IN THE SUPREME COURT OF IOWA No. 07–1707
Filed May 29, 2009
STATE OF IOWA,
Appellant,
vs.
LUIS FERNANDO ORTIZ,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Woodbury County, Gary E.
Wenell, Judge.
The defendant seeks further review of a court of appeals decision
reversing a district court decision suppressing the defendant’s
statements made during an interrogation by the police. DECISION OF
COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED AND CASE REMANDED.
Thomas J. Miller, Attorney General, Jean C. Pettinger and Mary
Tabor, Assistant Attorneys General, Patrick Jennings, Woodbury County
Attorney, and Jill R. Pitsenbarger, Assistant County Attorney, for
appellant.
Shelley Goff, Ruston, Louisiana, for appellee. 2
WIGGINS, Justice.
The police brought a suspect to the police station for questioning.
The suspect spoke little or no English. After signing a Spanish-language
“voluntary waiver of rights,” he stated he did not understand his rights.
Then a Spanish-speaking officer read the suspect a Spanish Miranda
advisory. The suspect waived his rights and confessed to inappropriate
contact with a child. The State charged the suspect with lascivious acts
with a child. Prior to trial, the defendant filed a motion to suppress his
statements, alleging he did not knowingly, intelligently, and voluntarily
waive his Miranda rights. The district court granted the motion, and the
State appealed. The court of appeals reversed, finding Ortiz knowingly,
intelligently, and voluntarily waived his rights. Because we agree with
the district court that the State failed to prove by a preponderance of the
evidence the defendant knowingly and intelligently waived his Miranda
rights, we vacate the decision of the court of appeals, affirm the
judgment of the district court, and remand the case for further
proceedings.
I. Background Facts and Proceedings.
On July 15, 2006, the Sioux City Police Department received a
report from a woman asserting that Luis Ortiz, who was working on
various remodeling projects in her home, had forced her seven-year-old
daughter to touch his penis. Because Ortiz’s address was unknown,
Detective Bertrand asked the woman to arrange for Ortiz to come to her
home. On that date, Bertrand went to the woman’s home to attempt to
speak to Ortiz. Because Bertrand was aware Ortiz spoke little or no
English, he brought Spanish-speaking Special Agent Ricardo Rocha of
the Federal Immigration and Customs Enforcement Agency with him to
interpret. When Ortiz arrived at the house, Bertrand identified himself 3
as a police officer and asked Ortiz, with Rocha translating, if he would be
willing to accompany him to the police station for an interview. At the
time of this request, Bertrand’s badge and gun were on his waist and in
full view of Ortiz. Rocha explained to Ortiz that he was not under arrest
and could refuse to go. Ortiz agreed without any reluctance. Bertrand
did not give Ortiz the choice of driving his own vehicle to the station.
Rocha was not able to accompany Bertrand and Ortiz to the station
because he had other things to do that morning. Bertrand dropped
Rocha at his office and then took Ortiz to the station.
At the station, Bertrand took Ortiz to the second floor, using a key
card to access the elevator. Bertrand put Ortiz in an interview room
equipped with recording capabilities. Bertrand left Ortiz alone in the
room for approximately thirteen minutes before he returned to the room
with Salvador Sanchez, a Sioux City officer, who spoke Spanish. The
interview began with Sanchez interpreting for Bertrand and Ortiz. The
relevant substance of the interview as translated into English by a
person certified as a translator by the United States District Court is as
follows:
Sanchez: How are you, friend?
Ortiz: Fine.
Bertrand: Okay, uh, before I can begin, I need to let you read your rights. It’s part of the policy.
Sanchez: Questions. Can you read them?
Ortiz: Uh-huh.
Sanchez: Yeah?
Sanchez: [speaking in a low voice to Bertrand]
Bertrand: Yeah. [in response to Sanchez] 4 Sanchez: [speaking in a low voice to Bertrand]
Bertrand: Uh-huh.
08:27:21: [Sanchez leaves the interview cubicle]
08:28:06: [L. Ortiz signed the waiver]
Bertrand: Do you understand your rights?
Ortiz: But, what are my rights?
Bertrand: Okay, uh, [makes physical gesture to wait and then looks at the door through which Sanchez left a few minutes ago]. Uh, we’ll wait, we’ll wait.
Ortiz: [shakes head affirmatively]
Bertrand: Your license.
Ortiz: Uh-huh. [places left hand in front left pocket to retrieve wallet and remove license to hand to Bertrand]
08:28:55: [Sanchez reenters the interview cubicle]
Bertrand: How are you doing?
Sanchez: Did you understand what you read?
Ortiz: He is telling me the rights, but, what are they, what are they?
Sanchez: I am going to read them to you again.
Ortiz: Uh-huh.
Sanchez: Okay? [Sanchez takes a paper and starts to read from it] I have reading [sic.] the statement of . . .
[At 08:28:21 Sanchez puts down the paper the witness had signed and appeared to pull out his own reference source]
Sanchez: Statement of rights.
