USA v. Plugh, No. 07-2620 (2d Cir. 2009)
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07-2620-cr(L), 07-2746-cr(XAP) USA v. Plugh 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT August Term, 2008 (Argued: September 25, 2008 Decided: July 31, 2009) Docket No. 07-2620-cr(L), 07-2746-cr(XAP) United States of America, Appellant-Cross-Appellee, v. Gordon J. Plugh, Defendant-Appellee-Cross-Appellant. Before: J ACOBS, W ESLEY, and H ALL, Circuit Judges. The government appeals from an order of the United States District Court for the Western District of New York (Siragusa, J.) entered on June 11, 2007, granting defendant Gordon Plugh s motion to suppress statements made by him on September 28, 2005. Plugh was placed in custody by FBI agents who presented Plugh with a waiver-of-rights form and asked him to sign. After stating he was not sure if he should talk to the agents or if he should contact a lawyer, Plugh refused to sign the form. Subsequently, the agents made remarks to Plugh eliciting inculpatory statements, which the district court suppressed. We hold that under United States v. Quiroz, 13 F.3d 505 (2d Cir. 1993), Plugh Page 1 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 was entitled to the prophylactic bar prohibiting police questioning when he refused to sign the form, and we hold that the district court did not commit clear error in finding that the agents violated this prophylactic bar. Furthermore, we note that Davis v. United States, 512 U.S. 452 (1994) which requires that a suspect clearly and unambiguously invoke his rights to regain them after having waived them - does not apply. A FFIRMED. Chief Judge Jacobs dissents in a separate opinion. S TEPHEN B ACZYNSKI, Assistant United States Attorney, for Kathleen M. Mehltretter, Acting United States Attorney for the Western District of New York, Buffalo, New York, for AppellantCross-Appellee. J EFFREY W ICKS, Rochester, New York, for DefendantAppellee-Cross-Appellant. W ESLEY, Circuit Judge: This appeal raises the question of whether a suspect in 27 custody and informed of his rights in accordance with 28 Miranda v. Arizona, 384 U.S. 436 (1966), is entitled to the 29 prophylactic bar prohibiting police questioning established 30 in Edwards v. Arizona, 451 U.S. 477 (1981) (right to 31 counsel), and Michigan v. Mosley, 423 U.S. 96 (1975) (right 32 to silence), when he expresses uncertainty with regard to 33 asserting his Fifth Amendment rights while contemporaneously 34 refusing to sign a waiver of rights form. Page 2 of 23 We believe he is 1 entitled to the prophylaxis and affirm the district court. 2 By unequivocally refusing to sign the waiver form in 3 response to a custodial agent s instruction to sign the 4 waiver form if defendant agreed with it, defendant in this 5 case invoked his Fifth Amendment rights, and therefore his 6 custodial agents were required to refrain from further 7 interrogation. Background 8 9 Investigating child pornography possession and internet 10 trafficking, FBI Special Agents Joseph McArdle and James 11 McCaffery visited the home of Gordon Plugh in Rochester, New 12 York, on July 14, 2005. 13 regarding possession of child pornography on his computer 14 and, upon obtaining Plugh s permission, searched the 15 computer. 16 the FBI obtained an arrest warrant for Plugh, and five 17 special agents, including McArdle, arrested Plugh at his 18 father s residence in Wayland, New York, on September 28, 19 2005. 20 Amendment rights and asked Plugh to sign an advice-of-rights The agents questioned Plugh Upon finding child pornography on the hard drive, Upon handcuffing Plugh, McArdle read Plugh his Fifth Page 3 of 23 1 2 form. 1 According to McArdle, McArdle asked, Is that true; are 3 you willing to do that? 4 McArdle had stated to Plugh that [i]f you agree with the 5 statement you can sign the form. 6 522 F. Supp. 2d 481, 487 (W.D.N.Y. 2007). 7 understood his rights because he was a former Arizona 2 8 Department of Corrections officer and according to McArdle 9 stated, I am not sure if I should be talking to you, and 1 The district court found that United States v. Plugh, Plugh stated he The form contained the following, YOUR RIGHTS Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time. WAIVER OF RIGHTS I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer present. [Signature line] 2 The FBI report, dictated the day of Plugh s arrest, states that Plugh claimed he had worked for the Texas Department of Corrections. Page 4 of 23 1 I don t know if I need a lawyer. 2 waiver and stated that he did not want to sign anything at 3 that time. 4 form and then signed the form himself. 5 that Plugh s refusal to sign was unequivocal. 6 agents asked Plugh any further questions while in Plugh s 7 father s home. 8 Plugh did not sign the Agent McArdle wrote refused to sign on the McArdle testified None of the During the hour-and-fifteen-minute drive to the FBI 9 office in Rochester, the agents transporting Plugh told 10 Plugh he had been arrested because child pornography had 11 been found on his hard drive. 12 dictated the day after Plugh s arrest and signed by McArdle, 13 Plugh asked the agents several times for advice on what to 14 do. 15 would relay any cooperation made by Plugh to the Assistant 16 U.S. Attorney on the case. 17 if Plugh wanted to talk about the case, the agents would 18 again advise Plugh of his Miranda rights, but also told him 19 that they were not going to talk about the case at that 20 point. 