NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 19-3008
UNITED STATES OF AMERICA
v.
FERNANDINO RODRIGUEZ-COLON, Appellant
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 1-18-cr-00190) District Judge: Hon. Sylvia H. Rambo
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 10, 2020
Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges.
(Filed: September 16, 2020)
OPINION *
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge.
Fernandino Rodriguez-Colon appeals the denial of his motions to suppress his
statements to police and evidence found pursuant to a search warrant. Finding no error, we
will affirm.
I. BACKGROUND
A search at a residence (“Residence”) found narcotics, firearms, drug paraphernalia,
and money. The warrant permitting the search relied, in part, on law enforcement dealings
with two confidential informants (“CS1” and “CS2”). CS1 participated in two controlled
drug purchases with Rodriguez-Colon, and during one of these purchases, Rodriguez-
Colon was observed leaving the Residence before selling drugs to CS1. On another
occasion, CS2 conducted two controlled drug purchases at the Residence. Rodriguez-
Colon, who was present at the Residence at the time police officers executed the search
warrant, was placed into custody and given his Miranda warnings. Although he did not
initially assert his right to remain silent or to counsel, he asserted both rights upon arrival
at the police station. Rodriguez-Colon then complained of health issues and officers took
him to a medical center for a check-up where, while awaiting a doctor, he spoke with the
officers.
Following criminal charges, Rodriguez-Colon moved to suppress all evidence
obtained as a result of the search warrant, claiming the warrant affidavit was invalid. He
also moved to suppress evidence of statements made at the medical center, claiming a
Miranda violation. The District Court denied both motions. Rodriguez-Colon then entered
conditional guilty pleas to drug distribution and possession of a firearm in violation of 21
2 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 924(c)(1)(A). The District Court
sentenced him to 262 months’ imprisonment. Rodriguez-Colon now appeals, claiming that
the District Court erred in denying his motions to suppress. 1
II. ANALYSIS
A. Rodriguez-Colon’s Motion to Suppress the Seized Evidence
Rodriguez-Colon argues the District Court erred in denying the motion to suppress
evidence obtained as a result of the search warrant because the affidavit supporting the
search warrant contained material omissions critical to determining probable cause.
“[W]hen the Fourth Amendment demands a factual showing sufficient to comprise
‘probable cause,’ the obvious assumption is that there will be a truthful showing.” Franks
v. Delaware, 438 U.S. 154, 164–65 (1978) (alteration and emphasis in original) (quoting
another source). To “overcome the general presumption that an affidavit of probable cause
supporting a search warrant is valid,” a defendant must first “make a ‘substantial
preliminary showing’ that the affidavit contained a false statement, which was made
knowingly or with reckless disregard for the truth, which is material to the finding of
probable cause.” United States v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006) (quoting Franks,
438 U.S. at 171). “[T]o make this preliminary showing, the defendant cannot rest on mere
conclusory allegations or a ‘mere desire to cross-examine,’ but rather must present an offer
of proof contradicting the affidavit.” Id. at 383 n.8 (quoting Franks, 438 U.S. at 171).
1 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We review findings of fact for clear error, while exercising plenary review over legal determinations. United States v. Lewis, 672 F.3d 232, 236–37 (3d Cir. 2012); United States v. Benton, 996 F.2d 642, 644 (3d Cir. 1993). 3 Rodriguez-Colon does not meet this requirement. His challenge contains no offer of
proof and merely questions the general reliability of confidential sources. For instance, he
argued to the District Court that if granted a hearing, “[i]t is anticipated that the informants
will tell the defense that they did not buy controlled substances from Mr. Colon from within
his residence.” (App. at 40.) Neither Rodriguez-Colon’s speculation, nor his desire to
cross-examine the informants, suffices for a Franks hearing or suppression. 2 So the District
Court properly denied Rodriguez-Colon’s motion without a hearing.
B. Rodriguez-Colon’s Motion to Suppress His Statements
Rodriguez-Colon next contends that inculpatory statements he sought to suppress
were obtained in violation of Miranda. After invoking the Fifth Amendment right to silence
or the right to counsel, any statements by the defendant obtained through express
questioning or the “functional equivalent” of a custodial interrogation must be suppressed.
Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980) (citing Miranda v. Arizona, 384 U.S.
436 (1966)).
The “functional equivalent” of an interrogation includes “any words or actions on
the part of the police . . . that the police should know are reasonably likely to elicit an
incriminating response.” Id. at 301. We consider whether officers “intentionally created
circumstances likely to elicit a statement” from a defendant, United States v. Benton, 996
2 The failure to clear the lower hurdle of a substantial preliminary showing means that Rodriguez-Colon cannot meet the higher “preponderance of the evidence” standard for suppression. See Franks, 438 U.S. at 156 (the defendant must prove the Franks elements by a preponderance of the evidence to merit suppression); Yusuf, 461 F.3d at 383 (“In the end, the defendant must prove by a preponderance of the evidence that probable cause does not exist [when the falsehood or omission is corrected].”). 4 F.2d 642, 644 (3d Cir. 1993), whether the defendant appeared emotionally distressed or
overwrought, Innis, 446 U.S. at 302–03, and whether he “would have felt compelled to
respond to the arresting officer’s statement,” Benton, 996 F.2d at 644.
These circumstances do not exist here as to Rodriguez-Colon’s statements initiating
conversation with the officers. Although Rodriguez-Colon invoked his right to remain
silent and to counsel, he later engaged officers in conversation about his case and in
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 19-3008
UNITED STATES OF AMERICA
v.
FERNANDINO RODRIGUEZ-COLON, Appellant
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 1-18-cr-00190) District Judge: Hon. Sylvia H. Rambo
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 10, 2020
Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges.
(Filed: September 16, 2020)
OPINION *
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge.
Fernandino Rodriguez-Colon appeals the denial of his motions to suppress his
statements to police and evidence found pursuant to a search warrant. Finding no error, we
will affirm.
I. BACKGROUND
A search at a residence (“Residence”) found narcotics, firearms, drug paraphernalia,
and money. The warrant permitting the search relied, in part, on law enforcement dealings
with two confidential informants (“CS1” and “CS2”). CS1 participated in two controlled
drug purchases with Rodriguez-Colon, and during one of these purchases, Rodriguez-
Colon was observed leaving the Residence before selling drugs to CS1. On another
occasion, CS2 conducted two controlled drug purchases at the Residence. Rodriguez-
Colon, who was present at the Residence at the time police officers executed the search
warrant, was placed into custody and given his Miranda warnings. Although he did not
initially assert his right to remain silent or to counsel, he asserted both rights upon arrival
at the police station. Rodriguez-Colon then complained of health issues and officers took
him to a medical center for a check-up where, while awaiting a doctor, he spoke with the
officers.
Following criminal charges, Rodriguez-Colon moved to suppress all evidence
obtained as a result of the search warrant, claiming the warrant affidavit was invalid. He
also moved to suppress evidence of statements made at the medical center, claiming a
Miranda violation. The District Court denied both motions. Rodriguez-Colon then entered
conditional guilty pleas to drug distribution and possession of a firearm in violation of 21
2 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 924(c)(1)(A). The District Court
sentenced him to 262 months’ imprisonment. Rodriguez-Colon now appeals, claiming that
the District Court erred in denying his motions to suppress. 1
II. ANALYSIS
A. Rodriguez-Colon’s Motion to Suppress the Seized Evidence
Rodriguez-Colon argues the District Court erred in denying the motion to suppress
evidence obtained as a result of the search warrant because the affidavit supporting the
search warrant contained material omissions critical to determining probable cause.
“[W]hen the Fourth Amendment demands a factual showing sufficient to comprise
‘probable cause,’ the obvious assumption is that there will be a truthful showing.” Franks
v. Delaware, 438 U.S. 154, 164–65 (1978) (alteration and emphasis in original) (quoting
another source). To “overcome the general presumption that an affidavit of probable cause
supporting a search warrant is valid,” a defendant must first “make a ‘substantial
preliminary showing’ that the affidavit contained a false statement, which was made
knowingly or with reckless disregard for the truth, which is material to the finding of
probable cause.” United States v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006) (quoting Franks,
438 U.S. at 171). “[T]o make this preliminary showing, the defendant cannot rest on mere
conclusory allegations or a ‘mere desire to cross-examine,’ but rather must present an offer
of proof contradicting the affidavit.” Id. at 383 n.8 (quoting Franks, 438 U.S. at 171).
