United States v. Delarosa

UNITED STATES, Appellee

v.

Gustavo A. DELAROSA, Aviation Ordnanceman Third Class
U.S. Navy, Appellant

No. 08-0390
Crim. App. No. 200602335

United States Court of Appeals for the Armed Forces

Argued February 3, 2009

Decided May 6, 2009

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, STUCKY, and RYAN, JJ., joined. ERDMANN, J., filed a
dissenting opinion.

Counsel

For Appellant: Lieutenant Brian D. Korn, JAGC, USN (argued);
Major Richard D. Belliss, USMC.

For Appellee: Major Elizabeth A. Harvey, USMC (argued); Brian
K. Keller, Esq. (on brief); Lieutenant Derek D. Butler, JAGC,
USN.

Amicus Curiae: Preston Jones (law student) (argued); Brook A.
Busbee, Esq. (supervising attorney) (on brief); Mike McCollum,
Esq. (supervising attorney); for the Southern Methodist
University, Dedman School of Law.

Military Judge: Daniel E. O’Toole

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Delarosa, No. 08-0390/NA

Chief Judge EFFRON delivered the opinion of the Court.

A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of

aggravated assault on his infant son, in violation of Article

128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928

(2000). The sentence adjudged by the court-martial and approved

by the convening authority included a bad-conduct discharge,

confinement for three months, forfeiture of all pay and

allowances, and reduction to pay grade E-1. The United States

Navy-Marine Corps Court of Criminal Appeals affirmed. United

States v. Delarosa, No. NMCCA 200602335, 2008 CCA LEXIS 4, at

*20, 2008 WL 142115, at *7 (N-M. Ct. Crim. App. Jan. 10, 2008)

(unpublished).

The present appeal concerns the ruling of the military

judge denying Appellant’s motion to suppress his confession to

local civilian law enforcement officers.1 For the reasons set

1
On Appellant’s petition, we granted review of the following
issue:

WHETHER (1) THE LOWER COURT ERRED IN
ADOPTING A TEST TO DETERMINE WHETHER
APPELLANT’S ASSERTION OF HIS RIGHT TO REMAIN
SILENT WAS SCRUPULOUSLY HONORED THAT DIFFERS
FROM THE TESTS SET FORTH BY THE UNITED
STATES SUPREME COURT IN MICHIGAN v. MOSLEY,
423 U.S. 96 (1975) AND UNITED STATES v.
WATKINS, 34 M.J. 344 (C.M.A. 1992); AND (2)
WHETHER THE LOWER COURT ERRED IN HOLDING
THAT THE MILITARY JUDGE CORRECTLY DENIED THE
DEFENSE MOTION TO SUPPRESS APPELLANT’S

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forth below, we agree that the military judge properly denied

the suppression motion, and we affirm Appellant’s conviction.2

I. BACKGROUND

A. SELF-INCRIMINATION RIGHTS WARNINGS
FOR PERSONS IN CUSTODY

Prior to initiating interrogation, law enforcement

officials must provide rights warnings to a person in custody.

See Miranda v. Arizona, 384 U.S. 436, 445 (1966); United States

v. Tempia, 16 C.M.A 629, 637, 37 C.M.R. 249, 257 (1967); U.S.

Const. amend V. Military officials and civilians acting on

their behalf are required to provide rights warnings prior to

interrogating a member of the armed forces if that servicemember

is a suspect, irrespective of custody. Article 31(b), UCMJ, 10

U.S.C. 831(b) (2000); Military Rule of Evidence (M.R.E.)

305(b)(1), 305(c). The present appeal involves only the former

requirement -- rights warnings under Miranda for persons in

custody.

When Miranda warnings are required, the person must be

CONFESSION MADE TO THE DETECTIVES AT THE
NORFOLK, VIRGINIA, POLICE DEPARTMENT.
2
Oral argument in this case was heard at the Dedman School of
Law, Southern Methodist University, Dallas, Texas, as part of
the Court’s “Project Outreach.” See United States v. Mahoney,
58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice was
developed as part of a public awareness program to demonstrate
the operation of a federal court of appeals and the military
justice system.

