United States v. Charley

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-10579
Plaintiff-Appellee, D.C. No.
v.  CR-02-00081-1-
ELVIRA CHARLEY, EHC
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding

Argued and Submitted
December 7, 2004—San Francisco, California

Filed February 3, 2005

Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

1495
1498 UNITED STATES v. CHARLEY

COUNSEL

Patrick E. McGillicuddy, Phoenix, Arizona, for the defendant-
appellant.

Paul K. Charlton, United States Attorney, District of Arizona,
Michael T. Morrissey, Chief, Appellate Section, and Joan G.
Ruffennach, Assistant United States Attorney, Phoenix, Ari-
zona, for the plaintiff-appellee.

OPINION

GOULD, Circuit Judge:

A federal jury convicted Elvira Charley of three counts of
first degree murder in violation of 18 U.S.C. §§ 1111,
1153(a), and three counts of using a firearm during and in
relation to a crime of violence in violation of 18 U.S.C.
§§ 924(c), (j). Charley appeals her conviction alleging that the
district court erred in denying motions to suppress her state-
ments to law enforcement officers because the statements
were obtained in violation of her rights under the Fourth and
Fifth Amendments.1 We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.

1
We decide Charley’s Fourth and Fifth Amendment claims in this opin-
ion, and address her claims relating to her competency and the district
court’s jury instructions in a concurrently filed memorandum disposition.
 UNITED STATES v. CHARLEY 1499
I

On the tragic morning of January 1, 2002, Elvira Charley
shot three of her six children to death with a .22 caliber semi-
automatic rifle, as they slept in the Charley family home
located on the Navajo Indian Reservation in Klagetoh, Ari-
zona. When the children were dead, Charley covered their
bodies with blankets and went to the home of her aunt, Min-
nie Begay. After visiting with the Begays for more than an
hour, Charley left, telling those present that she was going
home to “check on her kids.”

Charley later returned to the Begay residence with one of
her remaining children, and then left again to make phone
calls. She first called her estranged husband and told him that
she had shot their three older children. After hanging up with
her husband, Charley called the police dispatcher and asked
for police assistance because, as she said, she had “done
something bad.” She gave the dispatcher directions to the
Begay residence and asked the dispatcher to send someone
quickly.

Charley then went back to the Begay residence and gave
her children’s birth certificates to one of her cousins saying,
“take care of my kids, here [is] all the information you need.”
Charley did not explain why she needed someone to care for
her children. When the police arrived, Charley began hugging
her relatives, saying, “I’m sorry . . . I wasn’t strong enough.”

Sergeant Wallace Billie and Peter Lincoln, an Emergency
Medical Technician (“EMT”) from the local fire department,
were among the government officers dispatched to the Begay
residence. Upon his arrival at the Begay home, Sergeant Billie
observed Charley crying and hugging another female. Charley
then handed Sergeant Billie the keys to her house, stating
“that she’d done something very bad, and that she needed
[Sergeant Billie] to check on her children.” Charley also told
1500 UNITED STATES v. CHARLEY
Sergeant Billie that he was “going to have to put [her] away
for a long time.”

Several of Charley’s relatives who were present at the
Begay residence began asking Sergeant Billie what was going
on. Sergeant Billie asked EMT Lincoln to escort Charley from
the house so that Sergeant Billie could talk to Charley’s rela-
tives and explain what was happening.

While waiting for Sergeant Billie outside the Begay resi-
dence, Charley initiated a conversation with EMT Lincoln,
whom she had known in a personal capacity for about twenty
years. Charley addressed EMT Lincoln as “Peter” and volun-
teered that she had done “something very bad.” Charley fur-
ther told EMT Lincoln that she had killed her children and
that the bodies were still at her house.

When Sergeant Billie came out to his patrol car, he told
Charley, “You’re not under arrest. You’re being detained. I
need to take you to your house and find out what’s going on.”
She replied, “You’re going to have to take me away for a long
time.” Sergeant Billie placed Charley in the patrol car and she
gave him directions to her house. When Sergeant Billie asked
for permission to enter Charley’s house, Charley responded,
“Yes,” urging him to hurry because the children were inside.

