CONFESSIONS Christina M. Cabanillas Assistant U.S. Attorney U.S. Attorney’s Office, District of Arizona1 New Mexico District Attorney Association (NMDAA) Spring Conference (April 24, 2019)

Table of Contents

I. Relevant Constitutional Provisions (Federal and New Mexico) 1

II. Preliminary Considerations 4

A. Is Testimonial? 4 B. Act of Giving Consent 4 C. Act of Production 5

III. Custodial – Miranda Requirement 5

A. Custodial Interrogation Required 5 B. No Anticipatory Invocation 6 C. No Vicarious Invocation 6 D. Break in Custody (Including “14-Day Rule”) 6

IV. Exceptions to Miranda Rule 7

A. Booking Questions 7 B. Spontaneous Statements 8 C. Public Safety Questions 9 D. Undercover Agents / Incarcerated 9 E. Probation / Parole 11

V. Custody under Miranda 12

A. General Rule 12 B. Examples 13 (Questioning at home; questioning while voluntarily at station or being transported; traffic stops; immigration field questioning; fleeing from officers; use of restraints not always custodial, etc.)

1 The views expressed in this outline are those of the author, and do not necessarily reflect the views of the Department of Justice. Readers should directly consult and update the authority cited in these materials. Contact Information: Christina M. Cabanillas, Assistant U.S. Attorney, Appellate Division, 405 W. Congress, Suite 4800, Tucson, Arizona, 85701. Phone: (520) 620- 7300; E-Mail: [email protected]

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VI. Interrogation 18

A. General Rule 18 B. Recording or Listening to Conversation 18 C. Private Citizens 19

VII. Admonishment 20

A. The Miranda Warnings 20 B. Adequacy of Warnings / Repeated Warnings 20 C. Mid-Confession Admonishment 22 D. “Tribal Miranda” or Administrative Warnings Issue 23 E. Consular Notification – Foreign Nationals 24

VIII. Waivers 24

A. What Constitutes Waiver? 25 B. Competency to Waive 25

IX. Invocation / Reinitiation 28

A. Right to Remain Silent 28 B. 29 C. Ambiguous Invocations of Right to Counsel or Silence 29 D. Limited Invocations 32 E. Reinitiation 32

X. Special Situations 33 (Juveniles; DUI & FSTs)

XI. Voluntariness () 38 (Threats, promises, other coercion, etc.)

XII. Sixth Amendment Right to Counsel 45

XIII. Federal Presentment Delay Issues & McNabb/Mallory Rule 48

XIV. Questions of Taint (Statements and Derivative Evidence) 50

A. Admissibility of Second Statement When First One Is Inadmissible 50 B. Miranda violation – Suppression of Physical Fruits 52 C. Admissibility of Statement after Illegal Search or Seizure 52 D. Impeachment / Commenting on Silence & Related Issues 53

Tips for Responding to Motion to Suppress Statements 56

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CONFESSIONS Christina M. Cabanillas Assistant U.S. Attorney U.S. Attorney’s Office, District of Arizona1 New Mexico District Attorney Association (NMDAA) Spring Conference (April 24, 2019)

There are THREE SEPARATE INQUIRIES:

1) Is statement admissible under Miranda v. Arizona, 384 U.S. 436 (1966)? 2) Is statement voluntary under due process? 3) Has right to counsel under Sixth Amendment been violated?

I. RELEVANT CONSTITUTIONAL PROVISIONS:

A. Federal

Fifth Amendment: “No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law . . .”

Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

Fourteenth Amendment: “[N]or shall any State deprive any person of life, liberty, or property without due process of law . . .”

The U.S. Supreme Court has ruled that the Miranda decision was “constitutionally based” and, thus, Congress had no power to legislatively overrule Miranda in 18 U.S.C. § 3501. United States v. Dickerson, 120 S.Ct. 2326, 2334 (2000). Thus, if a statement is not admissible under Miranda, it is not admissible in the government’s case-in-chief, although it may be used to impeach the at trial if it is otherwise voluntary under due process.

B. New Mexico

New Mexico Constitution, Article II, § 15: “No person shall be compelled to testify against himself in a criminal proceeding, nor shall any person be twice put in jeopardy for the same offense; and when the , information or

1 The views expressed in this outline are those of the author, and do not necessarily reflect the views of the Department of Justice. Readers should directly consult and update the authority cited in these materials. Contact Information: Christina M. Cabanillas, Assistant U.S. Attorney, Appellate Division, 405 W. Congress, Suite 4800, Tucson, Arizona, 85701. Phone: (520) 620-7300; E-Mail: [email protected].

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affidavit upon which any person is convicted charges different offenses or different degrees of the same offense and a new trial is granted the accused, he may not again be tried for an offense or degree of the offense greater than the one of which he was convicted.”

New Mexico Constitution, Article II, § 18: “No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person.” (effective date omitted).

New Mexico courts have declined to find greater protection under Article 2, Section 15 of the New Mexico Constitution than required under federal law when interpreting Fifth Amendment Miranda issues or overall coercion:

State v. Galindo, 415 P.3d 494, 504 (NMSC 2018) (“Defendant argues that we should interpret Article II, Section 15 of the New Mexico Constitution to foreclose the admission of incriminating statements even when there is no evidence of coercion . . . .Instead, we continue to apply the federal rule: ‘Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.’ Connelly, 479 U.S. at 164, 107 S.Ct. 515.”).

State v. Quinones, 149 N.M. 294, 302, 248 P.3d 336, 344 (App. 2011) (Court rejected defendant’s claim that “under the New Mexico Constitution, interrogators have an obligation to ‘supply an attorney’ once a defendant has invoked his Fifth Amendment right to counsel. As Defendant acknowledges, no such obligation exists under federal law.” (citing Miranda and Edwards). “Under our interstitial approach to interpreting the New Mexico Constitution, we may diverge from federal precedent where the federal analysis is flawed, where there are structural differences between the state and federal governments, or because of distinctive New Mexico characteristics. . . . We conclude that Defendant has not presented any arguments on appeal that are directed toward any of these three procedural reasons. Though Defendant makes a blanket assertion that federal law on this issue ‘does not go far enough in protecting a suspect’s right to due process of law,’ he provides us with no specific argument as to why the existing federal analysis is flawed. Defendant also does not argue that there are any structural differences between our state and the federal government or that distinctive New Mexico characteristics would militate in favor of greater protections under our state constitution. . . To the extent that Defendant cites existing New Mexico precedent on this issue, we remain unpersuaded . . ..”) (disagreeing with defendant’s interpretation of New Mexico cases) (internal citations omitted).

State v. Perry, 146 N.M. 208, 215-217, 207 P.3d 1185, 1192-94 (App. 2009) (“Defendant also argues that the New Mexico Constitution affords him greater protection than the federal constitution. Specifically, Defendant argues 2

that under the New Mexico Constitution, if investigators are unsure about whether a suspect has invoked his right to remain silent, the investigators are required to ask the suspect, ‘Are you invoking your right to remain silent?’ The federal courts have imposed no such clarification requirement on investigators.” (citing Davis). “[W] e conclude that Defendant has not demonstrated that Article II, Section 15 of the New Mexico Constitution requires investigators to clarify whether a suspect has invoked the right to remain silent.”)

See also State v. Suskiewich, 363 P.3d 1247, 1254 (N.M. App. 2016) (while resolving a speedy trial issue, Court of Appeals noted in dicta that the question of whether the United State Supreme Court’s Patane decision should be followed under the New Mexico Constitution has not been resolved).

The defendant must preserve a specific challenge made under the New Mexico Constitution. State v. Vasquez, 148 N.M. 202, 210, 232 P.3d 438, 446 (App. 2010) (“[D]efendant contends that the trial court erred in denying her motion to suppress oral statements she claims were elicited from her in violation of her rights under the Fifth Amendment to the United States Constitution and article II, section 15 of the New Mexico Constitution.” State argued the defendant did not preserve this state constitutional argument below when arguing that Miranda had been violated. The Court agreed. “Accordingly, to the extent Defendant raises a claim of error under article II, section 15 of our state constitution for the first time on appeal, this Court limits its review to Defendant’s properly preserved claim of error raised pursuant to the Fifth Amendment to the United States Constitution.”). See also State v. Taylor E., 385 P.3d 639, 643 n. 2 (N.M. Ct. App. 2016) (“Child makes no argument that the New Mexico Constitution provides broader protection than the United States Constitution in these circumstances. We therefore assume without deciding that both afford equal protection in this context. See State v. Gomez, 1997–NMSC– 006, ¶ 22, 122 N.M. 777, 932 P.2d 1.”); State v. Martinez, 127 N.M. 207, 211, 979 P.2d 718, 722 (NMSC 1999) (“Martinez does not rely on the New Mexico Constitution for his arguments [challenging his statements], see N.M. Const. art. II, § 15; we therefore limit our discussion of constitutional principles to the Fifth and Fourteenth Amendments.”); State v. Batista-Carrasco, A-1-CA-35220, 2018 WL 7021938, at *4 (N.M. Ct. App. Dec. 6, 2018) (unpublished) (“we conclude that Defendant failed to preserve his argument that Section 29-1-6 is unconstitutional under the New Mexico Constitution Article II, Section 18”); State v. Munoz, 126 N.M. 535, 540, 972 P.2d 847, 852 (NMSC 1998) (“We rely solely on federal constitutional jurisprudence pertaining to this issue and do not address whether Article II, Section 18 of the New Mexico Constitution provides more protection than the Fourteenth Amendment in the context of allegedly coerced confessions because Defendant does not assert that Article II, Section 18 should be interpreted more broadly than the Fourteenth Amendment.”).

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II. PRELIMINARY CONSIDERATIONS

A. Is the Evidence Testimonial?

The Fifth Amendment applies only to acts that are communicative and testimonial. Schmerber v. California, 384 U.S. 757, 761 (1966) (drawing of blood not testimonial). A “communication must itself, explicitly or implicitly, relate a factual assertion or disclose information” that expresses “the contents of an individual’s mind.” Doe v. United States, 487 U.S. 201 (1988). Some things that are not “testimonial” include a defendant’s physical characteristics, like handwriting, DNA, hair, voice, fingerprints, blood alcohol, etc., and a defendant’s actions that are non-testimonial, i.e., re-enactment of a , or trying on clothing. Holt v. United States, 31 S.Ct. 2 (1910) (model clothing); United States v. Dionisio, 93 S.Ct. 764 (1973) (voice exemplars); Gilbert v. California, 87 S.Ct. 1951 (1967) (handwriting exemplars); United States v. Wade, 87 S.Ct. 1926 (1967) (line-up of defendant); National Treasury Employees Union v. Von Raab, 816 F.2d 170 (5th Cir. 1987) (urine samples).

State v. Randy J., 150 N.M. 683,265 P.3d 734 (App. 2011) (finding that counting or reciting the alphabet during a field sobriety test is non-testimonial; “[u]nlike remembering and calculating the date of one's own sixth birthday, counting or recitation of the alphabet during a field sobriety test lack[s] inherent communicative value because [it does] not convey knowledge of any fact specific to the person being questioned.”); State v. Tilman, 33,174, 2014 WL 3050792, at *1 (N.M. Ct. App. May 29, 2014) (unpublished) (“Consistent with Randy J., we disagree with Defendant’s assertion that the results of her countdown test [in DUI case] were testimonial for purposes of requiring Miranda warnings.”).

The Miranda rule only applies to “law enforcement agents.” See Miranda (rule applies to law enforcement questioning); Illinois v. Perkins, 496 U.S. 292 (1990) (no Miranda violation where defendant talked to an undercover government agent whom defendant thought was another inmate). See also “Interrogation” “Private Citizens,” infra.

B. Act of Giving Consent

A defendant’s act of giving consent is nontestimonial (and a request for consent is not interrogation). See United States v. Henley, 984 F.2d 1040, 1042- 43 (9th Cir. 1993) (“The mere act of consenting to a search –‘Yes, you may search my car’– does not incriminate a defendant, even though the derivative evidence uncovered may itself be highly incriminating.”; physical evidence obtained after a Miranda violation is not an illegal fruit). See also United States v. Patane, 542 U.S. 630 (2004) (failure to give Miranda warnings does not require suppression of physical fruits of suspect’s unwarned but voluntary statements; officers’ failure to give Miranda warnings in conjunction with restraining-order did

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not require suppression of weapon at firearms trial, because weapon was recovered based on defendant’s voluntary statement that he possessed it); see also State v. Verdugo, 142 N.M. 267, 273, 164 P.3d 966, 972 (App. 2007) (citing Patane with approval, but finding the ruling inapplicable in that particular case).

C. Defendant’s Act of Production

“The compelled production of a physical object, such as a document, does not implicate the Fifth Amendment unless it is the act of production itself which is used as incriminating evidence.” United States v. MacKey, 647 F.2d 898, 900 (9th Cir. 1981), citing Andresen v. Maryland, 427 U.S. 463, 473-74 (1976) (compelling production of personal records may constitute forced authentication of incriminating information). A person may claim the Fifth Amendment privilege but the person may only claim it as to purely personal papers. MacKey, 647 F.2d at 900. However, a defendant cannot refuse to produce papers that are not “personal papers.” Id (“an individual cannot rely upon the privilege to avoid producing records of a collective entity which are in his possession in a representative capacity, even if those records might incriminate him personally”), citing Bellis v. United States, 417 U.S. 85, 88 (1974).

III. CUSTODIAL INTERROGATION - MIRANDA WARNINGS REQUIREMENT

A. Miranda Warnings Only Required Before “Custodial Interrogation”

See Rhode Island v. Innis, 446 U.S. 291 (1980) (“it is clear . . . that the special procedural safeguards outlined in Miranda are required not where a suspect is in custody, but rather where a suspect in custody is subjected to interrogation”). Custodial interrogation means “questioning initiated by law enforcement officers after a person has been taken into custody . . ..” Miranda, 384 U.S. at 444. See also State v. Wilson, 142 N.M. 737, 169 P.3d 1184 (App. 2007) (An officer’s obligation to administer Miranda warnings arises only “when a person is (1) interrogated while (2) in custody.”) (internal quotation marks and citation omitted); United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993) (before Miranda is applicable, two requirements must be met: 1) the suspect must be in “custody”; and 2) the questioning must meet the legal definition of an “interrogation”); State v. Perry, 146 N.M. 208, 213, 207 P.3d 1185, 1190 (App. 2009) (“Under Miranda, ‘[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.’”) (quoting Miranda, 384 U.S. at 444). See also “Custody,” “Interrogation” and other sections, infra.

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B. No Anticipatory Invocation Permitted

See McNeil v. Wisconsin, 501 U.S. 171, 182, n.3 (1991) (“We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.’” Court rejected argument that defendant’s request for a at was an invocation of Miranda right to have counsel present at all future ); see also Bobby v. Dixon, 132 S.Ct. 26 (2011) (per curiam) (reiterating principle).

See also State v. Payne, 233 Ariz. 484, 314 P.3d 1239 (2013) (defendant could not invoke right to counsel when he was not in custody when police first encountered him outside of the motel; “Payne was not in custody when he attempted to invoke his right to counsel because, other than the presence of police, he had no reason to feel deprived of his freedom of action. The police had not indicated that he was suspected of committing a crime, had not told him he was under arrest, and had not drawn their guns. Moreover, Payne felt free to refuse to accompany them. Thus, Payne's initial invocation was ineffective.”); State v. Stanley, 167 Ariz. 519, 523, 809 P.2d 944 (1991) (When officers asked the defendant at apartment for consent, they also read him Miranda warnings and he asked for an attorney. However, that “invocation” was not effective because Stanley was not in custody. Thus, officers could question him after he voluntarily accompanied them to the police station. “The trial court determined there was neither a Miranda nor an Edwards violation because Stanley was not in custody at the time of [the earlier] questioning. We agree. Miranda warnings are required only when police officers question a suspect who is in custody. . . In this case, Stanley received Miranda warnings in connection with requests for consent to search the garage and his residence. These warnings were not required.”).

C. Miranda Rights May Not Be Vicariously Invoked

The Miranda warnings cannot be vicariously asserted. Moran v. Burbine, 106 S.Ct. 1135 (1986) (police officers’ failure to notify the accused -- who was in custody but had not been formally charged -- of his attorney’s attempts to telephone him neither invalidated his waiver of Miranda rights nor impaired his right to counsel); McNeil, 501 U.S. at 182 n. 3. The defendant must invoke his right to counsel or silence; an attorney cannot invoke for him.

D. Break in Custody

If defendant invokes right to silence or counsel during custodial questioning, but he is later released from custody, any invocation of Miranda rights do not apply to subsequent non-custodial questioning. McNeil v. Wisconsin, 501 U.S. 171, 177 (1991) (after suspect invokes right to counsel

6 under Miranda, and police initiate interrogation, the statements will be involuntary, “assuming there has been no break in custody”).