21 22 According to the FBI report According to McArdle, the agents stated that they The agents then told Plugh that When the agents and Plugh arrived at the FBI office, the agents placed Plugh in a back interview room. Page 5 of 23 They 1 informed Plugh that they were about to take him to the U.S. 2 Marshals for booking and that [i]f he wanted to make any 3 statements this was the point . . . . 4 he would make statements, and he was re-advised of his 5 Miranda rights. 6 indicate he wanted to speak to law enforcement. 7 made inculpatory statements regarding downloading and 8 possessing child pornography and admitted to lying to the 9 agents about the existence of a Trojan virus on his 10 11 Plugh then indicated Plugh did not ask for an attorney or He then computer. Plugh was indicted on January 11, 2007, under 18 U.S.C. 12 § 2252A(a)(2)(A) (receipt of child pornography) and 18 13 U.S.C. § 2252A(a)(5)(B) (possession of child pornography). 14 Plugh moved to suppress his July 14, 2005, and September 28, 15 2005, statements to the FBI, as well as physical evidence 16 seized on July 14, 2005. 17 were involuntary, the product of coercion and violative of 18 the right to counsel. 19 for the Western District of New York (Siragusa, J.) denied 20 the motion to suppress the July 14 statements and physical 21 evidence but granted the motion to suppress the September 28 22 statements. Plugh argued that his statements The United States District Court Plugh, 522 F. Supp. 2d at 493-96. Page 6 of 23 The district 1 court held that Plugh s refusal to sign the waiver form was 2 an unequivocal invocation of Plugh s right to counsel and 3 to remain silent, and that suppression of Plugh s statements 4 was proper because the officers did not scrupulously honor 5 Plugh s rights when they repeatedly [told Plugh] that any 6 cooperation would be brought to the attention of the AUSA 7 and by telling [Plugh] that he was about to be taken to the 8 Marshal s office. 9 that even if Plugh invoked his right to counsel and his 10 right to remain silent equivocally or ambiguously . . . 11 suppression [was] nonetheless required since [the agents], 12 at least as to the defendant s right to remain silent, 13 failed to limit themselves to narrow questions only for the 14 purpose of clarifying the ambiguity, as required by this 15 Circuit under United States v. Ramirez, 79 F.3d 298, 304 16 (2d Cir. 1996). 17 quotation marks omitted). 18 Id. at 496. The district court noted Plugh, 522 F. Supp. 2d at 495-96 (internal On appeal the government acknowledges that Plugh was 19 clear he did not wish to sign anything, including the 20 waiver, at the time he was arrested at his father s home. 21 Regardless of that acknowledgment, the government contends 22 that Plugh s invocation of his Fifth Amendment rights was Page 7 of 23 1 not unequivocal and unambiguous. 2 constructs its argument on the language the Supreme Court 3 employed in Davis v. United States, 512 U.S. 452 (1994). 4 The government We are called upon to determine whether Plugh retained 5 his right to remain silent 3 and his right to counsel by 6 refusing to sign the advice-of-rights form when asked by 7 Agent McArdle to sign the form if he agreed with its 8 contents, notwithstanding his statements immediately prior 9 that he was not certain he wanted to talk to a lawyer or 10 that he should talk to the interrogating agents. As we see 11 it, we must answer two questions: (1) whether Plugh s 12 refusal to sign the waiver form in this context was an 13 invocation of his Fifth Amendment rights; and (2) if yes, 14 whether the agents, subsequent to Plugh s refusal to sign 3 We note that in his motion to suppress the September 28, 2005, statement Plugh limits his argument to a claim that the statements were taken in violation of his right to counsel. The district court appears to have dealt with this issue and with Plugh s right to remain silent. See Plugh, 522 F. Supp. 2d at 496. The government does not contend that the district court erred in this respect and asks us to analyze the right-to-remain-silent issue for its substance. The refusal to sign the waiver calls into question whether Plugh invoked either right, and we will consider both. However, our dissenting colleague seems to view the case, without any explanation, as a right to counsel case only and implies that makes a difference here. See Dissenting Op. at 5-6. Page 8 of 23 1 the waiver form, properly complied with the prophylactic 2 rules requiring the police to refrain from questioning. 3 find that the prophylactic rules were applicable to Plugh 4 and that the agents did not properly abide by those rules. 4 5 We therefore affirm the district court s order suppressing 6 the September 28, 2005, statements. 7 Discussion 5 8 9 10 We I. Whether Plugh Invoked His Fifth Amendment Rights A. The Fifth Amendment s Protections A suspect cannot be required to incriminate himself. 11 U.S. C ONST. amend. V. Encapsulated in this protection are 12 certain well-known rights: (1) the right to remain silent; 13 and (2) the right to an attorney, either appointed or 14 retained. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). 4 There is no need to evaluate the district court s alternative ruling that suppression was required because the officers did not confine themselves to clarifying questions upon Plugh s purported ambiguous invocation. Neither must we determine the validity of Plugh s waiver at the time of his interrogation in Rochester. 