After finding the lifeless bodies of three of Charley’s chil-
dren inside the house, Sergeant Billie secured the scene, and
proceeded to question Charley as she sat in his patrol car. The
district court found that Charley received Miranda warnings
before the interrogation began and that Charley “knowingly
and voluntarily waived her rights and made statements” to
Sergeant Billie. According to Sergeant Billie, Charley was
coherent and did not appear to be under the influence of drugs
or alcohol at this time. Moreover, there was no language bar-
rier, and Charley was not handcuffed, threatened, or abused
in any way. During the interview by Sergeant Billie in his car,
Charley admitted to killing her children as they slept, and
 UNITED STATES v. CHARLEY 1501
described the manner and order in which she had shot them.
When the questioning ended, Sergeant Billie arrested Charley
and escorted her to the tribal jail.

Charley made several unsolicited statements regarding her
children to the booking personnel at the tribal jail as they
were taking down her medical information. For example, she
said, “Poor things. They had no choice. I could not take care
of them.” When asked if she had ever considered killing her-
self, Charley responded, “no,” but further remarked, “[b]ut
now I killed my own kids.”

Charley was interviewed on the evening of January 1,
2002, by Special Agent Bradley Purscell of the FBI. Agent
Purscell prefaced the interview by reading Charley the stan-
dard FBI advice of rights form. Charley reviewed and signed
the form, telling Agent Purscell that she understood her rights
and wished to waive them. The interview was conducted in
English, with no language problems. Agent Purscell reported
that Charley seemed coherent and did not appear to be under
the influence of drugs or alcohol. Agent Purscell did not
abuse or threaten Charley to make her talk.

During the session with Agent Purscell, Charley again
admitted to shooting her three oldest children while they slept.
She described the manner and order in which she had shot
them, and told Purscell how she had covered the children’s
bodies with their blankets because she could not stand the
sight of their blood. She also said, “you know what, I brought
them into this world, and I took them from it, but they will
always be with me.”

Charley was arraigned in tribal court on January 2, 2002,
for endangering the welfare of minors and for criminal homi-
cide. Charley then told the tribal court that she wanted to con-
sult with a lawyer before pleading to the tribal court charges
against her.2 The tribal court entered a default plea of not
2
Charley’s colloquy with the tribal court was as follows:
COURT: You said “I can’t decide [how to plead to the tribal
1502 UNITED STATES v. CHARLEY
guilty and scheduled a pretrial conference for Charley to
attend at a later date after she had secured an attorney.

On January 3, 2002, Agent Purscell escorted Charley to her
initial appearance in federal district court. During this trip,
Agent Purscell again interviewed Charley. Before commenc-
ing this second interview, Agent Purscell again read Charley
the Miranda warnings, and Charley again waived her rights
by executing a written waiver. The responsive information
that Charley gave in this second interview was substantially
the same as the information she had given Agent Purscell on
January 1, 2002.

Charley was subsequently indicted on three counts of first
degree murder in violation of 18 U.S.C. §§ 1111, 1153(a), and
three counts of use of a firearm during and in relation to a
crime of violence in violation of 18 U.S.C. §§ 924(c), (j).
After her indictment, Charley filed motions to suppress the
statements that she had made to law enforcement personnel
on January 1, 2002, and on January 3, 2002. The district court
conducted hearings on the motions to suppress, took the
motions under advisement, and then denied them both.

In a seven-day trial, the government presented evidence
including Charley’s statements to Sergeant Billie and Agent
Purscell which had not been suppressed.3 The jury found
Charley guilty on all counts, three of first degree murder and
three for firearm use in the murders. The district court then

court charges] until I talk to my lawyer,” that’s what you’re say-
ing right?
ELVIRA: Yes.
3
The jury also heard evidence of Charley’s January 1, 2002, statements
to the police dispatcher, to her relatives at the Begay house, to EMT Lin-
coln, and to the booking personnel at the tribal jail, all of which were
made on the date of the murders and none of which were subject to her
failed motions to suppress.
 UNITED STATES v. CHARLEY 1503
provisionally sentenced Charley to six consecutive life terms
under 18 U.S.C. § 4244, and we consider in this opinion
whether the district court committed reversible error in deny-
ing Charley’s motions to suppress.

II

We review Charley’s motions to suppress de novo. United
States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en
banc). The determination of whether a seizure exceeds the
bounds of an investigatory Terry stop and becomes an arrest
is also reviewed de novo. United States v. Miles, 247 F.3d
1009, 1012 (9th Cir. 2001). Charley’s briefing on these issues
is unclear. But her principal argument appears to be that the
district court erred in declining to suppress the statements she
made to Sergeant Billie on January 1, 2002, because, she
argues that those statements were the fruits of an illegal arrest
made without probable cause in violation of the Fourth
Amendment. Charley also contends that she was entitled to
suppression of the incriminating statements she made to FBI
Agent Purscell on January 3, 2002, because, she argues, those
statements were obtained in violation of her Fifth Amendment
right to counsel.

