United States v. Raymond Lopez-Diaz

630 F.2d 661, 1980 U.S. App. LEXIS 15027

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 8, 1980
• Docket: 79-1437
• Status: Published

Opinions

CHOY, Circuit Judge:

Raymond Lopez-Diaz appeals from his conviction of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a), 18 U.S.C. § 2. He contends that incriminating statements made after his arrest were elicited in violation of his Miranda rights. We reverse.

I. STATEMENT OF FACTS

On December 21, 1978, an unidentified informant told Special Agent Van Horn of the Drug Enforcement Administration (DEA) that Ralph Cawley would be returning to Salem, Oregon, in possession of heroin. Van Horn asked Detectives Wan and Weber of the Marion County Sheriff’s Office to maintain surveillance of Cawley’s house and to search his van upon its arrival.

Cawley arrived in Salem at 1:40 a. m. on December 22, accompanied by appellant Lopez-Diaz. Detectives Wan and Weber frisked and handcuffed them and read them their Miranda rights from a prepared card. Cawley consented to a search of the van which belonged to his wife. In the back of the van, Wan found two pillow cases, one inserted inside the other. The inner pillow case contained Lopez-Diaz’s personal belongings. Between the two cases Wan discovered a ball of tin foil containing packets of heroin and cocaine.

At approximately 2:00 a. m., Agent Olson of the DEA arrived and placed Lopez-Diaz and Cawley under arrest. He recited the Miranda warnings from memory, erroneously asserting the right to remain silent was contingent upon requesting counsel.

Lopez-Diaz was then taken to the sheriff’s office. Detective Weber again read him his Miranda rights from a prepared card, which Lopez-Diaz signed with a fictitious name. Weber questioned Lopez-Diaz briefly. Agent Olson then took over the questioning and asked Lopez-Diaz if he wanted to tell the true story about the drugs found in the van. Lopez-Diaz stated that he did not want to talk about the drugs in the van, but that he would be willing to talk about other illegal drug activity and drug dealers. He proceeded to do so.

At the end of the conversation, Agent Olson asked if everything Lopez-Diaz had told him was the truth, stating that it was important that Lopez-Diaz tell the truth if they were going to discuss anything. Lopez-Diaz revealed that he had given Olson a fictitious name and that he was an escapee from federal prison. Olson then asked whether there were any other drugs in the van. Lopez-Diaz responded, “No just the one piece of heroin and three pieces of cocaine and some cut.”

Lopez-Diaz moved to suppress his statements on the ground that they were taken in violation of his Miranda rights. He also moved to suppress the cocaine on the ground that, notwithstanding Cawley’s consent to search the van, a warrant was required to search the pillow cases. The district court denied both motions and found Lopez-Diaz guilty.

II. DISCUSSION

A. Lopez-Diaz’s Miranda Rights

Miranda v. Arizona, 384 U.S. 436, 467-68, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966), requires that a person subject to custodial interrogation be advised in clear and unequivocal language of, inter alia, his right to remain silent. If a person indicates in any manner the desire to exercise that right, the interrogation must cease. Id. at 473-74, 86 S.Ct. at 1627.

1. Adequacy of the Miranda Warnings

Lopez-Diaz contends that because the second of the three warnings given to him erroneously conditioned his right to remain silent upon his requesting counsel, he was deprived of the opportunity knowingly and intelligently to exercise his right not to incriminate himself.

A defective Miranda warning does not necessarily require reversal of a conviction. See United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 897, 21 L.Ed.2d 792 (1969).

In Maguire, we held that where an adequate Miranda warning was given by a police officer three days before a second officer interrogated the defendant, “even if the warning given by [the second officer] was insufficient, the appellant could not claim he had not been apprised of the Miranda warnings.” 396 F.2d at 331 (emphasis in original).