Ortiz: Uh-huh.
Sanchez: Before asking some questions, you have to understand the following.
Ortiz: Uh-huh. 5 Sanchez: Okay? You have the right to remain silent. Anything you say can be used against you in the Court. You have the right to consult with an attorney before asking questions and have this attorney present during the questioning. 1 If you cannot pay for the services of an attorney, one will be [unintelligible] to you, if you so desire. You understand you [sic.]. [Sanchez looks at witness apparently waiting for an answer]
The original waiver signed by Ortiz was written in Spanish. It
translates as follows:
VOLUNTARY WAIVER OF RIGHTS (WAIVER OF RIGHTS)
I have read the declaring [sic.] of the [non-word] [sic.] upon which I am noticed of my rights on [sic.] the constitution and the legal [sic.] and I completely understand what my rights are. I have received the opportunity to use the telephone to notify an attorney or individual from my family. I agree to answer an [sic.] questions and make an [sic.] statement. I know exactly what I am doing and I am doing so as a volunteer [sic.] and underneath [sic.] my own [sic.] will. I do not want to consult with an attorney and I don’t want to have an attorney be witnessed [sic.] here to inform me of my rights. I have not received any promise of immunity of any other type and they have not used any physically [sic.] force or pressionment [sic.] of any to force me to make a statement.
After Ortiz twice stated he did not understand his rights contained
in the waiver he signed, Sanchez attempted to read from the signed
waiver. He felt uncomfortable reading the warnings from the waiver form
and pulled a copy of the Miranda warnings translated in Spanish used by
the Federal Drug Enforcement Agency. After receiving these warnings,
Ortiz responded that he understood. Sanchez then stated, “Do you have
1The State contends the English translation of this sentence is “You have the right to consult with an attorney before making any questions and have said attorney present during the interview” rather than “You have the right to consult with an attorney before asking questions and have this attorney present during the questioning.” We believe the translation by the person certified by the United States District Court, interpreting the sentence using the word “asking,” is more credible. This discrepancy, however, does not have a bearing on the ultimate outcome of this case. 6
questions right now?” Ortiz replied, “No. Not right now. I want to know
[unintelligible].” Sanchez appeared to cut off the rest of Ortiz’s answer by
stating, “He understood his rights. I asked him if he has any questions,
he says he knows what is going on.” Bertrand then began to interrogate
Ortiz. At no time during the interview at the station did Bertrand tell
Ortiz he was free to go.
The State charged Ortiz with lascivious acts with a child. Ortiz
filed a motion to suppress statements made during the interview based
on the Fifth and Sixth Amendments to the United States Constitution.
Ortiz filed this motion after the court granted him an extension of time to
do so. Following a hearing, the district court granted Ortiz’s motion to
suppress, concluding the record failed to show by a preponderance of the
evidence that Ortiz knowingly and intelligently waived his Miranda rights
and that he made his statements voluntarily. The State filed an
application for discretionary review of the district court’s ruling, which
we granted. We transferred the case to the court of appeals. The court
of appeals reversed the district court’s suppression order, concluding,
“Ortiz was adequately advised of his rights under Miranda and he
knowingly, voluntarily, and intelligently waived those rights.” Ortiz
sought further review by this court.
II. Issues.
The State raises two issues on appeal. First, the district court
erred in extending the time for Ortiz to file his motion to suppress.
Second, the district court erred in finding the record failed to show by a
preponderance of the evidence that Ortiz knowingly and intelligently
waived his Miranda rights and that he made his statements voluntarily. 7
III. Scope of Review.
We review the district court’s good cause determination regarding
the timeliness of a motion to suppress for an abuse of discretion. State
v. Ball, 600 N.W.2d 602, 604–05 (Iowa 1999). We apply a different
standard of review when we review the merits of the district court’s ruling
on the motion to suppress.
The Miranda warnings protect a suspect’s Fifth Amendment right
against self-incrimination “ensuring that a suspect knows that he may
choose not to talk to law enforcement officers, to talk only with counsel
present, or to discontinue talking at any time.” Colorado v. Spring, 479
U.S. 564, 574, 107 S. Ct. 851, 857, 93 L. Ed. 2d 954, 966 (1987).
Because the State’s appeal of the district court’s ruling on the motion to
suppress implicates constitutional issues, our review is de novo. State v.
Morgan, 559 N.W.2d 603, 606 (Iowa 1997). For Ortiz’s statements to be
admissible, the State must first prove Ortiz was adequately informed of
his Miranda rights, understood them, and knowingly and intelligently
waived them. Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135,
1141, 89 L. Ed. 2d 410, 421 (1986) (“[T]he waiver must have been made
with a full awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it.”); Morgan, 559
N.W.2d at 606. Second, the State must prove Ortiz gave his statement
voluntarily. Morgan, 559 N.W.2d at 606. The State must prove by a
preponderance of the evidence that a suspect knowingly, intelligently,
and voluntarily waived his or her Miranda rights. Id.