A

Charley maintains that the district court should have sup-
pressed all the statements she made to Sergeant Billie on Jan-
uary 1, 2002, because those statements were the fruits of her
allegedly illegal arrest and because the taint of this alleged
illegal arrest was not purged by the Miranda warnings she
received. Charley argues that the district court erred in finding
that she was not in custody when Sergeant Billie took her
from the Begay residence to her own home in order to check
on her children. Our review of the record, however, confirms
that the district court’s determination regarding custody was
not erroneous.
1504 UNITED STATES v. CHARLEY
[1] Charley’s illegal arrest claim rests on Sergeant Billie’s
testimony that he “detained” Charley when he picked her up
from the Begay residence and took her back to her house to
check on her children. Charley is essentially arguing that “de-
taining” is tantamount to “arresting,” but as the Supreme
Court’s and our precedents make clear, not every detention by
law enforcement officials amounts to arrest or custody under
the Fourth Amendment. Arrests and detentions are both “sei-
zures” under the Fourth Amendment, but only the former
requires a showing of probable cause, while the latter can be
justified by reasonable suspicion of criminal activity. Brown
v. Texas, 443 U.S. 47, 51 (1979) (citing Terry v. Ohio, 392
U.S. 1, 25-26 (1968)).

[2] There is no question that, based on objective facts, Ser-
geant Billie had the requisite reasonable suspicion to justify
detaining Charley until he could determine whether anything
had happened to her children, and what she had done prompt-
ing her to tell dispatch, Sergeant Billie, and others that she
had “done something bad.” See Brown, 443 U.S. at 51. The
dispositive question is whether Sergeant Billie’s conduct in
placing Charley in his car and escorting her back to her house
amounted to an arrest that he lacked the probable cause to
make.

No “litmus-paper test” exists for “determining when a sei-
zure exceeds the bounds of an investigative stop.” Florida v.
Royer, 460 U.S. 491, 506 (1983); Eberle v. City of Anaheim,
901 F.2d 814, 819 (9th Cir. 1990). Instead, we examine the
“totality of the circumstances” in deciding “whether an inves-
tigative detention has ripened into an arrest.” Eberle, 901 F.2d
at 819. Our inquiry focuses on the perspective of the person
seized, rather than the subjective beliefs of the law enforce-
ment officers. Id. “The question is thus whether a reasonable
innocent person in [the same] circumstances would not have
felt free to leave after brief questioning.” Id. (internal quota-
tion marks omitted).
 UNITED STATES v. CHARLEY 1505
[3] “[T]here is no per se rule that detention in a patrol car
constitutes an arrest.” United States v. Torres-Sanchez, 83
F.3d 1123, 1127 (9th Cir. 1996). Furthermore, we have held
that the police may move a suspect without exceeding the
bounds of an investigative detention when it is a reasonable
means of achieving the legitimate goals of the detention
“given the specific circumstances” of the case. Gallegos v.
City of Los Angeles, 308 F.3d 987, 991 (9th Cir. 2002); see
also Halvorsen v. Baird, 146 F.3d 680, 684-85 (9th Cir. 1998)
(upholding jury finding that investigative stop did not become
an arrest where § 1983 plaintiff was cuffed and taken from his
home to a nearby gas station for questioning and then invol-
untarily committed in a detoxification facility overnight
because jury could conclude that police had determined that
it was hard to talk or unsafe to remain in the original loca-
tion); cf. Royer, 460 U.S. at 504-05 (“[T]here are undoubtedly
reasons of safety and security that would justify moving a sus-
pect from one location to another during an investigatory
detention . . . .”).4
4
Our view that there may be certain, case-specific circumstances where
law enforcement officers can move a suspect from one location to another
without crossing the line between an investigative stop and an arrest finds
support in a leading treatise on the Fourth Amendment. 4 Wayne R.
LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.2(g)
(4th ed. 2004) (“[I]t seems clear that some movement of the suspect in the
general vicinity of the stop is permissible without converting what would
otherwise be a temporary seizure into an arrest.”). It is also consistent with
the approach followed by the majority of our sister circuits. See United
States v. Montano-Gudino, 309 F.3d 501, 504 (8th Cir. 2002) (holding that
there was no arrest where officers escorted defendant who was in the pro-
cess of emptying his rented storage unit to a room in the storage facility
offices for questioning); United States v. Gori, 230 F.3d 44, 56 (2d Cir.
2000) (“[I]t is well established that officers may ask (or force) a suspect
to move as part of a lawful Terry stop.”); United States v. Vega, 72 F.3d
507, 515-16 (7th Cir. 1995) (holding that defendant’s stop was “not tanta-
mount to an arrest” notwithstanding that “the officers drew their weapons,
asked [the defendant] to accompany them [back to the crime scene] in one
of their cars,” and kept him in the officer’s vehicle for over an hour);
United States v. Bueno, 21 F.3d 120, 124 (6th Cir. 1994) (holding that
1506 UNITED STATES v. CHARLEY
In Gallegos, 308 F.3d at 989-91, police officers pulled over
a man they mistakenly believed to be a burglary suspect,
ordered him out of his vehicle at gunpoint, handcuffed him,
and placed him in the back of their patrol car. They then
brought him to the scene of the reported incident, where they
confirmed that he was not the suspect. The detainee brought
a § 1983 action against the police alleging that they had vio-
lated his Fourth Amendment rights by arresting him without
probable cause. The district court granted summary judgment
for the defendants, and we affirmed, holding that the police
conduct at issue “did not exceed the bounds of a valid investi-
gatory stop,” because the purpose of the stop was for the
police “to make sure that they ha[d] the right person,” and
cuffing the plaintiff and bringing him to the alleged crime
scene was “not, under the circumstances, an unreasonable
way of finding out if [the plaintiff] was the person they were
looking for.” Id. at 991, 993.