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advised of the right to remain silent, that any statement made

by the person can be used against that person in a court of law,

that the person has the right to consult with counsel and have

counsel present during questioning, and that counsel will be

appointed if the person cannot afford a lawyer. 348 U.S. at

444. If a suspect provides an ambiguous statement regarding

invocation of rights after Miranda warnings have been given, law

enforcement officials are not obligated to cease interrogation.

See Davis v. United States, 512 U.S. 452, 461-62 (1994); Medina

v. Singletary, 59 F.3d 1095, 1101 (11th Cir. 1995); cf. United

States v. Acosta, 363 F.3d 1141, 1152 (11th Cir. 2004) (applying

Davis when the appellant told the police that he would make a

statement but refused to sign a rights waiver form). If a

suspect’s statement is ambiguous, law enforcement officials may

attempt to clarify the issue of rights invocation, but they are

not required to do so. Davis, 512 U.S. at 461 (noting that

although “it will often be good police practice for the

interviewing officers to clarify” an ambiguous response, the

Supreme Court “decline[d] to adopt a rule requiring officers to

ask clarifying questions”). See, e.g., United States v. Brown,

287 F.3d 965, 972-73 (10th Cir. 2002) (applying Davis to

ambiguous initial waiver); United States v. Muhammad, 120 F.3d

688, 698 (7th Cir. 1997) (same). But see United States v.

Rodriguez, 518 F.3d 1072, 1079-80 (9th Cir. 2008) (viewing Davis

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as applicable only in a post-waiver context, and requiring an

“interrogating officer to clarify any ambiguity before beginning

general interrogation”). They may continue questioning unless

the suspect unambiguously invokes his rights, regardless of

whether law enforcement officials have endeavored to clarify any

ambiguity. Davis, 512 U.S. at 461-62.

If the suspect unambiguously invokes his or her rights

under Miranda, law enforcement officials may not conduct any

further questioning of the suspect about the offense unless they

do so in a manner demonstrating that they have “scrupulously

honored” the suspect’s invocation of rights. Michigan v.

Mosley, 423 U.S. 96, 104 (1975); cf. Edwards v. Arizona, 451

U.S. 477, 484-85 (1981) (holding that a suspect who invokes the

right to counsel could not be subjected to further interrogation

until counsel has been made available to him, unless the suspect

himself reinitiated further communication with the police).

In the present appeal, the parties do not dispute that

Appellant received the appropriate warnings under Miranda. In

that context, the issues on appeal concern whether Appellant

unambiguously invoked his Miranda rights; and, if so, whether

the law enforcement officials scrupulously honored those rights

before conducting any further interrogation.

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B. THE SUPPRESSION MOTION

1. Procedural setting

Appellant lived in an off-base apartment in Norfolk,

Virginia, with his wife and five-month-old son. On the evening

of January 20, 2004, paramedics came to the apartment in

response to an emergency call from Appellant’s wife. They found

Appellant performing CPR on his son, who was unconscious and not

breathing. An ambulance brought the child to a civilian

hospital in a condition of full cardiac arrest. The initial

medical diagnosis indicated that the son was a victim of child

abuse in the form of shaken baby syndrome. Early in the morning

on January 21, the son was transferred to the pediatric

intensive care unit. On January 22, after doctors determined

that the condition was irreversible, the child was removed from

life support and was declared legally dead. Following an

autopsy conducted by civilian medical officials on January 23,

the Norfolk medical examiner issued a report describing the

cause of death as an acute head injury.