“14-Day Rule” -- In Maryland v. Shatzer, 559 U.S. 98 (2010), the Supreme Court held that a 14-day break in custody ends the presumption, created by Edwards v. Arizona, 451 U.S. 477 (1981), that once a suspect invokes his Miranda right to have counsel present during custodial interrogation, any waiver of that right in response to a subsequent police attempt at custodial interrogation is involuntary. In Shatzer, the defendant, who was in prison serving a sentence on an unrelated crime, was questioned about the possible sexual abuse of his son. The defendant was advised of, and asserted, his Miranda right to counsel, and the interview ended. Two and one-half years later, in 2006, officers returned to the prison, advised defendant of his Miranda rights, and, after obtaining a waiver, obtained a confession that was used against defendant at trial. The Court created this 14-day rule on its own, partly to guard against the possibility that the police would release from custody a suspect who had invoked his rights, only to immediately return him to custody and again seek a confession. (Of course, if a defendant has not been released from custody, the Edwards invocation of counsel is still valid and precludes re-initiation by police.)

State v. Madonda, 375 P.3d 424, 432 (NMSC 2016) (“Thus, after a suspect invokes the right to counsel, ‘not only must the current interrogation cease, but he may not be approached for further interrogation until counsel has been made available to him,’ McNeil v. Wisconsin, 501 U.S. 171, 176–77, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (internal quotation marks and citation omitted), or there has been a break in custody of at least fourteen days. See Shatzer, 559 U.S. at 105, 110, 130 S.Ct. 1213. . . . Because Defendant was neither provided an attorney, nor released from custody for the requisite fourteen days between his request for an attorney and the subsequent interrogation, the March 29 interview was not cured of its presumptive involuntariness. See Shatzer, 559 U.S. at 105, 110, 130 S.Ct. 1213.”)

IV. EXCEPTIONS TO THE MIRANDA RULE

A. Booking Questions (Biographical Information)

Answers to standard custodial booking questions are admissible even if the defendant has not been informed of his Miranda rights at the time of booking. Pennsylvania v. Muniz, 496 U.S. 582 (1990) (The defendant was taken to the police station and was informed that he would be videotaped. He was then asked to give his name, address, height, weight, eye color, date of birth, and age. No Miranda violation.)

Some courts have ruled, however, that if an agent believes the defendant has illegally entered the country, custodial biographical questions about immigration status may be considered interrogation. See United States v. Parra, 7

2 F.3d 1058, 1068 (10th Cir. 1993) (“routine booking questions do not constitute interrogation because they do not normally elicit incriminating responses”; however, “where questions regarding normally routine biographical information are designed to elicit incriminating information, the questioning constitutes interrogation subject to the strictures of Miranda . . In this case, Agent Godshall did not question Sotelo to obtain general booking information. Rather, he questioned Sotelo about his true name for the direct and admitted purpose of linking Sotelo to his incriminating immigration file. Under these circumstances, the questioning was reasonably likely to elicit incriminating information relevant to establishing an essential element necessary for a of being an illegal alien in possession of a firearm.”); United States v. Gonzalez-Sandoval, 894 F.2d 1043 (9th Cir. 1990) (after defendant said he had been deported before, he was arrested on suspicion of being a “deported alien”; a Border Patrol agent’s questioning of custodial defendant about his citizenship constituted “interrogation”; court found, however, under Oregon v. Elstad, 470 U.S. 298 (1985), that the defendant’s voluntary post-Miranda confession to Border Patrol agent about citizenship was admissible despite prior Miranda-violative statement); United States v. Chen, 439 F.3d 1037, 1042-43 (9th Cir. 2006) (immigration agent’s questioning of illegal alien about citizenship and entry constituted an interrogation because the government’s interest in the alien’s testimony against a suspected smuggler and the U.S. Attorney's practice of pursuing illegal entry prosecutions combined to create a heightened threat that the defendant might actually face an illegal entry prosecution). But see United States v. Salgado, 292 F.3d 1169 (9th Cir. 2002) (INS agent’s purely administrative interview of the defendant was not an interrogation for Miranda purposes because it was conducted solely to determine if the defendant was deportable after release from jail) (distinguished in Chen, supra); United States v. Solano-Godines, 120 F.3d 957 (9th Cir. 1997) (defendant’s answers to biographical questions before judge at immigration deportation hearing were admissible because this was not “interrogation,” distinguishing Mata-Abundiz, supra).

B. Spontaneous Statements

“Miranda does not ‘prohibit the police from merely listening to . . . voluntary, volunteered statements’ uttered by a person, whether or not in custody, ‘and using them against him at the trial’ - - nor does the Fifth or Fourteenth Amendment.” People v. Mickey, 818 P.2d 84, 98, 286 Cal.Rptr. 801, 815 (1996), quoting Edwards v. Arizona, 451 U.S. 477, 485 (1981). See Miranda v. Arizona, 384 U.S. 436, 478 (1966) (volunteered statements are admissible). See also United States v. Edmo, 140 F.3d 1289 (9th Cir. 1998) (officer requested urine sample and defendant blurted out: “It probably won’t be clean.”); State v. Trujillo, 95 N.M. 535, 540, 624 P.2d 44, 50 (NMSC 1981) (That this statement was a spontaneous statement was not disputed: “After Detective Swanson arrested defendant, he drove defendant to the police station. On the way,

8 defendant freely volunteered: “Ain’t this a bitch, I was going to California tonight.” There were no prior questions or other conversation by the officer.”)

C. Public Safety

Police officers may ask questions reasonably necessary to secure their own safety or the safety of the public. Statements responding to such questions may be admissible even if the defendant is in custody at the time of the statement and has not yet been informed of his Miranda rights. New York v. Quarles, 467 U.S. 649 (1984) (asking “where’s the gun” to defendant who had just robbed woman in supermarket was permissible). Test: “Whether there was an objectively reasonable need to protect police or public from immediate danger.” Quarles, supra. See also Vickers v. Stewart, 144 F.3d 613 (9th Cir. 1998) (jail fire; question “what happened?” and “is he dead?” was permissible under public safety); United States v. Carrillo, 16 F.3d 1046 (9th Cir. 1994) (Before searching defendant incident to arrest prior to transporting him to jail, and before giving Miranda warnings, the officer asked defendant whether he had any drugs or needles on his person. Defendant replied “I don’t use drugs, I sell them.” Officer’s question fell under “public safety” exception.)

Compare State v. Widmer, 419 P.3d 714 (App. 2018) (Public safety exception under Quarles did not apply to officer's custodial interrogation of defendant regarding whether he had anything on him that officer should know about, prompting defendant to admit he possessed methamphetamine, where officers expressed no concern of any kind that anything at the scene or defendant's conduct posed a danger to their safety, and defendant was cooperative and handcuffed before officers' pat down search), cert. granted (Apr. 30, 2018).

D. Undercover Agents / Incarcerated Defendants

Miranda warnings are not required when the suspect is unaware that he is speaking to a government agent and gives a voluntary statement. The essential ingredients of a “police dominated atmosphere” and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be a fellow inmate. The Supreme Court “reject[ed] the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent.” Illinois v. Perkins, 496 U.S. 292 (1990). See also United States v. Cook, 599 F.3d 1208 (10th Cir. 2010) (inmate’s Fifth Amendment right to counsel and right to remain silent were not violated when he spoke to a cooperating informant; “Cook was unaware that he was speaking to a government agent. As a result, his questioning lacked the police domination inherent in custodial interrogation. See Perkins, 496 U.S. at 296–97, 110 S.Ct. 2394. Thus, without custodial interrogation, Edwards does not apply. And because Edwards does not apply, it

9 is irrelevant that Cook had previously invoked his right to counsel in March 2005 when questioned by the sheriff's office investigators.”).

However, this kind of questioning by an undercover agent cannot occur if the defendant has been charged with the crime that is the subject of the interrogation and an attorney has been appointed on that crime under the Sixth Amendment. Perkins, supra, distinguishing Massiah v. United States, 377 U.S. 201 (1964), United States v. Henry, 447 U.S. 264 (1980), and Maine v. Moulton, 474 U.S. 159 (1985) (Court held in all three cases that “the government may not use an undercover agent to circumvent the Sixth Amendment right to counsel once a suspect has been charged with the crime. After charges have been filed, the Sixth Amendment prevents the government from interfering with the accused’s right to counsel. In the instant case no charges had been filed on the subject of the interrogation, and our Sixth Amendment precedents are not applicable.”) If the defendant has been charged on one offense, it does not violate Sixth Amendment to question defendant on unrelated offense. Arizona v. Roberson, 486 U.S. 675 (1988); McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 2211 (1991).

The test for “unrelated offense” is the identical elements test used for double jeopardy issues. The are unrelated if each crime (the charged crime and the crime which is subject of the interrogation) has an element that the other does not. Texas v. Cobb, 121 S.Ct. 1335 (2001).

In Fairbank v. Ayers, 650 F.3d 1243 (9th Cir. 2011), the court found no Sixth Amendment violation had occurred. The defendant was in jail awaiting trial on state charges and he wrote letter to another inmate. The letters asked the other inmate to take responsibility for the murder, give defendant an alibi, or help in hurting or intimidating potential witnesses. At a later hearing, the inmate testified that law enforcement officers had never asked him to elicit information from defendant. Based on that testimony, the state court held that law enforcement officers had not violated the Sixth Amendment by deliberately eliciting information from him after his right to counsel had attached. In federal habeas proceedings, the inmate submitted a declaration stating that a police officer had told the inmate that officers were looking for the murder weapon, and that the inmate had then asked defendant about the murder weapon. The court held that even if the inmate believed that the officer’s statements about the murder weapon was a request, the defendant had not shown that the inmate was acting as a state agent in asking defendant about the weapon. For that reason, there was no violation of the Sixth Amendment and the Ninth Circuit affirmed the state court’s determination.

Even if the Sixth Amendment right to counsel has attached on an offense, if the defendant talks to a fellow inmate (who does not interrogate defendant), it does not violate the Sixth Amendment for the inmate to report statements to authorities. Kuhlmann v. Wilson, 477 U.S. 436 (1986) (cellmate reported 10

statements made by the defendant; statements were unsolicited and spontaneous and it did not violate the Sixth Amendment).

E. Probation / Parole

A parolee or probationer generally does not have a Fifth Amendment privilege against answering a parole or probation officer’s questions which are relevant to the status of parole or probation. Minnesota v. Murphy, 465 U.S. 420, 434-35 (1984); State v. Taylor E., 385 P.3d 639, 657 (N.M. Ct. App. 2016) ( was not required prior to questioning of juvenile by juvenile probation officer relating to potential violations of probation. “. . . [S]ome incriminating statements that may be inadmissible in delinquency proceedings (to adjudicate criminal liability on a charge for which the probationer has not been prosecuted) are admissible in probation revocation proceedings . . . We do not hold that a JPO is never required to give warnings under the Act, only that, under the circumstances presented here, the JPO’s failure to give warnings did not render Child’s incriminatory statements inadmissible in a probation revocation proceeding.”); State v. Filemon V., 412 P.3d 1089, 1094 (NMSC 2018) (“Because probation meetings do not routinely give rise to the coercive pressures of a custodial interrogation, an adult probationer’s unwarned statements to a probation officer can be admitted in a subsequent criminal prosecution.”).

However, a parole or probation officer may not be able to question defendant in custody regarding substantive charges stemming from a probation or parole violation without first giving Miranda warnings, if the statement will be admitted in crim. See United States v. Nieblas, 115 F.3d 703 (9th Cir. 1997) (Miranda probably is required if probation officer is asking about an offense for which charges are pending, as opposed to asking questions related to a probation violation). But see United States v. MacKenzie, 601 F.2d 221 (5th Cir. 1979) (probation officer was not required to give doctor Miranda warnings before interrogating him and obtaining admissions that he was practicing medicine without a license and that he lied about such practice in former interviews with probation officer).

A statement obtained in violation of Miranda would not be admissible in a criminal proceeding. Because Miranda does not apply to parole or probation revocation proceedings, however, the statement would be admissible in those proceedings regardless of whether Miranda was violated. See, e.g., United States v. Johnson, 455 F.2d 932 (5th Cir. 1972) (Miranda exclusionary rule does not apply to probation revocation hearing and defendant's probation could be revoked on basis of his statement to probation officer although he had not been given Miranda warnings). See also Taylor E., supra (child’s unwarned statements to his probation officer were admissible for the limited purpose of a probation revocation proceeding).

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V. MIRANDA CUSTODY

A. General Rule

“It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a ‘degree associated with formal arrest.’” Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). See also Stansbury v. California, 511 U.S. 318, 322 (1994) (“the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest”) (internal quotations omitted).

This standard is an objective test. Berkemer, 468 U.S. at 442 (“Our decisions make clear 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.”); see also Stansbury, 511 U.S. at 323 (same); State v. Munoz, 126 N.M. 535, 544, 972 P.2d 847, 856 (NMSC 1998) (“The test is objective: the actual subjective beliefs of the defendant and the interviewing officer on whether the defendant was free to leave are irrelevant.”).

“Custody is determined objectively, not from the subjective perception of any of the members to the interview.” State v. Nieto, 2000–NMSC–031, ¶ 20, 129 N.M. 688, 12 P.3d 442. A court therefore applies an objective test to resolve whether there was “a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Wilson, 2007–NMCA–111, ¶ 14, 142 N.M. 737, 169 P.3d 1184. Because the test is objective, the inquiry is how a reasonable person who is being interviewed by police would have understood his or her situation. Id. This Court has identified a number of factors to consider in determining whether a reasonable person would believe he or she is free to leave “includ[ing] the purpose, place, and length of interrogation[,] ... the extent to which the defendant is confronted with evidence of guilt, the physical surroundings of the interrogation, the duration of the detention, and the degree of pressure applied to the defendant.” Bravo, 2006–NMCA–019, ¶¶ 9, 139 N.M. 93, 128 P.3d 1070 (internal quotation marks and citation omitted).

State v. Vasquez, 148 N.M. 202, 210–11, 232 P.3d 438, 446–47 (App. 2010). See also State v. McNeal, 143 N.M. 239, 242, 175 P.3d 333, 336 (App. 2008) (“Custody is defined as either (1) a formal arrest, or (2) a restraint on freedom of movement of the degree associated with a formal arrest. . . [N]ot all Fourth Amendment seizures rise to the level of ‘custody’ for Fifth Amendment purposes.”) (internal citations and quotations omitted).

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State v. Adame, 140 N.M. 258, 261, 142 P.3d 26, 29 (App. 2006), as corrected (Sept. 5, 2006) (“The fact that Defendant was handcuffed and at the police station shows that he was in custody, and the trial court properly suppressed his statements from use in the prosecution's case in chief because he was interrogated while in custody and prior to receiving warnings.”); State v. Juarez, 120 N.M. 499, 903 P.2d 241 (App. 1995) (Defendant was subjected to “custodial interrogation” while en route to police station, and was entitled to Miranda warnings, where defendant was arrested for failure to pay fine, and was handcuffed in police car when officer told him that police were looking for weapon believed to be used by defendant in crime of aggravated assault; at that point, it was reasonably foreseeable that defendant might feel compelled to make incriminating statement).

If the defendant invokes right to silence or counsel during custodial questioning, but he is later released from custody, any invocation of Miranda rights does not apply to subsequent non-custodial interrogation. However, if the defendant is released from custody, police must wait 14 days before re-initiating questioning if the defendant previously invoked his Miranda right to counsel. Maryland v. Shatzer, 559 U.S. 98 (2010).

B. Examples

1. Questioning at Defendant’s Residence

Questioning in the home is usually considered to be non-custodial in nature. Beckwith v. United States, 425 U.S. 341(1976) (questioning by government agents in a private home); State v. Bravo, 139 N.M. 93, 128 P.3d 1070 (App. 2006). See also United States v. Basher, 629 F.3d 1161 (9th Cir. 2011) (defendant not considered in custody at his campsite).

However, when suspect is arrested and “in custody” at his house, officers must give Miranda warnings. Orozco v. Texas, 89 S.Ct. 1095 (1969). The Ninth Circuit ruled that a defendant was in “custody” for Miranda purposes when questioned at home during execution of a , under the facts of that case. United States v. Craighead, 539 F.3d 1073 (9th Cir. 2008).

2. Questioning While Voluntarily at Police Station or Voluntarily Being Transported

If an individual arrives at a police station voluntarily to answer questions, whether alone or accompanied by an officer, that questioning will be considered non-custodial unless other indicia of custody are present. See Oregon v. Mathiason, 97 S.Ct. 711 (1977) (defendant appeared voluntarily in police station and confessed) (“Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be 13 charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is the one whom the police suspect.”); California v. Beheler, 463 U.S. 1121 (1983) (defendant voluntarily agreed to accompany the police to the station and police told him that he was not under arrest); United States v. Redlightning, 624 F.3d 1090 (9th Cir. 2010) (defendant who went with officers to the FBI office for questioning was not in custody).