5 When evaluating a district court order granting a motion to suppress, this Court reviews findings of fact for clear error in the light most favorable to the government and reviews questions of law de novo. Rodriguez, 356 F.3d at 257. Page 9 of 23 1 More than forty years ago, the Miranda Court noted that the 2 prosecution may not use statements made by a suspect under 3 custodial interrogation unless: (1) the suspect has been 4 apprised of his Fifth Amendment rights; and (2) the suspect 5 knowingly, intelligently, and voluntarily waived those 6 rights. 7 following Miranda fleshed out the judicial mechanisms for 8 ensuring the viability of these constitutional protections. 9 Included among them is the principle that courts must Id. at 444-45. The Supreme Court in the years 10 presume that a defendant did not waive his rights, North 11 Carolina v. Butler, 441 U.S. 369, 373 (1979), until the 12 government proves otherwise by a preponderance of the 13 evidence, Colorado v. Connelly, 479 U.S. 157, 169 (1986). 14 Put differently, unless the suspect validly waived his 15 rights, we presume he retains them. 16 Cases in this area of the law are fact intensive 17 because of the number of combinations of: (1) the 18 circumstances preceding a suspect s interrogation; (2) the 19 method and manner by which a suspect is informed of his or 20 her Miranda rights; and (3) the timing of the suspect s 21 invocation at the time he receives the warnings or later Page 10 of 23 1 2 during the interrogation following an initial waiver. 6 To honor a suspect s Fifth Amendment rights, custodial 3 officers must abide by several prophylactic rules designed 4 to protect the Fifth Amendment rights that come into play 5 once the suspect is in custody. 6 prophylactic protection of the right against compelled self- 7 incrimination, any suspect subject to custodial 8 interrogation has the right to have a lawyer present if he 9 so requests, and to be advised of that right. 10 11 Under Miranda s Montejo v. Louisiana, 129 S. Ct. 2079, 2089 (2009). There are additional layers of prophylactic protection. 12 Once a suspect invokes his Fifth Amendment rights he is 13 entitled to a second layer of prophylaxis that has its roots 14 in Edwards v. Arizona, 477 U.S. 477 (1981). Under Edwards 15 prophylactic protection of the Miranda right, once such a 16 defendant has invoked his right to have counsel present, 17 interrogation must stop. 18 (internal quotation marks omitted). 19 suspect initially decides after receiving the warnings that 20 he wishes to remain silent, the custodial officers must Montejo, 129 S. Ct. at 2098-90 6 Likewise, if the It is entirely possible, and is often the case, that someone will not invoke their rights. Page 11 of 23 1 scrupulously honor[] his right to cut off questioning. 2 Michigan v. Mosley, 423 U.S. 96, 104 (1975). 3 An exception to the rule occurs when it is not clear 4 from a suspect s statements or conduct whether he is 5 asserting his rights. 6 ask clarifying questions to determine if a suspect is 7 exercising his rights. 8 because the default presumption is that a suspect retains 9 his rights and the burden is on the government to prove In such cases, custodial officers may See Ramirez, 79 F.3d at 304. But 10 otherwise, custodial officers who press on with questioning 11 assuming that a suspect s statements or conduct are not 12 indications of the suspect s desire to retain his Fifth 13 Amendment rights do so at the risk of suppression of the 14 suspect s subsequent statements. 15 16 17 B. Law Applicable to Determining If Plugh Invoked His Fifth Amendment Rights In this case, the agents presented Plugh with a waiver 18 form and no one disputes that Plugh refused to sign it. 19 What then are the implications of Plugh s refusal? 20 In United States v. Quiroz, this Court addressed 21 whether refusal to sign a waiver form may constitute an 22 invocation of a suspect s Fifth Amendment rights. Page 12 of 23 13 F.3d 1 505 (2d Cir. 1993). 2 [suspect] Quiroz to read the advice-of-rights forms, asked 3 whether he understood the forms, and simply asked Quiroz to 4 sign them. 7 5 until he had spoken to an attorney. 6 that the statement was a direct and complete response to 7 the precise question Quiroz had been asked, the Court 8 determined that the prophylactic requirement that custodial 9 officers refrain from questioning was triggered at that 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 moment. There, the custodial officer asked 13 F.3d at 512. Id. at 512. Quiroz declined to sign Id. at 509. Finding The Quiroz Court had no doubt whatever that, had Quiroz signed, [the custodial officer] would have viewed that act as a complete waiver of Quiroz s rights. We can see no good reason not to treat Quiroz s refusal to sign forms in the absence of counsel as a refusal that was coextensive with the waiver [the custodial officer] sought. In sum, we do not view Quiroz s refusal to sign the forms as a limited request for counsel, any more than [the custodial officer s] request to sign the forms was a request for a limited waiver. Since we do not view Quiroz s statement as narrower than the [custodial officer s] request, we see no ambiguity. Id. 7 The custodial officer in Quiroz testified: After I had asked him if he understood [his rights], I said, would you mind just signing these? He said, I Before I sign anything, I want to speak to my attorney. Okay, I took them back. Quiroz, 13 F.3d at 509 (alteration in original). Page 13 of 23 1 Quiroz instructs us, therefore, that absent a 2 suspect s prior or simultaneous affirmative announcements 3 of his willingness to speak, Connecticut v. Barrett, 479 4 U.S. 523, 529 (1987) when a custodial officer specifically 5 asks a suspect if he will waive his rights by signing a form 6 and does so in such a way that the accused would interpret a 7 refusal to sign as a negative answer, the suspect has taken 8 sufficient action to trigger the Edwards prophylactic rule 9 and the officers must refrain from questioning the suspect. 