Later that day, civilian law enforcement officials in

Norfolk opened a homicide investigation, which was conducted

primarily by Detectives Bynum and Mayer of the Norfolk Police

Department. During the investigation, Appellant made the

incriminating statements at issue in the present appeal. See

infra Part I.B.2. Subsequently, Appellant was charged with

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murder under state law, and the case was referred for trial

before the Juvenile and Domestic Relations Court of the City of

Norfolk, Criminal Division. At a preliminary hearing, the

presiding judge suppressed Appellant’s incriminating statements

on the ground that the officers did not “scrupulously guard[]”

his Miranda rights by putting Appellant in “the position of

having to justify the exercise of a constitutional right.” The

judge then dismissed the charge based on insufficiency of the

remaining evidence.

Military officials instituted separate proceedings under

the UCMJ the following year, leading to the court-martial that

is the subject of the present appeal. We note that the

constitutional and statutory limitations on former jeopardy are

not at issue when, as in the present case, charges are pursued

in a federal proceeding -- a court-martial -- after dismissal in

state court. See U.S. Const. amend. V; Article 44, UCMJ, 10

U.S.C. § 844; Heath v. Alabama, 474 U.S. 82, 89 (1985) (holding

that the federal and state governments, for purposes of former

jeopardy, are treated as separate sovereigns, in which criminal

proceedings by one sovereign do not preclude proceedings by the

other).

At the court-martial, the prosecution sought a preliminary

ruling on the admissibility of Appellant’s confession, and the

defense responded with a motion to suppress. After the parties

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presented extensive testimony and documentary evidence in a

preliminary session under Article 39(a), UCMJ, 10 U.S.C. §

839(a) (2000), the military judge denied Appellant’s motion to

suppress the confession. At the request of the defense, the

military judge reconsidered the matter but declined to change

his ruling. The military judge made detailed findings of fact

and conclusions of law regarding the actions of the civilian law

enforcement officials in obtaining incriminating statements from

Appellant. See infra Part I.B.2.

At trial, the prosecution included the incriminating

statements as part of its case-in-chief before the court-martial

panel. A panel of members convicted Appellant, and the Court of

Criminal Appeals affirmed.

On appeal of a motion to suppress incriminating statements,

we “accept[] the military judge’s findings of historical fact

unless they are clearly erroneous,” and we review the military

judge’s conclusions of law de novo. See United States v.

Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000). In the present appeal,

neither party challenges the military judge’s findings of fact,

but they disagree as to the conclusions of law. See infra Part

III. In that posture, we accept the military judge’s factual

findings as described in the following section.

2. Findings of fact by the military judge

The following summarizes the military judge’s findings of

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fact pertinent to the present appeal.

a. Appellant’s appearance at the police station

Detective Bynum of the Norfolk Police Department contacted

Appellant on the afternoon of January 23, 2004 -- the day after

his son died -- and asked him to come to the Police Operations

Center to identify his son’s body. That afternoon, Appellant

drove to the Police Operations Center in his own vehicle.

Detective Bynum met Appellant in the reception area at about

3:00 p.m. and escorted him through two sets of locked doors into

an interview room. Appellant was not placed in handcuffs, nor

was he told he was under arrest.

b. Appellant’s stated interest in discussing the incident
with the detectives

The detectives and Appellant engaged in about forty minutes

of general conversation before Appellant was presented with the

body identification form. During this time, Appellant was

responsive and cooperative. Appellant told the detectives that

the medical examiner’s office had informed him that the death

had been determined to be a homicide. Appellant indicated

several times that he wanted to discuss his son’s death with the

detectives. He told the detectives that he wanted to “tell you

what you want to know.” The detectives, however, advised

Appellant that they would not talk about the homicide until they

completed the body identification form and advised Appellant of

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his rights. Shortly thereafter, Appellant signed the body

identification form.

c. The rights advisement

At about 3:50 p.m., Detective Bynum advised Appellant of

his Miranda rights using the Norfolk Police Department Legal

Rights Advice Form. The form consisted of seven items with

blank space after each item for Appellant’s response. The first

four items set forth the Miranda rights, with each item

containing a question asking whether Appellant understood the

applicable right. The fifth item contained a summary statement

regarding Appellant’s understanding of the rights warnings. The

sixth item provided an opportunity to waive the rights, and the

last item addressed the issue of voluntariness.