IV. Good Cause Determination.
The State contends Ortiz waived his constitutional objections by
failing to file his motion to suppress in accordance with Iowa Rule of
Criminal Procedure 2.11(4). The rule requires Ortiz to file his motion 8
within forty days of the arraignment. Iowa R. Crim. P. 2.11(4). If a
defendant fails to file the motion within that time, the objection is
waived. State v. Terry, 569 N.W.2d 364, 368 (Iowa 1997). However, if
the court finds good cause for the late filing, the court can excuse the
untimeliness. Id.
The trial information was filed August 4, 2006, and Ortiz pled not
guilty in a written arraignment on August 16. The initial trial date was
set for November 28. This trial date was continued multiple times, with
the State agreeing to each continuance.
In May 2007 Ortiz filed a letter with the court complaining that his
attorney had not done anything on the case. The court removed Ortiz’s
counsel and appointed another attorney to represent Ortiz. At the end of
May, that attorney moved to withdraw, and another attorney filed an
appearance on Ortiz’s behalf.
On June 7 the court had a pretrial conference with the State and
Ortiz’s present attorney regarding the June 26 trial date. This
conference appears to be the first time an attorney was willing to do the
work necessary to defend Ortiz properly. At the conference, the attorney
indicated she wished to take a deposition of the police officers who
interviewed Ortiz because there was a question as to whether Ortiz
knowingly waived his rights prior to giving his statement. Without
objection, the court continued the trial to July 10. The court also
granted the attorney’s request to take the depositions and stated that
any motion to suppress, together with any translations of the interview,
should be filed no later than June 21. An order formalizing the June 7
conference was entered on June 8. The defendant complied with the
court order and filed his motion to suppress on June 21. 9
Ortiz’s prior counsel did not do anything in furtherance of
exploring the possibility of filing a motion to suppress. Shortly after
Ortiz’s last counsel filed her appearance, she diligently explored the
possibility of filing such a motion. If the case did go to trial without the
court ruling on the motion to suppress, Ortiz would have had an
ineffective-assistance-of-counsel claim against his attorney that would
have to be litigated had he been convicted. See State v. Rhiner, 352
N.W.2d 258, 261, 264 (Iowa 1984) (holding failure to timely file a motion
to suppress that the court should have granted is cause for an
ineffective-assistance-of-counsel claim and a reversal of the verdict).
The district court considered the untimely motion due to the
multiple changes of counsel and prior counsel’s failure to represent Ortiz
properly. The district court knew that if Ortiz’s motion to suppress
should have been granted and the court failed to consider it pretrial, any
guilty verdict in Ortiz’s case may have been subject to reversal on an
ineffective-assistance-of-counsel claim. It is the public policy of this
state that litigation should be final at the earliest possible date. To avoid
additional litigation in this matter the court did the proper thing by
considering the motion rather than waiting for its merits to be
determined in a postconviction relief proceeding. Accordingly, the
district court did not abuse its discretion in hearing the motion under
the circumstances of this case.
V. Motion to Suppress.
A. Miranda. In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), the Supreme Court required the police to advise
suspects of their rights under the Fifth and Fourteenth Amendments
before beginning a custodial interrogation. The Supreme Court required
that the suspect must be told: 10 he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
Id. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726. The requirement that
police officers advise suspects of their Miranda rights is more than a
mere procedural nicety or legal technicality. Id. at 476, 86 S. Ct. at
1629, 16 L. Ed. 2d at 725 (“The requirement of warnings and waiver of
rights is . . . fundamental with respect to the Fifth Amendment privilege
and not simply a preliminary ritual to existing methods of
interrogation.”). The police must take the giving of the Miranda warnings
seriously and must not presume that suspects “are already aware of
what rights they possess prior to being questioned.” United States v. San
Juan-Cruz, 314 F.3d 384, 389 (9th Cir. 2002).
Suspects may waive their Miranda rights as long as the suspect
has done so knowingly, intelligently, and voluntarily. Miranda, 384 U.S.
at 444, 475, 86 S. Ct. at 1612, 1628, 16 L. Ed. 2d at 706–07, 724. For a
waiver to be made knowingly and intelligently, “the waiver must have
been made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.” Moran,
475 U.S. at 421, 106 S. Ct. at 1141, 89 L. Ed. 2d at 421. For a waiver to
be made voluntarily, the relinquishment of the right must have been
voluntary, meaning it was the product of the suspect’s free and
deliberate choice rather than intimidation, coercion, or deception. Id.
The question of whether a suspect in fact knowingly, intelligently,
and voluntarily waived his or her Miranda rights is to be made by
inquiring into the totality of the circumstances surrounding the
interrogation, to ascertain whether the suspect in fact “decided to forgo
his rights to remain silent and to have the assistance of counsel.” Fare v. 11
Michael C., 442 U.S. 707, 724–25, 99 S. Ct. 2560, 2571–72, 61 L. Ed. 2d
197, 212 (1979). Statements made by a suspect during a custodial
interrogation are inadmissible unless a suspect is specifically warned of
his or her Miranda rights and freely decides to forgo those rights. New
York v. Quarles, 467 U.S. 649, 654, 104 S. Ct. 2626, 2630, 81 L. Ed. 2d
550, 556 (1984).
