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

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1 ROBERT H. REXRODE, III California State Bar No. 230024 2 427 C Street, Suite 300 San Diego, California 92101 3 Telephone: (619) 233-3169, Ext. 13 Facsimile: (619) 684-3553 4 [email protected] 5 Attorneys for Mr. Javier Soto-Castro 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 (HONORABLE MARILYN L. HUFF) 10 ) ) Plaintiff, ) 12 v. ) ) 13 JAVIER SOTO-CASTRO, ) ) 14 Defendant. ) _________________________________ ) 15 11 16 17 18 I. FACTUAL & PROCEDURAL HISTORY 1 On November 25, 2007, agents arrested Mr. Soto-Castro at the Calexico West Port UNITED STATES OF AMERICA, CASE NO. 07cr3281-H STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS.

19 of Entry. Agents later found approximately 11.96 kilograms of methamphetamine secreted 20 in the car driven by Mr. Soto-Castro. 21 On September 5, 2007, the government secured a two-indictment against Mr. Soto-

22 Castro, charging him with importing methamphetamine and possessing methamphetamine 23 with the intent to distribute it. 24 // 25 // 26 27 The following facts are based on information provided by the government. Mr. Soto-Castro 28 does not admit their accuracy and reserves the right to challenge them.
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II. MOTION TO SUPPRESS STATEMENTS Relevant Facts 2 On November 25, 2007, agents arrested Mr. Soto-Castro at the Calexico West Port

5 of Entry. Agents later found approximately 11.96 kilograms of methamphetamine secreted 6 in the car driven by Mr. Soto-Castro. The drugs were first discovered by a Narcotic 7 Detecting Dog (NDD). Following this alert, at least two agents physically removed

8 Mr. Soto-Castro to a secondary office. Mr. Soto-Castro was then physically searched. After 9 this, but before any Miranda warnings were given, an agent asked Mr. Soto-Castro a series 10 of questions. Later, after having finally been advised of his rights under Miranda, Mr. Soto11 Castro declined to answer further questions. 12 B. 13 Governing Law The government bears the burden of demonstrating that a defendant's statement is

14 voluntary and that Miranda warnings were given prior to a custodial interrogation. United 15 States v. Harrison, 34 F.3d 886, 890 (9th Cir. 1994); see also United States v. Dickerson, 530 16 U.S. 428, 439-41 (2000) (discussing constitutional underpinnings of Miranda v. Arizona, 384 17 U.S. 436, 444 (1966) and the need to safeguard "precious Fifth Amendment rights"); see also 18 18 U.S.C. § 3501. 19 Under Miranda, statements made in response to custodial interrogation must be

20 suppressed unless the government can prove that a defendant knowingly, intelligently and 21 voluntarily waived his or her rights to remain silent and speak with an attorney. United 22 States v. Beraun-Panez, 812 F.2d 578, 580 (9th Cir. 1987), as modified on other grounds by 23 United States v. Beraun-Panez, 830 F.2d 127 (9th Cir. 1987); Colorado v. Connelly, 479 U.S. 24 157, 168-69 (1986). 25 26 The following facts are based on information provided by the government. Mr. Soto-Castro does not admit their accuracy and reserves the right to challenge them. 27 28 2 07cr3281
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For purposes of Miranda, interrogation is questioning by law

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1 enforcement officials "reasonably likely to elicit an incriminating response from the 2 suspect . . . ." United States v. Foster, 227 F.3d 1096, 1102-03 (9th Cir. 2000) (quoting 3 Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). 4 "An individual is in custody if considering the circumstances surrounding an

5 interrogation `a reasonable person . . . felt he or she was not at liberty to terminate the 6 interrogation and leave.'" United States v. Hernandez, 476 F.3d 791, 796 (9th Cir. 2007) 7 (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)). "Relevant circumstances to the 8 custody analysis `include the language used by the officers, the physical characteristics of the 9 place where the question occurs, the degree of pressure applied to detain the individual, the 10 duration of the detention, and the extent to which the person was confronted with evidence 11 of guilt.'" Id. (quoting United States v. Butler, 249 F.3d 1094, 1099 (9th Cir.2001)). 12 C. 13 Argument Mr. Soto-Castro seeks to suppress those statements made to the agent who first

14 questioned him following the drug detecting dog's alert. Mr. Soto-Castro does not expect 15 the government to contend that Mr. Soto-Castro was advised of his rights under Miranda 16 before being subjected to this first set of statements. As Mr. Soto-Castro was in custody at 17 that point, agents were required to advise him of his rights under Miranda. 18 Here, following a drug-detecting dog's alert, agents physically moved Mr. Soto-Castro