Detective Bynum employed a sequential procedure in

connection with the form. First, he read each item. Then, he

asked Appellant to read the item aloud and explain what it meant

in Appellant’s own words. Finally, he asked Appellant to write

his response on the form.

d. Appellant’s response to the rights advisement

The first item on the form concerned the right to remain

silent. Detective Bynum read the item. Then Appellant read it,

explained it, and wrote “YES,” indicating that he understood the

right.

As Detective Bynum attempted to employ the same procedure

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on the remaining items, Appellant repeatedly interrupted him.

During these interruptions, Appellant stated a number of times

that he wanted to talk to the detectives. Detective Bynum

attempted to slow down the process and complete the form in the

usual manner.

Appellant indicated that he understood the rights described

on the form by writing “YES” after each of the first five items.

However, after the sixth item –- “I further state that I waive

these rights and desire to make a statement” -- Appellant wrote

“NO” as his response. After the seventh item -- “This statement

is completely free and voluntary on my part without any threat

or promise from anyone” -- Appellant wrote “N/A” as his

response.

At that point, Detective Bynum did not know whether

Appellant had misunderstood the sixth item or whether Appellant

wished to invoke the right to remain silent. Both detectives

were surprised and confused by Appellant’s answer. Attempting

to clarify the matter, Detective Bynum asked Appellant, “‘Why

did you say “NO”?’” Appellant responded that he wanted to talk

to the detectives, but that he also wanted a command

representative present. Detective Bynum responded that the

standard policy of the Norfolk Police Department did not allow

anyone to be present during questioning other than the subject,

but he noted that Appellant had the right to counsel and pointed

11
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out the third item on the rights advisement form. Appellant did

not request counsel, but repeated his request for the presence

of a command representative.

Detective Bynum reiterated that the department’s policy

would not permit the presence of a command representative. He

then told Appellant that the detectives would leave the room and

provide Appellant with additional time to review the rights

advisement form. Detective Bynum advised Appellant to knock on

the interrogation room door when he came to a decision.

As the detectives departed, Appellant offered a comment

about the incident under investigation, stating that his son was

alone with the babysitter for about two hours the day he was

rushed to the hospital. The detectives did not respond or

otherwise engage Appellant in substantive discussion about his

son’s death. They left the room and closed the door.

e. The waiver

At 4:25 p.m., approximately thirty-five minutes after the

detectives left the interview room, Detective Mayer returned and

asked if Appellant would be willing to take a polygraph

examination. When Appellant answered “Yes,” Detective Mayer

responded that he would make the arrangements.

Detective Mayer again checked in with Appellant at 6:35

p.m., asking whether Appellant needed anything. When Appellant

asked to use the restroom, Mayer escorted him through two

12
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secured doors to the restroom area. Mayer waited outside while

Appellant used the restroom.

Upon exiting the restroom, Appellant asked Detective Mayer

if he could make a telephone call. Mayer responded that

Appellant could do so but that he would have to wait a while

because Mayer was in the middle of something else. In response

to Appellant’s inquiry as to what the detective was doing, Mayer

stated that Appellant’s wife was in an interview room preparing

for a polygraph test. Mayer stated that he would arrange for

Appellant to use the telephone as soon as he was done with

Appellant’s wife.

After learning that his wife was undergoing a polygraph

examination, Appellant indicated that he wanted to speak with

the detectives about his son’s death. Detective Mayer responded

that the detectives could not speak with Appellant because he

had written “NO” on the rights advisement form. Appellant

stated that he had been confused about the rights form and that

he now wanted to waive his rights and take a polygraph

examination. Mayer told Appellant that he and Detective Bynum

would have to advise Appellant of his rights using a new rights

advisement form before being able to speak with Appellant.