B. Custodial Interrogation. The State claims Ortiz was not in
custody at the time of his interrogation; therefore, the police were not
required to give him Miranda warnings prior to the interrogation. The
Miranda opinion provides that a suspect is in custody upon formal arrest
or under any other circumstances where the suspect is deprived of his or
her freedom of action in any significant way. Miranda, 384 U.S. at 444,
86 S. Ct. at 1612, 16 L. Ed. 2d at 706. In determining whether a suspect
is “in custody” at a particular time, we examine the extent of the
restraints placed on the suspect during the interrogation in light of
whether “a reasonable man in the suspect’s position would have
understood his situation” to be one of custody. Berkemer v. McCarty,
468 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1984).
We apply this test objectively. State v. Miranda, 672 N.W.2d 753, 759
(Iowa 2003). In making our determination, we consider the following four
factors:
(1) the language used to summon the individual;
(2) the purpose, place, and manner of interrogation;
(3) the extent to which the defendant is confronted with evidence of [his] guilt; and
(4) whether the defendant is free to leave the place of questioning.
Id. 12
An application of these factors reveals that when Bertrand
approached Ortiz, he asked Ortiz if he would accompany him to the
police station for the purpose of being interviewed. At the time of the
request, Bertrand’s badge and gun were on his waist and in full view of
Ortiz. Although Rocha explained to Ortiz that he was not under arrest
and could refuse to go to the station, Ortiz agreed without any
reluctance. When Ortiz agreed to go to the station, Bertrand did not give
Ortiz the choice of driving his own vehicle to the station. Therefore,
Ortiz’s transportation was miles away from the station.
At the station, Bertrand took Ortiz to the second floor and put him
in an interview room. Bertrand had to use a key card to access the
elevator, leaving the impression a key card would be required to exit the
area as well. Prior to any questioning, the police attempted to give Ortiz
his Miranda warnings, warnings required to be given prior to a custodial
interrogation. Even though Bertrand never told Ortiz he was under
arrest at the station, Bertrand also never told Ortiz he was free to leave
the station. See United States v. Longbehn, 850 F.2d 450, 453 (8th Cir.
1988) (finding defendant in custody where record reflected no evidence
that suspect was free to leave). But see Oregon v. Mathiason, 429 U.S.
492, 494–95, 97 S. Ct. 711, 713–14, 50 L. Ed. 2d 714, 719 (1977)
(finding of coercion mitigated where suspect was free to leave and was
informed he was not under arrest). Even if Ortiz wanted to leave, he had
no transportation to return to his vehicle.
The purpose of the interrogation was to obtain Ortiz’s confession.
In furtherance of that purpose, after asking some preliminary questions,
Bertrand confronts Ortiz with the mother’s allegations of inappropriate
contact between Ortiz and her daughter. Next, Bertrand launches into 13
the interrogation by asking Ortiz how many times he had inappropriate
contact with the girl.
Although the State maintains Ortiz was not in custody, in light of
all the circumstances, we believe once Ortiz was transported to the police
station and put in the interview room a reasonable person in Ortiz’s
position would have understood his situation to be one of custody. Thus,
Bertrand was required to give Ortiz his Miranda warnings before
beginning the interrogation.
C. Knowing and Intelligent Waiver. The State has the burden to
prove by a preponderance of the evidence that Ortiz knowingly and
intelligently waived his Miranda rights. Morgan, 559 N.W.2d at 606. The
Supreme Court has never required a precise formulation of the Miranda
warnings. Duckworth v. Eagan, 492 U.S. 195, 202, 109 S. Ct. 2875,
2880, 106 L. Ed. 2d 166, 176–77 (1989). To determine whether a
suspect’s waiver of his or her Miranda rights was knowing and
intelligent, we must inquire if the suspect knew that he or she did not
have to speak to the police without counsel and understood that
statements provided to the police could be used against him or her.
United States v. Yunis, 859 F.2d 953, 964–65 (D.C. Cir. 1988). This does
not mean a suspect must understand the tactical advantage of keeping
silent in order to make a valid waiver. Id. at 965.
Although language barriers may have hindered Ortiz’s ability to
knowingly and intelligently waive his Miranda rights, the translation of
the Miranda rights need not be a perfect one, so long as Ortiz understood
that he did not need to speak to the police without counsel and that any
statement he made could be used against him. United States v.
Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990). However, regardless
of what language is used to convey the warnings to Ortiz, the warnings 14
must “ ‘be clear and not susceptible to equivocation’ ” and provide
“ ‘ “meaningful advice to the unlettered and unlearned in language which
[he] can comprehend and on which [he] can knowingly act.” ’ ” United
States v. Perez-Lopez, 348 F.3d 839, 848 (9th Cir. 2003) (quoting San
Juan-Cruz, 314 F.3d at 387).
