Free Motion to Suppress Statements - District Court of California - California

Case 3:08-cr-00020-BTM

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Filed 01/22/2008

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LEE PLUMMER California State Bar Number 77783 Attorney at Law. 4045 Bonita Rd. #202 Bonita, Ca. 91902 Telephone: (619) 267-1710 Attorney for Defendant Juan Rafael Zafra-Gomez

UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 (HONORABLE BARRY TED MOSKOWITZ) 10 11 12 13 14 15 16 17 18 19 STATEMENT OF FACTS The following statement of facts is based, in part, on materials The facts alleged in these motions v. JUAN RAFAEL ZAFDRA GOMEZ, Defendant. UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Case No. 08-CR-0020 BTM Date: February 1, 2008 Time: 1:30 P.M. STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION

20 received from the government.

21 are subject to amplification and/or modification at the time these 22 motions are heard. Defendant in no way admits the truth of the 23 facts alleged in the complaint. The complaint alleges that on or 24 about October 15, 2007, defendant did knowingly and intentionally 25 possess, with intent to distribute 3.11 kilograms of methamphetamine. 26 27 28 Defendant was stopped at the San Clemente Border Patrol Checkpoint. He was questioned at primary and secondary inspection

Case 3:08-cr-00020-BTM

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Filed 01/22/2008

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stations by Border Patrol Agents without being advised of his Miranda rights. II ANY STATEMENTS MADE BY MR. ZAFRA GOMEZ SHOULD BE SUPPRESSED

A.

The Government Must Demonstrate Compliance With Miranda.

In their report, Agents Joaquin Ayala, J. Ortiz and H. Gonzalez do not state that they advised Mr. Zafra Gomez prior to questioning him at the San Clemente Border Patrol Check Point. 1. Miranda Warnings Must Precede Custodial Interrogation.

The Supreme Court has held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from a custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against selfincrimination. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). The law imposes no substantive duty upon the defendant to make any showing other than that the statement was taken from the defendant during custodial interrogation. Id. at 476. Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id. at 477; see Orozco v. Texas, 394 U.S. 324, 327 (1969). In Stansbury v. California, the Supreme Court clarified its prior decisions by stating that "the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." 511 U.S. 318, 323 (1994). The Ninth Circuit has held that a suspect will be found to be in custody if the actions of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably have led him to believe he could not freely leave. See United States v. Lee, 699 F.2d 466, 468 (9th Cir. 1982); United States v. Bekowies, 432 F.2d 8, 12 (9th Cir. 1970). In determining whether a person is in custody, a reviewing court must consider the language used to summon the defendant, the physical surroundings of the interrogation, and the extent to which the defendant is confronted with evidence of his guilt. See

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Case 3:08-cr-00020-BTM

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United States v. Estrada-Lucas, 651 F.2d 1261 (9th Cir. 1980). Once a person is in custody, Miranda warnings must be given prior to any interrogation. In United States v. Leasure, the Ninth Circuit held that "custody," for the purposes of Miranda warnings, usually begin at the point of secondary inspection in border cases. 122 F.3d 837, 840 (1997). Miranda warnings must advise the defendant of each of his or her "critical" rights. See United States v. Bland, 908 F.2d 471, 473 (9th Cir. 1990). Furthermore, if a defendant indicates that he wishes to remain silent or requests counsel, the interrogation must cease. See Miranda, 384 U.S. at 474; see also Edwards v. Arizona, 451 U.S. 477 (1981). Unless and until Miranda warnings and a knowing and intelligent waiver are demonstrated by the prosecution, no evidence obtained as result of the interrogation can be used against the defendant. See Miranda, 384 U.S. at 479. III.

12 CONTENTION 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 January 22, 2008: /s/ Lee Plummer Attorney for Defendant For the foregoing Because the defendant was not advised of his right to remain silent, his right to have an attorney present and his right to have an attorney appointed his statements at the San Clemente Checkpoint should be suppressed. IV CONCLUSION reasons, Mr. Juan Rafael Zafra Gomez

respectfully requests that this Court grant this motion. Respectfully submitted,

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