United States District Court, E.D. California
AMENDED ORDER  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)
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.
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
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.
TO SUPPRESS STATEMENTS
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.)
facts relevant to this motion are as follows. 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.) 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.
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.
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. (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.
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
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).
December 28, 2018 interrogation
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.)
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.
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.
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.
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.)
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). 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).
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,