After reviewing the totality of the circumstances surrounding
Ortiz’s interrogation, we agree with the district court that the State has
failed to meet its burden to show by a preponderance of the evidence that
Ortiz waived his Miranda rights knowingly and intelligently. First, the
State failed to establish Ortiz spoke and understood English. Because of
this language barrier, it was incumbent upon the State to prove that the
warnings given to Ortiz in Spanish provided him meaningful advice in a
language he could comprehend and on which he could knowingly act.
Second, Bertrand gave Ortiz a written warning that made no sense.
Although the literal translation contains bits and pieces of the required
Miranda warning, the record is devoid of any testimony that a Spanish-
reading individual would read the written warning and glean any
indication of his or her Miranda rights. The record factually reveals that
after Ortiz read and signed this waiver, he asked not once, but twice as to what his rights were. Third, both Ortiz and the State introduced the literal translation of
the Miranda warnings as read by Sanchez. Ortiz’s translation states
Sanchez told Ortiz, “You have the right to consult with an attorney before
asking questions and have this attorney present during the questioning.”
The State’s translation states Sanchez told Ortiz, “You have the right to
consult with an attorney before making any questions and have said
attorney present during the interview.” Miranda requires that a suspect
be informed, “that he has the right to the presence of an attorney, and 15
that if he cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires.” Miranda, 384 U.S. at 479, 86 S. Ct. at
1630, 16 L. Ed. 2d at 726 (emphasis added).
Both Ortiz’s and the State’s translations convey to an English-
speaking individual that before Ortiz asked or made a question he had a
right to have an attorney present. Neither translation conveys to Ortiz
that he has the right to an attorney before being asked to answer any
questions. If this warning, as translated into English, was given to an
English-speaking person, the person’s statement would not be
admissible because the warning given does not contain the essence of
Miranda. Miranda requires that a suspect be informed that he or she
has a right to counsel before being asked questions rather than before
asking or making questions. The warning Ortiz received confuses the
issue of who is asking or making the questions and fails to adequately
inform him of his Miranda rights.
The State seems to argue that due to the nature and syntax of the
Spanish language a suspect who spoke and understood Spanish would
understand the Spanish Miranda warning to convey that prior to or
during any interrogation by the police, the suspect would have a right to
consult with an attorney. Although this argument may have some merit,
the record contains no evidence that would allow us to find the Spanish
Miranda warning was sufficient. Neither party called an interpreter to
testify how a Spanish-speaking individual would understand the Spanish
translation of Miranda. The only evidence of what was conveyed to Ortiz
was copies of the translation that was admitted into evidence. The bare
translation of Sanchez’s words does not satisfy the State’s burden to
prove Ortiz knowingly and intelligently waived his Miranda rights. 16
Finally, after Sanchez read Ortiz his rights, Sanchez then asked Ortiz, “Do you have questions right now?” Ortiz replied, “No. Not right now. I want to know [unintelligible].” Sanchez appeared to cut off the rest of Ortiz’s answer by telling Bertrand, “He understood his rights. I asked him if he has any questions, he says he knows what is going on.” Bertrand then began to interrogate Ortiz. We are concerned about the haste used by Sanchez and Bertrand to begin the interrogation after Ortiz stated, “I want to know [unintelligible].” We are not convinced that Ortiz’s unintelligible statement was not a request for further clarification. It is the State’s burden to prove his unintelligible statement was not a request for further clarification. Under this record, we cannot make a finding the unintelligible statement was not such a request. Accordingly, under the totality of the circumstances, the State has failed to meet its burden that Ortiz knowingly and intelligently waived his Miranda rights. Consequently, the district court was correct when it suppressed Ortiz’s statements made during his interview at the Sioux City police department. D. Voluntary Waiver. Even though the district court found Ortiz did not voluntarily waive his Miranda rights, we need not decide this issue having found the waiver was not given knowingly and intelligently. VI. Disposition. Because we agree with the district court that Ortiz did not knowingly and intelligently waive his Miranda rights, we vacate the decision of the court of appeals and affirm the judgment of the district court. Therefore, we remand this case to the district court to proceed in a manner consistent with this decision. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED AND CASE REMANDED. All justices concur except Streit and Cady, JJ., who dissent. 17
Ortiz, #35/07–1707
STREIT, Justice (dissenting).
I disagree. The Miranda warning read to Luis Ortiz conveyed the
key requirements of Miranda, specifically the right to consult with an
attorney and have the attorney present during questioning. Ortiz’s
waiver and subsequent confession were voluntary considering the totality
of the circumstances. I would affirm the court of appeals and reverse the
district court.