8 10 C. Did Plugh Iinvoke His Fifth Amendment Rights? 11 Under Quiroz, the question is whether Plugh s actions 12 a refusal to sign the advice-of-rights form in light of the 13 agent s question Is that true; are you willing to do that? 8 The dissent apparently assigns no value to the agents statements to Plugh upon presenting him with the waiver form. This omission is ironic in light of the dissent s insistence that courts must look to all of the circumstances surrounding a purported invocation, Dissenting Op. at 5 (citing Davis v. United States, 512 U.S. 452, 458-59 (1994)), and that the cases support the overall principle that the circumstances matter, and that refusal to sign a waiver form is a sign that is informed by context. Dissenting Op. at 9. Concomitantly, the dissent ignores the emphasis placed on context by this Court in Quiroz, in which we found that under the facts of that case, a suspect s statement [refusing to sign] was a direct and complete response to the precise question Quiroz had been asked. Quiroz, 13 F.3d at 512. Page 14 of 23 1 following 2 talking to you, and I don t know if I need a lawyer 3 were an invocation of his rights. 4 his statements I am not sure if I should be While Plugh s statements, I am not sure if I should be 5 talking to you and I don t know if I need a lawyer, 6 appear ambiguous, Plugh s ultimate action his refusal to 7 sign constituted an unequivocally negative answer to the 8 question posed together by the waiver form and McArdle, 9 namely, whether he was willing to waive his rights. 10 McArdle s direction to Plugh that [i]f you agree with the 11 statement you can sign the form, Plugh, 522 F. Supp. 2d at 12 487, makes the meaning of Plugh s response less ambiguous 13 than the defendant s refusal to sign in Quiroz, where the 14 officer simply asked would you mind just signing these? 15 Quiroz, 13 F.3d at 509. 16 under Quiroz, amounts to an invocation, and that is where 17 the inquiry ends. 9 Plugh s answer in this context, Because Plugh invoked his rights, the 9 The dissent asserts that Plugh s refusal to sign is fully as consistent with uncertainty as with rejection. Dissenting Op. at 7. However, the language of the written waiver is clear, and we hear no objection in that regard from the dissent a signature represents a waiver of one s Miranda rights. The government in its brief acknowledges that Plugh s refusal was clear and unequivocal and never suggests, as the dissent does, that the refusal could in Page 15 of 23 1 custodial officers should have refrained from reinitiating 2 the interrogation, and all subsequent statements made by 3 Plugh were properly suppressed. 10 See Part II., infra. 4 D. Applicability of Davis v. United States 5 The government, looking to language in Davis v. United 6 States, 512 U.S. 452 (1994), takes the view that an initial 7 invocation of one s Fifth Amendment rights such as Plugh s 8 must be unambiguous and that the ambiguity is resolved 9 against Plugh. The government argues that Plugh did not 10 unambiguously invoke his rights and that therefore, the 11 agents were free to continue to question him. 12 seriously misunderstands the sweep of Davis. 11 This view fact indicate uncertainty on Plugh s part. See Appellant s Br. at 8. Instead, the government asserts that ambiguity in Plugh s statements casts doubt on a conclusion that the invocation considered under the circumstances as a whole was clear and unambiguous. Lastly, the district court characterized Plugh s refusal to sign the waiver as unequivocal. Plugh, 522 F. Supp. 2d at 493-96. 10 We do not believe that this holding will deter police from using waiver forms, as the dissent fears. The testimony of the parties present the custodial officer and the suspect will often conflict with regard to what was said at the time the suspect was read his Miranda rights. Police officers recognize this and understand that a written waiver avoids this type of conflict. 11 As noted earlier, if the invocation was ambiguous, which it was not, then the agents could have proceeded to Page 16 of 23 1 In Davis, the Supreme Court held that if a defendant 2 validly waives his Fifth Amendment rights initially and then 3 thereafter attempts to invoke those rights, the defendant 4 bears the burden of showing that the invocation was 5 unambiguous and unequivocal to trigger the prophylaxis 6 rules. 7 76 F.3d 61, 65 (2d Cir. 1996). 8 courts how to analyze an initial invocation of one s Fifth 9 Amendment rights following the Miranda warnings where no Davis, 512 U.S. at 460-62; accord Diaz v. Senkowski, Davis does not instruct 10 waiver occurred. 11 for circumstances in which a defendant makes a claim that he 12 subsequently invoked previously waived Fifth Amendment 13 rights. 14 In our view, Davis only provides guidance In order to use statements made by a suspect without 15 counsel present while under custodial interrogation, the 16 burden is on the government to prove the suspect waived his 17 rights. 18 has met its burden, the suspect has the burden of proving 19 that he resurrected rights previously waived. 20 invocation must be unambiguous and unequivocal. See Connelly, 479 U.S. at 169. Once the government The To avoid question Plugh but only in an attempt to resolve the ambiguity. See Ramirez, 79 F.3d at 304. Page 17 of 23 1 difficulties of proof and to provide guidance to officers 2 conducting interrogations, this is an objective inquiry. 3 Davis, 512 U.S. at 458-59. 