United States v. Plugh

07-2620-cr(L), 07-2746-cr(XAP)
USA v. Plugh

1 UNITED STATES COURT OF APPEALS
2
3 F OR THE S ECOND C IRCUIT
4
5
6
7 August Term, 2008
8
9 (Argued: September 25, 2008 Decided: July 31, 2009)
10
11 Docket No. 07-2620-cr(L), 07-2746-cr(XAP)
12
13
14 United States of America,
15
16 Appellant-Cross-Appellee,
17
18 –v.–
19
20 Gordon J. Plugh,
21
22 Defendant-Appellee-Cross-Appellant.
23
24
25
26 Before:
27 J ACOBS, W ESLEY, and H ALL, Circuit Judges.
28
29 The government appeals from an order of the United
30 States District Court for the Western District of New York
31 (Siragusa, J.) entered on June 11, 2007, granting defendant
32 Gordon Plugh’s motion to suppress statements made by him on
33 September 28, 2005. Plugh was placed in custody by FBI
34 agents who presented Plugh with a waiver-of-rights form and
35 asked him to sign. After stating he was not sure if he
36 should talk to the agents or if he should contact a lawyer,
37 Plugh refused to sign the form. Subsequently, the agents
38 made remarks to Plugh eliciting inculpatory statements,
39 which the district court suppressed. We hold that under
40 United States v. Quiroz, 13 F.3d 505 (2d Cir. 1993), Plugh

Page 1 of 23
 1 was entitled to the prophylactic bar prohibiting police
2 questioning when he refused to sign the form, and we hold
3 that the district court did not commit clear error in
4 finding that the agents violated this prophylactic bar.
5 Furthermore, we note that Davis v. United States, 512 U.S.
6 452 (1994) – which requires that a suspect clearly and
7 unambiguously invoke his rights to regain them after having
8 waived them - does not apply.
9
10 A FFIRMED.
11
12 Chief Judge Jacobs dissents in a separate opinion.
13
14 S TEPHEN B ACZYNSKI, Assistant United States Attorney,
15 for Kathleen M. Mehltretter, Acting United
16 States Attorney for the Western District of
17 New York, Buffalo, New York, for Appellant-
18 Cross-Appellee.
19
20 J EFFREY W ICKS, Rochester, New York, for Defendant-
21 Appellee-Cross-Appellant.
22
23
24
25 W ESLEY, Circuit Judge:

26 This appeal raises the question of whether a suspect in

27 custody and informed of his rights in accordance with

28 Miranda v. Arizona, 384 U.S. 436 (1966), is entitled to the

29 prophylactic bar prohibiting police questioning established

30 in Edwards v. Arizona, 451 U.S. 477 (1981) (right to

31 counsel), and Michigan v. Mosley, 423 U.S. 96 (1975) (right

32 to silence), when he expresses uncertainty with regard to

33 asserting his Fifth Amendment rights while contemporaneously

34 refusing to sign a waiver of rights form. We believe he is

Page 2 of 23
1 entitled to the prophylaxis and affirm the district court.

2 By unequivocally refusing to sign the waiver form in

3 response to a custodial agent’s instruction to sign the

4 waiver form if defendant agreed with it, defendant in this

5 case invoked his Fifth Amendment rights, and therefore his

6 custodial agents were required to refrain from further

7 interrogation.

8 Background

9 Investigating child pornography possession and internet

10 trafficking, FBI Special Agents Joseph McArdle and James

11 McCaffery visited the home of Gordon Plugh in Rochester, New

12 York, on July 14, 2005. The agents questioned Plugh

13 regarding possession of child pornography on his computer

14 and, upon obtaining Plugh’s permission, searched the

15 computer. Upon finding child pornography on the hard drive,

16 the FBI obtained an arrest warrant for Plugh, and five

17 special agents, including McArdle, arrested Plugh at his

18 father’s residence in Wayland, New York, on September 28,

19 2005. Upon handcuffing Plugh, McArdle read Plugh his Fifth

20 Amendment rights and asked Plugh to sign an advice-of-rights

Page 3 of 23
1 form. 1

2 According to McArdle, McArdle asked, “Is that true; are

3 you willing to do that?” The district court found that

4 McArdle had stated to Plugh that “[i]f you agree with the

5 statement you can sign the form.” United States v. Plugh,

6 522 F. Supp. 2d 481, 487 (W.D.N.Y. 2007). Plugh stated he

7 understood his rights because he was a former Arizona 2

8 Department of Corrections officer and according to McArdle

9 stated, “I am not sure if I should be talking to you,” and

1
The form contained the following,

YOUR RIGHTS
Before we ask you any questions, you must understand your
rights.
You have the right to remain silent.
Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before we
ask you any questions.
You have the right to have a lawyer with you during
questioning.
If you cannot afford a lawyer, one will be appointed for you
before any questioning if you wish.
If you decide to answer questions now without a lawyer
present, you have the right to stop answering at any time.
WAIVER OF RIGHTS
I have read this statement of my rights and I understand
what my rights are. At this time, I am willing to answer
questions without a lawyer present.
[Signature line]

2
The FBI report, dictated the day of Plugh’s arrest,
states that Plugh claimed he had worked for the Texas
Department of Corrections.

Page 4 of 23
1 “I don’t know if I need a lawyer.” Plugh did not sign the

2 waiver and stated that he did not want to sign anything at

3 that time. Agent McArdle wrote “refused to sign” on the

4 form and then signed the form himself. McArdle testified

5 that Plugh’s refusal to sign was unequivocal. None of the

6 agents asked Plugh any further questions while in Plugh’s

7 father’s home.