1 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We review findings of fact for clear error, while exercising plenary review over legal determinations. United States v. Lewis, 672 F.3d 232, 236–37 (3d Cir. 2012); United States v. Benton, 996 F.2d 642, 644 (3d Cir. 1993). 3 Rodriguez-Colon does not meet this requirement. His challenge contains no offer of
proof and merely questions the general reliability of confidential sources. For instance, he
argued to the District Court that if granted a hearing, “[i]t is anticipated that the informants
will tell the defense that they did not buy controlled substances from Mr. Colon from within
his residence.” (App. at 40.) Neither Rodriguez-Colon’s speculation, nor his desire to
cross-examine the informants, suffices for a Franks hearing or suppression. 2 So the District
Court properly denied Rodriguez-Colon’s motion without a hearing.
B. Rodriguez-Colon’s Motion to Suppress His Statements
Rodriguez-Colon next contends that inculpatory statements he sought to suppress
were obtained in violation of Miranda. After invoking the Fifth Amendment right to silence
or the right to counsel, any statements by the defendant obtained through express
questioning or the “functional equivalent” of a custodial interrogation must be suppressed.
Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980) (citing Miranda v. Arizona, 384 U.S.
436 (1966)).
The “functional equivalent” of an interrogation includes “any words or actions on
the part of the police . . . that the police should know are reasonably likely to elicit an
incriminating response.” Id. at 301. We consider whether officers “intentionally created
circumstances likely to elicit a statement” from a defendant, United States v. Benton, 996
2 The failure to clear the lower hurdle of a substantial preliminary showing means that Rodriguez-Colon cannot meet the higher “preponderance of the evidence” standard for suppression. See Franks, 438 U.S. at 156 (the defendant must prove the Franks elements by a preponderance of the evidence to merit suppression); Yusuf, 461 F.3d at 383 (“In the end, the defendant must prove by a preponderance of the evidence that probable cause does not exist [when the falsehood or omission is corrected].”). 4 F.2d 642, 644 (3d Cir. 1993), whether the defendant appeared emotionally distressed or
overwrought, Innis, 446 U.S. at 302–03, and whether he “would have felt compelled to
respond to the arresting officer’s statement,” Benton, 996 F.2d at 644.
These circumstances do not exist here as to Rodriguez-Colon’s statements initiating
conversation with the officers. Although Rodriguez-Colon invoked his right to remain
silent and to counsel, he later engaged officers in conversation about his case and in
response to subsequent questioning by the officers made incriminating statements about
fentanyl. (App. at 65–66.) Before initiating this conversation about his case, there was no
coercion by the officers, so it was not the “functional equivalent” of an interrogation. Innis,
446 U.S. at 301. Indeed, there is no indication in the record that “in the context of [their]
conversation, the officers should have known that the respondent would suddenly be
moved to make a self-incriminating response.” Id. at 303; see also Miranda, 384 US. at
478 (“The fundamental import of the privilege . . . is not whether [a suspect] is allowed to
talk to the police without the benefit of warnings and counsel, but whether he can be
interrogated.”).
At the time when Rodriguez-Colon asked officers about his case, he made a
knowing and voluntarily waiver of his Miranda rights. His waiver is shown by his initial
decision not to assert those rights at the Residence, his subsequent decision to assert them
at the police station, and his later decision to initiate the discussion about his case at the
medical center. See United States v. Velasquez, 885 F.2d 1076, 1084, 1087 (3d Cir. 1989)
(after invoking Miranda rights, under Oregon v. Bradshaw, 462 U.S. 1039, 1045–46
(1983), an individual must knowingly and voluntarily waive their right to counsel and to
5 silence before any interrogation, and a decision to initially assert those rights and later
discuss the case shows knowing waiver while initiating discussion shows waiver is
voluntary). Thus, his incriminating statements made at the medical center, including the
statements about fentanyl, were not the product of any Miranda violation.
CONCLUSION
For these reasons, the District Court’s denials of Rodriguez-Colon’s motions to
suppress were not erroneous and we will affirm the judgment.