4 The Court fashioned the rule to avoid transform[ing] 5 the Miranda safeguards into wholly irrational obstacles to 6 legitimate police investigative activity. 7 (internal quotation marks omitted). 8 suspect does not use the Fifth Amendment as a sword to 9 excise unfavorable evidence after discarding it as a 10 11 Id. at 460 The rule ensures that a shield. The Davis Court was careful to note that only after a 12 knowing and voluntary waiver of the Miranda rights, law 13 enforcement officers may continue questioning until and 14 unless the suspect clearly requests an attorney. 12 12 Davis, In United States v. Rodriguez, the Ninth Circuit noted that Davis addressed what the suspect must do to restore his Miranda rights after having already knowingly and voluntarily waived them. 518 F.3d 1072, 1079 (9th Cir. 2008) (emphasis in original). The Rodriguez court correctly noted that the majority of state supreme [and intermediate] courts to consider the issue have also concluded that Davis s ambiguous statement requirement was limited to the post-waiver context. Id. at 1079 n.6. One other federal court has noted that Davis should be seen as a post-waiver case, but did not analyze its application to pre-waiver scenarios. See United States v. Eastman, 256 F.Supp.2d 1012, 1019 (D.S.D. 2003). Page 18 of 23 1 512 U.S. at 461 (emphasis added); see also id. at 459 2 (noting that an ambiguous reference to an attorney would not 3 compel the cessation of questioning ) (emphasis added); id. 4 (noting that a statement [that] fails to meet the requisite 5 level of clarity . . . does not require that the officers 6 stop questioning the suspect ) (emphasis added); id. 7 (declining to extend Edwards to require officers to cease 8 questioning upon an equivocal statement by a suspect) 9 (emphasis added). Clearly, Davis is not in play here. 10 II. Whether the agents properly honored Plugh s rights after 11 invocation 12 Plugh invoked his Fifth Amendment rights to counsel and 13 silence. 14 cease, and officials may not reinitiate interrogation 15 without counsel present, whether or not the accused has 16 consulted with his attorney. 17 U.S. 146, 153 (1990). 18 remain silent, the custodial officers must scrupulously 19 honor[] that decision. 20 [W]hen counsel is requested, interrogation must Minnick v. Mississippi, 498 Should the suspect decide[] to Mosley, 423 U.S. at 104. An officer interrogates whenever a person in custody 21 is subjected to either express questioning or its functional 22 equivalent. United States v. Montana, 958 F.2d 516, 518 Page 19 of 23 1 (2d Cir. 1992) (quoting Rhode Island v. Innis, 446 U.S. 291, 2 300-01 (1980)). 3 questioning as well as any words or actions on the part of 4 the police (other than those normally attendant to arrest 5 and custody) that the police should know are reasonably 6 likely to elicit an incriminating response from the 7 suspect. 8 In Montana, this Court determined that an officer s 9 unsolicited statement informing the defendant[] that any Interrogation includes both express Id. (quoting Innis, 446 U.S. at 301). 10 cooperation would be brought to the attention of the 11 Assistant United States Attorney constituted interrogation. 12 Id. at 518-19 (internal quotation marks omitted). 13 Campaneria, we concluded that an officer who stated If you 14 want to talk to us, now is the time to do it had thereby 15 committed precisely the sort of conduct the prophylactic 16 rule seeks to prevent. 17 And in Campaneria, 891 F.2d at 1021. The district court found that the agents repeatedly 18 [told] the defendant that any cooperation would be brought 19 to the attention of the AUSA as well as told Plugh that he 20 was about to be taken to the Marshal s office, so that if he 21 wanted to make any statements this was the time. 22 522 F. Supp. 2d at 496. Plugh, We see no clear error in these Page 20 of 23 1 findings of fact. 2 agents conduct constituted impermissible interrogation and, 3 after reviewing this question of law de novo, we agree. 4 The district court concluded that the The dissent presses for a reversal premised on the 5 ambiguity of Plugh s waiver. It acknowledges that under 6 Ramirez, 79 F.3d at 304, the police may ask questions to 7 clarify whether the suspect in fact wishes to invoke, or to 8 waive in right-to-remain-silent cases. 9 dissent goes on to note that Davis is less restrictive However, the 10 because it specifically declined to limit police to 11 clarifying questions in [right-to-counsel cases]. 12 Dissenting Op. at 5. 13 The dissent overlooks an important part of the district 14 court s opinion. The district court held that 15 notwithstanding whether Plugh s statements were ambiguous 16 and regardless of the significance of Plugh s refusal to 17 sign the waiver form under Quiroz, 13 F.3d at 511 18 suppression is . . . required since [the agents], at least 19 as to the defendant s right to remain silent, failed to 20 limit themselves to narrow questions only for the purpose of 21 clarifying the ambiguity, as required by [Ramirez]. 22 522 F. Supp. 2d at 495-96 (internal quotation marks Page 21 of 23 Plugh, 1 2 omitted). The dicta in Davis suggesting that police need not 3 limit themselves to clarifying questions in that case made 4 sense in that case, but makes no sense at all here. In 5 Davis, the officers did not have to limit their questions to 6 resolving an ambiguity of defendant s attempt to reassert 7 his Fifth Amendment rights as the police were not bound to 8 cease questioning until Davis unambiguously reasserted his 9 rights. In situations where no waiver has occurred, the 10 police must clarify whether an ambiguous statement is meant 11 as an invocation because Edwards set forth a bright line 12 rule that all questioning must cease after an accused 13 requests counsel. 