8 During the hour-and-fifteen-minute drive to the FBI

9 office in Rochester, the agents transporting Plugh told

10 Plugh he had been arrested because child pornography had

11 been found on his hard drive. According to the FBI report

12 dictated the day after Plugh’s arrest and signed by McArdle,

13 Plugh asked the agents several times “for advice on what to

14 do.” According to McArdle, the agents stated that they

15 would relay any cooperation made by Plugh to the Assistant

16 U.S. Attorney on the case. The agents then told Plugh that

17 if Plugh wanted to talk about the case, the agents would

18 again advise Plugh of his Miranda rights, but also told him

19 that they were not going to talk about the case at that

20 point.

21 When the agents and Plugh arrived at the FBI office,

22 the agents placed Plugh in a back interview room. They

Page 5 of 23
1 informed Plugh that they were about to take him to the U.S.

2 Marshals for booking and that “[i]f he wanted to make any

3 statements this was the point . . . .” Plugh then indicated

4 he would make statements, and he was re-advised of his

5 Miranda rights. Plugh did not ask for an attorney or

6 indicate he wanted to speak to law enforcement. He then

7 made inculpatory statements regarding downloading and

8 possessing child pornography and admitted to lying to the

9 agents about the existence of a Trojan virus on his

10 computer.

11 Plugh was indicted on January 11, 2007, under 18 U.S.C.

12 § 2252A(a)(2)(A) (receipt of child pornography) and 18

13 U.S.C. § 2252A(a)(5)(B) (possession of child pornography).

14 Plugh moved to suppress his July 14, 2005, and September 28,

15 2005, statements to the FBI, as well as physical evidence

16 seized on July 14, 2005. Plugh argued that his statements

17 were “involuntary, the product of coercion and violative of

18 the right to counsel.” The United States District Court

19 for the Western District of New York (Siragusa, J.) denied

20 the motion to suppress the July 14 statements and physical

21 evidence but granted the motion to suppress the September 28

22 statements. Plugh, 522 F. Supp. 2d at 493-96. The district

Page 6 of 23
1 court held that Plugh’s refusal to sign the waiver form was

2 an “unequivocal” invocation of Plugh’s right to counsel and

3 to remain silent, and that suppression of Plugh’s statements

4 was proper because the officers did not scrupulously honor

5 Plugh’s rights when they “repeatedly [told Plugh] that any

6 cooperation would be brought to the attention of the AUSA

7 and by telling [Plugh] that he was about to be taken to the

8 Marshal’s office.” Id. at 496. The district court noted

9 that even if Plugh “invoked his right to counsel and his

10 right to remain silent equivocally or ambiguously . . .

11 suppression [was] nonetheless required since [the agents],

12 at least as to the defendant’s right to remain silent,

13 failed to limit themselves to narrow questions only for the

14 purpose of clarifying the ambiguity, as required by this

15 Circuit” under United States v. Ramirez, 79 F.3d 298, 304

16 (2d Cir. 1996). Plugh, 522 F. Supp. 2d at 495-96 (internal

17 quotation marks omitted).

18 On appeal the government acknowledges that Plugh “was

19 clear he did not wish to sign anything,” including the

20 waiver, at the time he was arrested at his father’s home.

21 Regardless of that acknowledgment, the government contends

22 that Plugh’s invocation of his Fifth Amendment rights was

Page 7 of 23
1 not “unequivocal and unambiguous.” The government

2 constructs its argument on the language the Supreme Court

3 employed in Davis v. United States, 512 U.S. 452 (1994).

4 We are called upon to determine whether Plugh retained

5 his right to remain silent 3 and his right to counsel by

6 refusing to sign the advice-of-rights form when asked by

7 Agent McArdle to sign the form if he agreed with its

8 contents, notwithstanding his statements immediately prior

9 that he was not certain he wanted to talk to a lawyer or

10 that he should talk to the interrogating agents. As we see

11 it, we must answer two questions: (1) whether Plugh’s

12 refusal to sign the waiver form in this context was an

13 invocation of his Fifth Amendment rights; and (2) if yes,

14 whether the agents, subsequent to Plugh’s refusal to sign

3
We note that in his motion to suppress the September
28, 2005, statement Plugh limits his argument to a claim
that the statements were taken in violation of his right to
counsel. The district court appears to have dealt with this
issue and with Plugh’s right to remain silent. See Plugh,
522 F. Supp. 2d at 496. The government does not contend
that the district court erred in this respect and asks us to
analyze the right-to-remain-silent issue for its substance.
The refusal to sign the waiver calls into question whether
Plugh invoked either right, and we will consider both.
However, our dissenting colleague seems to view the case,
without any explanation, as a right to counsel case only and
implies that makes a difference here. See Dissenting Op. at
5-6.

Page 8 of 23
1 the waiver form, properly complied with the prophylactic

2 rules requiring the police to refrain from questioning. We

3 find that the prophylactic rules were applicable to Plugh

4 and that the agents did not properly abide by those rules. 4

5 We therefore affirm the district court’s order suppressing

6 the September 28, 2005, statements.

7 Discussion 5

8 I. Whether Plugh Invoked His Fifth Amendment Rights

9 A. The Fifth Amendment’s Protections

10 A suspect cannot be required to incriminate himself.

11 U.S. C ONST. amend. V. Encapsulated in this protection are

12 certain well-known rights: (1) the right to remain silent;

13 and (2) the right to an attorney, either appointed or

14 retained. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

4
There is no need to evaluate the district court’s
alternative ruling that suppression was required because the
officers did not confine themselves to clarifying questions
upon Plugh’s purported ambiguous invocation. Neither must
we determine the validity of Plugh’s waiver at the time of
his interrogation in Rochester.
5
When evaluating a district court order granting a
motion to suppress, this Court reviews findings of fact for
clear error in the light most favorable to the government
and reviews questions of law de novo. Rodriguez, 356 F.3d
at 257.