See also State v. Bravo, 139 N.M. 93, 128 P.3d 1070 (App. 2006) (Defendant was not in custody for Miranda purposes when she was interviewed by officers at the police station; officers went to her home and asked whether she and her husband would be willing to give another statement, they agreed to be interviewed and followed officers to the police station in their own vehicle, defendant never told officers she was tired, she was never placed in handcuffs or told that she was under arrest, and despite essentially confessing to child abuse, she was allowed to go home with her husband at the conclusion of interview. The court found she was not in custody and not entitled to Miranda warnings.); State v. Munoz, 126 N.M. 535, 538, 972 P.2d 847, 850 (NMSC 1998) (defendant was not in custody; after he and two FBI agents left the home where defendant was staying with his grandfather, but before they entered the car, one agent told defendant that he did not have to go with them, that he did not have to talk to them, that he was not under arrest, that he would be free to leave at any time, and that they would bring him back to his house after the interview. Defendant consented to being interviewed and expressed no objection to it. They drove to an empty parking lot a few minutes’ driving time from his residence, whereupon defendant made incriminating statements. Defendant tried to claim the 1.5 hour length of the interrogation and its location in the car, as well as that defendant was the focus of the investigation, meant that custody existed, but the New Mexico Supreme Court disagreed: “There is no evidence in this case, however, that the basic question—whether Defendant’s freedom of movement was restrained in a way that could be associated with a formal arrest—can be answered in Defendant's favor.”) (analogizing case to Oregon v. Mathiason, supra, where Supreme Court found that defendant was not in custody after voluntarily going to police station). Compare State v. Wilson, 142 N.M. 737, 169 P.3d 1184 (App. 2007) (reasonable person in defendant's position would have believed that he was restrained to the degree associated with a formal arrest, and thus defendant was in Miranda custody when he made statements to law enforcement officer while in back seat of patrol car).

See also State v. Nieto, 129 N.M. 688, 12 P.3d 442 (NMSC 2000) (holding that the fact that the defendant’s interrogation took place in a police station, without more, is insufficient for a finding that the defendant was in custody); State v. Vasquez, 148 N.M. 202, 232 P.3d 438 (App. 2010) (Defendant was not in custody and was not entitled to Miranda warnings in child abuse prosecution, where she called police to assist in locating her missing child, officer spoke with 14 her while she was with a friend in friend’s home and asked if defendant would go to police station, friend drove defendant to station, defendant was left unattended in employee lounge at station and was never restrained, forced, pressured, or threatened in any way).

Compare Kaupp v. Texas, 538 U.S. 626, 631-32 (2003) (involuntarily removing a suspect from his home to the police station for questioning is illegal without or a warrant; juvenile was rousted out of bed at 3:00 a.m. by officer with flashlight; officer told him “we need to go and talk”; he was transported in only his underwear in January to police station; Miranda warnings given; juvenile was considered in custody); State v. Olivas, 149 N.M. 498, 252 P.3d 722 (App. 2011) (Defendant was in custody during questioning at the district attorney’s office, and therefore was entitled to Miranda warnings in this murder prosecution, where, after defendant voluntarily agreed to questioning, officers handcuffed him and transported him to the district attorney’s office in the back of a marked police car, he was escorted at all times while at the office, handcuffs were removed, he was interrogated in a small room with the door closed with two officers present at all times, one of whom sat between him and the door, officers interrogated him by accusing him of murder and directing him to confess, he was never informed that he was not under arrest or that he was free to terminate the encounter, and one of the officers testified that he would have stopped defendant had he attempted to leave).

3. Traffic Stops

Although are not “free to go” during traffic stops, they are not in custody for purposes of Miranda. Berkemer v. McCarty, 486 U.S. 420 (1984) (holding that questions asked during a traffic stop did not amount to custodial interrogation even though the defendant was seized for Fourth Amendment purposes and was not free to leave). See also United States v. Lee, 159 Fed. Appx. 1 (10th Cir. 2005) (unpublished) (defendant was not in custody for Miranda purposes during traffic stop when trooper asked him to identify Ecstasy tablets found in vehicle); State v. McNeal, 143 N.M. 239, 242, 175 P.3d 333, 336 (App. 2008) (“[N]ot all Fourth Amendment seizures rise to the level of ‘custody’ for Fifth Amendment purposes,” citing Berkemer v. McCarty).

Compare State v. Widmer, 419 P.3d 714 (N.M. App. 2018), cert. granted (Apr. 30, 2018) (defendant was in custody for Miranda purposes when police officer asked defendant whether he had anything on him that officer should know about, to which defendant responded by admitting that he possessed methamphetamine, where almost immediately upon arriving at a drug store parking lot and learning of a possible active for defendant, officer detained defendant, placed him in handcuffs, frisked him, and directed him to sit down on sidewalk).

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4. Immigration Field Situations

Routine questioning by immigration officials in the field is normally not “custodial interrogation” that will require Miranda warnings. United States v. Manasen, 909 F.2d 1357 (9th Cir 1990). See also United States v. Rodriguez- Rodriguez, 742 F.2d 1194 (9th Cir. 1984) (no custody where border patrol inquired at railway station as to defendant’s immigration status); United States v. Galindo-Gallegos, 244 F.3d 728, 729 (9th Cir. 2001) (two border patrol agents were looking for illegal aliens about 1800 feet north of the Mexican border and saw a group of people running; after stopping them, one of the agents told the group of people to sit down on the ground and the other agent chased those who ran away; once the 15 or 20 people were seated, an agent asked them their country of origin and whether they had a legal right to be in the United States; when Galindo-Gallegos admitted that he was an alien illegally present in the United States, he and others were handcuffed and put into one of the vehicles; no Miranda warnings were read prior to these statements, and no warnings were required); United States v. Cervantes-Flores, 421 F.3d 825, 830 (9th Cir. 2005) (border patrol agent’s investigatory stop of alien 40 miles north of the border was not a “custodial arrest” and no Miranda warning was required, where the agent limited the scope of his questions to determining whether the alien had crossed the border illegally “specifically, asking questioning the alien’s place of birth, his citizenship, whether he had permission to be in the United States, and how he had crossed into the United States; the officer’s use of handcuffs did not convert the investigatory stop into a custodial arrest, where alien had attempted to flee upon seeing marked border patrol vehicle).

Routine questioning by immigration or customs officers does not ordinarily constitute custody. See United States v. Ozuna, 170 F.3d 654, 659 (6th Cir. 1999) (no custody during routine questioning by immigration and customs inspectors despite longer duration because restraints on defendant’s movement were not exceptionally different from typical wait at inspection station). Nor is a person ordinarily in custody when detained at the border. See United States v. Butler, 249 F.3d 1094, 1100 (9th Cir. 2001) (holding that detaining a person in a border station’s security office from which he or she is not free to leave is not “custody”). See also Mueller v. Mena, 544 U.S. 93, 125 S.Ct. 1465 (2005) (officers handcuffed and detained occupant for two to three hours while executing search warrant; officers’ questioning about immigration status during this detention, which was not considered an arrest, was not unlawful).

In an unpublished decision, the Ninth Circuit held that the defendant was not subjected to custodial interrogation until he was taken to the Border Patrol Station and advised of his Miranda rights. United States v. Mendez-Verdejo, 1997 WL 272242, at *2 (9th Cir. May 21, 1997) (unpublished) (The defendant was traveling with four companions approximately half a mile north of the border with Mexico. The Border Patrol agents recognized the pattern in which the group moved through the area as typical of illegal alien traffic, with a “coyote” leading 16

the group and then directing his charges to lead the way through an area known for surveillance activity. When the Border Patrol agents attempted to detain four of the travelers, one fled. The defendant was questioned about his place of birth and immigration documents and then taken back to the station.)

“We have explained that [a]lthough the lack of documentation or other admission of illegal presence may be some indication of illegal entry, it does not, without more, provide probable cause of the criminal violation of illegal entry. . . We have also explained that, unlike illegal entry, which is a criminal violation, an alien’s illegal presence in the United States is only a civil violation. But . . . entering or remaining unlawfully in this country is itself a crime.” Martinez- Medina v. Holder, 673 F.3d 1029, 1035 (9th Cir. 2011) (internal citations and quotations omitted). See also United States v. Garcia-Rivas, No. 11-10556 (9th Cir. 2013) (unpublished) (finding probable cause lacking where defendant told CBP he was in country illegally, he seemed nervous, and he refused to provide identification when asked). See also Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 971 (D. Ariz. 2011) (an “alien who ‘overstays a valid visa or otherwise remains in the country after the expiration of a period authorized by the Department of Homeland Security,’ therefore, although he may be subject to deportation, has violated no criminal statute.”) (quoting Martinez-Medina), aff'd sub nom. Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012).

5. Fleeing From Law Enforcement

If the defendant runs from law enforcement, he is not in custody. California v. Hodari D. 499 U.S. 621 (1991) (officer approached the defendant and defendant fled, tossing away a packet of drugs as he ran; defendant was not in custody).

6. Physical Restraints

Physical restraints are indicative, but not determinative, of custody. See United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987) (no arrest when defendants removed from car at gunpoint and ordered to lie down on pavement). A defendant who is formally arrested and handcuffed will likely be considered in custody. United States v. Henley, 984 F.2d 1040 (9th Cir. 1993) (person is “in custody” when they are sitting handcuffed in the back of a police car). Compare United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982) (police conducting on-the scene investigations involving potentially dangerous suspects may take precautionary measures if they are reasonably necessary; handcuffing appropriate and did not convert detention into arrest). If a person is in “custody” because of the use of handcuffs, guns, show of force, etc., the situation may be rendered non-custodial at the time of questioning by the removal of those enhanced restraints. See People v. Taylor, 178 Cal.App.3d 217, 223 Cal.Rptr.

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638 (1986); In re Joseph R., 65 Cal.App.4th 954, 960-61, 76 Cal.Rptr.2d 887, 891 (1998).

7. Surrounding Suspect in Building

“[T]elephone conversations between police negotiators and an armed suspect who has taken refuge in a building that is surrounded by law enforcement officers do not constitute custodial interrogation for purposes of the Miranda rule.” People v. Mayfield, 14 Cal.4th 668, 733, 928 P.2d 485, 521, 60 Cal.Rptr.2d 1, 37 (1997).

8. Other

Defendant was not in custody for Miranda purposes when officers requested him to step off of the bus. State v. McNeal, 143 N.M. 239, 175 P.3d 333 (App. 2008).

VI. INTERROGATION

A. What Constitutes Interrogation?

Interrogation “refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). See also State v. Ybarra, 111 N.M. 234, 236, 804 P.2d 1053, 1055 (NMSC 1990) (defining “interrogation,” citing Innis); State v. Widmer, 419 P.3d 714 (App. 2018) (officer’s question to defendant as to whether defendant had anything on him that officer should know about, to which defendant responded by admitting that he possessed methamphetamine, was an interrogation under Miranda), cert. granted (Apr. 30, 2018)

B. Recording or Listening to Conversation

It is not interrogation or a violation of Miranda for officers to hear or record a conversation between the defendant and another person at the jail. See Arizona v. Mauro, 481 U.S. 520 (1987) (after he invoked his right to counsel, defendant talked to his wife at station and officer recorded conversation with tape recorder in plain view; no interrogation). Some courts have looked unfavorably upon post-Miranda recording of someone who has agreed to talk but not on tape. See Arnold v. Runnels, 421 F.3d 859 (9th Cir. 2005) (election to speak but not on tape during post-arrest, post-Miranda interview constituted selective invocation of right to remain silent); but see Berghuis v. Thompkins, 560 U.S. 370 (2010) (invocation of Miranda right to silence must be unequivocal).

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Related Issue – Lack of Recording Generally – Several courts have ruled that the lack of a recording of a statement does not justify suppression of the statement. See, e.g., United States v. Romo–Chavez, 681 F.3d 955, 961 n.5 (9th Cir. 2012) (“[S]uppression is not warranted simply because the government fails to record an interview”); United States v. Smith-Baltiher, 424 F.3d 913, 925–26 (9th Cir. 2005) (noting that in a 1977 case, it declined to “mandate electronic recording of post-arrest statements”); United States v. Smith, 319 Fed. Appx. 381, 384–85 (6th Cir. 2009) (unpublished) (“Nor do we find any merit to the defendant’s contention that his ‘Mirandized’ statements to police should have been suppressed because they were not videotaped during the interrogation in his jail cell. . . In fact, other circuits have held that the police are not constitutionally required to videotape or audiotape such interviews) (citing Smith-Baltiher, supra; United States v. Tykarsky, 446 F.3d 458, 477 (3d Cir. 2006); United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004); United States v. Yunis, 859 F.2d 953, 960–61 (D.C. Cir. 1988)).

C. Private Citizens

The Miranda rule applies to “law enforcement agents.” See Miranda (rule applies to law enforcement questioning); Illinois v. Perkins, 496 U.S. 292 (1990) (no Miranda violation where defendant talked to an undercover government agent whom defendant thought was another inmate). See Arizona v. Mauro, 481 U.S. 520 (1987) (Defendant was allowed to speak with his wife in the presence of a police officer who recorded the defendant’s conversation. The Court held that under both Miranda and Innis the defendant was not interrogated because there was no evidence that the police instigated or participated in the defendant’s discussion with his wife, that the police used the defendant’s wife for the purpose of eliciting incriminating statements, or that the defendant felt that he was being coerced to incriminate himself in any way).

But see State v. Ybarra, 111 N.M. 234, 236, 804 P.2d 1053, 1055 (NMSC 1990) (defendant was subject to custodial interrogation in hospital emergency room when nurse asked him numerous questions about stabbing in presence of police officer, and police officer himself ultimately asked question that followed up on question asked by nurse; although there was no apparent collusion between nurse and officer, officer sat quietly listening while arrestee answered nurse's questions and did not warn arrestee of his right to remain silent) (statements to nurse in hospital emergency room were not admissible under “rescue doctrine” where questions that elicited statements related to circumstances surrounding stabbing incident rather than treatment of either arrestee or victim). Compare State v. Gurule, 91 N.M. 332, 573 P.2d 687 (App. 1977) (court held that defendant's statements were not made as the result of interrogation by the police; his statements to the police and the ambulance driver were unsolicited remarks and his statements to the physician and to a person to

19 whom the defendant was talking by telephone were merely overheard by the police) (distinguished in Ybarra).

VII. ADMONISHMENT

A. The “Warnings”

“These warnings (which have come to be known colloquially as ‘Miranda rights’ are: a suspect ‘has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to questioning if he so desires.’” United States v. Dickerson, 120 S.Ct. 2326, 2331 (2000), citing Miranda v. Arizona, 384 U.S. at 479.

Under Miranda, “[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. at 444, 86 S.Ct. 1602. A defendant may voluntarily and knowingly waive these rights. Id. If, however, the defendant “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” Id. at 444–45, 86 S.Ct. 1602. Similarly, “if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.” Id. at 445, 86 S.Ct. 1602.

State v. Perry, 146 N.M. 208, 213, 207 P.3d 1185, 1190 (App. 2009).

B. Adequacy of Warnings / Repeated Warnings

Police are not required to use the precise language contained in Miranda opinion. See Duckworth v. Eagan, 109 S.Ct. 2875 (1989) (agent told defendant that attorney would be appointed “if and when he went to court” was not constitutionally defective; warnings do not need to be in exact form as described in Miranda, as long as it reasonably conveys the rights). However, officers need to ensure they convey all of the Miranda rights. See Florida v. Powell, 130 S.Ct. 1195 (2010) (preinterrogation warnings that advised defendant that “[y]ou have the right to talk to a lawyer before answering any of our questions” and “[y]ou have the right to use any of these rights at any time you want during this interview” was sufficient to convey the right to counsel under Miranda). The best practice, of course, is for the officer to read from the rights card every time.

See also State v. Casares, 318 P.3d 200, 202 (N.M. App. 2004) (After defendant was arrested and taken to police station, “Detective Argo read Defendant his Miranda rights. When Defendant informed the detective that he is 20 hearing impaired, Detective Argo asked Defendant to read his Miranda rights aloud. Defendant read the Miranda warning out loud, signed a waiver of his rights, and proceeded to make several incriminating statements, including that he was not “that stupid to shoot at the house,” and only shot the vehicle in the driveway. The defendant claimed his Miranda advisement “was legally insufficient because he was not informed of his right to an interpreter as a hearing-impaired individual.” The Court of Appeals rejected this claim.); State v. Serna, 429 P.3d 1283 (N.M. Ct. App. 2018) (Miranda warning informing defendant that he had right to attorney “during any and all questioning” did not reasonably convey that he had right to presence of counsel before questioning).

“We further hold that while a defendant may waive the rights articulated in the Miranda warnings, a defendant cannot, as a matter of law, waive those rights before the reading of the Miranda warnings has been completed in full.” State v. Verdugo, 142 N.M. 267, 273, 164 P.3d 966, 972 (App. 2007).

In Doody v. Schriro, 596 F.3d 620 (9th Cir. 2010) (en banc), the Ninth Circuit reversed the murder in a Phoenix case, finding that the Miranda warnings were inadequate and the confession was involuntary under due process. The 17-year-old defendant confessed to a murder of nine individuals inside a Buddhist temple after 13 hours of overnight interrogation. The Court held that the Miranda warnings were deficient in a number of respects, but most strikingly because they suggested that he was only entitled to an attorney “if he was guilty.” The giving of the warnings encompassed twelve pages of transcript, much of which involved an effort to make them more understandable, but which ended in confusion. In addition to the problem with the attorney advisement, the oral warnings also suggested that the warnings were “merely a formality” and were for the officers’ benefit as well as Doody’s.

