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United States v. Razo-Quiroz

United States District Court, E.D. California

July 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ERIK RAZO-QUIROZ, CONRADO VIRGEN-MENDOZA, MARIA LUISA MORENO, ANA LEYDI CERVANTES SANCHEZ, and ERASMO VILLEGAS-SUAREZ, Defendants.

          AMENDED ORDER [1] GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS STATEMENTS AND MOTION TO SUPPRESS EVIDENCE SEIZED AND SETTING GOVERNMENT MOTION FOR A PRETRIAL AUTHENTICATION FOR FURTHER HEARING (DOC. NOS. 287, 288, 292)

         This matter is before the court on various pretrial motions. First, defendant Ana Leydi Cervantes Sanchez (“Cervantes Sanchez”) has filed a motion to suppress her statements made on December 28, 2018 and December 29, 2018 based on an allegedly inadequate advisement of her rights under Miranda v. Arizona, 384 U.S. 436 (1966) by law enforcement. (Doc. No. 292.) Second, defendant Cervantes Sanchez has also moved to suppress evidence seized pursuant to both state and federal search warrants. (Doc. No. 288.) Third, the United States has moved for a pretrial authentication of certain recordings, phone extractions, Facebook material, transcripts and other records. (Doc. No. 287.)

         A hearing on these motions was held on May 6, 2019. Assistant U.S. Attorneys Karen Escobar, Michael Tierney, and Laura Withers appeared on behalf of the government. Attorney Barbara O'Neill appeared for defendant Erik Razo-Quiroz. Assistant Federal Defenders Megan Hopkins and Erin Snider appeared for defendant Conrado Virgen Mendoza. Attorney John Meyer appeared for defendant Cervantes Sanchez. Attorney Serita Rios appeared for defendant Erasmo Villegas-Suarez and for defendant Maria Luisa Moreno on behalf of attorney Willard Bakeman.

         The nature of this criminal prosecution has been summarized in the court's prior order and need not be repeated here. (See Doc. No. 264 at 2-4.) Below, the court addresses each of the pending motions.

         MOTION TO SUPPRESS STATEMENTS

         As noted, defendant Cervantes Sanchez moves to suppress her statements given on December 28, 2018 and December 29, 2018, on the grounds that law enforcement officers inadequately advised her of her Miranda rights. (Doc. No. 292.) On April 26, 2019, the government filed an opposition to that motion, arguing that the Miranda advisement given by Turlock Police Detective Frank Navarro (“Det. Navarro”) on December 28, 2018 was sufficient. (Doc. No. 303 at 5-8.) The government also argues that even if the court were to find that Det. Navarro's Miranda advisement was defective, defendant Cervantes Sanchez's statements to Homeland Security Investigations Agent David Olaya made on December 29, 2018 are nonetheless admissible. (Id. at 8-13.) On May 3, 2019, defendant Cervantes Sanchez filed a reply in support of her motion to suppress the statements. (Doc. No. 310.)

         A. Factual Background

         The facts relevant to this motion are as follows.[2] On December 28, 2018, defendant Cervantes Sanchez was arrested at her sister's residence and taken to the Turlock Police Department, where she was questioned by Det. Navarro, a native Spanish speaker. (See Doc. No. 303 at 2.) At the outset of the interrogation, Det. Navarro advised Cervantes Sanchez that he needed to read her Miranda rights to her and would later ask her if she understood them. (Id.) Det. Navarro then recited the Miranda warnings from memory and asked Cervantes Sanchez if she understood. (Id. at 2-3.) Defendant Cervantes Sanchez immediately indicated that she did not understand what he had said. (Id. at 3.) Det. Navarro then recited the Miranda warnings again from memory. (Id.) Cervantes Sanchez replied that she did not completely understand the warning. (Id.)[3] Det. Navarro then repeated the Miranda warnings a third time, this time providing some additional explanation as to each of the individual advisements. (Id.) Det. Navarro then asked Cervantes Sanchez about her familiarity with the Miranda warnings. (Id.) Cervantes Sanchez replied that she had only been in this country for four years and when asked by Det. Navarro, said that she had not seen any movies in which the Miranda rights were read. (See Doc. No. 297 at 2.) The video recording of the interview reflects, in the court's view, that defendant Cervantes Sanchez did not make nonverbal gestures (i.e. nodding, etc.) that could reasonably be interpreted as indicating that she understood the Miranda warnings given to her.