Page 9 of 23
1 More than forty years ago, the Miranda Court noted that the

2 prosecution may not use statements made by a suspect under

3 custodial interrogation unless: (1) the suspect has been

4 apprised of his Fifth Amendment rights; and (2) the suspect

5 knowingly, intelligently, and voluntarily waived those

6 rights. Id. at 444-45. The Supreme Court in the years

7 following Miranda fleshed out the judicial mechanisms for

8 ensuring the viability of these constitutional protections.

9 Included among them is the principle that “courts must

10 presume that a defendant did not waive his rights,” North

11 Carolina v. Butler, 441 U.S. 369, 373 (1979), until the

12 government proves otherwise by a preponderance of the

13 evidence, Colorado v. Connelly, 479 U.S. 157, 169 (1986).

14 Put differently, unless the suspect validly waived his

15 rights, we presume he retains them.

16 Cases in this area of the law are fact intensive

17 because of the number of combinations of: (1) the

18 circumstances preceding a suspect’s interrogation; (2) the

19 method and manner by which a suspect is informed of his or

20 her Miranda rights; and (3) the timing of the suspect’s

21 invocation – at the time he receives the warnings or later

Page 10 of 23
1 during the interrogation following an initial waiver. 6

2 To honor a suspect’s Fifth Amendment rights, custodial

3 officers must abide by several prophylactic rules designed

4 to protect the Fifth Amendment rights that come into play

5 once the suspect is in custody. “Under Miranda’s

6 prophylactic protection of the right against compelled self-

7 incrimination, any suspect subject to custodial

8 interrogation has the right to have a lawyer present if he

9 so requests, and to be advised of that right.” Montejo v.

10 Louisiana, 129 S. Ct. 2079, 2089 (2009).

11 There are additional layers of prophylactic protection.

12 Once a suspect invokes his Fifth Amendment rights he is

13 entitled to a second layer of prophylaxis that has its roots

14 in Edwards v. Arizona, 477 U.S. 477 (1981). “Under Edwards’

15 prophylactic protection of the Miranda right, once such a

16 defendant has invoked his right to have counsel present,

17 interrogation must stop.” Montejo, 129 S. Ct. at 2098-90

18 (internal quotation marks omitted). Likewise, if the

19 suspect initially decides after receiving the warnings that

20 he wishes to remain silent, the custodial officers must

6
It is entirely possible, and is often the case, that
someone will not invoke their rights.

Page 11 of 23
1 “scrupulously honor[]” his “right to cut off questioning.”

2 Michigan v. Mosley, 423 U.S. 96, 104 (1975).

3 An exception to the rule occurs when it is not clear

4 from a suspect’s statements or conduct whether he is

5 asserting his rights. In such cases, custodial officers may

6 ask clarifying questions to determine if a suspect is

7 exercising his rights. See Ramirez, 79 F.3d at 304. But

8 because the default presumption is that a suspect retains

9 his rights and the burden is on the government to prove

10 otherwise, custodial officers who press on with questioning

11 assuming that a suspect’s statements or conduct are not

12 indications of the suspect’s desire to retain his Fifth

13 Amendment rights do so at the risk of suppression of the

14 suspect’s subsequent statements.

15 B. Law Applicable to Determining If Plugh Invoked His

16 Fifth Amendment Rights

17 In this case, the agents presented Plugh with a waiver

18 form and no one disputes that Plugh refused to sign it.

19 What then are the implications of Plugh’s refusal?

20 In United States v. Quiroz, this Court addressed

21 whether refusal to sign a waiver form may constitute an

22 invocation of a suspect’s Fifth Amendment rights. 13 F.3d

Page 12 of 23
1 505 (2d Cir. 1993). There, the custodial officer “asked

2 [suspect] Quiroz to read the advice-of-rights forms, asked

3 whether he understood the forms, and simply asked Quiroz to

4 sign them.” 7 13 F.3d at 512. Quiroz “declined to sign

5 until he had spoken to an attorney.” Id. at 509. Finding

6 that the “statement was a direct and complete response to

7 the precise question Quiroz had been asked,” the Court

8 determined that the prophylactic requirement that custodial

9 officers refrain from questioning was triggered at that

10 moment. Id. at 512. The Quiroz Court had

11 no doubt whatever that, had Quiroz signed, [the
12 custodial officer] would have viewed that act as a
13 complete waiver of Quiroz’s rights. We can see no
14 good reason not to treat Quiroz’s refusal to sign
15 forms in the absence of counsel as a refusal that
16 was coextensive with the waiver [the custodial
17 officer] sought.
18 In sum, we do not view Quiroz’s refusal to sign
19 the forms as a limited request for counsel, any more
20 than [the custodial officer’s] request to sign the
21 forms was a request for a limited waiver. Since we
22 do not view Quiroz’s statement as narrower than the
23 [custodial officer’s] request, we see no ambiguity.
24
25 Id.
26

7
The custodial officer in Quiroz testified: “After I
had asked him if he understood [his rights], I said, would
you mind just signing these? He said, I—Before I sign
anything, I want to speak to my attorney. Okay, I took them
back.” Quiroz, 13 F.3d at 509 (alteration in original).