I. Background Facts.
The majority does not take into account some key facts. At the
police station, Officer Bertrand took Ortiz to an interview room and gave
Ortiz a “Waiver of Rights” form 2 written in Spanish and asked him to
2The defendant’s expert translated the waiver of rights form as follows: VOLUNTARY WAIVER OF RIGHTS (WAIVER OF RIGHTS) I have read the declaring [sic.] of the [non-word] upon which I am noticed of my rights on [sic.] the constitution and the legal [sic.] and I completely understand what my rights are. I have received the opportunity to use the telephone to notify an attorney or individual from my family. I agree to answer an [sic.] questions and make an [sic.] statement. I know exactly what I am doing and I am doing so as a volunteer [sic.] and underneath [sic.] my own [sic.] will. I do not want to consult with an attorney and I don’t want to have an attorney be witnessed [sic.] here to inform me of my rights. I have not received any promise of immunity of any other type and they have not used any physically [sic.] force or pressionment [sic.] of any to force me to make a statement. The original Spanish reads: RENUNCIA VOLUNTARIA DE LOS DERECHOS (WAIVER OF RIGHTS) He leido el declaracion de advertiso en que estoy avisado de mis derechos del constitucion y del juridico y entiendo completamente cuales son mis derechos. He recibido la oportunidad de usar el telefone para notificar un licenciado o una persona de mi familia. Estoy de acuerdo a contestar cualquier preguntos y hacer un declaracion. Se exactamente lo que estoy haciendo y eso lo hago de voluntario y debajo mi propira voluntad. No quiero consultar con un licenciado y no quiero tener un 18
read it. The form was not by any means a valid Miranda waiver.
Although it acknowledges the right to an attorney, it did not mention the
right to remain silent or have an attorney appointed if you cannot afford
one. Officer Salvador Sanchez, of the Sioux City Police Department, was
present as an interpreter. Sanchez asked Ortiz if he could read the form,
and Ortiz responded that he could. Sanchez then left the room for a
moment, and Ortiz signed the waiver of rights form. After Ortiz signed
the form, Bertrand asked him, “Do you understand your rights?” Ortiz
responded, “But what are my rights?” Bertrand waited for Sanchez to
return. When Sanchez returned, he asked Ortiz, “Do you understand
what you read?” Ortiz responded, “He is telling me the rights, but what
are they, what are they?” This was a direct question as to what this form
meant when it said “I completely understand what my rights are.” If
anything, this demonstrated Ortiz knew exactly what was going on. He
had not been told his rights. He asked with clarity what they were.
Sanchez then began reading out loud the waiver of rights form that Ortiz
had signed. Sanchez stopped reading (perhaps realizing the Waiver of
Rights form would not adequately tell him his rights) and instead read
Ortiz the Spanish Miranda advisory card used by the federal Drug
Enforcement Administration. 3 The following is a translation by the
defendant’s expert of the advisory Sanchez recited to Ortiz:
Before asking some questions, you have to understand the following. Okay? You have the right to remain silent. _____________________________ licenciado presenciarse aqui para avisarme de mis derechos. No he recibido ninguna promesa de inminudad ni de cualquier otro tipo y no han usado ninguna fuerza fisicamente ni presura de cualquier tipo para forzarme de hacer una declaracion.
3Sanchez works on a joint drug task force. He testified that he is more comfortable with the Miranda form used by the Drug Enforcement Administration, form 13A, a card which includes a Miranda warning in English on one side and a Spanish version on the other side. 19 Anything you say can be used against you in the court. You have the right to consult with an attorney before asking questions and have this attorney present during the questioning. If you cannot pay for the services of an attorney, one will be [unintelligible] to you, if you so desire. You understand you? 4
(Emphasis added.) Ortiz responded that he had no questions. He then
confessed to making the girl touch his penis.
II. Knowing and Intelligent Waiver.
In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966), the United States Supreme Court determined that the Fifth
and Fourteenth Amendments require the police to inform a suspect he
has a right to remain silent and a right to counsel during custodial
interrogation. A defendant can waive these rights “provided the waiver is
made voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at
4The original Spanish advisory Sanchez recited to Ortiz is as follows:
Antes de hacer algunas preguntas, usted tiene que entender de lo siguiente: Okay, usted tiene el derecho de permanecer callado. Cualquier cosa que usted diga se puede usar en su contra en la corte. Usted tiene el derecho de consultar con abogado antes de hacerle algunas preguntas y tener dicho abogado presente durante el interrogatorio. Si usted no puede pagar por los servicios de un abogado, uno será nombrado para usted, antes de cualquier interrogatirio, si usted desea. Entiendes usted?
Sanchez read the federal DEA Miranda advisory correctly, without any word substitutions. The translation cited in the text above is from the defendant’s expert, Michael D. Powers, Ph.D. and United States Certified Court Interpreter in Spanish. The state’s interpreter, Giovanna Canet, a certified Spanish interpreter for the State of Iowa, translates the key phrase “Usted tiene el derecho de consultar con abogado antes de hacerle algunas preguntas y tener dicho abogado presente durante el interrogatorio” slightly differently than the defendant’s expert. Her translation, in State’s Exhibit 5, reads “You have the right to consult with an attorney before making any questions [and] have said attorney present during the interview.”