19 to a secure office. Following a physical search of Mr. Soto-Castro, an agent This same agent 20 asked Mr. Soto-Castro a number of questions regarding who owned the car and where it was 21 that Mr. Soto-Castro was traveling. These questions were reasonably likely to elicit an 22 incriminating response--indeed that is likely why the agents asked those questions. 23 Additionally, under these circumstances, Mr. Soto-Castro was in the agents' custody for 24 purposes of Miranda. He had been confronted with a strong suspicion of being involved in 25 criminal activity, had been physically searched and was facing more than one officer. See 26 Hernandez, 476 F.3d at 796. Despite this, no agent advised Mr. Soto-Castro at this time of 27 28 3 07cr3281

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1 his rights under Miranda. For this reason, the government may not use Mr. Soto-Castro's 2 statements. Miranda, 384 U.S. at 479. 3 Nor has the government demonstrated that Mr. Soto-Castro voluntarily answered the

4 agent's questions. A defendant in a criminal case is deprived of due process of law if the 5 conviction is founded upon an involuntary confession. Arizona v. Fulminante, 499 U.S. 279 6 (1991); Jackson v. Denno, 378 U.S. 368, 387 (1964). This is so even when the procedural 7 safeguards of Miranda have been satisfied. Id. The government bears the burden of proving 8 by a preponderance of the evidence that a confession is voluntary. Lego v. Twomey, 404 U.S. 9 477, 483 (1972). As the government has not demonstrated the Mr. Soto-Castro voluntarily 10 answered the agent's questions, the government may not use these statements by Mr. Soto11 Castro. 12 D. 13 Request For Suppression, or on the Alternative, an Evidentiary Hearing As it is the government's burden to demonstrate compliance with Miranda and that

14 a person's statements were voluntarily made, Mr. Soto-Castro believes this Court should 15 grant the above motion to suppress statements. If this Court does not grant Mr. Soto-Castro's 16 motion to suppress statements based on the above motion, Mr. Soto-Castro requests an 17 evidentiary hearing. 18 This Court must make a factual finding that the government has complied with

19 Miranda. This Court must also make a factual determination as to whether a confession was 20 voluntarily given prior to its admission into evidence. 18 U.S.C. § 3501(a). Where a factual 21 determination is required, courts are obligated by Federal Rule of Criminal Procedure 12 to 22 make factual findings. See United States v. Prieto-Villa, 910 F.2d 601, 606-10 (9th Cir. 23 1990). Because "`suppression hearings are often as important as the trial itself,'" id. at 60924 10 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), these findings should be supported 25 by evidence, not merely an unsubstantiated recitation of purported evidence in a prosecutor's 26 27 28 4 07cr3281

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1 responsive pleading. Under section 3501(b), this Court must consider "all the circumstances 2 surrounding the giving of the confession," including: 3 4 5 6 7 (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel, and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.

8 18 U.S.C. § 3501(b) ("section 3501(b)"). 9 Without the presentation of evidence, this Court cannot adequately consider these

10 statutorily mandated factors and other important factors bearing on voluntariness. 11 Accordingly, Mr. Soto-Castro requests that this Court conduct an evidentiary hearing 12 pursuant to 18 U.S.C. § 3501(a), to determine, outside the presence of the jury, whether any 13 statements made by Mr. Soto-Castro were voluntary and made after compliance with 14 Miranda.. 15 16 17 III. MOTION TO PRESERVE AND VIEW EVIDENCE In his previously filed discovery motion, Mr. Soto-Castro requested the preservation of

18 evidence in this case. He renews that request. Specifically, Mr. Soto-Castro requests the 19 government preserve the drugs involved in this case, the car in which Mr. Soto-Castro was 20 arrested and any physical evidence found on Mr. Soto-Castro or in the car in which he was 21 arrested. Mr. Soto-Castro requests an opportunity to view these items at a time mutually 22 convenient to the government and Mr. Soto-Castro. Fed. R. Crim. P. 16(a)(1)(E) (i)-(iii). 23 24 25 IV. MOTION FOR LEAVE TO FILE FURTHER MOTIONS Mr. Soto-Castro has received 72 pages of discovery in this case. He requests leave to

26 file further motions if necessary. 27 28 5 07cr3281

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1 2 3 4 5 6 Dated: March 3, 2008 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IV. CONCLUSION Mr. Soto-Castro requests this Court grant his motions.

Respectfully submitted, /s/ Robert H. Rexrode ROBERT H. REXRODE, III Attorney for Mr. Soto-Castro [email protected]

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