Mayer added that the detectives would return to Appellant’s

interview room as soon as Appellant’s wife finished her

polygraph examination.

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At 6:56 p.m., Detective Bynum and Detective Mayer reentered

Appellant’s interview room. They advised Appellant of his

Miranda rights using a second rights advisement form. This

time, Appellant wrote “YES” next to each item on the form,

including the item indicating that Appellant agreed to waive his

rights and make a statement to the police.

At 8:00 p.m., Appellant participated in a polygraph

examination administered by a third detective, Detective Crank.

Before answering substantive questions, Appellant read and

signed a third rights advisement form in which he again waived

his rights. Appellant also responded verbally that he

understood his rights and that he consented to take the

polygraph examination as a matter of his own free will. During

the pre-polygraph interview, Appellant continued to deny any

involvement in his son’s death.

f. Appellant’s incriminating statements

During the post-polygraph interview, Appellant broke down

crying after Detective Crank acknowledged that Appellant loved

his son. Appellant proceeded to make several incriminating

verbal responses to both leading and open-ended questions posed

by Detective Crank.

Appellant returned to the interview room at 9:28 p.m. In

response to questioning from Detective Mayer and Detective Bynum

during a tape-recorded session, Appellant made additional and

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more detailed incriminating statements. The tape-recorded

statements were transcribed, and Appellant signed a typed

statement at 11:58 p.m.

The incriminating statements included admissions that, on

the night his son was rushed to the hospital in cardiac arrest,

Appellant had shaken his son after becoming frustrated when his

son refused to stop crying and go to sleep. Appellant also

admitted to shaking his son again a few hours later as Appellant

tried to wake him up to feed him.

g. The military judge’s additional findings of fact

After the military judge issued his initial findings of

fact and denied the motion to suppress, the defense asked the

military judge to reconsider the matter and permit the accused

to testify on the suppression motion. See M.R.E. 304(f). The

military judge granted the motion, and Appellant testified that

he asked for a lawyer and intended to invoke his Miranda rights

during the first rights advisement. Appellant also testified

that, during the time Detective Mayer was escorting Appellant to

the restroom, Mayer pressured Appellant into waiving his rights

and Appellant felt he did not have a choice but to agree.

The military judge issued additional findings of fact in

which he found that Appellant’s testimony on the suppression

issue was not credible. The military judge concluded that

Appellant’s testimony did not require revision of the previously

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adjudicated findings of fact. We note that the parties have not

challenged the military judge’s findings of fact as clearly

erroneous, see supra Part B.1., and we have not identified a

basis for concluding that the findings were clearly erroneous.

Accordingly, we assess the issues of law based upon the military

judge’s findings of fact.

II. DISCUSSION

At the outset, we consider whether Appellant unambiguously

invoked his Miranda rights. If Appellant made an unambiguous

invocation of his rights, law enforcement officials were

obligated to scrupulously honor his invocation before engaging

in any further discussion regarding waiver. See Davis, 512 U.S.

at 459, 461-62. If, however, Appellant did not unambiguously

invoke his rights, law enforcement officials had “no obligation

to stop questioning him.” Id. at 462. If Appellant did not

unambiguously invoke his rights, permissible questioning could

include clarification of ambiguities. As the Supreme Court has

stated, “it will often be good police practice for the

interviewing officers to clarify” an ambiguous response. Id. at

461 (noting that the Court “decline[d] to adopt a rule requiring

officers to ask clarifying questions”). See supra Part I.A.

A. INVOCATION AND WAIVER

In assessing whether a person provided an unambiguous

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invocation of Miranda rights, the Supreme Court has stated that

the invocation must be “sufficiently clear[] that a reasonable

police officer in the circumstances would understand the

statement to be a request for an attorney” or to remain silent.