Page 13 of 23
1 Quiroz instructs us, therefore, that – absent a

2 suspect’s prior or simultaneous “affirmative announcements

3 of his willingness to speak,” Connecticut v. Barrett, 479

4 U.S. 523, 529 (1987) – when a custodial officer specifically

5 asks a suspect if he will waive his rights by signing a form

6 and does so in such a way that the accused would interpret a

7 refusal to sign as a negative answer, the suspect has taken

8 sufficient action to trigger the Edwards prophylactic rule

9 and the officers must refrain from questioning the suspect. 8

10 C. Did Plugh Iinvoke” His Fifth Amendment Rights?

11 Under Quiroz, the question is whether Plugh’s actions –

12 a refusal to sign the advice-of-rights form in light of the

13 agent’s question “Is that true; are you willing to do that?”

8
The dissent apparently assigns no value to the
agents’ statements to Plugh upon presenting him with the
waiver form. This omission is ironic in light of the
dissent’s insistence that “courts must look to all of the
circumstances surrounding a purported invocation,”
Dissenting Op. at 5 (citing Davis v. United States, 512 U.S.
452, 458-59 (1994)), and that the “cases support the overall
principle that the circumstances matter, and that refusal to
sign a waiver form is a sign that is informed by context.”
Dissenting Op. at 9. Concomitantly, the dissent ignores the
emphasis placed on context by this Court in Quiroz, in which
we found that under the facts of that case, a suspect’s
“statement [refusing to sign] was a direct and complete
response to the precise question Quiroz had been asked.”
Quiroz, 13 F.3d at 512.

Page 14 of 23
1 following his statements “I am not sure if I should be

2 talking to you,” and “I don’t know if I need a lawyer” –

3 were an invocation of his rights.

4 While Plugh’s statements, “I am not sure if I should be

5 talking to you” and “I don’t know if I need a lawyer,”

6 appear ambiguous, Plugh’s ultimate action – his refusal to

7 sign – constituted an unequivocally negative answer to the

8 question posed together by the waiver form and McArdle,

9 namely, whether he was willing to waive his rights.

10 McArdle’s direction to Plugh that “[i]f you agree with the

11 statement you can sign the form,” Plugh, 522 F. Supp. 2d at

12 487, makes the meaning of Plugh’s response less ambiguous

13 than the defendant’s refusal to sign in Quiroz, where the

14 officer simply asked “would you mind just signing these?”

15 Quiroz, 13 F.3d at 509. Plugh’s answer in this context,

16 under Quiroz, amounts to an invocation, and that is where

17 the inquiry ends. 9 Because Plugh invoked his rights, the

9
The dissent asserts that Plugh’s refusal to sign “is
fully as consistent with uncertainty as with rejection.”
Dissenting Op. at 7. However, the language of the written
waiver is clear, and we hear no objection in that regard
from the dissent – a signature represents a waiver of one’s
Miranda rights. The government in its brief acknowledges
that Plugh’s refusal was clear and unequivocal and never
suggests, as the dissent does, that the refusal could in

Page 15 of 23
1 custodial officers should have refrained from reinitiating

2 the interrogation, and all subsequent statements made by

3 Plugh were properly suppressed. 10 See Part II., infra.

4 D. Applicability of Davis v. United States

5 The government, looking to language in Davis v. United

6 States, 512 U.S. 452 (1994), takes the view that an initial

7 invocation of one’s Fifth Amendment rights such as Plugh’s

8 must be unambiguous and that the ambiguity is resolved

9 against Plugh. The government argues that Plugh did not

10 unambiguously invoke his rights and that therefore, the

11 agents were free to continue to question him. This view

12 seriously misunderstands the sweep of Davis. 11

fact indicate uncertainty on Plugh’s part. See Appellant’s
Br. at 8. Instead, the government asserts that ambiguity in
Plugh’s statements casts doubt on a conclusion that the
invocation considered under the circumstances as a whole was
clear and unambiguous. Lastly, the district court
characterized Plugh’s refusal to sign the waiver as
“unequivocal.” Plugh, 522 F. Supp. 2d at 493-96.
10
We do not believe that this holding will deter police
from using waiver forms, as the dissent fears. The
testimony of the parties present – the custodial officer and
the suspect – will often conflict with regard to what was
said at the time the suspect was read his Miranda rights.
Police officers recognize this and understand that a written
waiver avoids this type of conflict.
11
As noted earlier, if the invocation was ambiguous,
which it was not, then the agents could have proceeded to

Page 16 of 23
1 In Davis, the Supreme Court held that if a defendant

2 validly waives his Fifth Amendment rights initially and then

3 thereafter attempts to invoke those rights, the defendant

4 bears the burden of showing that the invocation was

5 unambiguous and unequivocal to trigger the prophylaxis

6 rules. Davis, 512 U.S. at 460-62; accord Diaz v. Senkowski,

7 76 F.3d 61, 65 (2d Cir. 1996). Davis does not instruct

8 courts how to analyze an initial invocation of one’s Fifth

9 Amendment rights following the Miranda warnings where no

10 waiver occurred. In our view, Davis only provides guidance

11 for circumstances in which a defendant makes a claim that he

12 subsequently invoked previously waived Fifth Amendment

13 rights.

14 In order to use statements made by a suspect without

15 counsel present while under custodial interrogation, the

16 burden is on the government to prove the suspect waived his

17 rights. See Connelly, 479 U.S. at 169. Once the government

18 has met its burden, the suspect has the burden of proving

19 that he resurrected rights previously waived. The

20 invocation must be unambiguous and unequivocal. “To avoid

question Plugh but only in an attempt to resolve the
ambiguity. See Ramirez, 79 F.3d at 304.

Page 17 of 23
1 difficulties of proof and to provide guidance to officers

2 conducting interrogations, this is an objective inquiry.”