DEA Form 13A includes both an English and a Spanish Miranda advisory to be read to the suspect prior to interrogation. The English version on the form reads “You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning.” DEA Form 13A. 20
444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707. “The State must prove, by a
preponderance of the evidence, that constitutional rights were knowingly
waived and that statements of an inculpatory nature were voluntarily
given.” State v. Morgan, 559 N.W.2d 603, 606 (Iowa 1997). Absent
Miranda warnings and a valid waiver of those rights, statements made
during an interrogation are inadmissible. Miranda, 384 U.S. at 479, 86
S. Ct. at 1630, 16 L. Ed. 2d at 726.
In determining whether a defendant has validly waived his Miranda
rights, we must consider the following:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410, 420–21 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.
Ct. 2560, 2572, 61 L. Ed. 2d 197, 212 (1979)).
Ortiz does not assert that his waiver was coerced. Rather, he
contends because the recitation of his rights did not properly explain a
lawyer would be available to him before answering questions, he did not
fully understand the rights he was waiving. Ortiz argues informing him
he has the right to consult with an attorney before “asking questions” 5 is
significantly different from having the right to consult with an attorney
before “answering questions” and does not satisfy the requirements of
Miranda.
5As noted above, the State’s interpreter translated the phrase “antes de hacerle
algunas preguntas” as “before making any questions.” 21
Miranda does not require that a “precise formulation of the
warning [be] given to a criminal defendant.” California v. Prysock, 453
U.S. 355, 359, 101 S. Ct. 2806, 2809, 69 L. Ed. 2d 696, 701 (1981). The
United States Supreme Court has “never insisted that Miranda warnings
be given in the exact form described in that decision.” Duckworth v.
Eagan, 492 U.S. 195, 202, 109 S. Ct. 2875, 2880, 106 L. Ed. 2d 166,
176 (1989). We have adopted the federal standard and have determined
that Miranda warnings need only “reasonably relay to an accused his
rights as required by the Miranda decision.” State v. Schwartz, 467
N.W.2d 240, 246 (Iowa 1991).
The fact that Miranda rights are translated into the suspect’s
native language does not change the analysis. See, e.g., United States v.
Perez-Lopez, 348 F.3d 839, 848–49 (9th Cir. 2003). As the Tenth Circuit
has noted,
Although language barriers may inhibit a suspect’s ability to knowingly and intelligently waive his Miranda rights, when a defendant is advised of his rights in his native tongue and claims to understand such rights, a valid waiver may be effectuated. The translation of a suspect’s Miranda rights need not be a perfect one, so long as the defendant understands that he does not need to speak to police and that any statement he makes may be used against him.
United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990)
(citations omitted).
In Prysock and Duckworth, the United States Supreme Court found
the Miranda warnings given were adequate where they apprised the
individual of the following rights: (1) the right to remain silent, and
anything the individual says can be used against him or her in a court,
(2) the right to the presence of an attorney during questioning, and (3)
the right to have an attorney appointed at no cost if the individual cannot
afford one. Duckworth, 492 U.S. at 203, 109 S. Ct. at 2880, 106 L. Ed. 22
2d at 177; Prysock, 453 U.S. at 361, 101 S. Ct. at 2810, 69 L. Ed. 2d at
702.
In determining whether a warning fully conveys the Miranda rights,
federal courts are split on whether it is necessary to inform the individual
that he has the right to an attorney present during questioning as
opposed to a general advisement of the right to have an attorney present.
The Fifth, Sixth, and Ninth Circuits have held that the suspect is entitled
to be expressly informed that he has the right to an attorney present
during questioning. See United States v. Tillman, 963 F.2d 137, 140–41
(6th Cir. 1992) (holding “the right to the presence of an attorney” did not
adequately inform suspect of the right to the presence of an attorney
during questioning); United States v. Noti, 731 F.2d 610, 615 (9th Cir.
1984) (constitutional rights violated where defendant only informed of
right to presence of attorney before questioning and not during
questioning); Windsor v. United States, 389 F.2d 530, 533 (5th Cir. 1968)
(“Merely telling [defendant] that he could speak with an attorney . . .
before he said anything at all is not the same as informing him that he is
entitled to the presence of an attorney during interrogation and that one
will be appointed if he cannot afford one.”).
In contrast, the Fourth and Eighth Circuits have determined a
general advisement that the suspect has a right to the presence of an
attorney was adequate, and it was not necessary to expressly inform the
suspect he has the right to an attorney present during questioning. See
United States v. Frankson, 83 F.3d 79, 82 (4th Cir. 1996) (general
warning “you have the right to an attorney” satisfied Miranda
requirements); United States v. Caldwell, 954 F.2d 496, 502 (8th Cir.
1992) (general warning that defendant has the right to an attorney 23
sufficient and no strict requirement that “a defendant be explicitly
advised of his right to an attorney before and during questioning”).