Repeating Miranda warnings is not required simply because there is a break in the questioning. People of Guam v. Dela Pena, 72 F.3d 767 (9th Cir. 1995); United States v. Baron, 94 F.3d 1312 (9th Cir. 1996) (federal officers need not repeat Miranda warnings read by state officers); United States v. Rodriguez- Preciado, 399 F.3d 1118, 1127-28 (9th Cir. 2005) (officers were not required to re-advise the defendant of his Miranda warnings before a second day of questioning, despite a 16-hour break in questioning, change in one interrogator, and change in location; defendant’s second day statements were close in time to the original advisal, the defendant was continually in custody, and there were no intervening events that might have given the defendant the impression that his rights had changed in a material way); State v. Gilbert, 98 N.M. 530, 650 P.2d 814 (NMSC 1982) (holding that Miranda warnings did not have to be given again where a second interview of the defendant had taken place hours after he received the warnings), as cited in State v. Paris, A-1-CA-35983, 2018 WL 1795050, at *2 (N.M. Ct. App. Mar. 13, 2018) (unpublished).

See also “Mid-Confession Admonishment,” infra. 21

C. Mid-Confession Admonishment

Miranda warnings given mid-interrogation to defendant in custody, after the defendant gave an unwarned confession, were ineffective, and thus the confession repeated after warnings were given was inadmissible at trial. Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601 (2004). The Court distinguished Oregon v. Elstad, 470 U.S. 298 (1985), in which the Court held that a subsequent Mirandized confession can break the taint of a previously unwarned statement, noting that in Elstad, the station house questioning could be seen as a distinct experience from the conversation at home. In Siebert, however, the officer questioned the defendant for 15-20 minutes, and after she confessed, took a 20- minute break, then returned, read Miranda warnings, and the defendant confessed again. The officer testified he made a conscious decision to withhold Miranda warnings, question first, then give the warnings, and then repeat the question until he got the answer previously given. This “midstream” advising of Miranda was insufficient to place this case within Elstad.

See State v. Adame, 140 N.M. 258, 260, 142 P.3d 26, 28 (App. 2006), as corrected (Sept. 5, 2006) (“[W]e hold that Seibert does not apply to this case. Seibert was directed to a considered police tactic of circumventing the Miranda requirements by questioning first, obtaining a statement, giving warnings, and then obtaining the same statement. Here, in contrast, as will be seen, the initial police questioning was about a murder for which Defendant was not a suspect, and the questioning occurred before the police knew Defendant was a felon. The police were not trying to obtain a statement incriminating Defendant with regard to the crime of being a felon in possession by evading the Miranda requirements, and therefore Seibert does not apply. See 542 U.S. at 606, 124 S.Ct. 2601 (describing the prohibited police tactic).”).

See also State v. Bravo, 139 N.M. 93, 98, 128 P.3d 1070, 1075 (App. 2006) New Mexico Court of Appeals rejected defendant’s claim based on Siebert that the July 17th confession should be suppressed: “But this case is not like Seibert. In Seibert, the Court dealt with the police tactic of ‘question first, then give the warnings, and then repeat the question ‘until I get the answer that she’s already provided once.’ Id. at 606, 124 S.Ct. 2601. The Court stated that confessions obtained by use of this ‘question-first’ technique violated the defendant's constitutional rights because the technique rendered Miranda warnings ‘ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.’ In this case, viewing the facts in the light most favorable to the State, the record does not indicate that police employed the tactic proscribed by the Supreme Court in Seibert. Defendant gave a tape-recorded statement on July 17. Defendant testified that she was questioned by police prior to the activation of the tape recorder for approximately ten minutes. However, Investigator Buckingham stated that there was no portion of Defendant’s July 17 interrogation that went unrecorded. In addition, with regard to Defendant's statements concerning the events of July 16, the district court indicated that 22

“her testimony . . . [was] not credible.” Viewing the facts in the light most favorable to the State, we must infer that the district court found Defendant’s assertion that the police interrogated prior to turning on the recorder not credible. . . . Moreover, there was no need for the police to resort to the tactics described in Seibert because, as previously stated, Defendant had already confessed to the crime on July 16. With this foundation in the record, we have no basis to conclude that Defendant's July 17 confession was improper under Seibert.”) (some internal citations omitted).

Compare State v. Filemon V., 412 P.3d 1089, 1097-99 (NMSC 2018) (in case involving post-Miranda questioning of juvenile at police station, the New Mexico Supreme Court ruled that the “midstream Miranda warning was ineffective in informing Filemon of his Miranda rights.” “This case bears notable similarities to Seibert. Like Seibert, Filemon was questioned extensively and gave a full confession before he was given his Miranda warnings. After Detective Castillo gave Filemon the Miranda warnings, Detective Castillo told Filemon to ‘start from the beginning like you did a while ago,’ asking him to repeat his prior confession, and ensuring that the content of the second statement completely overlapped with the content of the first statement. The lack of break between the first and second interviews, and the fact that Detective Castillo was present for both, further contributed to the continuous nature of the two interviews. Additionally, rather than taking any curative measures to ensure that Filemon understood that the pre-Miranda confession he gave to Captain Hernandez was inadmissible, Detective Castillo did the opposite and told Filemon and his mother that the Miranda warnings were merely a ‘formality.’ The Seibert Court recognized that ‘when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.’ 542 U.S. at 613-14, 124 S.Ct. 2601 (alteration, internal quotation marks, and citation omitted). This is precisely what happened here. The Miranda warnings given to Filemon by Detective Castillo were not adequate to inform him of his constitutional rights as required by Miranda jurisprudence.”)

See also “Taint and Derivative Evidence” section.

D. “Tribal Miranda” (or Administrative Miranda) Issue

The rights provided to tribal members under 25 U.S.C. § 1302 (Indian Civil Rights Act) do not include an attorney at public expense. The suspect only has the right “at his own expense to have assistance of counsel for his defence.” Persons receiving “tribal” warnings, which do not advise the suspect that he has the right to a free attorney during questioning, are not adequate under Miranda v. Arizona. This may jeopardize the admissibility of the confession in a federal court prosecution.

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Additionally, there are some administrative, Miranda-type warnings, which are given in particular circumstances, including when a person is being questioned for administrative immigration purposes. However, these administrative warnings do not always parrot the Miranda warning itself. Officers need to be careful not to read two conflicting warnings to a suspect, particularly in quick succession. See United States v. San Juan-Cruz, 314 F.3d 384 (9th Cir. 2002) (Border Patrol agent read an administrative warning to the defendant regarding his administrative removal, which told him he had a right to an attorney during questioning but not at government expense, and then soon afterward, the defendant received his Miranda warnings, waived them, and confessed to the elements of illegal reentry after deportation; Ninth Circuit found that the warnings were confusing and defective, and the subsequent confession was inadmissible in the federal prosecution for illegal reentry after deportation).

E. Consular Notification – Foreign Nationals

Suppression of evidence is not a remedy under the Vienna Convention where a Mexican national was not informed of his right to consult with the Mexican consulate. United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000); United States v. Rodriguez-Preciado, 399 F.3d 1118, 1130 (9th Cir. 2005) (officers’ failure to advise Mexican national arrested for narcotics offense of his right to contact his consulate, in accordance with requirements of the Vienna Convention on Consular Relations, did not require suppression of evidence obtained as result of post-arrest interrogation).

VIII. WAIVERS

The Supreme Court has observed that a confession following a knowing and voluntary waiver of Miranda rights generally produces a virtual “ticket of admissibility.” Missouri v. Seibert, 542 U.S. 600, 608-09 (2004) (“[F]ailure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained. Conversely, giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver.”) See also State v. Perry, 146 N.M. 208, 213, 207 P.3d 1185, 1190 (App. 2009) (“A defendant may voluntarily and knowingly waive [Miranda] rights.”).

“The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege.” State v. Gutierrez, 150 N.M. 232, 258 P.3d 1024, 1034 (NMSC 2011).

“We further hold that while a defendant may waive the rights articulated in the Miranda warnings, a defendant cannot, as a matter of law, waive those

24 rights before the reading of the Miranda warnings has been completed in full.” State v. Verdugo, 142 N.M. 267, 273, 164 P.3d 966, 972 (App. 2007).

A. What Constitutes Waiver of the Right to Silence or Counsel?

Although express oral or written waivers are usually “strong proof” of the waiver, a waiver may be implied. North Carolina v. Butler, 441 U.S. 369, 372- 73 (1979) (“in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated”); United States v. Hilliker, 436 F.2d 101, 102 (9th Cir. 1970) (implied waiver occurred where the detective “informed [the defendant] of his Miranda rights . . . [and the] defendant replied after the warning that he understood those rights”). A valid waiver will not be presumed simply from the silence of the accused after warnings are given. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

“A defendant may selectively waive his Miranda rights by agreeing to answer some questions but not others.” United States v. Soliz, 129 F.3d 499, 503 (9th Cir. 1997).

B. Competency to Waive -- The Knowing and Intelligent Requirement

Any waiver must be knowingly and intelligently made. Miranda v. Arizona, 86 S.Ct. 1602 (1966). First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. See Moran v. Burbine, 475 U.S. 412, 421 (1986). See also State v. Trujillo, 1981-NMSC-023, ¶ 22, 95 N.M. 535, 540, 624 P.2d 44, 49 (“Since Miranda, it has become settled law in New Mexico that an accused’s right to remain silent, even after he has asserted his right to counsel, may be waived if the waiver is knowingly, intelligently and voluntarily made.”)

[T]he State bears the burden of demonstrating by a preponderance of the evidence that the defendant knowingly, intelligently, and voluntarily waived the constitutional right against self-incrimination. See Colorado v. Connelly, 479 U.S. 157, 168–69, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). The State must demonstrate that the waiver of rights “was the product of a free and deliberate choice rather than intimidation, coercion, or deception” and that it was “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Courts evaluate “‘the totality of the circumstances and the particular facts, including consideration of the mental and 25

physical condition, background, experience, and conduct of the accused,’ ” as well as the conduct of the police, in determining whether the State has successfully carried its burden in demonstrating a knowing and voluntary waiver. State v. Salazar, 1997–NMSC–044, ¶ 62, 123 N.M. 778, 945 P.2d 996 (quoting State v. Boeglin, 100 N.M. 127, 132, 666 P.2d 1274, 1279 (Ct.App.1983)). “[E]very reasonable presumption against waiver is indulged.” Id.

State v. Martinez, 127 N.M. 207, 211, 979 P.2d 718, 722 (NMSC 1999).

Whether a waiver of Miranda rights is voluntary is determined by the same standard used to judge the voluntariness of confessions, such as any previous of defendant (which suggests familiar with warnings), the defendant’s education, any language difficulties, whether defendant is intoxicated or medicated, his psychological state, or any other factor that might undermine the defendant’s ability to make a knowing, intelligent and voluntary waiver of his Miranda rights. See Colorado v. Connelly, 479 U.S. 157 (1986) (mental illness did not invalidate a waiver); People v. Demosthenes, 98 F.3d 1174 (9th Cir. 1996) (stomach cramps did not invalidate waiver); United States v. Garibay, 143 F.3d 534 (9th Cir. 1998) (defendant’s low IQ combined with fact he spoke little English made waiver invalid); Villafuerte v. Stewart, 111 F.3d 616 (9th Cir. 1997) (Spanish-speaking defendant who signed English waiver of rights form knowingly waived rights where the form was translated into Spanish before he signed). See also cases under “Voluntariness” “Mental State and Intoxication.”

See also United States v. Price, No. 15-50556, Slip Op. pp. 25-26 (9th Cir. April 12, 2019) (Miranda waiver was knowing and voluntary. “Before S.A. Gates interviewed Price, he removed the handcuffs. S.A. Gates then explained to Price his Miranda rights, describing it as ‘just like you see on T.V.’ Price first sought clarification that he was not arrested, which S.A. Gates confirmed, and S.A. Gates then recited the Miranda rights, as Price read along and responded ‘Mm- hmm’ at various points. At the end, Price asked once again whether or not he was under arrest, noting that in movies, when you hear Miranda rights, ‘you know that somebody is being arrested.’ S.A. Gates again assured Price that he was not under arrest. Price signed the ‘Advice of Rights’ form. At the end of the interview, S.A. Gates cited Price with simple assault and allowed him to leave. . . . We agree with the district court that both Price’s waiver and his statements were voluntary. Price mischaracterizes the record of the interview. S.A. Gates never threatened Price with his power to detain him unless he answered S.A. Gates’s questions. It is evident from the record that S.A. Gates stated in a jocular manner that he could find a reason to arrest Price if Price wanted—a joke that elicited Price’s laughter—and S.A. Gates explained that it was his expectation that Price would “walk out of here” that day. The interview does not reveal any sign of coercion: Price was not in handcuffs or otherwise physically restrained,

26 and the FBI agents asked Price if he was doing okay and if he needed water or to use the bathroom.”)

State v. Perry, 146 N.M. 208, 215, 207 P.3d 1185, 1192 (App. 2009) (Court found that defendant knowingly waived his Miranda rights and did not invoke his right to silence: “Defendant relies on two points: that he did not appear to understand his constitutional rights and that he was later diagnosed with mild mental retardation. We disagree that these circumstances are determinative for two reasons. First, although Defendant expressed some initial confusion about his constitutional rights, the detectives continued to explain them until Defendant indicated that he understood. Second, Defendant's later diagnosis does not alter what he communicated to the detectives. He was asked if he was willing to talk, and he responded that he did not have much to say. After one of the detectives asked if he would share what he did know, Defendant responded in the affirmative. Later in the interview, when Defendant did not wish to speak or communicate further, he made his desires clear by saying, “I don't got nothin' else to say.” Nothing evident in the circumstances of the conversation should have alerted the detectives that Defendant was having special difficulty understanding the developing situation.”).

State v. Trujillo, 95 N.M. 535, 540, 624 P.2d 44, 49 (NMSC 1981) (“In the instant case, the record is clear that [Swanson] read the warnings to defendant and that defendant understood them, signing a form to that effect. Defendant had completed his high school education plus one year of college. When he submitted to interrogation concerning his background, he did so voluntarily and with full knowledge that he could remain silent and demand the presence of an attorney before answering questions. We hold that defendant knowingly, intelligently and voluntarily waived his Miranda rights when he answered Detective Swanson’s question concerning his whereabouts on the night of the shooting.”)

State v. Castillo-Sanchez, 127 N.M. 540, 984 P.2d 787 (App. 19999) (defendant, who spoke only Spanish, voluntarily waived his rights and gave confession).

State v. Salazar, 123 N.M. 778, 793–94, 945 P.2d 996, 1011–12 (NMSC 1997) (“The Defendant argues that if there was a waiver of his Miranda rights which could be inferred from his initiation of discussion with the police, that waiver was made unknowingly and unintelligently due to partial incapacitation from his drug-induced coma. However, significant evidence indicated that the level of drugs remaining in the Defendant’s bloodstream at the time of interrogation was not so significant as to render the Defendant incapable of fully considering his actions and statements to authorities. . . . Furthermore, the Defendant’s actions and statements while in the hospital suggest mastery of his faculties and an ability to understand and convey events of the previous forty- eight hours. In sum, the facts suggest that the Defendant was informed of his 27

rights, understood those rights, and invoked his right to counsel. However, after some contemplation, the Defendant chose to speak with the police by his own volition, and the trial court correctly refused to suppress those statements.”).

IX. INVOCATIONS / REINITIATIONS

“A defendant may voluntarily and knowingly waive [Miranda] rights. If, however, the defendant ‘indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.’ Similarly, ‘if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.’” State v. Perry, 146 N.M. 208, 213, 207 P.3d 1185, 1190 (App. 2009) (ruling that defendant did not invoke right to silence) (quoting Miranda, 384 U.S. at 444–45).

It is important to note which right is being invoked because different rules govern whether officers can re-initiate. Bottom line: 1) a defendant can always re-initiate questioning, no matter what right he invokes; 2) if defendant invokes his right to silence, officers may re-initiate questioning under Michigan v. Mosley, infra; 3) if defendant invokes right to counsel under Miranda, officers cannot re- initiate questioning (even on different crime), unless there has been a break in custody and officers wait 14 days; 4) if defendant has not invoked his right to counsel under Miranda, but has had counsel appointed under the Sixth Amendment, officers may question him on an unrelated crime (after giving Miranda warnings, if he is in custody).

A. Right to Remain Silent

Once a suspect invokes his or her right to remain silent, officers must cease questioning and may not immediately initiate further conversation. However, an officer may re-initiate questioning under Michigan v. Mosley, 423 U.S. 96, 106 (1975). In Mosley, the defendant invoked his right to silence, police immediately stopped questioning, over two hours passed, a different officer approached defendant and read him fresh Miranda warnings, and questioned him on a different offense. See also United States v. Heldt, 745 F.2d 1275, 1278 n. 5 (9th Cir. 1984) (same subject matter of first and second interrogations alone insufficient to invalidate statement). Under federal law, the “most important factor . . . is the provision of a fresh set of Miranda rights.” Hsu and Heldt, supra.