3 Davis, 512 U.S. at 458-59.

4 The Court fashioned the rule to avoid “transform[ing]

5 the Miranda safeguards into wholly irrational obstacles to

6 legitimate police investigative activity.” Id. at 460

7 (internal quotation marks omitted). The rule ensures that a

8 suspect does not use the Fifth Amendment as a sword – to

9 excise unfavorable evidence – after discarding it as a

10 shield.

11 The Davis Court was careful to note that only “after a

12 knowing and voluntary waiver of the Miranda rights, law

13 enforcement officers may continue questioning until and

14 unless the suspect clearly requests an attorney.” 12 Davis,

12
In United States v. Rodriguez, the Ninth Circuit
noted that “Davis addressed what the suspect must do to
restore his Miranda rights after having already knowingly
and voluntarily waived them.” 518 F.3d 1072, 1079 (9th Cir.
2008) (emphasis in original). The Rodriguez court correctly
noted that “the majority of state supreme [and intermediate]
courts to consider the issue have” also concluded that
Davis’s ambiguous statement requirement was limited to the
post-waiver context. Id. at 1079 n.6. One other federal
court has noted that Davis should be seen as a post-waiver
case, but did not analyze its application to pre-waiver
scenarios. See United States v. Eastman, 256 F.Supp.2d
1012, 1019 (D.S.D. 2003).

Page 18 of 23
1 512 U.S. at 461 (emphasis added); see also id. at 459

2 (noting that an ambiguous reference to an attorney would not

3 compel the “cessation of questioning”) (emphasis added); id.

4 (noting that a “statement [that] fails to meet the requisite

5 level of clarity . . . does not require that the officers

6 stop questioning the suspect”) (emphasis added); id.

7 (declining to extend Edwards to require officers to “cease

8 questioning” upon an equivocal statement by a suspect)

9 (emphasis added). Clearly, Davis is not in play here.

10 II. Whether the agents properly honored Plugh’s rights after

11 invocation

12 Plugh invoked his Fifth Amendment rights to counsel and

13 silence. “[W]hen counsel is requested, interrogation must

14 cease, and officials may not reinitiate interrogation

15 without counsel present, whether or not the accused has

16 consulted with his attorney.” Minnick v. Mississippi, 498

17 U.S. 146, 153 (1990). Should the suspect “decide[] to

18 remain silent,” the custodial officers must “scrupulously

19 honor[]” that decision. Mosley, 423 U.S. at 104.

20 An officer interrogates “‘whenever a person in custody

21 is subjected to either express questioning or its functional

22 equivalent.’” United States v. Montana, 958 F.2d 516, 518

Page 19 of 23
1 (2d Cir. 1992) (quoting Rhode Island v. Innis, 446 U.S. 291,

2 300-01 (1980)). “Interrogation includes both express

3 questioning as well as ‘any words or actions on the part of

4 the police (other than those normally attendant to arrest

5 and custody) that the police should know are reasonably

6 likely to elicit an incriminating response from the

7 suspect.’” Id. (quoting Innis, 446 U.S. at 301).

8 In Montana, this Court determined that an officer’s

9 “unsolicited statement informing the defendant[] that any

10 cooperation would be brought to the attention of the

11 Assistant United States Attorney constituted interrogation.”

12 Id. at 518-19 (internal quotation marks omitted). And in

13 Campaneria, we concluded that an officer who stated “If you

14 want to talk to us, now is the time to do it” had thereby

15 committed “precisely the sort of conduct the prophylactic

16 rule seeks to prevent.” Campaneria, 891 F.2d at 1021.

17 The district court found that the agents “repeatedly

18 [told] the defendant that any cooperation would be brought

19 to the attention of the AUSA” as well as told Plugh “that he

20 was about to be taken to the Marshal’s office, so that if he

21 wanted to make any statements this was the time.” Plugh,

22 522 F. Supp. 2d at 496. We see no clear error in these

Page 20 of 23
1 findings of fact. The district court concluded that the

2 agents’ conduct constituted impermissible interrogation and,

3 after reviewing this question of law de novo, we agree.

4 The dissent presses for a reversal premised on the

5 “ambiguity” of Plugh’s waiver. It acknowledges that under

6 Ramirez, 79 F.3d at 304, “the police may ask questions to

7 clarify whether the suspect in fact wishes to invoke, or to

8 waive” in right-to-remain-silent cases. However, the

9 dissent goes on to note that Davis is less restrictive

10 because it “specifically declined to limit police to

11 clarifying questions in [right-to-counsel cases].”

12 Dissenting Op. at 5.

13 The dissent overlooks an important part of the district

14 court’s opinion. The district court held that

15 notwithstanding whether Plugh’s statements were ambiguous –

16 and regardless of the significance of Plugh’s refusal to

17 sign the waiver form under Quiroz, 13 F.3d at 511 –

18 “suppression is . . . required since [the agents], at least

19 as to the defendant’s right to remain silent, failed to

20 limit themselves to narrow questions only for the purpose of

21 clarifying the ambiguity, as required by [Ramirez].” Plugh,

22 522 F. Supp. 2d at 495-96 (internal quotation marks

Page 21 of 23
1 omitted).

2 The dicta in Davis suggesting that police need not

3 limit themselves to clarifying questions in that case made

4 sense in that case, but makes no sense at all here. In

5 Davis, the officers did not have to limit their questions to

6 resolving an ambiguity of defendant’s attempt to reassert

7 his Fifth Amendment rights as the police were not bound to

8 cease questioning until Davis unambiguously reasserted his

9 rights. In situations where no waiver has occurred, the

10 police must clarify whether an ambiguous statement is meant

11 as an invocation because “Edwards set forth a bright line

12 rule that all questioning must cease after an accused

13 requests counsel.” Smith, 469 U.S. at 98 (citation omitted

14 and italics in original).