conduct of airport police in moving suspect from main concourse to a
secured hallway “did not exceed the limited restraint permitted for an
investigative stop”); United States v. Nurse, 916 F.2d 20, 24-25 (D.C. Cir.
1990) (holding that officers’ conduct in preventing defendant from getting
into a taxi and escorting her back into the train terminal did not “exceed[ ]
the established bounds for reasonable suspicion detentions”); United
States v. Kapperman, 764 F.2d 786, 792 (11th Cir. 1985) (“Once [the
defendant] consented to the search, it cannot reasonably be asserted that
moving the investigation or requiring him to ride in the patrol car to a
nearby place where the search would be conducted converted a lawful
investigatory stop into an arrest.”); United States v. Self, 410 F.2d 984,
986 (10th Cir. 1969) (holding that there was no arrest where officer drove
defendants to a parking lot and then to the police station because the offi-
cer “was reasonably investigating the suspicious behavior of the defen-
dants” and the defendants had “willingly complied with the detective’s
request that they accompany him”); cf. United States v. Petty, 601 F.2d
883, 886, 889 (5th Cir. 1979) (addressing different Fourth Amendment
issue but characterizing seizure where border patrol vehicles escorted
defendants’ vehicle to a border patrol office as an “investigative stop” and
stating that the defendants “were not under arrest at th[e] time” of this
move).
 UNITED STATES v. CHARLEY 1507
[4] Relying on Gallegos, we hold that the district court did
not err in finding that Charley was not in custody when Ser-
geant Billie detained her and escorted her from the Begay res-
idence to her own home. The evidence before the district
court supports that it was reasonable for Sergeant Billie to
detain Charley in his car for investigation as he drove to her
home to determine why she had called dispatch and the reason
for her distress. Sergeant Billie had reasonable suspicion justi-
fying an investigative detention, and the investigative meth-
ods he employed were far less intrusive and coercive than the
methods we concluded were within the bounds of a reason-
able, investigatory stop in Gallegos. Sergeant Billie testified
that he “detained” Charley at the Begay residence, and that
she was not free to leave until he found out what was going
on with her children, but he also testified that he had
expressly told Charley that she was “not under arrest,” and
there is no evidence that he used any kind of force against
Charley. On the contrary, the record shows that Charley not
only voluntarily accompanied Sergeant Billie to her home, but
that she repeatedly insisted that they go there to check on her
children. Because the record belies Charley’s allegation that
Sergeant Billie arrested her at the Begay residence, Charley
cannot suppress any statements she made on January 1, 2002,
on the grounds that they were the fruit of an illegal arrest, or
were incurably tainted by the same.5 Charley was not in cus-
5
Although Charley cites the Supreme Court’s decision in Dunaway v.
New York, 442 U.S. 200 (1979), in support of her claim of illegal arrest,
the facts and legal arguments in Dunaway are wholly inapposite to those
presented in this case. In Dunaway there was no dispute as to whether the
defendant was in custody. Id. at 203, 206. Rather, the government was
urging the Supreme Court to hold that “mere reasonable suspicion” could
justify any seizure short of a formal arrest. Id. at 211-13. The Supreme
Court rejected this invitation, holding that the more stringent probable
cause requirement applied to all seizures falling outside the category of
investigative stops, not just those seizures that were officially termed
arrests. Id. at 212-13. Unlike in Dunaway, the government contends here
that Charley’s detention was an investigative stop, and the factual record
supports this contention and the district court’s determination that Charley
was not in custody when Sergeant Billie drove her to her home to investi-
gate.
1508 UNITED STATES v. CHARLEY
tody until after Sergeant Billie found the dead children at her
home.