In Pheaster, we held that even an inaccurate warning may be sufficient if there is direct evidence that the defendant was aware of his rights. The police officer in Pheaster failed to advise the defendant of his right to have counsel present during questioning. However, the defendant stated that he knew his rights and repeatedly demanded an attorney. Under these circumstances, we refused to find a Miranda violation. 544 F.2d at 366.

Here, Lopez-Diaz was accurately apprised of his Miranda rights on two occasions — both before and after the defective warning was given. This is not a case where the defendant never received a full and complete Miranda warning before making inculpatory statements, as in, e. g., United States v. Garcia, 431 F.2d 134 (9th Cir. 1970). Moreover, it is apparent from Lopez-Diaz’s selective refusal to talk about the drugs in the van that he understood his right to remain silent was not contingent on his requesting counsel.

Thus, even though the second of the three warnings given to Lopez-Diaz was inaccurate, he was adequately apprised of his Miranda rights.

2. The Right to Remain Silent

Lopez-Diaz contends that the incriminating statements about the drugs in the van that were elicited from him after he had invoked his right to remain silent on that subject were inadmissible. We agree.

Under Miranda, once a person in custody indicates “that he wishes to remain silent, the interrogation must cease.” 384 U.S. at 473-74, 86 S.Ct. at 1627. The Supreme Court has rejected a literal interpretation of Miranda, however, holding that the exercise of the right to remain silent does not preclude all further questioning. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Statements obtained after an initial exercise of the right to remain silent are admissible where the individual’s “right to cut off questioning” has been “scrupulously honored.” Id. at 104-07, 96 S.Ct. at 326-328.

In Mosley, after being fully advised of his rights, the defendant stated that he did not wish to discuss the offense for which he was being held. The police “immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been the subject of the earlier interrogation.” Id. at 105-06, 96 S.Ct. at 327. The Court held that statements made during the second interrogation were admissible.

Lopez-Diaz’s invocation of his right to remain silent, on the other hand, was not “scrupulously honored.” Lopez-Diaz said that he did not want to talk about the drugs in the van, but that he would be willing to provide other information. After a short conversation during which Lopez-Diaz revealed his true identity as an escaped prisoner,¹ he was asked about the drugs in the van. This question was on the very subject Lopez-Diaz had said he did not wish to discuss.² No significant period of time had elapsed, nor had fresh warnings been given.

There is a critical distinction between, on the one hand, an inquiry for the limited purpose of clarifying whether the defendant is invoking his right to remain silent or has changed his mind regarding an earlier assertion of the right and, on the other hand, questioning aimed at eliciting incriminating statements concerning the very subject on which the defendant has invoked his right. Compare United States v. Davis, 527 F.2d 1110 (9th Cir. 1975) cert. denied, 425 U.S. 953, 96 S.Ct. 1729, 48 L.Ed.2d 196 (1976), with United States v. Barnes, 432 F.2d 89 (9th Cir. 1970).

In Davis, we held that a defendant’s confession was properly admitted into evidence where the defendant was initially asked only if he wanted to reconsider his decision to remain silent in light of photographic evidence clearly, implicating him in the crime. The questioning resumed only after the defendant signed a waiver and voluntarily agreed to talk. 527 F.2d at 1111.

By contrast, in Barnes, the defendants had specifically invoked the right to remain silent and refused to sign waivers. The authorities nonetheless confronted them with the confession of an accomplice and asked, “What about it, is this true or not?” The defendants then confessed. 432 F.2d at 91. We held that the confrontation and interrogation, “for the obvious purpose of getting defendants to abandon their self-imposed silence, were in flagrant violation of the rule as set forth in Miranda.” Id.

The question to Lopez-Diaz was not merely for the limited purpose of determining whether he wanted to reconsider his decision to remain silent, as in Davis; it was, like the question in Barnes, for the obvious purpose of eliciting incriminating evidence. Thus, the question violated Miranda.