14 and italics in original). Smith, 469 U.S. at 98 (citation omitted 15 Conclusion 16 This is a case about whether a suspect invoked his 17 Fifth Amendment rights in the absence of any waiver. Davis 18 is a case about the steps a suspect must take to demonstrate 19 that he wishes to resurrect and invoke previously waived 20 rights. 21 refusal to sign the waiver document was an invocation of his 22 rights and entitles him to Edwards prophylaxis. In the context of the facts of this case, Plugh s Page 22 of 23 The agents 1 2 were not permitted to question him. The district court s order of June 11, 2007, granting 3 defendant s motion to suppress his statements made on 4 September 28, 2005, is hereby A FFIRMED. Page 23 of 23 1 Dennis Jacobs, Chief Judge, dissenting: 2 3 When, after Miranda warnings, a suspect is undecided as 4 to whether a lawyer is wanted, or responds ambiguously, the 5 police may renew that inquiry. 6 Ramirez, 79 F.3d 298, 304 (2d Cir. 1996) ( [W]here a suspect 7 has invoked his right equivocally or ambiguously, the 8 officers are permitted to ask narrow questions only for the 9 purpose of clarifying the ambiguity. ). See United States v. The issue on this 10 appeal is whether the police are barred from renewing the 11 inquiry if the suspect who says he is undecided also refuses 12 to sign a written waiver of Miranda rights. 13 holds that such a refusal to sign a written waiver operates 14 as an invocation of Miranda rights and thus precludes any 15 further inquiry by police to resolve the uncertainty. 16 However, because the refusal to sign a waiver is wholly 17 consistent with the expression of uncertainty, I 18 respectfully dissent. The majority 19 20 I 21 When the government appeals from the suppression of 22 evidence, we review the district court s factual findings 1 1 for clear error, viewing the evidence in the light most 2 favorable to the government. 3 356 F.3d 254, 257 (2d Cir. 2004). 4 facts are as follows: 5 United States v. Rodriguez, Given that standard, the After the FBI agents arrested Plugh, the agents read 6 him his Miranda rights, asked him to sign a written waiver, 7 and inquired orally whether he was willing to waive. 8 said he was not sure whether he wanted to talk to the 9 agents, and said he did not know whether he needed a lawyer. Plugh 10 He was certain, however, that he did not want to sign the 11 waiver form, and the agents recorded his refusal to sign. 12 On the hour-long trip to the federal building in 13 Rochester, the agents told Plugh that while they didn t 14 care whether he talked to them, they would relay any 15 cooperation to the prosecutor. 16 meant, but the agents told Plugh that they could make no 17 promises, that Plugh should say nothing to them about his 18 case, and that they would only discuss the case if Plugh 19 explicitly waived after again being read his rights. 20 agents asked no substantive questions during the drive to 21 Rochester. 22 Plugh asked what cooperation The On arrival in Rochester, the agents told Plugh that 2 1 they were going to transfer him to the custody of the United 2 States Marshals and that if he wanted to make a statement, 3 the time had come to do so. 4 would make a statement; the agents again gave Miranda 5 warnings; Plugh signed a written waiver of his rights; and 6 the inculpatory statement at issue was made. Thereupon, Plugh said that he 7 II 8 9 Police may not use statements made by a suspect under 10 custodial interrogation unless the suspect is apprised of 11 his Fifth Amendment rights, and waives them knowingly, 12 intelligently, and voluntarily. 13 U.S. 436, 444-45 (1966). 14 counsel, police must cease questioning until the suspect has 15 an attorney present. 16 Arizona, 451 U.S. 477, 485 (1981). 17 go ahead with questioning. 18 452, 458 (1994). 19 Miranda v. Arizona, 384 If he invokes his right to Miranda, 384 U.S. at 474; Edwards v. If he waives, police may Davis v. United States, 512 U.S. Did Plugh s refusal to sign a waiver constitute an 20 invocation of his rights notwithstanding his simultaneous 21 oral statement that he didn t yet know whether he wanted a 22 lawyer or whether he should talk to the agents? 3 To 1 effectively invoke the right, a suspect must articulate his 2 desire to have counsel present sufficiently clearly that a 3 reasonable police officer in the circumstances would 4 understand the statement to be a request for an attorney. 5 Davis v. United States, 512 U.S. 452, 459 (1994). 6 inquiry--whether a suspect has in fact invoked his rights-- 7 is an objective one that takes into account all of the 8 circumstances. This Id. at 458-59. 9 Plugh s oral statements to the agents at the time of 10 the arrest-- I am not sure if I should be talking to you 11 and I don t know if I need a lawyer --were equivocal, 12 rendering his decision ambiguous. 1 13 more than these statements, the case would be 14 straightforward; Plugh would lose. 15 (simultaneously) Plugh refused to sign a written waiver of 1 2 3 4 5 6 7 8 9 10 11 12 13 1 If the record showed no The only wrinkle is that Examples of ambiguous statements abound. See Davis, 512 U.S. at 462 ( Maybe I should talk to a lawyer ); Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000) ( I think I need a lawyer. ; United States v. Zamora, 222 F.3d 756, 76566 (10th Cir. 2000) ( I might want to talk to an attorney. ); Mueller v. Angelone, 181 F.3d 557, 573-74 (4th Cir. 1999) ( Do you think I need an attorney here? ); Coleman v. Singletary, 30 F.3d 1420, 1424-25 (11th Cir. 1994) (in response to an offer to have a public defender present, I don t know ); Ledbetter v. Edwards, 35 F.3d 1062, 1069-70 (6th Cir. 1994) ( it would be nice to have an attorney); United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir. 1985) ( I might want to talk to a lawyer ). 