15 Conclusion

16 This is a case about whether a suspect invoked his

17 Fifth Amendment rights in the absence of any waiver. Davis

18 is a case about the steps a suspect must take to demonstrate

19 that he wishes to resurrect and invoke previously waived

20 rights. In the context of the facts of this case, Plugh’s

21 refusal to sign the waiver document was an invocation of his

22 rights and entitles him to Edwards prophylaxis. The agents

Page 22 of 23
1 were not permitted to question him.

2 The district court’s order of June 11, 2007, granting

3 defendant’s motion to suppress his statements made on

4 September 28, 2005, is hereby A FFIRMED.

Page 23 of 23
1 Dennis Jacobs, Chief Judge, dissenting:

2

3 When, after Miranda warnings, a suspect is undecided as

4 to whether a lawyer is wanted, or responds ambiguously, the

5 police may renew that inquiry. See United States v.

6 Ramirez, 79 F.3d 298, 304 (2d Cir. 1996) (“[W]here a suspect

7 has invoked his right equivocally or ambiguously, the

8 officers are permitted to ask narrow questions only for the

9 purpose of clarifying the ambiguity.”). The issue on this

10 appeal is whether the police are barred from renewing the

11 inquiry if the suspect who says he is undecided also refuses

12 to sign a written waiver of Miranda rights. The majority

13 holds that such a refusal to sign a written waiver operates

14 as an invocation of Miranda rights and thus precludes any

15 further inquiry by police to resolve the uncertainty.

16 However, because the refusal to sign a waiver is wholly

17 consistent with the expression of uncertainty, I

18 respectfully dissent.

19

20 I

21 When the government appeals from the suppression of

22 evidence, we review the district court’s factual findings

1
1 for clear error, viewing the evidence in the light most

2 favorable to the government. United States v. Rodriguez,

3 356 F.3d 254, 257 (2d Cir. 2004). Given that standard, the

4 facts are as follows:

5 After the FBI agents arrested Plugh, the agents read

6 him his Miranda rights, asked him to sign a written waiver,

7 and inquired orally whether he was willing to waive. Plugh

8 said he was not sure whether he wanted to talk to the

9 agents, and said he did not know whether he needed a lawyer.

10 He was certain, however, that he did not want to sign the

11 waiver form, and the agents recorded his refusal to sign.

12 On the hour-long trip to the federal building in

13 Rochester, the agents told Plugh that while they “didn’t

14 care” whether he talked to them, they would relay any

15 cooperation to the prosecutor. Plugh asked what cooperation

16 meant, but the agents told Plugh that they could make no

17 promises, that Plugh should say nothing to them about his

18 case, and that they would only discuss the case if Plugh

19 explicitly waived after again being read his rights. The

20 agents asked no substantive questions during the drive to

21 Rochester.

22 On arrival in Rochester, the agents told Plugh that

2
1 they were going to transfer him to the custody of the United

2 States Marshals and that if he wanted to make a statement,

3 the time had come to do so. Thereupon, Plugh said that he

4 would make a statement; the agents again gave Miranda

5 warnings; Plugh signed a written waiver of his rights; and

6 the inculpatory statement at issue was made.

7

8 II

9 Police may not use statements made by a suspect under

10 custodial interrogation unless the suspect is apprised of

11 his Fifth Amendment rights, and waives them knowingly,

12 intelligently, and voluntarily. Miranda v. Arizona, 384

13 U.S. 436, 444-45 (1966). If he invokes his right to

14 counsel, police must cease questioning until the suspect has

15 an attorney present. Miranda, 384 U.S. at 474; Edwards v.

16 Arizona, 451 U.S. 477, 485 (1981). If he waives, police may

17 go ahead with questioning. Davis v. United States, 512 U.S.

18 452, 458 (1994).

19 Did Plugh’s refusal to sign a waiver constitute an

20 invocation of his rights notwithstanding his simultaneous

21 oral statement that he didn’t yet know whether he wanted a

22 lawyer or whether he should talk to the agents? To

3
1 effectively invoke the right, a suspect “must articulate his

2 desire to have counsel present sufficiently clearly that a

3 reasonable police officer in the circumstances would

4 understand the statement to be a request for an attorney.”

5 Davis v. United States, 512 U.S. 452, 459 (1994). This

6 inquiry--whether a suspect has in fact invoked his rights--

7 is an objective one that takes into account all of the

8 circumstances. Id. at 458-59.

9 Plugh’s oral statements to the agents at the time of

10 the arrest--“I am not sure if I should be talking to you”

11 and “I don’t know if I need a lawyer”--were equivocal,

12 rendering his decision ambiguous. 1 If the record showed no

13 more than these statements, the case would be

14 straightforward; Plugh would lose. The only wrinkle is that

15 (simultaneously) Plugh refused to sign a written waiver of

1
1 Examples of ambiguous statements abound. See Davis,
2 512 U.S. at 462 (“Maybe I should talk to a lawyer”); Burket
3 v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000) (“I think I
4 need a lawyer.”; United States v. Zamora, 222 F.3d 756, 765-
5 66 (10th Cir. 2000) (“I might want to talk to an
6 attorney.”); Mueller v. Angelone, 181 F.3d 557, 573-74 (4th
7 Cir. 1999) (“Do you think I need an attorney here?”);
8 Coleman v. Singletary, 30 F.3d 1420, 1424-25 (11th Cir.
9 1994) (in response to an offer to have a public defender
10 present,“I don’t know”); Ledbetter v. Edwards, 35 F.3d
11 1062, 1069-70 (6th Cir. 1994) (“it would be nice” to have an
12 attorney); United States v. Fouche, 776 F.2d 1398, 1405 (9th
13 Cir. 1985) (“I might want to talk to a lawyer”).

