Free Supplemental Memorandum - District Court of California - California

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1 ANDREW LAH California State Bar No. 234580 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5008 Telephone: (619) 234-8467 4 [email protected] 5 Attorneys for Mr. Miramontes-Carrillo 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY A. BURNS) ) ) ) ) ) ) ) ) ) ) ) I. STATEMENT OF FACTS A Grand Jury indicted Mr. Miramontes for violations of 21 U.S.C. §§ 952, 960 and 963 for Mr. Miramontes pled not guilty, and these motions follow. CASE NO. 08CR2352-LAB DATE: August 25, 2008 TIME: 2:00 P.M. SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

11 UNITED STATES OF AMERICA, 12 13 v. 14 ALDO MIRAMONTES-CARRILLO, 15 Defendant. 16 17 18 19 Plaintiff,

20 conspiracy to import marijuana.

21 Mr. Miramontes supplements the initial motions filed on August 4, 2008, based on newly received discovery 22 materials. 23 24 25 26 II. MOTION TO SUPPRESS EVIDENCE OBTAINED IN VIOLATION OF THE 4TH AMENDMENT Temporary detention of individuals by the police, even if only for a brief period and for a limited

27 purpose, constitutes a "seizure" within the meaning of the Fourth Amendment, and must be supported by 28 at least reasonable suspicion. See Delaware v. Prouse, 440 U.S. 648, 653 (1979); United States v.

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1 Martinez- Fuerte, 428 U.S. 543, 556 (1976). A stop must be justified by specific, articulable facts sufficient 2 to give rise to a reasonable suspicion of criminal conduct. See Terry v. Ohio, 392 U.S. 1 (1968). This is 3 true in the context of roving border stops such as that executed by the agents in this case. United States v. 4 Brignoni-Ponce, 422 U.S. 873 (1975) (roving border patrol agents must have reasonable suspicion, based 5 on specific and articulable facts, in order to initiate a stop). 6 "The Fourth Amendment prohibits 'unreasonable searches and seizures' by the Government, and its

7 protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." 8 United States v. Arvizu, 534 U.S. 266, 273 (2002). In the context of investigatory stops, "the Fourth 9 Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal 10 activity may be afoot...." Id. (internal quotations omitted). To sustain an officer's reasonable suspicion 11 determination, this Court "must look at the 'totality of the circumstances' ... to see whether the detaining 12 officer has a 'particularized and objective basis' for suspecting legal wrongdoing." Id. Although an officer 13 may rely upon "experience and specialized training to make inferences from and deductions about the 14 cumulative information available" to him before he makes an investigatory stop, "an officer's reliance on 15 a mere hunch is insufficient to justify [such] a stop...." Id., at 273-274 (internal quotations omitted). 16 Thus far, the defense has received only a six page Report of Investigation (ROI) that provides any

17 information on the stop of the "scout" vehicle ­ a vehicle that contained no contraband. The ROI states: 18 "As the Jeep Cherokee was being followed by agents, a black 1992 Lexus bearing California license plates 19 5PIL607 was identified as a "scout" vehicle for the Cherokee. The Lexus was stopped by SA Webster and 20 Imperial County Narcotics Task Force officers." No other discovery regarding this stop has been produced, 21 and the government bears the burden of showing it not only had reasonable suspicion to stop the vehicle, 22 but probable cause to believe that the occupants were acting as a scout for the vehicle containing marijuana. 23 . See Carroll v. United States, 267 U.S. 132, 162 (1925) (an arrest made absent a warrant is unlawful unless 24 made upon probable cause to believe that the suspect is committing an offense); see also United States v. 25 Ortiz-Hernandez, 427 F.3d 567, 573 (9th Cir. 2005) ("Probable cause exists when, under the totality of the 26 circumstances known to the arresting officers, a prudent person would have concluded that there was a fair 27 probability that [the suspect] had committed a crime."). 28 / / / 2
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Accordingly, this Court must conduct an evidentiary hearing to determine whether the government

2 can meet this burden. Since "`suppression hearings are often as important as the trial itself,'" these findings 3 should be supported by evidence, not merely an unsubstantiated recitation of purported evidence in a 4 prosecutor's responsive pleading. See United States v. Prieto-Villa, 910 F.2d 601, 609-10 (9th Cir. 1990) 5 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)). Unless and until the government demonstrates that 6 its agents acted in accordance with the Fourth Amendment, the stop and subsequent statements or evidence 7 may not be used at trial. 8 9 10 A. 11 III. MOTION TO SUPPRESS STATEMENTS Miranda Warnings Must Precede Custodial Interrogation. The Supreme Court has held that the government may not use statements, whether exculpatory or

12 inculpatory, obtained during custodial interrogation of the defendant unless it demonstrates the use of 13 procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 14 U.S. 436, 444 (1966). The law imposes no substantive duty upon the accused to make any showing other 15 than that the statements were taken while the accused was in custody and subject to interrogation. Id. at 476. 16 Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken 17 into custody or otherwise deprived of her freedom of action in any significant way. Id. at 477; see also 18 Orozco v. Texas, 394 U.S. 324, 327 (1969). In Stansbury v. California, 511 U.S. 318 (1994), the Supreme 19 Court stated that "the initial determination of custody depends on the objective circumstances of the 20 interrogation, not on the subjective views harbored by either the interrogating officers or the person being 21 questioned." Id. at 323. 22 When it takes an accused's statement during custodial interrogation, a heavy burden rests on the