3. Waiver of the Right to Remain Silent

The Government contends that by voluntarily making other incriminating statements during the interrogation, Lopez-Diaz implicitly waived his right to remain silent about the drugs in the van.

Waiver may be inferred from the actions and words of the person interrogated, but “[t]he courts must presume that a defendant did not waive his rights; the prosecution’s burden is great.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979); accord, United States v. Rodriguez-Gastelum, 569 F.2d 482, 488 (9th Cir. 1978) (en banc).

In this case, Lopez-Diaz said that he did not wish to talk about the drugs in the van. Even if, as the Government contends, Lopez-Diaz “led the conversation into the area of his own crimes rather than only the crimes of others,” his statements that he •was an escaped prisoner and that he had been lying about his identity did not implicitly waive his previously asserted right to remain silent regarding the drugs in the van.³

B. The Search and Seizure

Lopez-Diaz contends that the warrant-less search and seizure of the pillow cases found in the van violated the fourth amendment.⁴ Because this argument will likely be raised again if there is a retrial, we reach the issue.

A search and seizure conducted without a warrant is unreasonable unless it falls within certain limited exceptions. E.g., Arkansas v. Sanders, 442 U.S. 753, 758-60, 99 S.Ct. 2586, 2589-2591, 61 L.Ed.2d 235 (1979); Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978). One such exception is a consent search. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973).

Cawley, in whose custody and control the van had been entrusted, had authority to consent, and did consent, to its search. See, id. at 220-22, 93 S.Ct. at 2044-45; Burge v. United States, 342 F.2d 408, 413 (9th Cir.), cert. denied, 382 U.S. 829, 86 S.Ct. 63, 15 L.Ed.2d 72 (1965). The voluntariness of his consent is not here challenged. The only question is whether Cawley’s consent to search the van extended to the pillow cases in which the heroin and cocaine were found.⁵

Whether the search remained within the boundaries of the consent is a question of fact to be determined on the basis of the totality of the circumstances. The trial judge’s factual findings will be overturned only if clearly erroneous. United States v. Sierra—Hernandez, 581 F.2d 760, 764 (9th Cir.),cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978).

We hold that the district court did not clearly err in determining that Cawley’s consent extended to the pillow cases. See United States v. Matlock, 415 U.S. 164, 169—171, 94 S.Ct. 988, 992-993, 39 L.Ed.2d 242 (1974). There was nothing to indicate that the pillow cases did not belong to Cawley. It was not obvious that the searched item was the exclusive property of Lopez-Diaz. See United States v. Isom, 588 F.2d 858, 861 (2nd Cir. 1978).⁶ Furthermore, neither Cawley nor Lopez-Diaz objected to the search of the pillow cases. See id.; United States v. Sierra-Hernandez, 581 F.2d at 764.

Under these circumstances, the police might reasonably conclude that Cawley’s consent included within its scope the pillow cases. Therefore, Lopez-Diaz’s motion to suppress the evidence found inside the pillow cases was properly denied.

III. CONCLUSION

By questioning Lopez-Diaz on a subject he specifically wished foreclosed from interrogation, the police did not “scrupulously honor” Lopez-Diaz’s right to remain silent. The admission of the incriminating response to this question was clearly prejudicial.⁷

REVERSED AND REMANDED.

1 . Lopez-Diaz’s statements about his escape from federal prison and his use of a fictitious name were in response to the officer’s question whether information already volunteered by Lopez-Diaz was true. This question did not invade any area on which Lopez-Diaz indicated a desire to remain silent. Thus, the admission of these statements was unobjectionable.

2 . A person in custody may selectively waive his right to remain silent by indicating that he will respond to some questions, but not to others. United States v. Lorenzo, 570 F.2d 294, 297-98 (9th Cir. 1978). Once a person has indicated that he does not wish to talk about a particular subject, all questioning on that topic must cease.