4
1 his rights.

2 Davis instructs that courts must look to all of the

3 circumstances surrounding a purported invocation to

4 determine whether it was unambiguous. Davis, 512 U.S. at

5 458-59. All of the circumstances here--Plugh’s oral

6 statements as well as his refusal to sign a waiver--bespeak

7 indecision and ambiguity.

8 When a suspect makes ambiguous statements regarding his

9 right to silence, we have held that the police may ask no

10 questions other than to clarify whether the suspect in fact

11 wishes to invoke, or to waive, or to stay on the fence.

12 Ramirez, 79 F.3d at 304. Ramirez (a right-to-silence case

13 that pre-dated Davis) was thus more restrictive than Davis

14 (a right-to-counsel case), which specifically declined to

15 limit police to clarifying questions in such circumstances. 2

16 Davis 512 U.S. at 461-62.

2
1 The majority suggests that Davis’s refusal to limit
2 police makes sense because Davis (they contend) applies only
3 to re-invocations, when a suspect must state his desire
4 unambiguously. As discussed infra in Part III, Davis is not
5 limited to re-invocation cases, but instead applies to any
6 invocation of Miranda rights. In any case, the very
7 intricacy of the majority’s argument is self-refuting: the
8 purpose of the suppression rule is to keep the police
9 honest, a project that requires that the doctrines governing
10 police conduct be accessible to persons other than
11 professors of constitutional law.

5
1 If, as the majority opinion seems to suggest, the

2 agents categorically violated the Ramirez rule by telling

3 Plugh that his cooperation would be relayed to the

4 prosecutor and that “this was the point” to talk, then

5 suppression is justified on that basis alone. Maj’y Op at 9

6 n.4, 17 n.11, 22-24. But if that were so, suppression would

7 be warranted regardless of whether Plugh’s statements were

8 ambiguous, in which case all the rest of the majority

9 opinion would be unnecessary. But the majority opinion is

10 not superfluous, because--even if the Ramirez rule survives

11 Davis--the agents did limit themselves to clarification.

12 The majority cites the following cases to suggest that

13 the sorts of statements the agents made here constitute

14 inappropriate interrogation in violation of the Ramirez

15 rule: United States v. Montana, 958 F.2d 516, 518 (2d Cir.

16 1992) (statement informing the defendants that any

17 cooperation would be brought to the attention of the

18 prosecutor); Campaneria v. Reid, 891 F.2d 1014, 1021 (2d

19 Cir. 1989) (statement suggesting that “now is the time” for

20 suspect to talk to police). But these cases--unlike

21 Ramirez--involve statements made by police officers after

22 the suspect had unambiguously invoked his rights. In such

6
1 cases, statements such as these serve only to badger the

2 suspect to change his mind. See Campaneria, 891 F.2d at

3 1021 (since “[n]othing was ambiguous or equivocal” about

4 suspect’s invocation, officer’s remark “was not aimed at

5 resolving any ambiguity in [suspect’s] statement, but rather

6 at changing his mind”). But if a suspect has not clearly

7 invoked his rights, then an offer to relay his cooperation

8 to the prosecutor and words of encouragement to make up his

9 mind serve primarily to clarify his initial ambiguous

10 statement. The agents’ conduct was accordingly free of any

11 misconduct or error. For these reasons, I would admit

12 Plugh’s incriminating statement.

13

14 III

15 The majority opinion holds that the ambiguity of

16 Plugh’s statements was dispelled by his refusal to sign the

17 written waiver--which is said to be his final answer to the

18 question whether he wished to waive his Miranda rights.

19 Maj’y Op at 16. This is odd, because a refusal to sign is

20 fully as consistent with uncertainty as with rejection. But

21 the majority opinion suggests that the question is

22 controlled by our decision in United States v. Quiroz, 13

7
1 F.3d 505 (2d Cir. 1993). In Quiroz, the suspect said he

2 would not sign the waiver (or anything) without talking to a

3 lawyer. Id. at 509. We held that Quiroz thus invoked the

4 rights listed in the waiver. Id. at 512. We could “see no

5 good reason not to treat Quiroz’s refusal to sign forms in

6 the absence of counsel as a refusal that was coextensive

7 with” the written waiver. Quiroz, Id. at 512 (emphasis

8 added).

9 Quiroz is therefore one of those cases holding that, if

10 a suspect both refuses to sign a waiver and indicates

11 (either orally or by silence) that he does not wish to

12 answer questions, his response constitutes an invocation of

13 Miranda rights. See United States v. Heldt, 745 F.2d 1275,

14 1277 & n.3 (9th Cir. 1984) (valid invocation where the

15 suspect refused to sign a waiver and told the officer he did

16 not want to waive his rights or answer questions); United

17 States v. Christian, 571 F.2d 64, 69 (1st Cir. 1978) (valid

18 invocation where the suspect refused to sign a waiver but

19 did sign a statement of rights).

20 By the same token, a suspect who refuses to sign a

21 waiver, but nevertheless acts in a manner inconsistent with

22 invocation of his rights, has signified an implicit waiver.

8
1 See United States v. House, 939 F.2d 659, 662-63 (8th Cir.