B

[5] Charley claims that the district court erred in failing to
suppress statements that she made during her January 3, 2002,
interview by Agent Purscell. According to Charley, this state-
ment should have been suppressed because it was made after
she invoked her Fifth Amendment right to counsel pursuant
to Edwards v. Arizona, 451 U.S. 477 (1981). Edwards stands
for the proposition that the police cannot subject an accused
who invokes his or her Fifth Amendment right to counsel to
further interrogation until counsel is made available to the
accused or the accused initiates further communication with
the police. Id. at 484-85. As the government points out, how-
ever, the transcript from Charley’s tribal court arraignment
only reflects that she invoked her Sixth Amendment right to
have counsel represent her in tribal court proceedings. Invoca-
tion of the Sixth Amendment right to counsel alone does not
constitute an invocation of the Miranda-Edwards Fifth
Amendment right to counsel. McNeil v. Wisconsin, 501 U.S.
171, 177-82 (1991). Under the authority of McNeil, Charley’s
argument that her Fifth Amendment right to counsel was vio-
lated by Agent Purscell’s second interrogation must fail.

Even if Charley never invoked her Fifth Amendment right
to counsel, the inquiry does not end here: If Charley effec-
tively invoked her Sixth Amendment right to counsel with
respect to the murders of her children, the police were still
constitutionally barred from interrogating her about the mur-
ders outside the presence of counsel because “[t]he Sixth
Amendment guarantees the accused, at least after the initia-
tion of formal charges, the right to rely on counsel as a
‘medium’ between him and the State.” Maine v. Moulton, 474
U.S. 159, 176 (1985).
 UNITED STATES v. CHARLEY 1509
[6] The Sixth Amendment right to counsel “does not attach
until a prosecution is commenced.” McNeil, 501 U.S. at 175.
In other words, it attaches “at or after the initiation of adver-
sary judicial criminal proceedings — whether by way of for-
mal charge, preliminary hearing, indictment, information, or
arraignment.” Id. Here, Charley’s Sixth Amendment right to
counsel was not triggered until she had her initial appearance
in federal court on January 3, 2002. That Charley was
arraigned in tribal court on January 2, 2002, is irrelevant to
determining when her Sixth Amendment right to counsel
attached because we have squarely held that “the Sixth
Amendment right to counsel does not apply in tribal court
criminal proceedings.” United States v. Percy, 250 F.3d 720,
725 (9th Cir. 2001).6 The district court properly denied Char-
ley’s motion to suppress her January 3, 2002 statements
because Charley had not invoked her Fifth Amendment right
to counsel, and her Sixth Amendment right to counsel had not
yet attached when she made her request for an attorney before
the tribal court.
6
United States v. Bird, 287 F.3d 709 (8th Cir. 2002), finding that the
Sixth Amendment right attached following a tribal arraignment, is not to
the contrary. That decision involved a degree of cooperation so extensive
between federal and tribal authorities that one could not separate the fed-
eral and tribal proceedings:
[A]s a result of the way that tribal and federal authorities cooper-
ated in connection with these charges, Red Bird’s indictment in
tribal court inherently led to his prosecution in federal court.
Considering the close working relationship between tribal and
federal authorities in this case, to deny Red Bird the right to
counsel after the tribal indictment would deprive him of an attor-
ney at one of the most critical stages of the proceedings against
him.
Id. at 714. This case presents no such circumstances. Absent the collusive
behavior in Bird, our precedent that the “Sixth Amendment right to coun-
sel does not apply in tribal court criminal proceedings,” Percy, 250 F.3d
at 725, stands. We have no occasion to decide whether, in factual circum-
stances like those in Bird, we would reach the result reached in Bird.
1510 UNITED STATES v. CHARLEY
III

We conclude that the district court did not err in holding
that Charley was not in custody when Sergeant Billie detained
her at the Begay residence and brought her to her own home
to investigate what had happened to her children. We also
hold that the district court did not err in denying Charley’s
motion to suppress her statements to Agent Purscell because
Charley’s right to counsel was not violated.

AFFIRMED.