Pimental's statements must be suppressed under Federal Rule of Criminal Procedure 5(a), McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). See United States v. Valenzuela-Espinoza, 697 F.3d 742, 745 (9th Cir. 2012). We REVERSE the district court's denial of Torres Pimental's suppression motion, VACATE the conviction, and REMAND for further proceedings. Because we vacate his conviction based on the McNabb - Mallory rule, we do not address Torres Pimental's challenge to his conviction based on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
On Friday, January 14, 2011, Torres Pimental, a United States citizen with no prior criminal record, entered the United States from Mexico through the San Ysidro Port of Entry. He was the sole passenger in a white Dodge Durango driven by Blanca Canales.
At the Port of Entry's " pre-primary inspection area," a narcotics inspection dog alerted on the vehicle. At approximately 9:25 a.m., United States Customs and Border Protection (" CBP" ) Officer Gruda was notified of the alert. Officer Gruda approached the vehicle and asked Canales where she was going. Canales replied that she was on her way to Paramount, California. She said the Dodge Durango was her uncle's and that she had driven to Mexico to drop off her grandmother.
Officer Gruda conducted a cursory inspection of the vehicle and noticed that the rear passenger seat felt hard. He removed the car seat from the top of the rear passenger seat and noticed a large lump in the rear seat. He folded up the rear passenger seat and discovered cellophane packages hidden underneath. At 9:30 a.m., CBP officers arrested Canales and Torres Pimental and escorted them to the security office in handcuffs.
Officer Gruda drove the vehicle to the " secondary inspection area" for further inspection. At 10:00 a.m., CBP Officer Alves inspected the vehicle. Officer Alves discovered and seized 37 packages containing approximately 71.25 kilograms (156.75 pounds) of marijuana hidden in the rear doors, quarter panels, passenger seat, middle seat, and third row seat of the vehicle. Three of the packages were discovered in the front passenger seat, where Torres Pimental had been sitting. The packages were in vacuum-sealed bags wrapped in dryer sheets and cellophane.
Department of Homeland Security Special Agent Shelly Aradanas, who worked at the San Ysidro Port of Entry, was notified about the drugs found in Canales's vehicle. At 11:52 a.m., Torres Pimental was brought to an interview room where Agent Aradanas read him his Miranda rights. Agent Aradanas asked Torres Pimental if he understood his rights and asked him to initial each of the rights on a pre-printed Advisement of Rights form. Torres Pimental wrote his initials next to each of the rights and signed the form, agreeing to answer questions without an attorney present. Agent ...