         Seemingly to acknowledge that Cervantes Sanchez still did not have a sufficient understanding of the Miranda warnings, Det. Navarro then repeated each individual advisement within the Miranda warning one by one. (See id.) After doing so, Det. Navarro received confirmation that defendant Cervantes Sanchez understood her right to remain silent, understood her right to have an attorney to be present while she was being questioned, and understood that an attorney would be provided to her free of charge if she could not afford one. (See Doc. No. 292 at 3-4.) However, Det. Navarro failed to explain and confirm that Cervantes Sanchez understood that any statements she made to him could be used against her. (Id. at 4.) Nonetheless, and despite the lack of confirmation that Cervantes Sanchez understood that what she said could be used against her, the interview proceeded. Defendant Cervantes Sanchez never made any statement during the course of that interview confirming that she knew that the statements she made to Det. Navarro could be used as evidence against her. (Id.)

         The following day, on December 29, 2018, Homeland Security Investigations (“HIS”) Agent David Olaya (“Agent Olaya”) conducted a custodial interview of defendant Cervantes Sanchez at the Stanislaus County Jail. (See Doc. Nos. 299-7 at 1-17; 303 at 4.) This interview was also recorded, and the government has submitted a transcript of the interview under seal.[4] (See Doc. No. 305 at 31-53.) Prior to commencing the interview, Agent Olaya fully advised defendant Cervantes Sanchez of all the Miranda warnings and asked her if she understood. (Doc. Nos. 305 at 33; 303 at 4.) Defendant Cervantes Sanchez responded “yes” and did not ask any follow-up questions. (Id.) Agent Olaya then proceeded with his interview of Cervantes Sanchez.

         B. Legal Standards

         The Fifth Amendment to the United States Constitution provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself[.]” U.S. Const. Amend. V. The Supreme Court has “recognized that custodial interrogations, by their very nature, generate ‘compelling pressures which work to undermine the individuals will to resist and to compel him to speak where he would not otherwise do so freely.'” Moran v. Burbine, 475 U.S. 412, 420 (1986) (quoting Miranda, 384 U.S. at 467). “To combat this inherent compulsion, and thereby protect the Fifth Amendment privilege against self-incrimination, Miranda imposed on the police an obligation to follow certain procedures in their dealings with the accused.” Moran, 475 U.S. at 420; see also Dickerson v. United States, 530 U.S. 428, 435 (2000); United States v. IMM, 747 F.3d 754, 764 (9th Cir. 2014). Specifically, the Supreme Court has held the Constitution requires

that a person questioned by law enforcement officers after being “taken into custody or otherwise deprived of his freedom of action in any significant way” must first “be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”

Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Miranda, 384 U.S. at 444); see also IMM, 747 F.3d at 764. “An officer's obligation to administer Miranda warnings attaches . . . only where there has been such a restriction on a person's freedom as to render him in custody.” Stansbury, 511 U.S. at 322 (internal quotation marks omitted) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). The Supreme Court has also explained as follows:

The prophylactic Miranda warnings are not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected. Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably conve[y] to [a suspect] his rights as required by Miranda.

Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (internal citations and quotations omitted). “For inculpatory statements made by a defendant during custodial interrogation to be admissible in evidence, the defendant's ‘waiver of Miranda rights must be voluntary, knowing, and intelligent.'” United States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998) (quoting United States v. Binder, 769 F.2d 595, 599 (9th Cir. 1985)); see also United States v. Shi, 525 F.3d 709, 727 (9th Cir. 2008). “A valid waiver of Miranda rights depends upon the ‘totality of the circumstances including the background, experience, and conduct of defendant.'” Shi, 525 F.3d at 727 (quoting Garibay, 143 F.3d at 536). “To satisfy this burden, the prosecution must introduce sufficient evidence to establish that under the ‘totality of the circumstances,' the defendant was aware of ‘the nature of the right being abandoned and the consequences of the decision to abandon it.'” Garibay, 143 F.3d at 536-37 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)); see also United States v. Younger, 398 F.3d 1179, 1185 (9th Cir. 2005). Moreover, there is a presumption against waiver of Miranda rights and a heavy burden of showing a valid waiver by a preponderance of the evidence is on the prosecution. Colorado v. Connelly, 479 U.S. 157, 168 (1986); United States v. Bernard S., 795 F.2d 749, 752 (9th Cir. 1986); Shi, 525 F.3d at 727-28; see also Garibay, 143 F.3d at 537 (“The government's burden to make such a showing ‘is great,' and the court will ‘indulge every reasonable presumption against waiver of fundamental constitutional rights.'”) (quoting United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984). Courts are to consider the following factors in determining whether a defendant “knowingly and intelligently waived [her] constitutional rights”:

(1) whether the defendant signed a written waiver; (2) whether the defendant was advised of [her] rights in [her] native tongue; (3) whether the defendant appeared to understand [her] rights; (4) whether a defendant had the assistance of a translator; (5) whether the defendant's rights were individually and repeatedly explained to [her]; and (6) whether the defendant had prior experience with the criminal justice system.

Garibay, 143 F.3d at 538 (internal citations omitted); see also United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007).

         C. Analysis

         1. December 28, 2018 interrogation

         Defendant Cervantes Sanchez argues that her statements made to Det. Navarro on December 28, 2018 should be suppressed, because the record establishes that she did not understand that those statements could be used as evidence against her. (Doc. No. 292 at 5-8.) Cervantes Sanchez argues that she clearly indicated that she did not understand the Miranda warning when Det. Navarro recited it to her the first three times, and that only by reviewing the individual advisements contained within that warning, one by one, did she gain an understanding of some aspects of the Miranda warning. (Id. at 6.) According to Cervantes Sanchez, Det. Navarro inaccurately informed her that he had explained all of her Miranda rights, even though he had failed to explain that her statements could be used as evidence against her in the final, broken-down version of the warning that he gave. (Id.) Therefore, Cervantes Sanchez maintains that she waived her rights without the requisite level of knowledge. (Id.)

         The government counters that the Miranda advisement provided by Det. Navarro was sufficient. (Doc. No. 303 at 5-8.) According to the government, “[a]lthough Detective Navarro did not state during his ‘one by one' explanation . . . that anything [defendant Cervantes Sanchez] said could be used against her in a court of law, the context of the exchange indicates that Cervantes was aware of her rights . . . before she agreed to answer the detective's questions.” (Id. at 6.) The government's contention in this regard, however, is not supported by the record before the court.

         After the first three recitations of the Miranda advisements, Det. Navarro appeared to conclude that Cervantes Sanchez lacked a sufficient understanding of her rights and therefore continued to try to provide her a further explanation of those rights. In this regard, he attempted to simplify the Miranda warnings further by explaining each advisement within that warning individually. Admittedly, Det. Navarro did not provide much substantive insight for each individual advisement in the subsequent explanation he provided-but by slowing down his recitation and focusing on individual sentences, defendant Cervantes Sanchez verbally indicated that she had gained an understanding of the portions of the Miranda warning covered in this fashion by the detective. After reviewing the video recording of the warnings given and the subsequent interrogation, the court is not persuaded that the interaction reflects that defendant Cervantes Sanchez understood her rights before Det. Navarro began explaining the rights encompassed within the Miranda warning individually.