In Berghuis v. Thompkins, 130 S.Ct. 2250 (2010), the defendant refused to sign a waiver form after being advised of his Miranda rights and was silent for two hours and 45 minutes of three hour interrogation before giving an incriminating answer. The Supreme Court held that this silence did not constitute an invocation of his right to remain silent, and that he implicitly waived his right to remain silent by responding to questions. The Court reiterated rule of Davis. See also State v. Perry, 146 N.M. 208, 213, 207 P.3d 1185, 1190

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(App. 2009) (defendant did not invoke right to silence in that case). See also “Ambiguous Requests” below.

Compare State v. King, 300 P.3d 732, 735 (NMSC 2013) (defendant's repeated statement to detective that he did not want to answer questions “at the moment,” coupled with his refusal to sign waiver of rights form, was unequivocal invocation of right to remain silent) (“King clearly invoked his right to remain silent. There is nothing ambiguous about his statement, which made it clear that he did not want to speak with the police.”).

B. Right to Counsel

“[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). Police-initiated interrogation is prohibited even if the interrogation is about an offense that is unrelated to the subject of the initial interrogation. Arizona v. Roberson, 486 U.S. 675 (1988). Even if the defendant speaks with his attorney, the police cannot question the defendant later without his attorney present unless the defendant re-initiates questioning. Minnick v. Mississippi, 111 S.Ct. 486 (1990); Michigan v. Jackson, 106 S.Ct. 1404 (1986). There is no Michigan v. Mosely-type police re-initiation permitted. See Arizona v. Roberson, 486 U.S. 675 (1988) (if defendant invokes right to counsel under Miranda, officers cannot question about unrelated offense, but if defendant never invokes right to counsel but has counsel appointed under Sixth Amendment, officers may question defendant about unrelated offense). A defendant may always re-initiate questioning with officers. See “What Constitutes Suspect Re-Initiation?” below.

If a defendant is released from custody, the defendant’s invocation of his right to counsel concludes and officers may reinitiate questioning after 14 days and reading fresh Miranda warnings. See Maryland v. Shatzer, 559 U.S. 98 (2010), discussed in “Break in Custody” section, supra. (Of course, if a defendant has not been released from custody, the prior Edwards invocation of counsel is still valid and precludes re-initiation by police.)

C. Ambiguous Invocations (i.e. Equivocal Requests for Counsel or Silence)

1. Ambiguous Request for Counsel

In Davis v. United States, 512 U.S. 452, 460-61 (1994), the Court ruled that a suspect must clearly articulate his desire for counsel before police must

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stop questioning. See Davis (no invocation where defendant stated: “Maybe I should talk to a lawyer”).

See also State v. Bravo, 139 N.M. 93, 97, 128 P.3d 1070, 1074 (App. 2006) (“The invocation of the right to counsel ‘requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.’ Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (internal quotation marks and citation omitted). An ambiguous statement is insufficient. Id.”). The New Mexico Supreme Court has stated:

Resolution of whether a valid waiver of counsel has occurred depends upon the totality of the circumstances and the particular facts surrounding each case, including consideration of the mental and physical condition, background, experience and conduct of the accused.

State v. Barrera, 130 N.M. 227, 22 P.3d 1177 (NMSC 2001), as quoted in Bravo, 139 N.M. at 97, 128 P.3d at 1074.

Cases:

Sessoms v. Grounds, 776 F.3d 615 (9th Cir.) (en banc) (on habeas review, defendant clearly requested an attorney during his interrogation when he asked if “there wouldn't be any possible way that I could have a lawyer present while we do this” and stated “that's what my dad asked me to ask you guys, [to] give me a lawyer”), cert. denied sub nom., Arnold v. Sessoms, 136 S. Ct. 80, 193 L. Ed. 2d 207 (2015); United States v. Doe, 60 F.3d 544 (9th Cir. 1995) (mother’s statement “maybe he ought to see an attorney” was not an invocation of juvenile’s right to counsel); Robinson v. Borg, 918 F.2d 1387, 1393 (9th Cir. 1990) (“I have to get me a good lawyer, man. Can I make a phone call?” is clear request); Smith v. Endell, 860 F.2d 1528 (9th Cir. 1988) (“Can I talk to a lawyer?” is clear request); United States v. Doe, 170 F.3d at 1166 (“What time will I see a lawyer?” is ambiguous); Diaz v. Senkowski, 76 F.3d 61, 63–65 (2d Cir. 1996) (“I think I want a lawyer” is ambiguous); Lord v. Duckworth, 29 F.3d 1216, 1218–21 (7th Cir.1994) (“I can’t afford a lawyer but is there any way I can get one?” was ambiguous); Anderson v. Terhune, 516 F.3d 781, 783 (9th Cir. 2008) (en banc) (“I plead the fifth” is clear invocation); Edwards, 451 U.S. at 479 (“I want an attorney before making this deal” is clear invocation).

State v. Barrera, 130 N.M. 227, 22 P.3d 1177 (NMSC 2001) (“do I need a lawyer” was not an invocation of the right to counsel, citing Davis, in which “maybe I should talk to a lawyer” was not a clear invocation); State v. Bravo, 139 N.M. 93, 98, 128 P.3d 1070, 1075 (App. 2006) (“The waiver was provided to Defendant in her primary language, Spanish. Defendant read the Miranda waiver

30 out loud and stated that she understood it. Under the totality of the circumstances, Defendant's query: ‘I can ask for an attorney here?’ is at best ambiguous. She did not ask for a lawyer, and her question appears to inquire whether she could ask for a lawyer if she wanted one. With this ambiguity, Investigator Ordunez could not reasonably understand that Defendant was invoking her right to counsel. See Davis, 512 U.S. at 459–60, 114 S.Ct. 2350. He was not required to either clarify Defendant's request or cease questioning until counsel was provided.”).

State v. Castillo-Sanchez, 127 N.M. 540, 984 P.2d 787 (App. 1999) (statement in which defendant asked “Who can help me?” was ambiguous at best and did not constitute unequivocal assertion of right to counsel).

2. Ambiguous Invocation of Silence

Echoing the holding of Davis, supra, the Supreme Court held that a defendant’s actions of remaining silent for 2 hours and 45 minutes after being read his Miranda warnings (before then speaking and incriminating himself) did not constitute a clear invocation of the right to remain silent. Berghuis v. Thompkins, 560 U.S. 370, 375–76, 381 (2010) (“Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his right to cut off questioning. . . Here he did neither, so he did not invoke his right to remain silent . . . The Court has not yet stated whether an invocation of the right to remain silent can be ambiguous or equivocal, but there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis.” (internal quotations omitted). See also Salinas v. Texas, 133 S. Ct. 2174 (2013) (reiterating Berghuis and noting that a defendant normally does not invoke privilege against self-incrimination by remaining silent; defendant was not in custody in any event; Court analyzed whether could refer to silence); Sessoms, 776 F.3d at 624 (“The results in Berghuis and Salinas are no surprise—mere silence does not qualify as an invocation of the right to remain silent.”).

State v. Perry, 146 N.M. 208, 214-15, 207 P.3d 1185, 1191-92 (App. 2009) (“Because Defendant’s statement did not even ambiguously invoke his right to remain silent under Miranda, we do not further consider whether the standard articulated in Davis—that a suspect must unambiguously invoke the right— should apply to the facts of the present case.” Defendant’s statement at beginning of custodial interrogation, when asked by police whether he was willing to talk to them, that “I ain’t really got too much to say,” did not invoke his right to remain silent under Miranda.). Compare State v. King, 300 P.3d 732 (NMSC 2013) (defendant's repeated statement to detective that he did not want to answer questions “at the moment,” coupled with refusal to sign waiver of rights form, was unequivocal invocation of right to remain silent). 31

The Perry court cited several other state rulings with approval: See State v. Perkins, 540 So.2d 556 (La.Ct.App.1989) (Defendant was advised of his rights, and he indicated that he understood them. Before the detective turned on the tape recorder, however, the defendant stated, “I don't know if I want to say too much into that thing or not.” The detective reiterated that the defendant was not required to speak; nevertheless, the defendant agreed to give a statement. After reviewing the conversation, the Perkins court concluded that “[a]t best, it appears that the defendant may have been questioning whether to give a recorded statement, as opposed to his previous unrecorded statement, but the remarks clearly do not constitute an invocation of his right to remain silent.”); Jones v. Kemp, 706 F. Supp. 1534, 1551 (N.D. Ga. 1989) (finding that the defendant's “statement to [an officer] that he did not want to tell ‘what is going on’ because he ‘might get in too much trouble’ ” was not an invocation of the right to remain silent); People v. Montaño, 226 Cal.App.3d 914, 277 Cal. Rptr. 327, 334 (1991) (concluding that the defendant's response, “I can't” to an officer's question, “Can you tell us what happened?” was not an invocation of the right to remain silent); State v. Gaspard, 685 So.2d 151, 155 (La.Ct.App. 1996) (holding that the statement, “I don’t know nothing about no murder,” was not an invocation of the right to remain silent).

D. Limited Invocations

“A defendant may selectively waive his Miranda rights by agreeing to answer some questions but not others.” United States v. Soliz, 129 F.3d 499, 503 (9th Cir. 1997) (defendant selectively invoked right to remain silent on all issues except his citizenship), citing Michigan v. Mosely, 423 U.S. 96 (1975); Connecticut v. Barrett, 479 U.S. 523 (1987) (The defendant was arrested and advised of his Miranda rights. He stated that he would not give any written statements unless his attorney was present, but had “no problem” talking about the incident. The defendant’s invocation of his right to counsel was limited and applied only to written statements. Therefore, all verbal statements given by the defendant were admissible.).

E. Suspect May Re-Initiate

An accused initiates such dialogue when he speaks words or engages in conduct that can be “fairly said to represent a desire” on his part “to open up a more generalized discussion relating directly or indirectly to the investigation.” Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983) (defendant’s question “what’s going to happen to me now?” constituted re-initiation; officer re-read Miranda rights; defendant waived). “In the event he does in fact ‘initiate’ dialogue, the police may commence interrogation if he validly waives his rights.” Id. quoting Bradshaw, 462 U.S. at 1046; Edwards, 451 U.S. at 486, n. 9.

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See State v. Quinones, 149 N.M. 294, 300, 248 P.3d 336, 342 (App. 2011) (“Defendant does not dispute that Detective Cunningham stopped questioning him and left the interrogation room after he invoked his right to counsel and that sometime later, Defendant knocked on the door to the interrogation room and asked to speak with her again. Under Edwards, we conclude that Defendant himself re-initiated contact with Detective Cunningham and expressed his desire to speak with her again. . . . We see nothing in the circumstances of Defendant's confinement indicating that Defendant's re-initiation of police contact was the result of any official coercion or pressure. Therefore, we conclude that Defendant willingly and freely made a choice to waive his previously invoked right to counsel.”). See also State v. Salazar, 123 N.M. 778, 945 P.2d 996 (NMSC 1997) (holding that the defendant knowingly and intelligently waived his previously invoked right to counsel when he re-initiated contact with the police by asking them to return to his hospital room so he could “tell his side of the story” and by not objecting when the police actually returned to the room and again advised him of his Miranda rights (internal quotation marks omitted)). State v. Salazar, 123 N.M. 778, 793, 945 P.2d 996, 1011 (NMSC 1997) (“The Defendant initiated the second encounter with Sgt. Branch, waiving his Miranda rights knowingly and intelligently. Therefore, his subsequent statements were correctly permitted into evidence at trial. As indicated earlier, after invoking his right to counsel, the Defendant suggested that he wanted to talk to the police again. At that point, Branch had already exited from the Defendant’s room, and the Defendant clearly knew that he was under no obligation to speak with the police. However, after the Defendant suggested that he wanted to talk, a hospital worker found Branch, who then entered the Defendant's room for the second time. The Defendant did not object to Branch's return and the subsequent interrogation, even after Branch again told the Defendant of his rights under Miranda. Hence, the interrogation was not coercive or violative of the Defendant’s rights by virtue of Branch’s second visit to the hospital room. The Defendant initiated this encounter.”) X. SPECIAL SITUATIONS

A. Juvenile Defendants

1. Federal Rule:

In J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011), the Court ruled that a child’s age is a factor that “properly informs” the analysis whether a juvenile is in custody for purposes of determining whether Miranda warnings are required prior to interrogation.

The voluntariness of juvenile confessions must also be evaluated by a totality of the circumstances approach. Fare v. Michael C., 442 U.S. 707 (1979). See also Doody v. Schriro, 649 F.3d 986 (9th Cir. 2011) (en banc) (reversing

33

murder conviction after finding Miranda warnings inadequate and confession involuntary; under circumstances of the case, the 13 hours of non-stop interrogation of a 17 year-old suspect, during much of which he was non- responsive, rendered his confession involuntary).

Pursuant to 18 U.S.C. § 5033, before interrogating a juvenile, federal officers must immediately notify an arrested juvenile’s parents that the juvenile is in custody, and notify the parents of the juvenile’s Miranda rights and the nature of the alleged offense. See United States v. Doe, 170 F.3d 1162, 1167 (9th Cir. 1999). If parents ask for an opportunity to counsel their child, the request cannot unreasonably be denied. United States v. Doe, 219 F.3d 1009, 1017 (9th Cir. 2000). In order for the juvenile’s access to parental counseling to be meaningful, the parents must be informed that an opportunity for the parents and child to communicate prior to police questioning will be permitted. United States v. Wendy G., 255 F.3d 761, 762 (9th Cir. 2001).

The juvenile also needs to be presented to a magistrate without unnecessary delay. See Doe, supra (delay of 36 hours in presenting juvenile, where magistrate was available for earlier and delay not sufficiently explained, violated juvenile’s rights under statute; such violation may result in reversal of conviction if rises to level of due process violation or prejudiced ).

The juvenile notification requirements apply equally to illegal aliens. United States v. Doe, 862 F.2d 776, 779 (9th Cir. 1988). If the juvenile is an alien, officers must still notify the parents, or make reasonable efforts to do so. The foreign consulate must also be notified. Id. Consular notification of the juvenile’s custody and rights must occur as soon as reasonably possible after the arresting officer has difficulty contacting the foreign national juvenile’s parents so that the minor has access to meaningful support and counsel. United States v. Juvenile (RRA-A), 229 F.3d 737, 746 (9th Cir. 2000). Because consulates generally can be reached expeditiously, the officer must read the juvenile his or her Miranda rights, but delay interrogation of the juvenile for a reasonable time to allow consular notification. Id.

2. New Mexico

New Mexico Statute § 32A-2-14 sets forth “basic rights” regarding juvenile adjudications, including the following requirements related to statements: C. No person subject to the provisions of the Delinquency Act who is alleged or suspected of being a delinquent child shall be interrogated or questioned without first advising the child of the child’s constitutional rights and securing a knowing, intelligent and voluntary waiver.

