On April 18, 2014, the First Circuit Court of Appeals decided the United States v. Oquendo-Rivas [i], which serves as an excellent review of the law pertaining to requests to remain silent and requests for counsel under Miranda. The relevant facts of Oquendo, taken directly from the case, are as follows:
A shootout at La Tómbola, a bar near Toa Baja, Puerto Rico, left several patrons dead. In its aftermath, rumors led officers from the Puerto Rico Police Department (“PRPD”) to a nearby home, where several men involved in the murders were thought to be hiding. Arriving at the residence, officers observed three men standing in its fenced-in yard. Startled by the officers, one man — later identified as Oquendo — lifted his shirt to reveal a firearm in his waistband. All three men then fled. One, exiting the yard, successfully evaded the ensuing pursuit; he has never been identified. The other two, Oquendo and his co-defendant, Christian Ortiz-Rivera (“Ortiz”), ran up an exterior staircase and into the home’s second-story interior. The officers gave chase.
Entering the home’s upper level, Officer Rodríguez-Negrón (“Officer Rodríguez”) observed Oquendo toss a handgun out of the window. Soon after, Officer Rodríguez and Officer Roberto Cruz grabbed Oquendo and restrained him on the floor. While demobilizing Oquendo, they heard a fellow officer call out from below, indicating that he had possession of the thrown weapon. Officer Rodríguez then entered an adjoining bedroom, where he witnessed Ortiz attempting to hide two more firearms in a laundry basket. One of these guns had an obliterated serial number. Subsequent to detaining both men, but before their formal arrest, Officer Rodríguez asked if they were licensed to possess firearms. Oquendo and Ortiz both answered, “no.”
After being placed under formal arrest and verbally read his Miranda rights,2 Oquendo was taken to the police station in Bayamon, Puerto Rico for questioning. There, Officer Rodríguez provided him with a Spanish-language Miranda waiver form. This form set forth, in a bullet-point list, the nature of Oquendo’s Miranda rights. Under that bulleted description, the form provided space for Oquendo to waive his rights by consenting to make a statement outside the presence of a lawyer, if he so desired. After reviewing the form, Oquendo indicated that he did not wish to make a statement. No questions were asked and, after signing and dating the form, Officer Rodríguez left the room.
Approximately twenty minutes later, Agent Julio Torres (“Agent Torres”) from the federal Alcohol, Tobacco, Firearms and Explosives Bureau (“ATF”) entered Oquendo’s interrogation room. Agent Torres handed Oquendo another blank copy of the Spanish-language Miranda waiver form. After reviewing this duplicate form, Oquendo wrote next to the portion of the form related to waiver, “I do not understand this, my lawyer speaks.” Agent Torres then verbally read Oquendo his Miranda rights and, upon seeing the note, asked Oquendo what he did not understand. In response, Oquendo indicated that he was willing to speak without a lawyer present, but that he did not want to answer any questions about the deaths at La Tómbola. Agreeing to limit the scope of his questions, Agent Torres had Oquendo circle the portion of the waiver form consenting to speak without a lawyer. Both Oquendo and Agent Torres then signed the form, and questioning began. During the course of his interrogation, Oquendo made statements indicating that he knew Ortiz possessed a gun with an obliterated serial number. [ii]
Oquendo filed a motion to suppress his statement to ATF Agent Torres. The motion was denied, and he appealed to the First Circuit Court of Appeals. He argued (1) that Agent Torres questioned him too soon after he requested to remain silent to Officer Rodriguez, and (2) that he made an unambiguous request for an attorney which was violated when the agent questioned him.
As to the first issue regarding whether twenty minutes was too short a time to re-initiate questioning after he chose to remain silent with Officer Rodriguez, the court of appeals first stated that they must view the totality of the circumstances to decide if that time is reasonable. The court stated:
After an initial invocation of the right to remain silent, four factors are relevant to determining whether the resumption of questioning is permissible: (1) whether a reasonable period of time passed prior to the resumption, (2) whether the same officer resumed questioning, (3) whether the suspect received refreshed Miranda warnings, and (4) whether questioning concerned the same alleged crime. United States v. Lugo Guerrero, 524 F.3d 5, 12 (1st Cir. 2008) (citing Mosley, 423 U.S. at 104-06). Beyond assessing these factors, however, our ultimate review must account for the “totality of the circumstances,” with an eye to determining whether the suspect retained the ability to choose whether and when to speak. Id. (quoting United States v. Thongsophaporn, 503 F.3d 51, 57 (1st Cir. 2007)). [iii]
The court then applied the facts of this case to factors above. First, the court noted that 20 minutes was a very short time frame. However, they also noted that the other factors weigh in favor of admission of the statement. Specifically, it was a different officer (Agent Torres) that questioned Oquendo the second time, rather than the Officer Rodriguez. Agent Torres also re-Mirandized Oquendo. Further, he took the time clarify what Oquendo did not understand. Also relevant, the record was devoid of any indication that Agent Torres intimidated or threatened Oquendo. Agent Torres also ensured that he kept the interview limited in scope as Oquendo requested when asked if he would speak without a lawyer. Specifically, Oquendo said he did not want to talk about the shooting and Agent Torres did not question him about that incident.
Based upon the factors above, the court held that Agent Torres did not violate Oquendo’s right to remain silent. The court did state that this decision is being based on the totality of the circumstances of this case, and they are not establishing a rule that officers need only wait 20 minutes before reinitiating contact with a person that asserts their right to remain silent.
Next, the court of appeals examined whether Agent Torres violated Oquendo’s right to counsel when Oquendo wrote “I don’t understand this, my lawyer speaks” on the Miranda form. The court first noted, that for an invocation of a right to counsel to be valid, it must be “clear and unambiguous.” The court then stated this statement “does not unequivocally demand assistance, request the lawyer’s presence, or otherwise clearly indicate an unwillingness to make a statement absent presence of an attorney.” [iv] Further, the court stated:
[W]hen a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney.” Davis, 512 U.S. at 461; see also Nom v. Spencer, 337 F.3d 112, 118 & n.5 (1st Cir. 2003). In response to Oquendo’s statement that he did not understand, Agent Torres did not “ignore his answer and forge ahead with questions.” James v. Marshall, 322 F.3d 103, 109 (1st Cir. 2003). Rather, Agent Torres asked what Oquendo did not understand. He then asked whether Oquendo was, in fact, willing to speak without a lawyer. Oquendo answered in the affirmative. Only then did Agent Torres begin his interrogation. Highly analogous facts have been characterized by our court as “precisely the kind of ‘good police practice’ described . . . in Davis.” Id. [v]
As such, the court held that Agent Torres did not violate Oquendo’s right to counsel, and as such, the statement is admissible.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 11-2260 (1st Cir. Decided April 18, 2014)
[ii] Id. at 2-4
[iii] Id. at 10
[iv] Id. at 13
[v] Id. at 13-14