         The government argues that a waiver of Miranda rights can be valid, despite a failure to explain to a defendant that their statements could be used against them. (Doc. No. 303 at 6-8.) In support of this contention the government relies on the decision in Sanchez v. LaMarque, No. 2:01-CV-1694 LKK KJN, 2011 WL 1103339, at *24 (E.D. Cal. Mar. 22, 2011), aff'd sub nom. Sanchez v. Diaz, 572 Fed.Appx. 551 (9th Cir. 2014), in which a petitioner seeking relief pursuant to 28 U.S.C. § 2254 alleged a Miranda violation based on his dialogue with a detective. Initially, the detective in Sanchez recited the Miranda warning, and the petitioner assented when asked if he understood his rights. Id. at 22. When asked if he wished to waive his rights and talk with the detective, however, the petitioner equivocated. Id. The detective then attempted to explain the rights one by one, but the petitioner interrupted him and indicated that he was willing to talk to the detective without an attorney present. Id. Though the detective did not again explain to the petitioner that anything he said could be used against him, the court found that, in the context of the entire dialogue, the petitioner had made a knowing and intelligent waiver of his Miranda rights. Id.

         Defendant Cervantes Sanchez argues that the decision in Sanchez is distinguishable from this case for two principal reasons. (Doc. No. 310 at 4.) First, Sanchez was decided under the highly deferential standard of review applicable to habeas actions in which the state court's decision is only to be overturned if it constituted an unreasonable application of constitutional law as determined by the Supreme Court. (Id.) In contrast, here, it is the government that has the burden of establishing by a preponderance of the evidence that the Miranda warning provided to defendant Cervantes Sanchez resulted in her knowing and intelligent waiver of her right to remain silent. See Connelly, 479 U.S. at 168; Bernard S., 795 F.2d at 752; Shi, 525 F.3d at 727-28; Garibay, 143 F.3d at 537 (“The government's burden to make such a showing ‘is great,' and the court will ‘indulge every reasonable presumption against waiver of fundamental constitutional rights.'”) (quoting Heldt, 745 F.2d at 1277). Moreover, in Sanchez, the petitioner had a long history of encounters with law enforcement and stated from the onset that he understood his rights-both considerations that weigh towards a knowing and intelligent waiver of rights and neither of which are present in this case. (Id.)

         Here, Det. Navarro conceded that he recited the Miranda advisements from memory and did not rely on a written Miranda card, nor did he obtain a signed Miranda waiver from the defendant. This case, contrary to the government's assertion, is therefore not analogous to United States v. Bautista-Avila, 6 F.3d 1360, 1365 (9th Cir. 1993) and United States v. Cazares, 121 F.3d 1241, 1243 (9th Cir. 1997) in which the Ninth Circuit affirmed district court decisions finding Miranda waivers to be valid. (See Doc. No. 303 at 12.) Unlike in Bautista-Avila, defendant Cervantes Sanchez was not provided with an opportunity to review or sign a printed Miranda waiver. Bautista-Avila, 6. F.3d at 1365; see also Bernard S., 795 F.2d at 753 n.4 (“Although not dispositive, a written waiver of one's Miranda rights is ‘strong' evidence that the waiver is valid.”) (citing cases).[5] Unlike in Cazares, defendant Cervantes Sanchez was not given the opportunity to “read the Miranda warning aloud in Spanish from a card . . ..” Cazares, 121 F.3d at 1244; see also United States v. Heredia-Fernandez, 756 F.2d 1412, 1415-16 (9th Cir. 1985) (affirming the district court's ruling that a Miranda waiver was valid where the defendant read a form containing the Miranda advisement, signed a waiver, later indicated that he did not wish to have them read to him again, and had been arrested approximately fifteen times in the preceding eight to ten years).

         In Miranda, the Supreme Court held that informing a defendant that her statements can be used as evidence against her serves an important purpose.

This warning is needed in order to make [the defendant] aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that [s]he is faced with a phase of the adversary system-that [s]he is not in the presence of persons acting solely in [her] interest.

Miranda, 384 U.S. at 469. Though courts have “never insisted that Miranda warnings be given in the exact form described in that decision . . .” advisements that “touch[] all of the bases required by Miranda” include: “the right to remain silent, that anything [defendant] said could be used against him in court, that he had the right to speak to an attorney before and during questioning, that he had this right to the advice and presence of a lawyer even if [he could] not afford to hire one, and that he had the right to stop answering at any time until [he] talked to a lawyer.” Duckworth, 492 U.S. at 205 (internal quotations omitted); see also Florida. v. Powell, 559 U.S. 50, ...


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