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D. Before any statement or confession may be introduced at a trial or hearing when a child is alleged to be a delinquent child, the state shall prove that the statement or confession offered in evidence was elicited only after a knowing, intelligent and voluntary waiver of the child's constitutional rights was obtained. E. In determining whether the child knowingly, intelligently and voluntarily waived the child's rights, the court shall consider the following factors: (1) the age and education of the respondent; (2) whether the respondent is in custody; (3) the manner in which the respondent was advised of the respondent's rights; (4) the length of questioning and circumstances under which the respondent was questioned; (5) the condition of the quarters where the respondent was being kept at the time of being questioned; (6) the time of day and the treatment of the respondent at the time of being questioned; (7) the mental and physical condition of the respondent at the time of being questioned; and (8) whether the respondent had the counsel of an attorney, friends or relatives at the time of being questioned. F. Notwithstanding any other provision to the contrary, no confessions, statements or admissions may be introduced against a child under the age of thirteen years on the allegations of the petition. There is a rebuttable presumption that any confessions, statements or admissions made by a child thirteen or fourteen years old to a person in a position of authority are inadmissible. N.M. Stat. Ann. § 32A-2-14 (West). “Unlike Miranda, ‘Section 32A-2-14 does not require that a child be subject to custodial interrogation in order for the protections of the statute to come into force.’ Javier M., 2001-NMSC-030, ¶ 32, 131 N.M. 1, 33 P.3d 1. We have interpreted Section 32A-2-14 as requiring a child to be warned of the statutory right against self-incrimination when subject to a limited scope encounter known as an ‘investigatory detention.’ Javier M., 2001-NMSC-030, ¶ 38, 131 N.M. 1, 33 P.3d 1.” State v. Filemon V., 412 P.3d 1089, 1095 (NMSC 2018). See also id. (“In Javier M., a police officer removed a child from a party to question him about underage drinking. There was no custodial interrogation because the encounter was not coercive and the child was not ‘overpowered by 35

police presence.’ Nevertheless, the child was (1) suspected of a delinquent act; (2) questioned; and (3) not free to leave. Given these circumstances, we determined that the child was in investigatory detention and entitled to be advised of his right to remain silent.”) (citing Javier M.) (internal citations omitted). See also id. at 1095 (a child is subject to an investigatory detention when merely suspected of having committed an offense and questioned in circumstances under which the child is not free to leave. See Javier M., 2001- NMSC-030, ¶¶ 34-35, 38, 131 N.M. 1, 33 P.3d 1.”); State v. Antonio T., 352 P.3d 1172 (NMSC 2015) (a student was subjected to an investigatory detention when questioned by assistant principal in the presence of a law enforcement officer, thereby triggering protections of the Delinquency Act, and the self-incriminating statements made by the student in the assistant principal's office could not be used against him in delinquency proceeding, absent showing that he validly waived his statutory right to remain silent). The statute confers greater protection to juveniles than provided under Miranda. State v. Filemon V., 412 P.3d 1089, 1094–95 (NMSC 2018) (“Here, because neither party contends that the events at the juvenile probation office amounted to a custodial interrogation, or that the statement was compelled over Filemon’s objection, we assume, without deciding, that the statement is admissible under the Fifth Amendment. This does not preempt our analysis of whether the statement is admissible under Section 32A-2-14, because the statute bestows greater protection to youth than the Fifth Amendment requires.” (citing Javier M., 2001-NMSC-030, ¶¶ 24, 37, 131 N.M. 1, 33 P.3d 1)). The seventeen-year-old juvenile’s implied waiver of his right against self- incrimination was knowing, intelligent, and voluntary as to the second police interrogation; he had about three weeks after the first interrogation to reflect on his decision to speak to police, his mother attended his second interrogation, and the juvenile terminated the interrogation by exercising his right against self- incrimination. State v. Martinez, 127 N.M. 207, 979 P.2d 718 (NMSC 1999). See also State v. Lasner, 129 N.M. 806, 14 P.3d 1282 (NMSC 2000) (defendant, who was 17 when questioned about shooting, made knowing, intelligent, and voluntary waiver of his constitutional rights). Juvenile’s waiver of Fifth Amendment right against self-incrimination during pre-delinquency petition interview with detective was knowing, intelligent, and voluntary. State v. Rivas, 398 P.3d 299 (NMSC 2017). The provisions of 32A-2-14 do not apply to juvenile probationers suspected of violating probation. State v. Taylor E., 385 P.3d 639, 651 (N.M. Ct. App. 2016) (“In sum, the analysis in Javier M. makes clear that Section 32A–2–14(C)'s requirements are triggered, not by a [juvenile probation officer’s] suspicion that a probationer may have violated a condition of probation or where the child is alleged in a revocation petition to have done so, but only where a law enforcement officer questions a child based on a suspicion that the child has committed a

36

‘delinquent act’ or where the child is alleged to have done so in a delinquency petition.”). However, the result can be different when the statement to the probation officer will be used in a criminal proceeding, the questioning is not routine and is about a new offense, and the juvenile was subjected to an investigatory detention under the statute. See State v. Filemon V., 412 P.3d 1089, 1095–76 (NMSC 2018) (“Once in [probation] Supervisor Medina’s office, Filemon was questioned about a new offense. McNiel asked, “[A]re you here to confess about the drive-by shooting,” a question which was reasonably likely to reveal incriminating information. This interaction went beyond a routine meeting regarding Filemon's compliance with his conditions of probation and became investigatory when McNiel prompted Filemon to reveal incriminating information about an offense for which he was not already on probation. (comparing with State v. Taylor E. (holding that a probation officer was not required to give Miranda warnings before asking routine questions relating to probationary status). Supervisor Medina shared the information with the police, thereby serving as a conduit to the criminal investigation. . . Unlike Taylor E., Filemon's encounter with the probation officers was far from routine, and the statement is being introduced to prosecute Filemon for a new offense. This distinguishes the situation from the introduction of a statement in a probation revocation hearing. It is the use of the statement to prosecute a new offense that implicates fundamental concerns against self-incrimination.”) (internal citations omitted). “After closely examining [Detective] Tanner's statements and Child's reactions and responses, we conclude that while Tanner undoubtedly employed aggressive tactics, nothing he said could have reasonably led Child to believe that he had been promised leniency or a juvenile disposition in return for his confession. Instead, we conclude that it is far more likely that Child weighed and balanced competing considerations and then made an autonomous decision to confess.” State v. Gutierrez, 150 N.M. 232, 258 P.3d 1024, 1037 (NMSC 2011). B. DUI - Field Sobriety Tests

Miranda warnings are not required before administering field sobriety tests (FSTs). Berkemer v. McCarty, 468 U.S. 420 (1984) (a police officer may ask a modest number of questions and ask person to perform simple tests at a location visible to passing motorists without administration of Miranda warnings.) Asking a defendant to submit to a urine sample is not “interrogation.” United States v. Edmo, 140 F.3d 1289 (9th Cir. 1998). Asking the defendant if he will submit to a blood alcohol or breath test is not interrogation. South Dakota v. Neville, 459 U.S. 553, 564 n.15 (1983). [Under the Fourth Amendment, warrantless breath tests are permitted incident to arrests for drunk driving, but not warrantless blood tests. Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).]

State v. Randy J., 150 N.M. 683,265 P.3d 734 (App. 2011) (finding that counting or reciting the alphabet during a field sobriety test is non-testimonial;

37

“[u]nlike remembering and calculating the date of one's own sixth birthday, counting or recitation of the alphabet during a field sobriety test lack[s] inherent communicative value because [it does] not convey knowledge of any fact specific to the person being questioned.”); State v. Tilman, 33,174, 2014 WL 3050792, at *1 (N.M. Ct. App. May 29, 2014) (unpublished) (“Consistent with Randy J., we disagree with Defendant’s assertion that the results of her countdown test [in DUI case] were testimonial for purposes of requiring Miranda warnings.”).

XI. VOLUNTARINESS

A. General Rule

In order to be admissible at a criminal trial, all confessions must be voluntarily made under due process, regardless of whether the confession is lawfully obtained under Miranda. See Westover v. United States, 384 U.S. 436 (1966) (A confession is not rendered voluntary by the mere fact that an accused has been advised of his Miranda rights). See also State v. Adame, 140 N.M. 258, 261, 142 P.3d 26, 29 (App. 2006), as corrected (Sept. 5, 2006) (“Defendant’s argument shows a basic misunderstanding of the differences between a Miranda issue and a voluntariness issue. See State v. Cooper, 1997–NMSC–058, ¶ 31, 124 N.M. 277, 949 P.2d 660 (detailing the analytical distinction between a Miranda analysis and a voluntariness analysis). The fact that Defendant was handcuffed and at the police station shows that he was in custody, and the trial court properly suppressed his statements from use in the prosecution's case in chief because he was interrogated while in custody and prior to receiving warnings. See id. ¶ 33. An entirely different analysis, however, is necessary to determine whether Defendant's statements were voluntary, and that analysis requires inquiry into whether the statements were induced by ‘fear, coercion, hope of reward, or some other improper inducement.’ See id. ¶ 32.”).

Voluntariness is determined by the totality of the circumstances surrounding the confession. Moran v. Burbine, 106 S.Ct. 1135 (1986).

“Coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the due process clause.” Colorado v. Connelly, 479 U.S. 157, 167 (1986). See also State v. Baroz, 404 P.3d 769, 778 (NMSC 2017) (“Voluntariness means freedom from official coercion.”); State v. Montano, A-1-CA-35602, 2018 WL 4999927, at *4 (N.M. Ct. App. Oct. 11, 2018) (“Whether a confession is involuntary depends on whether ‘official coercion’ has occurred. Official coercion occurs when a defendant’s will has been overborne and his capacity for self-determination has been critically impaired. In determining the voluntariness of a defendant’s confession, courts look at the totality of the circumstances. Under the totality of circumstances test, a confession is not involuntary solely because of a defendant’s mental state.

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Instead, the totality of circumstances test includes an element of police overreaching.”) (internal citations, quotations, and alterations omitted).

“On a claim that police coerced a statement, the prosecution bears the burden of proving by a preponderance of the evidence that a defendant’s statement was voluntary. We review the entire record and the circumstances under which the statement or confession was made in order to make an independent determination of whether a defendant's confession was voluntary. The preponderance of the evidence must establish that the confession was not ‘extracted from an accused through fear, coercion, hope of reward, or other improper inducements.” State v. Baroz, 404 P.3d 769, 779 (NMSC 2017) (internal citations, alterations, and quotations omitted).

In deciding if a defendant’s will was overborne, courts examine “all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Courts examine the following factors:

(1) Whether Miranda warnings were given; (2) The youth of the accused; (3) The accused’s level of education or low intelligence; (4) The length of detention; (5) The repeated and prolonged nature of the questioning; and (6) Deprivation of food or sleep.

Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); State v. Gutierrez, 150 N.M. 232, 258 P.3d 1024, 1035 (NMSC 2011) (citing same factors under Schneckloth and discussing voluntariness doctrine at length). See also Crane v. Kentucky, 106 S.Ct. 2142 (1986) (whether the defendant has received Miranda warnings will be a factor in determining whether defendant’s will was overborne). Even if a judge finds the statement voluntary, the jury is entitled to hear evidence bearing on the issue of voluntariness. Id.

1. Ploys to Mislead Suspect

Additionally, “ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns.” Illinois v. Perkins, 496 U.S. 292, 297 (1990) (defendant talked to undercover government agent posing as inmate). See also Oregon v. Mathiason, 429 U.S. at 495-496 (officer’s falsely telling suspect that suspect’s fingerprints had been found at crime scene did not render interview custodial under Miranda). See also Ortiz v. Uribe, 671 F.3d 863 (9th Cir. 2011), cert. denied, 132 S. Ct. 1811 (2012) (finding that female detective’s “maternal” manner of questioning, including advising defendant to tell the truth, did not make his confession involuntary; court noted that detective’s actions fell “well within the range of permissible interrogation tactics”); United States v. Preston, 39

706 F.3d 1106 (9th Cir. 2013), as amended (Feb. 27, 2013) (defendant’s statement made outside his home was voluntary; officers went to the defendant’s house to interview him about the sexual molestation of a minor and talked to him outside his residence for about 45 minutes; the officers told him multiple times that he was not under arrest and was free to leave, although at one point they asked him if he wanted to continue the interview in their car; defendant had a low IQ, but was not physically restrained, and the officers did not arrest him at the conclusion of the interview; he initially denied the molestation, and officers continued to interview him until he confessed; several times during the interview, the officers referred to the wrong day in describing the incident; they also falsely told defendant that other evidence could implicate him and told him that confessing would minimize the consequences of the crime; Ninth Circuit held that the defendant’s admissions were voluntary and had not been coerced.) Compare Brown v. Horell, 644 F.3d 969 (9th Cir. 2011) (an officer’s questioning convincing the defendant to confess by relying on his desire to be with his child rendered the confession involuntary; however, on habeas review, it found that the state court had not acted unreasonably in concluding otherwise).

2. Defendant’s Mental State or Intoxication

See State v. Montano, A-1-CA-35602, 2018 WL 4999927, at *4 (N.M. Ct. App. Oct. 11, 2018) (“Whether a confession is involuntary depends on whether ‘official coercion’ has occurred. Official coercion occurs when a defendant’s will has been overborne and his capacity for self-determination has been critically impaired. In determining the voluntariness of a defendant’s confession, courts look at the totality of the circumstances. Under the totality of circumstances test, a confession is not involuntary solely because of a defendant’s mental state. Instead, the totality of circumstances test includes an element of police overreaching.”); see also Preston, supra (defendant with low IQ); State v. Cooper, 1997-NMSC-058, ¶ 47, 124 N.M. 277, 949 P.2d 660 (holding that the defendant’s confession was voluntary because although the defendant was “most likely in a weakened mental state,” officers did not exploit the defendant’s mental state to obtain the confession).

See also Montano, 2018 WL 4999927, at *4 (“Defendant’s argument that counsel should have filed a motion to suppress his confession is premised on his alleged intoxication. During the interview, Defendant stated that he had been drinking and that he was ‘a little buzzed,’ but he was thinking clearly. Defendant asserts that had defense witnesses been interviewed, they would have supported his contention that he was intoxicated at the time of his confession. Defendant, however, does not argue that law enforcement was engaged in improper coercion when interviewing him. Defendant further concedes that a motion to suppress his confession may have been denied on this basis. As previously stated, Defendant’s intoxication, or state of mind, alone is insufficient to render a

40 confession involuntary without accompanying police misconduct or overreaching.”)

“[A] confession is not involuntary solely because of a defendant’s mental state. Instead, the totality of circumstances test includes an element of police overreaching.” State v. Galindo, 415 P.3d 494, 503 (NMSC 2018) (citing State v. Fekete, 120 N.M. 290, 901 P.2d 708 (NMSC 1995) (citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (“[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.”)).

B. Threats, Promises, and Other Forms of Coercion

General Rule: A confession is involuntary if it was extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of any improper influence. The confession must have been “extracted” by the improper activity. See Collazo v. Estelle, 898 F.2d 87, 89 (9th Cir. 1990) (“The evidence in the record establishes no causal link between Collazo’s confession and the prior conduct of the police.”).

Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936) (“The question in this case is whether convictions, which rest solely upon confessions shown to have been extorted by officers of the state by brutality and violence, are consistent with the due process of law required by the Fourteenth Amendment of the Constitution of the United States. . . . Aside from the confessions, there was no evidence sufficient to warrant the submission of the case to the jury. . . Coercing the supposed state’s criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief iniquity, the crowning infamy of the , and the Inquisition, and other similar institutions. The Constitution recognized the evils that lay behind these practices and prohibited them in this country. . . . The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.”)

1. Threats

When interrogating a suspect, police must avoid threats of punishment for the suspect’s failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession. See Arizona v. Fulminante, 449 U.S. 279 (1991) (threat of violence is sufficient to render a confession involuntary). See also United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981) (agents improperly coerced a woman to confess by threatening to take her children away); United States v. Jackson, 918 F.2d 236, 242 (1st Cir. 1990) (“even if we were to assume that the police did use an implied threat or promise 41 that Jackson’s sister might be caused or spared harm, depending on whether or not Jackson admitted ownership of the firearm, we still could not conclude that his will was overborne,” distinguishing Tingle); State v. Newell, 212 Ariz. 389, 132 P.3d 833 (2006) (detective’s question to defendant regarding “whether he would want the woman he cared for to be told that he had been completely honest or that he was a sociopath who was hiding things” was not a “threat” that rendered confession involuntary); State v. Boggs, 218 Ariz. 325, 185 P.3d 111 (2008) (The defendant contended his confession was involuntary, claiming that detective employed psychological pressure by preying on the defendant’s love for son; court noted officer did not threaten the defendant with loss of son, but urged him to “tell the truth” and encouraged him to have a sense of responsibility. The detective then changed subjects when the defendant did not answer, so the confession was also not a product of the “son” line of questioning even if it had been coercive.).

See also United States v. Price, No. 15-50556, Slip Op. pp. 25-26 (9th Cir. April 12, 2019) (Miranda waiver was knowing and voluntary. “Before S.A. Gates interviewed Price, he removed the handcuffs. S.A. Gates then explained to Price his Miranda rights, describing it as ‘just like you see on T.V.’ Price first sought clarification that he was not arrested, which S.A. Gates confirmed, and S.A. Gates then recited the Miranda rights, as Price read along and responded ‘Mm- hmm’ at various points. At the end, Price asked once again whether or not he was under arrest, noting that in movies, when you hear Miranda rights, ‘you know that somebody is being arrested.’ S.A. Gates again assured Price that he was not under arrest. Price signed the ‘Advice of Rights’ form. At the end of the interview, S.A. Gates cited Price with simple assault and allowed him to leave. . . . We agree with the district court that both Price’s waiver and his statements were voluntary. Price mischaracterizes the record of the interview. S.A. Gates never threatened Price with his power to detain him unless he answered S.A. Gates’s questions. It is evident from the record that S.A. Gates stated in a jocular manner that he could find a reason to arrest Price if Price wanted—a joke that elicited Price’s laughter—and S.A. Gates explained that it was his expectation that Price would “walk out of here” that day. The interview does not reveal any sign of coercion: Price was not in handcuffs or otherwise physically restrained, and the FBI agents asked Price if he was doing okay and if he needed water or to use the bathroom.”)

2. Promises

Promises of leniency on the part of police can be coercive and may render a subsequent statement involuntary. See State v. Evans, 210 P.3d 216 (NMSC 2009) (noting that threats and promises by the police may rise to the level of coercion).

Express promises of leniency “render[] a confession involuntary as a matter of law.” State v. Tindle, 1986-NMCA-035, ¶ 42

25, 104 N.M. 195, 718 P.2d 705. “However, unlike an express promise of leniency, which can render a confession inadmissible as a matter of law, evidence of an implied promise is only [one] factor in the totality of the circumstances that courts consider in determining whether a confession is voluntary.” State v. Gutierrez, 2011-NMSC-024, ¶ 25, 150 N.M. 232, 258 P.3d 1024 (emphasis added). Where the evidence does not clearly establish a promise of leniency, the question becomes one of an indirect or implied promise.