23 government to demonstrate that the accused intelligently and voluntarily waived her privilege against 24 self-incrimination. To satisfy this burden, the prosecution must introduce evidence sufficient to establish 25 "that under the `totality of the circumstances,' the defendant was aware of `the nature of the right being 26 abandoned and the consequences of the decision to abandon it." United States v. Garibay, 143 F.3d 534, 27 536 (9th Cir. 1998) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). The Ninth Circuit has stated that 28 "[t]here is a presumption against waiver." Garibay, 143 F.3d at 536. The standard of proof for a waiver of 3
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1 constitutional rights is high. Miranda, 384 U.S. at 475; see also United States v. Heldt, 745 F.2d 1275, 1277 2 (9th Cir. 1984) (the burden on the government is great, the court must indulge every reasonable presumption 3 against waiver of fundamental constitutional rights) (citing Johnson v. Zerbst, 304 US 458, 464 (1938)). 4 Finally, it should be noted that, since Miranda rests on a constitutional foundation, see Dickerson v. United 5 States, 530 U.S. 428, 438 (2000), no law or local court rule relieves the government of its burden to prove 6 that Mr. Miramontes voluntarily waived the Miranda protections. Miranda, 384 U.S. at 475. 7 The validity of the waiver depends upon the particular facts and circumstances of the case, and

8 include the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S. 477, 482 9 (1981); Johnson v. Zerbst, 304 U.S. 458, 464 (1938); see also Garibay, 143 F.3d at 536; United States v. 10 Bernard S., 795 F.2d at 751 ("a valid waiver of Miranda rights depends upon the totality of the 11 circumstances, including the background, experience and conduct of the accused"). In Derrick v. Peterson, 12 924 F.2d 813 (9th Cir. 1990), the Ninth Circuit confirmed that the issue of the validity of a Miranda waiver 13 requires a two prong analysis: the waiver must be both (1) voluntary; and, (2) knowing and intelligent. Id. 14 at 820. The voluntariness prong of this analysis "is equivalent to the voluntariness inquiry [under] the [Fifth] 15 Amendment . . . ." Id. The knowledge prong mandates an inquiry into whether "the waiver [was] made with 16 a full awareness both of the nature of the right being abandoned and the consequences of the decision to 17 abandon it." Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)); accord Garibay, 143 F.3d at 436. 18 Thus, "[o]nly if the `totality of the circumstances surrounding the interrogation' reveal both an uncoerced 19 choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have 20 been waived." Derrick at 820 (quoting Moran v. Burbine, 475 U.S. at 521) (emphasis in original) (citations 21 omitted)). 22 Here, Mr. Miramontes was in custody immediately after he was removed from the vehicle and

23 transported. Unless and until it shows the agents properly administered the Miranda warnings and obtained 24 a knowing and intelligent waiver from Mr. Miramontes, the government cannot use evidence obtained as 25 a result of any custodial interrogation that occurred after Mr. Miramontes's arrest. Miranda, 384 U.S. at 479. 26 The defense has not yet received any written Miranda warnings, and the DVD produced thus far is 27 / / / 28 / / / 4
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The Government Bears the Burden of Proving that Mr. Miramontes's Alleged Statements Were Made Voluntarily Even when the procedural safeguards of Miranda have been satisfied, a defendant in a criminal case

5 is deprived of due process of law if her conviction is founded upon an involuntary confession. Arizona v. 6 Fulminante, 499 U.S. 279 (1991); Jackson v. Denno, 378 U.S. 368, 387 (1964). The government bears the 7 burden of proving that a confession is voluntary. Lego v. Twomey, 404 U.S. 477, 483 (1972). 8 In order to be voluntary, a statement must be the product of a rational intellect and free will.

9 Blackburn v. Alabama, 361 U.S. 199, 208 (1960). In determining whether a defendant's will was overborne 10 in a particular case, this Court must consider the totality of the circumstances. Schneckloth at 226; see also 11 United States v. Bautista-Avila, 6 F.3d 1360, 1364 (9th Cir. 1993). A statement is involuntary if it is 12 "extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, 13 [or] by the exertion of any improper influence." Hutto v. Ross, 429 U.S. 28, 30 (1976) (quoting Bram v. 14 United States, 168 U.S. 532, 542-43 (1897)); see also United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 15 1981). 16 To meet its burden, the government must demonstrate that Mr. Miramontes's statement was not the

17 result of either threats or promises made by the agents, but was made voluntarily. 18 19 20 IV. REQUEST FOR LEAVE TO FILE FURTHER MOTIONS Mr. Miramontes and defense counsel have not received all of the discovery in this case. As

21 discovery is received, the defense will find it necessary to file further motions pertaining to that discovery. 22 Therefore, defense counsel requests the opportunity to file further motions based upon information gained 23 from discovery. 24 / / / 25 / / / 26 27 The defense has raised this issue with the government and does not foresee any difficulties in 28 obtaining a new copy. 5
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CONCLUSION For the reasons stated above, Mr. Miramontes respectfully requests that this Court grant the

4 foregoing motions. 5 6 Dated: August 11, 2008 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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Respectfully submitted, /s/ Andrew Lah ANDREW LAH Federal Defenders of San Diego, Inc. Attorneys for Mr. Miramontes

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CERTIFICATE OF SERVICE

Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best of

4 information and belief, and that a copy of the foregoing document has been caused to be delivered this day 5 upon: 6 7 8 9 Dated: August 11, 2008 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
08cr2352-LAB

Courtesy Copy Court Assistant United States Attorney via ECF

/S/ANDREW LAH ANDREW LAH Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) e-mail: [email protected]