4 1 2 his rights. Davis instructs that courts must look to all of the 3 circumstances surrounding a purported invocation to 4 determine whether it was unambiguous. 5 458-59. 6 statements as well as his refusal to sign a waiver--bespeak 7 indecision and ambiguity. 8 9 Davis, 512 U.S. at All of the circumstances here--Plugh s oral When a suspect makes ambiguous statements regarding his right to silence, we have held that the police may ask no 10 questions other than to clarify whether the suspect in fact 11 wishes to invoke, or to waive, or to stay on the fence. 12 Ramirez, 79 F.3d at 304. 13 that pre-dated Davis) was thus more restrictive than Davis 14 (a right-to-counsel case), which specifically declined to 15 limit police to clarifying questions in such circumstances. 2 16 Davis 512 U.S. at 461-62. 1 2 3 4 5 6 7 8 9 10 11 Ramirez (a right-to-silence case 2 The majority suggests that Davis s refusal to limit police makes sense because Davis (they contend) applies only to re-invocations, when a suspect must state his desire unambiguously. As discussed infra in Part III, Davis is not limited to re-invocation cases, but instead applies to any invocation of Miranda rights. In any case, the very intricacy of the majority s argument is self-refuting: the purpose of the suppression rule is to keep the police honest, a project that requires that the doctrines governing police conduct be accessible to persons other than professors of constitutional law. 5 1 If, as the majority opinion seems to suggest, the 2 agents categorically violated the Ramirez rule by telling 3 Plugh that his cooperation would be relayed to the 4 prosecutor and that this was the point to talk, then 5 suppression is justified on that basis alone. 6 n.4, 17 n.11, 22-24. 7 be warranted regardless of whether Plugh s statements were 8 ambiguous, in which case all the rest of the majority 9 opinion would be unnecessary. Maj y Op at 9 But if that were so, suppression would But the majority opinion is 10 not superfluous, because--even if the Ramirez rule survives 11 Davis--the agents did limit themselves to clarification. 12 The majority cites the following cases to suggest that 13 the sorts of statements the agents made here constitute 14 inappropriate interrogation in violation of the Ramirez 15 rule: United States v. Montana, 958 F.2d 516, 518 (2d Cir. 16 1992) (statement informing the defendants that any 17 cooperation would be brought to the attention of the 18 prosecutor); Campaneria v. Reid, 891 F.2d 1014, 1021 (2d 19 Cir. 1989) (statement suggesting that now is the time for 20 suspect to talk to police). 21 Ramirez--involve statements made by police officers after 22 the suspect had unambiguously invoked his rights. But these cases--unlike 6 In such 1 cases, statements such as these serve only to badger the 2 suspect to change his mind. 3 1021 (since [n]othing was ambiguous or equivocal about 4 suspect s invocation, officer s remark was not aimed at 5 resolving any ambiguity in [suspect s] statement, but rather 6 at changing his mind ). 7 invoked his rights, then an offer to relay his cooperation 8 to the prosecutor and words of encouragement to make up his 9 mind serve primarily to clarify his initial ambiguous See Campaneria, 891 F.2d at But if a suspect has not clearly 10 statement. The agents conduct was accordingly free of any 11 misconduct or error. 12 Plugh s incriminating statement. For these reasons, I would admit 13 III 14 15 The majority opinion holds that the ambiguity of 16 Plugh s statements was dispelled by his refusal to sign the 17 written waiver--which is said to be his final answer to the 18 question whether he wished to waive his Miranda rights. 19 Maj y Op at 16. 20 fully as consistent with uncertainty as with rejection. 21 the majority opinion suggests that the question is 22 controlled by our decision in United States v. Quiroz, 13 This is odd, because a refusal to sign is 7 But 1 F.3d 505 (2d Cir. 1993). 2 would not sign the waiver (or anything) without talking to a 3 lawyer. 4 rights listed in the waiver. 5 good reason not to treat Quiroz s refusal to sign forms in 6 the absence of counsel as a refusal that was coextensive 7 with the written waiver. 8 added). 9 Id. at 509. In Quiroz, the suspect said he We held that Quiroz thus invoked the Id. at 512. We could see no Quiroz, Id. at 512 (emphasis Quiroz is therefore one of those cases holding that, if 10 a suspect both refuses to sign a waiver and indicates 11 (either orally or by silence) that he does not wish to 12 answer questions, his response constitutes an invocation of 13 Miranda rights. 14 1277 & n.3 (9th Cir. 1984) (valid invocation where the 15 suspect refused to sign a waiver and told the officer he did 16 not want to waive his rights or answer questions); United 17 States v. Christian, 571 F.2d 64, 69 (1st Cir. 1978) (valid 18 invocation where the suspect refused to sign a waiver but 19 did sign a statement of rights). See United States v. Heldt, 745 F.2d 1275, 20 By the same token, a suspect who refuses to sign a 21 waiver, but nevertheless acts in a manner inconsistent with 22 invocation of his rights, has signified an implicit waiver. 