In this case, we consider “whether the accused could reasonably have inferred a promise going to the punishment for the crime to be confessed.” State v. Munoz, 1998-NMSC-048, ¶ 34, 126 N.M. 535, 972 P.2d 847 (internal quotation marks and citation omitted). The determination of the voluntariness of a statement “requires careful evaluation of all the circumstances of the interrogation.” Mincey v. Arizona, 437 U.S. 385, 401, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); see also Munoz, 1998-NMSC-048, ¶ 24, 972 P.2d 847 (“Voluntariness is determined by the totality of the circumstances, not by a number of independent tests of voluntariness.”). Importantly, “threats that merely highlight potential real consequences, or are ‘adjurations to tell the truth,’ are not characterized as impermissibly coercive.” Evans, 2009-NMSC- 027, ¶ 43, 210 P.3d 216 (citation omitted).

State v. Baroz, 404 P.3d 769, 778–79 (NMSC 2017).

See also id. at 780 (“Our review of these statements supports the district court’s finding that the detectives made implied promises of leniency to Defendant throughout the interview in exchange for his cooperation, but we conclude that under the totality of the circumstances, the statements were voluntary. The detectives' statements were not express promises because they did not provide an unequivocal guarantee that Defendant would receive leniency if he gave a statement. And contrary to the State’s assertion, the detectives' statements were not mere suggestions that Defendant could help himself by being cooperative. Rather, the detectives implied that they would act on Defendant's behalf and help get his charges reduced.”) (Court then noted that implied promise was only one factor, but other factors showed the statement was voluntary and was the product of free will) (comparing with other cases discussed in opinion).

“After closely examining [Detective] Tanner’s statements and Child's reactions and responses, we conclude that while Tanner undoubtedly employed aggressive tactics, nothing he said could have reasonably led Child to believe that he had been promised leniency or a juvenile disposition in return for his confession. Instead, we conclude that it is far more likely that Child weighed and 43 balanced competing considerations and then made an autonomous decision to confess.” State v. Gutierrez, 150 N.M. 232, 258 P.3d 1024, 1037 (NMSC 2011).

“Defendant does not argue that his statement was induced by promise or threat or was otherwise coerced—and with good reason. In examining the totality of the circumstances, we see no evidence that Detective Roybal used promises or threats to elicit Defendant’s statements.” State v. Galindo, 415 P.3d 494, 503 (NMSC 2018).

“At the hearing on his motion, Defendant pointed to the following statements Detective Kohler made in the first interview as implied promises. ‘If you have a problem, we can help you. . . I promise you, I will do everything I can to help you. . . That might be something we can help you with.’ We addressed similar statements regarding possible treatment in State v. Lobato, 2006–NMCA– 051, ¶ 1, 139 N.M. 431, 134 P.3d 122, where the defendant was charged with criminal sexual penetration of a minor. We agreed that the statements in that case gave the impression that the defendant would get treatment if he confessed, but we did not find any promise that the defendant would get treatment instead of prison time or would get a lesser sentence of imprisonment. Id. ¶ 20. We concluded that the defendant's confession was not rendered involuntary by the officer's discussion of possible treatment. Id. We reach the same conclusion here.” State v. Leeson, 149 N.M. 823, 830, 255 P.3d 401, 408 (App. 2011) (“It is not per se coercive for police to truthfully inform an accused about the potential consequences of his alleged actions. . . Defendant does not argue that Detective Kohler's comment, to the extent that it may be taken as an implied warning, was untruthful. Accordingly, we see no coercion.”) (internal citation omitted).

State v. Cooper, 124 N.M. 277, 286, 949 P.2d 660, 669 (NMSC 1997) (“The negotiators made no attempt to use fear or coercion by making threats. Nor did they offer hope of reward or make promises to induce Cooper to confess. Although they promised Cooper medical attention and psychological counseling, none of these promises were contingent upon a confession.”)

Other courts have found that before a statement will be considered involuntary because of a promise, evidence must establish that a promise of benefit or leniency was in fact made and that the suspect relied on that promise in making the statement. See, e.g., State v. Lopez, 174 Ariz. 131, 847 P.2d 1078 (1993) (that detective told defendant he would not play the tape for wife or discuss the details of the interview with her was not a “promise” rendering confession involuntary).

It is permissible to advise the defendant to tell the truth. See Amaya-Ruiz v. Stewart, 121 F.3d 486, 494 (9th Cir. 1997) (officer stated: “We can forgive your lies, but the United States Court system will not forgive your lies”; another officer said to another: “if he wants any forgiveness, he should tell the truth;” and “if he lies to us now it will be on the record for the rest of his life that he lied, and then 44 he'll never be able to say he was sorry because he lied at this time”; statement voluntary); State v. Baroz, 404 P.3d 769, 779 (NMSC 2017) (“Importantly, ‘threats that merely highlight potential real consequences, or are ‘adjurations to tell the truth,’ are not characterized as impermissibly coercive.”) (emphasis added) (quoting State v. Evans, 210 P.3d 216 (NMSC 2009) (citation omitted).

However, “[w]here the suggestion is that ‘it will be better,’ or that ‘it will be to your best interests’ to tell the truth, the accused may have inferred some promise going to the punishment for the crime.” State v. Baroz, 404 P.3d 769, 780 (NMSC 2017) (internal alterations and quotations omitted).

3. Medication or Drugs

In Mincey v. Arizona, 437 U.S. 385, 398 (1978), the interrogating officers persisted in questioning a defendant who was injured, hospitalized, in pain, and coming in and out of consciousness. The Supreme Court held that “Mincey’s statements were not the product of his free and rational choice. To the contrary, the undisputed evidence makes clear that Mincey wanted not to answer[.]” Id. at 401 (emphasis in original) (internal quotation marks and citation omitted), as quoted in State v. Baroz, 404 P.3d 769, 780 (NMSC 2017). See also United States v. Heller, 551 F.3d 1108 (9th Cir. 2009) (defendant’s confession was voluntary, despite his ingestion of codeine before the interview); State v. Wilson, 149 N.M. 273, 286, 248 P.3d 315, 328 (NMSC 2011) (defendant’s statement was voluntary even “though Defendant had been diagnosed with significant psychological problems”), overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 55, 275 P.3d 110.

See also State v. Salazar, 123 N.M. 778, 793–94, 945 P.2d 996, 1011–12 (NMSC 1997) (in related issue, court found that defendant’s Miranda waiver was knowing, notwithstanding having been recently in drug-induced coma).

4. Other Coercion

State v. Martinez, 127 N.M. 207, 979 P.2d 718 (NMSC 1999) (detective's reference to the death penalty during interrogation of 17-year-old juvenile was intended to impress juvenile with seriousness of the matter and did not rise to the level of police misconduct or cause juvenile's will to be overborne).

XII. SIXTH AMENDMENT RIGHT TO COUNSEL

General Rule: The Sixth Amendment right to counsel is distinct from the Fifth Amendment right against self-incrimination (Miranda) and Due Process (voluntariness). The Sixth Amendment right attaches “at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” McNeil v.

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Wisconsin, 501 U.S. 171, 176 (1991); United States v. Gouveia, 467 U.S. 180, 188 (1984); Brewer v. Williams, 430 U.S. 387, 398 (1977). See also McNeil, 501 U.S. at 180-81 (“The Sixth Amendment right to counsel attaches at the first formal proceeding against the accused.”); Fellers v. United States, 540 U.S. 519 (2004) (Sixth Amendment right to counsel is triggered when “judicial proceedings have been initiated”); see also Moran v. Burbine, 475 U.S. 412, 431 (1986). Once this Sixth Amendment right to counsel attaches, it applies to all “critical stages” of the criminal proceedings. “Interrogation by the State is such a stage.” Montejo v. Louisiana, 129 S.Ct. 2079, 2085 (2009).

Asking for an attorney to be appointed under the Sixth Amendment is not the same as invoking the Fifth Amendment right to counsel under Miranda. See Montejo v. Louisiana, 129 S.Ct. 2079 (2009) (asking for counsel at arraignment or similar proceeding or having counsel appointed does not constitute a presumption that any subsequent waiver by defendant to police-initiated interrogation is invalid, overruling Michigan v. Jackson, 475 U.S. 625 (1986); see also United States v. Charley, 396 F.3d 1074, 1082 (9th Cir. 2005) (defendant did not invoke Fifth Amendment right to counsel when she requested counsel at tribal court arraignment; invocation of Sixth Amendment right to counsel does not constitute an invocation of the Miranda right to counsel); Anderson v. Alameida, 397 F.3d 1175 (9th Cir. 2005) (Sixth Amendment right to counsel was not triggered when California police filed probable cause complaint seeking arrest warrant, when California sought of defendant, or by defendant’s New Hampshire extradition hearing).

“Once the adversary judicial process has been initiated as it was with the August 2 filing of the [delinquency] petition here, the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution guarantee defendants the right to have counsel present at all critical stages of criminal proceedings. See, e.g., Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009); State v. Padilla, 2002–NMSC– 016, ¶ 11, 132 N.M. 247, 46 P.3d 1247.” State v. Rivas, 398 P.3d 299, 309 (NMSC 2017).

A defendant may waive his Sixth Amendment right to counsel. “Our precedents place beyond doubt that the Sixth Amendment right to counsel can be waived by a defendant, so long as the relinquishment of that right is voluntary, knowing and intelligent. . . The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. . .” Montejo v. Louisiana, 129 S.Ct. 2079, 2085 (2009.) “[I]t would be completely unjustified to presume that a defendant’s consent to police-initiated interrogation was involuntary and coerced simply because he had previously been appointed a lawyer.” Id. at 2088 (defendant can be approached and interrogated on related offense after Sixth Amendment right to

46 counsel has attached, if he waives his Miranda rights). A waiver of Miranda rights is sufficient to waive the Sixth Amendment right to counsel. Id. at 2085.

Any interrogation by the state once proceedings have begun, regardless of a defendant's custodial status, constitutes a critical stage for purposes of the Sixth Amendment analysis, and thus the parties do not dispute attachment of the Sixth Amendment right in this case. See Montejo, 556 U.S. at 786, 129 S.Ct. 2079. The Sixth Amendment right may be waived much like the Fifth Amendment right against self-incrimination at issue in the [pre-delinquency petition] August 1 interview, as long as the relinquishment is voluntary, knowing, and intelligent, and a defendant may often validly waive this Sixth Amendment right after receiving only the warnings prescribed by Miranda, which has its source in the Fifth Amendment. See Montejo, 556 U.S. at 786-87, 129 S.Ct. 2079.

State v. Rivas, 398 P.3d 299, 309 (NMSC 2017) (ruling, however, that it would not apply Montejo rule in the context of the Sixth Amendment in this juvenile case, so juvenile’s waiver of counsel on August 6, obtained after Sixth Amendment right to counsel attached, was not effective).

Officers violated the Sixth Amendment by deliberately eliciting information from a defendant during a post-indictment visit to his home, absent counsel or waiver of counsel, regardless of whether officers’ conduct constituted an “interrogation.” Fellers v. United States, 540 U.S. 519 (2004). After indictment, police went to the defendant’s apartment with an arrest warrant; no Miranda warnings were read and defendant made statements. He made more inculpatory statements at the jail after receiving warnings. The Eighth Circuit ruled that no Sixth Amendment violation had occurred because there was no “interrogation.” The Supreme Court remanded to have the Eighth Circuit determine whether the Sixth Amendment requires suppression of the jailhouse statements “on the ground that they were the fruits of previous questioning conducted in violation of the Sixth Amendment deliberate-elicitation standard.”

“Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present.” McNeil v. Wisconsin, 501 U.S. 171, 177 (1991) (the Miranda right to counsel is not offense-specific, citing Arizona v. Roberson, 486 U.S. 675 (1988) (when suspect invokes right to counsel under Miranda, all questioning must cease, even questioning on unrelated offense)).

However, if the defendant has not invoked his right to counsel under Miranda, but merely has had counsel appointed for the crime under the Sixth Amendment, officers may question defendant about an offense unrelated to the one for which counsel was appointed without violating the Sixth Amendment, because the Sixth Amendment right to counsel is "offense-specific." McNeil v. 47

Wisconsin, 501 U.S. at 175, 177 (when defendant requested counsel at initial appearance on robbery offense, this was not invocation of counsel under Miranda, and police could initiate questioning about unrelated offenses.) The statements about the unrelated offense will be admissible, as long as it is obtained in accordance with Miranda and is voluntary.

As noted above, if the defendant has not invoked his right to counsel under Miranda, but the Sixth Amendment right to counsel has attached, officers may question the defendant about a related offense (i.e. one for which counsel was appointed), if the defendant waives his Sixth Amendment right to counsel. A waiver of Miranda rights is sufficient. See Montejo v. Louisiana, 129 S.Ct. 2079 (2009) (defendant arrested for robbery and murder did not invoke his Miranda right to counsel; after Sixth Amendment right to counsel had attached at a subsequent preliminary hearing and before defendant met with his attorney, officers asked defendant whether he would take them to locate the murder weapon; during the excursion, defendant wrote an inculpatory apology letter to victim, which was introduced at trial; Supreme Court overruled Michigan v. Jackson and noted that defendant may be approached by police after counsel is appointed and that a valid Miranda waiver also waives the Sixth Amendment right to counsel; Court remanded for determination of whether defendant had invoked right to counsel). But see State v. Rivas, 398 P.3d 299, 309 (NMSC 2017) (declining to apply Montejo rule in juvenile case).

See also Kansas v. Ventris, 129 S.Ct. 1841 (2009) (statement obtained in violation of the defendant’s Sixth Amendment right to counsel may be used to impeach the defendant if he testifies at trial; in addition, a Massiah Sixth Amendment right to counsel violation – dealing with informants – occurs at the time of the uncounseled interrogation, not at the time the statement is admitted into evidence).

United States v. Mohsen, 587 F.3d 1028 (9th Cir. 2009) (search of indicted defendant’s cell for evidence of uncharged offenses did not violate Sixth Amendment).

XIII. FEDERAL PRESENTMENT DELAY ISSUES / McNABB / MALLORY RULE Under the McNabb/Mallory rule, an arrested person’s confession is inadmissible if given after an unreasonable delay in bringing him before a magistrate. Congress codified this rule in 18 U.S.C. § 3501(c), which states that a confession is not inadmissible solely because of delay in presentment to a magistrate if the defendant made the confession within six hours of arrest. Section 3501(c) provides only that statements made within six hours of arrest and before presentment may not be suppressed; it did not hold that the government is “entitled” to a six-hour delay in every case. United States v. Valenzuela-Espinoza, 697 F.3d 742 (9th Cir. 2012). See also Corley v. United

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States, 556 U.S. 303, 316 (2009) (“McNabb–Mallory makes even voluntary confessions inadmissible if given after an unreasonable delay in presentment”).

In the above case, Valenzuela-Espinoza was arrested at 11:15 a.m. but was not presented to a magistrate judge until 2:00 p.m. the next day. The district court found the delay reasonable because the officers had other legitimate law enforcement duties to execute (including obtaining a search warrant) and because the paperwork for a 2:00 p.m. initial appearance ordinarily must be completed by 10 a.m. that morning pursuant to courthouse policy, so it was too late to present the defendant the day he was arrested. Eight hours after his arrest, defendant made incriminating statements to federal officers. The Ninth Circuit held that the defendant’s statements should be suppressed based on what it found to be an unreasonable delay in presenting him to a magistrate judge. The panel found that there were officers available to take him to the courthouse even if others were obtaining a search warrant, and the court found that the distance of 10 miles to the courthouse was not far. The court also found that the District of Arizona’s courthouse paperwork policy did not trump the need for prompt presentment. Compare United States v. Redlightning, 624 F.3d 1090 (9th Cir. 2010). In Redlightning, during questioning at the FBI office in Bellingham, Washington, which is about 90 miles north of Seattle, the defendant confessed to murder. He confessed shortly after noon, and the agents continued to question him until about 5:30 p.m. The officers then took defendant to the county jail for the night. At 8:30 a.m. the next morning, the agents began driving the defendant to Seattle for arraignment, but at the request of an AUSA, the agents stopped at another FBI office, re-interviewed defendant for about 15 minutes, and obtained another confession. The agents and defendant arrived at the Seattle courthouse at about 10:50 a.m., and defendant was arraigned at 2:30 p.m. during the magistrate judge’s scheduled calendar. The Ninth Circuit held that the delay in bringing defendant before a magistrate judge for arraignment did not require suppression of the incriminating statements defendant made before arraignment. See also “Juveniles,” supra (for presentment delay issues).

See also United States v. Boche-Perez, 755 F.3d 327, 334 (5th Cir. 2014) (“even voluntary confessions should be suppressed if they occurred during a period of unreasonable delay. If the confession occurred before presentment and beyond six hours, the Supreme Court instructed, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb–Mallory cases, and if it was, the confession is to be suppressed.” The Fifth Circuit determined that the confession should not be suppressed under the facts of this case, distinguishing Valenzuela-Espinoza, supra. “[I]n applying McNabb– Mallory, a district court should not resort to a “semanticism that obscures the facts” of a case. . . . The overall reasonableness of a delay will vary city-to-city, case-to-case, justification-to-justification.”)