3 . Judge Kilkenny believes the clearly erroneous standard applies to our review of the implied waiver question. He cites United States v. Glover, 596 F.2d 857, 865 (9th Cir. 1979), and United States v. O’Looney, 544 F.2d 385 (9th Cir. 1976). In Glover, the defendant signed a written waiver; the only issue was his competence to make a waiver. In O’Looney, the defendant signed a written statement admitting the crime; the issue was voluntariness. In neither case had the defendants at any point invoked the right to remain silent. Competence and voluntariness are obviously factual issues to which the clearly erroneous standard applies.

Here, the issue is whether a given set of facts constitutes an implied waiver. Therefore the clearly erroneous standard does not apply to our review of the district court’s conclusion.

I believe my Brother Kilkenny’s citation to United States v. Bethea, 598 F.2d 331, 333-34 (4th Cir. 1979), is inapposite. In Bethea, officers had broken into a house to execute a search warrant. The issue was whether the officers had requested and been refused entry before breaking in, as required by statute. The Fourth Circuit’s rule requiring affirmance of the district court’s finding if supported by “any reasonable view of the evidence, looked at in the light most favorable to the government” is clearly inapplicable to the implied waiver question in this case.

Such a rule would virtually nullify the appellate courts’ power to ensure that a defendant’s right to remain silent has been scrupulously honored under Miranda and Mosley. In almost every case where a defendant invokes his right to remain silent but thereafter responds with incriminating answers to specific questions, it would be difficult to characterize a conclusion of implied waiver as unsupported by any reasonable view of the evidence, looked at in the light most favorable to the government. This approach would make a district court’s conclusion of implied waiver virtually unappealable.'

4 . We assume without deciding that Lopez-Diaz has standing to challenge the search of the pillow cases. Compare Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697 (1960) (“automatic standing” rule for possessory offenses), with Rakas v. Illinois, 439 U.S. 128, 135 & n.4, 99 S.Ct. 421, 427 & n.4, 58 L.Ed.2d 387 (1978) (automatic standing rule may not be viable). See Arguments Before the [U.S. Supreme] Court [on United States v. Salvucci, No. 79-244, and Rawlings v. Kentucky, No. 79-5146], 48 U.S.L.W. 3705 (May 6, 1980) (re viability of automatic standing rule).

5 . The Supreme Court has held that the automobile exception to the warrant requirement does not validate the warrantless search of personal luggage. Arkansas v. Sanders, 442 U.S. 753, 757-66, 99 S.Ct. 2586, 2589-2594, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 11-13, 97 S.Ct. 2476, 2483-2484, 53 L.Ed.2d 538 (1977); see United States v. MacKay, 606 F.2d 264, 265-66 (9th Cir. 1979). Neither Chadwick nor Sanders dealt with the situation presented in the instant case, i.e., where the police obtained consent to search the vehicle.

Because we rest our decision on the question of consent, we do not reach the question whether the pillow cases here were the “personal luggage” of Lopez-Diaz for the purposes of Chadwick and Sanders. Nor do we decide whether a pillow case carries with it a lesser expectation of privacy than a backpack or a suitcase whose very purpose “is to serve as a repository for personal items when one wants to transport them.” Arkansas v. Sanders, 442 U.S. at 764, 99 S.Ct. at 2593. For a thorough discussion of the relevant considerations involved in this issue, see United States v. Ross, No. 79-1624 (D.C. Cir. April 17, 1980) (majority and dissenting opinions).

6 . In Isom, the Second Circuit noted that the justifiable expectation of privacy guests have in the contents of locked articles they bring to a host’s premises should not be vitiated by a strained application of the third-party consent doctrine where it is obvious that the iterr, is the exclusive property of the guest. In such situations, the consent of the host is ordinarily insufficient to justify a warrantless search of the item; under Chadwick the police must first obtain a warrant. 588 F.2d at 861.

7 . Because these statements provided direct evidence of Lopez-Diaz’s knowledge of the drugs in the van and strongly implied his possession thereof, this error cannot be characterized as harmless.