8 1 See United States v. House, 939 F.2d 659, 662-63 (8th Cir. 2 1991) (suspect s decision to answer questions after refusing 3 to sign a written waiver constituted an implicit waiver, 4 rather than an invocation, of his Miranda rights); United 5 States v. Boon San Chong, 829 F.2d 1572, 1574 (11th Cir. 6 1987) (suspect s decision to answer certain questions after 7 reading an advice of rights form constituted a waiver of his 8 Miranda rights, notwithstanding his refusal to sign a 9 written waiver). 10 Taken together, these cases support the overall 11 principle that the circumstances matter, and that refusal to 12 sign a waiver form is a sign that is informed by context. 13 The majority opinion is therefore a departure, holding as it 14 does that a suspect s refusal to sign a written waiver 15 constitutes an invocation of rights regardless of anything 16 else the suspect may say or do. 17 sign a waiver may indicate nothing more than a reluctance to 18 put pen to paper under the circumstances of custody. 19 Goodwin v. Johnson, 224 F.3d 450, 456 (5th Cir. 2000) 20 (quoting United States v. McDaniel, 463 F.2d 129, 135 (5th 21 Cir. 1979)). 22 However, [a] refusal to If a suspect s refusal to sign a written waiver can be 9 1 enough to bar police from asking any further questions, 2 regardless of whether the suspect is willing to talk to 3 police, then police will simply stop using written waiver 4 forms. 5 pen to paper? 6 confusion and uncertainty regarding a suspect s invocation 7 of rights that written waivers were designed to overcome. 8 Nothing in Quiroz compels such a result. Why take the risk that a suspect won t want to put The result will be a return to the very 9 IV 10 11 The majority opinion creates a second novelty in the 12 law: that Miranda rights can be invoked ambiguously. 13 conflicts with Davis, which holds that a suspect must 14 articulate his desire to have counsel present sufficiently 15 clearly that a reasonable police officer in the 16 circumstances would understand the statement to be a request 17 for an attorney, and that [i]f the statement fails to meet 18 the requisite level of clarity, Edwards does not require 19 that the officers stop questioning the suspect. 20 U.S. at 458. 21 22 This Davis, 512 The majority distinguishes Davis on the ground that it involved a re-invocation--that is, a suspect s invocation 10 1 following his initial waiver. Davis did involve a re- 2 invocation, but the Supreme Court did not limit Davis to its 3 facts or context. 4 Davis (Maj y Op at 18-19) as implying that [Davis ] 5 application is limited to situations in which a custodial 6 officer has already begun interrogation after a valid 7 waiver. 8 that police often begin to question a suspect before the 9 circumstances warrant a Miranda warning. The majority quotes some language in I read the cited language to reflect the reality Davis applies, as 10 Davis says, at any time during the interview. 11 U.S. at 458; see also McNeil v. Wisconsin, 501 U.S. 171, 178 12 (1991) (the Edwards prophylactic rule requires, at a 13 minimum, some statement that can reasonably be construed to 14 be an expression of a desire for the assistance of an 15 attorney in dealing with custodial interrogation by the 16 police (emphasis omitted)); Smith v. Illinois, 469 U.S. 91, 17 94-95 (1985) (application of the Edwards prophylactic rule 18 requires a court to determine whether the accused actually 19 invoked his right to counsel (emphasis added)). 20 Davis, 512 A Ninth Circuit panel has suggested that Davis is 21 limited to post-waiver cases. United States v. Rodriguez, 22 518 F.3d 1072, 1078-79 (9th Cir. 2008) ( [T]he clear 11 1 statement rule of Davis addresses only the scope of 2 invocations of Miranda rights in a post-waiver context. ). 3 But a majority of the circuits have applied Davis in pre- 4 waiver cases. 5 194-95 (4th Cir. 2005) (applying Davis to a pre-waiver 6 statement); United States v. Lee, 413 F.3d 622, 626 (7th 7 Cir. 2005) (same); United States v. Brown, 287 F.3d 965, 8 972-73 (10th Cir. 2002) (same); United States v. Syslo, 303 9 F.3d 860, 866 (8th Cir. 2002) (same); United States v. See United States v. Johnson, 400 F.3d 187, 10 Suarez, 263 F.3d 468, 482-83 (6th Cir. 2001) (same); Grant- 11 Chase v. Comm r, New Hampshire Dep t of Corr., 145 F.3d 431, 12 436 & n.5 (1st Cir. 1998) (same); United States v. Posada- 13 Rios, 158 F.3d 832, 867 (5th Cir. 1998) (same). 14 The fundamental purpose of the [Supreme Court s] 15 decision in Miranda was to assure that the individual s 16 right to choose between speech and silence remains 17 unfettered throughout the interrogation process. 18 Connecticut v. Barrett, 479 U.S. 523, 528 (1987) (emphasis 19 added) (quoting Miranda, 384 U.S. at 469). 20 Miranda warnings are given, the law has no preference as 21 between invocation and waiver. 22 free to exercise his own volition in deciding whether or not 12 Once Once warned, the suspect is 1 to make a statement to the authorities. Oregon v. Elstad, 2 470 U.S. 298, 308 (1985) (emphasis added). 3 the suspect s choice--and therefore his initiative--to 4 invoke his rights. 5 not waive his rights absent evidence to the contrary, North 6 Carolina v. Butler, 441 U.S. 369, 373 (1979); but if the 7 government can prove that the defendant did not make that 8 choice sufficiently clearly that a reasonable police 9 officer in the circumstances would understand the statement In short, it is We must presume that a defendant did 10 to be an invocation, Davis, 512 U.S. at 458, neither 11 Miranda nor its progeny require the suppression of any 12 subsequent statements. 13 I would reverse. 13
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