2 1991) (suspect’s decision to answer questions after refusing

3 to sign a written waiver constituted an implicit waiver,

4 rather than an invocation, of his Miranda rights); United

5 States v. Boon San Chong, 829 F.2d 1572, 1574 (11th Cir.

6 1987) (suspect’s decision to answer certain questions after

7 reading an advice of rights form constituted a waiver of his

8 Miranda rights, notwithstanding his refusal to sign a

9 written waiver).

10 Taken together, these cases support the overall

11 principle that the circumstances matter, and that refusal to

12 sign a waiver form is a sign that is informed by context.

13 The majority opinion is therefore a departure, holding as it

14 does that a suspect’s refusal to sign a written waiver

15 constitutes an invocation of rights regardless of anything

16 else the suspect may say or do. However, “[a] refusal to

17 sign a waiver may indicate nothing more than a reluctance to

18 put pen to paper under the circumstances of custody.”

19 Goodwin v. Johnson, 224 F.3d 450, 456 (5th Cir. 2000)

20 (quoting United States v. McDaniel, 463 F.2d 129, 135 (5th

21 Cir. 1979)).

22 If a suspect’s refusal to sign a written waiver can be

9
1 enough to bar police from asking any further questions,

2 regardless of whether the suspect is willing to talk to

3 police, then police will simply stop using written waiver

4 forms. Why take the risk that a suspect won’t want to put

5 pen to paper? The result will be a return to the very

6 confusion and uncertainty regarding a suspect’s invocation

7 of rights that written waivers were designed to overcome.

8 Nothing in Quiroz compels such a result.

9

10 IV

11 The majority opinion creates a second novelty in the

12 law: that Miranda rights can be invoked ambiguously. This

13 conflicts with Davis, which holds that a suspect “must

14 articulate his desire to have counsel present sufficiently

15 clearly that a reasonable police officer in the

16 circumstances would understand the statement to be a request

17 for an attorney,” and that “[i]f the statement fails to meet

18 the requisite level of clarity, Edwards does not require

19 that the officers stop questioning the suspect.” Davis, 512

20 U.S. at 458.

21 The majority distinguishes Davis on the ground that it

22 involved a re-invocation--that is, a suspect’s invocation

10
1 following his initial waiver. Davis did involve a re-

2 invocation, but the Supreme Court did not limit Davis to its

3 facts or context. The majority quotes some language in

4 Davis (Maj’y Op at 18-19) as “implying that [Davis’]

5 application is limited to situations in which a custodial

6 officer has already begun interrogation after a valid

7 waiver.” I read the cited language to reflect the reality

8 that police often begin to question a suspect before the

9 circumstances warrant a Miranda warning. Davis applies, as

10 Davis says, “at any time during the interview.” Davis, 512

11 U.S. at 458; see also McNeil v. Wisconsin, 501 U.S. 171, 178

12 (1991) (the Edwards prophylactic rule “requires, at a

13 minimum, some statement that can reasonably be construed to

14 be an expression of a desire for the assistance of an

15 attorney in dealing with custodial interrogation by the

16 police” (emphasis omitted)); Smith v. Illinois, 469 U.S. 91,

17 94-95 (1985) (application of the Edwards prophylactic rule

18 requires a court to “determine whether the accused actually

19 invoked his right to counsel” (emphasis added)).

20 A Ninth Circuit panel has suggested that Davis is

21 limited to post-waiver cases. United States v. Rodriguez,

22 518 F.3d 1072, 1078-79 (9th Cir. 2008) (“[T]he ‘clear

11
1 statement’ rule of Davis addresses only the scope of

2 invocations of Miranda rights in a post-waiver context.”).

3 But a majority of the circuits have applied Davis in pre-

4 waiver cases. See United States v. Johnson, 400 F.3d 187,

5 194-95 (4th Cir. 2005) (applying Davis to a pre-waiver

6 statement); United States v. Lee, 413 F.3d 622, 626 (7th

7 Cir. 2005) (same); United States v. Brown, 287 F.3d 965,

8 972-73 (10th Cir. 2002) (same); United States v. Syslo, 303

9 F.3d 860, 866 (8th Cir. 2002) (same); United States v.

10 Suarez, 263 F.3d 468, 482-83 (6th Cir. 2001) (same); Grant-

11 Chase v. Comm’r, New Hampshire Dep’t of Corr., 145 F.3d 431,

12 436 & n.5 (1st Cir. 1998) (same); United States v. Posada-

13 Rios, 158 F.3d 832, 867 (5th Cir. 1998) (same).

14 “The fundamental purpose of the [Supreme Court’s]

15 decision in Miranda was ‘to assure that the individual’s

16 right to choose between speech and silence remains

17 unfettered throughout the interrogation process.’”

18 Connecticut v. Barrett, 479 U.S. 523, 528 (1987) (emphasis

19 added) (quoting Miranda, 384 U.S. at 469). Once

20 Miranda warnings are given, the law has no preference as

21 between invocation and waiver. “Once warned, the suspect is

22 free to exercise his own volition in deciding whether or not

12
1 to make a statement to the authorities.” Oregon v. Elstad,

2 470 U.S. 298, 308 (1985) (emphasis added). In short, it is

3 the suspect’s choice--and therefore his initiative--to

4 invoke his rights. We must “presume that a defendant did

5 not waive his rights” absent evidence to the contrary, North

6 Carolina v. Butler, 441 U.S. 369, 373 (1979); but if the

7 government can prove that the defendant did not make that

8 choice “sufficiently clearly that a reasonable police

9 officer in the circumstances would understand the statement

10 to be” an invocation, Davis, 512 U.S. at 458, neither

11 Miranda nor its progeny require the suppression of any

12 subsequent statements.

13 I would reverse.

13