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XIV. QUESTIONS OF TAINT (SUBSEQUENT STATEMENTS AND DERIVATIVE PHYSICAL EVIDENCE)

A. Admissibility of Subsequent Statement When First Statement is Obtained in Violation of Miranda or is Involuntary

If the defendant gives a second confession after giving a confession that violates Miranda or is involuntary, the court will examine the totality of the circumstances to see if the second confession is tainted. Generally, when Miranda warnings are given after unlawful, un-Mirandized questioning has occurred, this “breaks the taint” from the prior questioning and subsequent statements, if voluntary, are admissible. Oregon v. Elstad, 470 U.S. 298 (1985). See also United States v. Gonzalez-Sandoval, 894 F.2d 1043 (9th Cir. 1990) (after defendant said he had been deported before, he was arrested on suspicion of being a “deported alien”; a Border Patrol agent’s questioning of custodial defendant about his citizenship constituted “interrogation”; but court found, under Oregon v. Elstad, that the defendant’s voluntary post-Miranda confession to Border Patrol agent about citizenship was admissible despite prior Miranda- violative statement).

However, the United States Supreme Court has held that “mid-confession” admonishment of Miranda warnings does not fall within the Elstad exception. Missouri v. Seibert, 542 U.S. 600 (2004) (where a police officer intentionally withheld Miranda warnings until an interrogation had produced a confession and then gave the defendant Miranda warnings and led her to repeat her confession, the second confession was inadmissible). The Court distinguished Oregon v. Elstad, 470 U.S. 298 (1985), noting that in Elstad, the station house questioning could sensibly be seen as a distinct experience from a short conversation at home, and thus the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission. In Siebert, however, the officer questioned the defendant for 15-20 minutes, and after she confessed, took a 20-minute break, then returned, read Miranda warnings, and the defendant confessed again. The officer testified he made a conscious decision to withhold Miranda warnings, question first, then give the warnings, and then repeat the question until he got the answer previously given. The Court found that this “midstream” advising of Miranda was insufficient to place this case within the Elstad exception. The Court also noted that giving the warnings and getting a waiver before statements generally produces a virtual ticket of admissibility. See also United States v. Williams, 435 F.3d 1148, 1150 (9th Cir. 2006) (Ninth Circuit discussed Seifert and outlined suppression standards for confessions obtained after mid-interrogation Miranda warnings).

In United States v. Reyes-Bosque, 596 F.3d 1017 (9th Cir. 2010), police officers discovered the defendant hiding in a house. Without giving the defendant Miranda warnings, officers questioned him about his citizenship, his reason for being at the house, and his relationship with the owner. The defendant made 50 incriminating statements. Other officers took the defendant to the station, and two officers who had not heard the defendant’s prior statements gave him Miranda warnings and questioned him again. The defendant again made incriminating statements. The Ninth Circuit held that, even if the defendant was in custody when he was first questioned, the statements he made in response to the second round of questioning after receiving Miranda warnings should not be suppressed. It found that officers had not deliberately sought to obtain an unwarned confession in order to obtain a post-Miranda confession under Seibert, supra, and that the defendant’s second statement was voluntary.

In Bobby v. Dixon, 132 S.Ct. 26 (2011) (per curiam), the Court rejected the Sixth Circuit’s conclusion that the state court’s decision was contrary to Missouri v. Seibert. The Court noted that Seibert’s holding was inapplicable because Dixon did not confess to the murder during the first, unwarned interrogation, and there was a “significant break in time and dramatic change in circumstances” between the first and second interrogations.

See also State v. Adame, 140 N.M. 258, 260, 142 P.3d 26, 28 (App. 2006), as corrected (Sept. 5, 2006) (“[W]e hold that Seibert does not apply to this case. Seibert was directed to a considered police tactic of circumventing the Miranda requirements by questioning first, obtaining a statement, giving warnings, and then obtaining the same statement. Here, in contrast, as will be seen, the initial police questioning was about a murder for which Defendant was not a suspect, and the questioning occurred before the police knew Defendant was a felon. The police were not trying to obtain a statement incriminating Defendant with regard to the crime of being a felon in possession by evading the Miranda requirements, and therefore Seibert does not apply. See 542 U.S. at 606, 124 S.Ct. 2601 (describing the prohibited police tactic).”)

See also State v. Bravo, 139 N.M. 93, 98, 128 P.3d 1070, 1075 (App. 2006) (rejecting defendant’s claim based on Siebert that a subsequent confession should be suppressed); State v. Filemon V., 412 P.3d 1089, 1097-99 (NMSC 2018) (in case involving post-Miranda questioning of juvenile at police station, the New Mexico Supreme Court ruled that the “midstream Miranda warning was ineffective in informing Filemon of his Miranda rights.” Court noted the “case bears notable similarities to Seibert.”); State v. Adame, 140 N.M. 258, 260, 142 P.3d 26, 28 (App. 2006), as corrected (Sept. 5, 2006) (“[W]e hold that Seibert does not apply to this case.”).

See also “Mid-Confession Admonishment” section.

See also State v. Cooper, 124 N.M. 277, 286, 949 P.2d 660, 669 (NMSC 1997) (“Because we find Cooper's remarks at the motel were not coerced, we conclude that there was no involuntary confession to taint his subsequent statements to both the Ventura and Albuquerque police. Cf. Collazo, 940 F.2d at

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421 (discussing factors involved in determining effect of previous police coercion on subsequent incriminating remarks).”).

B. Miranda Violation - Suppression of Physical Fruits

The Supreme Court has ruled that failure to give Miranda warnings does not require suppression of physical fruits of suspect’s unwarned but voluntary statements. United States v. Patane, 542 U.S. 630 (2004) (officers’ failure to give Miranda warnings after arresting suspect for violating restraining order at home, and before questioning him about weapon he reportedly possessed, did not require suppression of weapon at felon-in-possession trial, since weapon was recovered based on suspect’s voluntary statements that he possessed it and advising officers where it could be found; the suppression of the statements is the remedy for a Miranda violation, not suppression of physical evidence). See also State v. Verdugo, 142 N.M. 267, 273, 164 P.3d 966, 972 (App. 2007) (citing Patane with approval, but finding the ruling inapplicable in that particular case) (“Unlike the situation in Patane, the State in this case was not attempting to have the physical fruit of Defendant’s statements admitted into evidence. Instead, the State wished to admit Defendant’s unwarned statements . . . This is precisely the type of evidence described in Patane as prohibited under the Miranda rule.”).

See also State v. Adame, 140 N.M. 258, 258, 142 P.3d 26, 26 (App. 2006), as corrected (Sept. 5, 2006) (adopting the United States Supreme Court's holding in Patane “that the failure to give Miranda warnings [does] not require suppression of evidence that [is] the fruit of a suspect's unwarned but voluntary statements”); see also State v. Olivas, 149 N.M. 498, 252 P.3d 722 (App. 2011) (admitting physical evidence obtained as a result of the defendant’s voluntary statements even though officers failed to advise the defendant of his Miranda rights); United States v. Lara-Garcia, 478 F.3d 1231 (10th Cir. 2007) (even if immigration agent’s questioning of defendant about his immigration status at police station without Miranda warnings violated defendant's Fifth Amendment privilege against self-incrimination, the physical evidence that arose from the violation, consisting of defendant's fingerprints and immigration file, was not suppressible).

C. Admissibility of Confession Subsequent To Illegal Arrest or Search

If an arrest is unlawful, a court will first determine whether any statements were the product of the illegal arrest. If so, the government needs to show that the statements were nevertheless so attenuated from the illegality that suppression is not warranted. New York v. Harris, 495 U.S. 14, 19 (1990); Brown v. Illinois, 422 U.S. 590, 598–99, 604 (1975) (setting forth “Brown factors” used by other courts); see also United States v. Patzer, 277 F.3d 1080, 1086 (9th Cir.

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2002) (government bears burden); United States v. Twilley, 222 F.3d 1092, 1097 (9th Cir. 2000) (same) (both noting that government bears burden).

The Court in Brown set forth several factors for making this determination: (1) as a threshold requirement, “[t]he voluntariness of the statement”; (2) the existence of Miranda warnings; (3) “[t]he temporal proximity of the arrest and the confession”; (4) “the presence of intervening circumstances”; and (5) “particularly, the purpose and flagrancy of the official misconduct.” Brown, 422 U.S. at 603–04; see also United States v. Manuel, 706 F.2d 908, 912 (9th Cir. 1983). The Ninth Circuit determined in one case that the government did not meet its burden of demonstrating that statements were not tainted by a Fourth Amendment violation. United States v. Shetler, 665 F.3d 1150, 1157 (9th Cir. 2011) (district court must consider whether defendant was confronted with the fruits of a prior illegality and whether defendant’s answers to questions are influenced by his knowledge of the evidence police illegally seized).

D. Impeachment / Commenting on Silence and Other Issues

1. Cannot Comment on Post-Miranda Silence

The government may impeach defendant with a statement obtained in violation of Miranda, as long as it is voluntary under due process. Harris v. New York, 401 U.S. 222 (1970) (Any statement inadmissible in the prosecutor’s case in chief because the defendant had not been advised of his rights to counsel and to remain silent, but which otherwise satisfies legal standards of trustworthiness, may be used for impeachment purposes to attack the credibility of the defendant’s trial testimony); Michigan v. Harvey, 110 S.Ct. 1176 (1990) (government can use statement obtained in violation of right to counsel under Miranda to impeach defendant at trial); State v. Baroz, 404 P.3d 769, 778 (NMSC 2017) (“[I[n Harris v. New York, the United States Supreme Court clarified that while statements obtained in violation of Miranda would be inadmissible in the prosecution's case in chief, such statements could still be used to impeach a defendant’s testimony at trial if their ‘trustworthiness . . . satisfie[d] legal standards.’ 401 U.S. 222, 224, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). ‘[T]o meet the standard of trustworthiness, the statements must have been given voluntarily.’”); State v. Trujillo, 93 N.M. 728, 730, 605 P.2d 236, 238 (App. 1979) (“Where the requirements of Miranda have not been met, a defendant's statement may not be introduced in the case-in-chief, but may be used to impeach a defendant who testifies, provided the statement meets other legal standards permitting use of the statement.”), aff'd, 1980-NMSC-004, ¶ 16, 93 N.M. 724, 605 P.2d 232.

However, “the State is generally prohibited from impeaching a defendant’s testimony with evidence of his silence after receiving Miranda warnings.” State v. Pacheco, 142 N.M. 773, 776, 170 P.3d 1011, 1014 (App. 2007) (citing State v. Foster, 126 N.M. 177, 967 P.2d 852 (App. 1998) (“[I]t is fundamentally unfair under the United States Constitution to impeach the defendant's testimony by 53 means of evidence of the defendant's invocation of the right to silence after receiving Miranda warnings.”)). This is known as the “Doyle rule.” Doyle v. Ohio, 426 U.S. 610, 618 (1976) (“[W]hile it is true that Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.”).

“New Mexico's Constitution, N.M. Const. art. II, Section 15, and the United States Constitution, U.S. Const. amend. V, prohibit impeachment on the basis of a defendant's silence following Miranda warnings.” State v. Martin, 101 N.M. 595, 599, 686 P.2d 937, 941 (NMSC 1984).

2. Post-Arrest Silence

Some courts, including New Mexico, have stated that the Doyle rule governs not only post-Miranda silence, but “post-arrest” silence. State v. Garcia, 118 N.M. 773, 776, 887 P.2d 767, 770 (App. 1994) (“Evidence of a defendant’s post-arrest silence is generally inadmissible because the probative value of the silence is substantially outweighed by the potential for unfair prejudice.”). See also id. at 772 (Court ruled that State impermissibly used defendant’s post- arrest silence to impeach his alibi defense in robbery and aggravated assault prosecution, where State’s questioning of detective who arrested defendant implied that innocent suspects with alibis disclose their alibis to officers at time of arrest, and detective testified that defendant had been with detective for an hour after arrest and did not mention his alibi during that time). See also State v. Martin, 101 N.M. 595, 600, 686 P.2d 937, 942 (NMSC 1984) (prosecutor's question about whether defendant told anyone before trial that she had shot her husband was reversible error as a comment on defendant's pretrial silence which followed her receipt of Miranda warnings; “Notwithstanding the limited value of defendant's failure to tell her daughters that she shot decedent, the prosecutor directly commented on defendant's post-Miranda, post-arrest silence when he asked, “[I]sn’t it a fact that you didn’t tell them [your family] anything so that I couldn’t learn about it [your story] in October when I called them to the witness stand?” This statement alone constitutes grounds for reversal of defendant’s conviction. . . .However, the prosecutor compounded the error by repeatedly arguing this improper inference before the jury in closing arguments.”).

3. Can Impeach With Post-Arrest Statement If One Was Given, But Not Regarding Silence After Subsequent Invocation

If a defendant has given a statement after receiving and waiving his Miranda rights, however, the State may discuss those statements and compare with his trial testimony. The State cannot comment on any silence after a 54 subsequent invocation. Pacheco, 142 N.M. at 776, 170 P.3d at 1014 (“Initially, Defendant did not invoke the right to remain silent. Instead, he voluntarily gave a statement to Investigator Harrison. As a result, the prosecutor was permitted to question Defendant freely about the interview, and to engage in a critical comparison of Defendant’s prior statement with his trial testimony. Defendant's conduct after the interview is a different matter. Following his interview with Investigator Harrison, Defendant obtained counsel. Counsel advised Defendant not to communicate further with the police, and Defendant followed his attorney's advice. Accordingly, Defendant’s silence from the time of the interview to the commencement of trial was insulated from prosecutorial comment by considerations of due process.”) (citing other cases). See id. at 778, 170 P.3d at 1016 (“[We] conclude that the prosecutor’s questioning on cross-examination and argument in the course of closing statements constituted improper commentary on Defendant's silence.” The court found the error was not harmless under the facts of that case.)

See also State v. Foster, 126 N.M. 177, 181, 967 P.2d 852, 856 (App. 1998) (“[H]ere, Defendant did not invoke his right to silence after receiving Miranda warnings. He chose to speak to Gulley. The concern in Doyle was the implied assurance in the Miranda warnings ‘that silence will carry no penalty.’ Doyle, 426 U.S. at 618, 96 S. Ct. 2240. Defendant did not rely on that assurance. He never invoked his right to remain silent during the interview. ‘[A] defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.’ Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980) (per curiam). . . The Miranda warnings do not imply that the arrestee's half-truths will carry no penalty.”)

4. Cannot Comment on Defendant’s Failure to Testify

A prosecutor may not comment “on a defendant’s failure to testify at trial.” See Griffin v. California, 380 U.S. 609, 614 (1965), as cited in State v. Foster, 126 N.M. 177, 180, 967 P.2d 852, 855 (App. 1998).

5. Cannot Comment on Defendant’s Invocation

It was reversible error to elicit testimony that murder defendant had invoked his right to counsel, which precluded detective from questioning him. State v. McDowell, 411 P.3d 337 (NMSC 2018).

6. Can Impeach Defendant If He Testifies At Trial

“When a defendant waives her right to remain silent and takes the stand in her own defense, she subjects herself to cross-examination on the credibility of her testimony. The prosecutor's question as to whether defendant had heard the previous testimony was a proper inquiry into the credibility of her testimony.” State v. Martin, 101 N.M. 595, 599, 686 P.2d 937, 941 (NMSC 1984). 55

Tips for Responding to Motions to Suppress Statements

1) Consider the practicalities. Which statements are really necessary for trial? If the prosecution does not introduce a statement at trial that the defendant contends was unlawfully obtained, that effectively moots any debate. See, e.g., United States v. Davis, 531 Fed. Appx. 601, 605 (6th Cir. 2013) (defendant's challenge to the denial of his motion to suppress his confession was moot where the confession was never admitted into evidence at trial); United States v. Ahmed, 94 F. Supp. 3d 394, 437 (E.D.N.Y. 2015), reconsideration denied, 12-CR-661 SLT S-2, 2015 WL 1636827 (E.D.N.Y. Apr. 10, 2015) (same).

2) Along those same lines, if the prosecution believes (or the court finds) that a statement has been obtained in violation of Miranda, the prosecutor may wish to advise the court that the state or government does not plan to introduce the statement in its case in chief, but is reserving the right to use the statement to impeach the defendant if he takes the stand.

3) When advocating that a statement is admissible, address Miranda and voluntariness (due process) separately under separate headings. Address Miranda admissibility first.

4) If there is more than one statement, consider addressing the admissibility of each statement under a separate argument heading.

5) When advocating that a statement is voluntary under due process or that a Miranda waiver was knowing, paint a picture by mentioning not only what happened, but what did not happen (i.e., defendant not handcuffed, guns not pointed, he was not restrained, officers did not withhold food and water, etc.)

6) Review the defendant’s requested relief and rebut any request to suppress “all evidence” if this remedy is inaccurate. For example, physical evidence should not be suppressed after a Miranda violation. Remember “dissipation of taint” and similar arguments.

7) In request for relief, ask the district court to deny the motion to suppress because the statement is both voluntary under Miranda and voluntary under due process. This further clarifies for the court that there are two separate determinations. If the court finds the statement “involuntary,” but it is unclear from its order whether the ruling is based on Miranda or due process, seek clarification. As noted above, the prosecutor may still use a defendant’s statement obtained in violation of Miranda to impeach him, but may not use a statement that is involuntary under due process.

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