Advising the suspect he has a right to the presence of an attorney
during questioning more precisely conveys the key requirements of
Miranda than simply informing the suspect he has a right to the
presence of an attorney in general. Here, the warnings given to Ortiz
“touched all aspects and requirements of Miranda.” Schwartz, 467
N.W.2d at 246. It contained the essence of the Miranda warnings.
Sanchez informed Ortiz of his right to speak to a lawyer during
questioning, and that a lawyer would be appointed for him if he could
not afford one. He also informed Ortiz he had the right to remain silent
and anything he said could be used against him in court. Assuming the
translation offered by the defendant’s expert to be correct, 6 Sanchez’s
statement that Ortiz could speak to a lawyer before asking questions (as
opposed to before answering questions) does not make a substantive
difference in Ortiz’s rights since the translation conveyed the key
requirement of having counsel present during questioning. Given the
context of the sentence, it is unfair to conclude Ortiz understood he had
a right to an attorney only while he asked the officers questions. Furthermore, in the written waiver of rights Ortiz signed, he “agreed to
answer . . . questions and to make . . . [a] statement.” Ortiz was not
misled about his rights. Exchanging one word (“asking” for “answering”)
did not change the substance of the rights conveyed. Sanchez informed
Ortiz, “You have the right to consult with an attorney before asking [or
6Only the defendant’s interpreter translated the phrase “usted tiene el derecho de consultar con un abogado, antes de harcele algunas preguntas” as “you have the right to consult with an attorney before asking questions.” The State’s interpreter translated the phrase “antes de hacerle algunas preguntas” as “before making any questions,” and the English version on DEA Form 13A reads “you have the right to talk to a lawyer for advice before we ask you any questions.” 24
making] questions and have this attorney present during the questioning
[or interview].” Further, federal courts have recognized DEA Form 13A,
the Spanish Miranda advisory Sanchez read to Ortiz, provides the
Miranda warning in Spanish. See, e.g., United States v. Labrada-
Bustamante, 428 F.3d 1252, 1257 n.3 (9th Cir. 2005) (“A DEA Form 13A
states the Miranda warnings in both English and Spanish.”).
Ortiz was “clearly informed that he has the right to consult with a
lawyer and to have the lawyer with him during interrogation.” Miranda,
384 U.S. at 471, 86 S. Ct. at 1626, 16 L. Ed. 2d at 722. In addition,
Sanchez asked Ortiz a few times whether he understood his rights and
whether he had any questions. Ortiz’s waiver was made “with a full
awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.” Moran, 475 U.S. at 421,
106 S. Ct. at 1141, 89 L. Ed. 2d at 420–21.
Even though Ortiz was told he had the right to an attorney before
asking questions, he received information of no consequence. In the
context of the warning, this advisement was superfluous. There was no
confusion created by this phrase. We have not come across any cases
where the defendant complains his warning was inadequate because he
was informed only that he had a right to counsel during questioning but
not before questioning. The core right, as set forth in Miranda, is the
right to consult with an attorney and have the attorney present during
interrogation. Miranda, 384 U.S. at 471, 86 S. Ct. at 1626, 16 L. Ed. 2d
at 722 (“Accordingly we hold that an individual held for interrogation
must be clearly informed that he has the right to consult with a lawyer
and to have the lawyer with him during interrogation . . . .”).
I agree with the court of appeals that Ortiz’s confession was
voluntary. The district court, in concluding Ortiz’s waiver and confession 25
were involuntary, relied on a written translation of the interview. Upon
reviewing the video-recorded 7 waiver of rights and confession (and the
accompanying interpretation), it is clear Ortiz’s statements were “the
product of an essentially free and unconstrained choice, made by the
defendant whose will was not overborne or whose capacity for self-
determination was not critically impaired.” State v. Payton, 481 N.W.2d
325, 328 (Iowa 1992). The interview lasted about an hour. The officers
did not intimidate, deceive, threaten, or promise anything to Ortiz to
induce him to waive his rights or confess. Although the transcript reads
somewhat choppy and suggests the officers cut off Ortiz on a few
occasions, the video recording reveals the officers allowed Ortiz time to
both answer and ask questions. There was no haste. Ortiz was even
allowed to call his wife (or girlfriend) on his cell phone. 8 The tone of the
questioning was neither harsh nor coercive. Considering the totality of
the circumstances, Ortiz’s waiver and subsequent confession were “made
voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444, 86
S. Ct. at 1612, 16 L. Ed. 2d at 707.
As the Miranda warnings given to Ortiz conveyed the key
requirements of Miranda, specifically the right to consult with an attorney and have the attorney present during questioning, and his
confession was voluntary, his confession should be admissible.
Cady, J., joins this dissent.
7This case is an excellent example of the value of electronically recorded police interrogations. See State v. Hajtic, 724 N.W.2d 449, 456 (Iowa 2006) (“We believe electronic recording, particularly videotaping, of custodial interrogations should be encouraged . . . .”).
8Duringthis call, he admitted there was a problem with the daughter and that “she touched me.” These statements are not an issue in this appeal.