Davis, 512 U.S. at 459. The Supreme Court has addressed without

resolving the question of whether an invocation “may be

characterized as ambiguous or equivocal as a result of events

preceding the request or of nuances inherent in the request

itself.” Smith v. Illinois, 469 U.S. 91, 99-100 (1984). The

courts of appeals have considered events immediately preceding,

as well as concurrent with, the invocation in the course of

addressing the issue of ambiguity. See United States v. Abela,

380 F.3d 915, 926 (6th Cir. 2004) (finding it appropriate for a

reviewing court to look to the surrounding circumstances to

evaluate the clarity of a suspect’s request for counsel);

Acosta, 363 F.3d at 1154-55 (holding that the appellant’s rights

invocation was ambiguous after considering that the appellant

stated that he was willing to speak to the police while also

stating that he would not waive his rights); Bui v. DiPaolo, 170

F.3d 232, 241 (1st Cir. 1999) (holding that the appellant’s

invocation was ambiguous when the statement that he did not want

to talk about the reasons for his arrest was preceded by and

concurrent with a back-and-forth exchange with the police);

Medina, 59 F.3d at 1101; cf. Rodriguez, 518 F.3d at 1077

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(holding that the appellant’s phrase “I’m good for tonight”

constituted an ambiguous invocation of his right to silence

after examining the nuances of the language).

The Court of Criminal Appeals treated Appellant’s insertion

of the word “NO” next to the rights-waiver question on the form

as an ambiguous invocation of rights in the context of the

surrounding events. The court then stated: “[O]nce the

appellant made clear that his willingness to make a statement

was contingent on having a command representative present, the

ambiguity [surrounding his invocation of rights] was resolved.”

Delarosa, 2008 CCA LEXIS 4, at *12, 2008 WL 142115, at *4. The

court next engaged in a detailed examination of whether the

further actions by the detectives “scrupulously honored”

Appellant’s invocation of rights under Mosely, 423 U.S. 96. The

court concluded that the detectives complied with Mosely, and

held that Appellant’s incriminating statements were admissible.

Delarosa, 2008 CCA LEXIS 4 at *12-*19, 2008 WL 142115, at *4-*7.

To the extent that the court below concluded that Appellant

unambiguously invoked his Miranda rights, we disagree. The

interaction between Appellant and the detectives during the

period from the initial rights advisement through Appellant’s

decision to waive his Miranda rights -- as reflected in the

findings of fact by the military judge -- underscores the

ambiguous nature of Appellant’s pre-waiver responses. See supra

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Part II.B.2.

Immediately before the initial rights advisement, Appellant

indicated several times that he wanted to discuss his son’s

death with the detectives. Likewise, in the midst of the rights

advisement, Appellant repeatedly interrupted Detective Bynum,

stating a number of times that he wanted to talk to the

detectives. In light of Appellant’s repeated statements

reflecting an intent to cooperate, Appellant’s “NO” response on

the rights advisement form was ambiguous.

Immediately after Appellant wrote “NO” in response to the

question of whether he would waive his rights, Detective Bynum

attempted to clarify Appellant’s response. Appellant said he

would talk to the detectives with a command representative

present, a request that the detectives declined to grant. When

the detectives said that they would leave the room to give him

additional time to consider the issue of waiver, Appellant

highlighted the ambiguity of his request for a command

representative by initiating a conversation containing a

potentially exculpatory comment about babysitting arrangements

for his son on the date of the injury. Under these

circumstances, the detectives reasonably treated Appellant’s

responses as ambiguous.3

3
We note that Appellant later stated that he had written “NO” on
the first form because he was confused about the form and he now

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Throughout the process, the detectives continued to pursue

clarification of his intent until they obtained an affirmative

waiver of his Miranda rights. See Davis, 512 U.S. at 461-62.

Considering the circumstances prior to and during Appellant’s

writing “NO” on the rights advisement form, it was reasonable

for the detectives to view Appellant’s actions as a whole as

ambiguous with respect to invocation of the right to remain

silent. See Medina, 59 F.3d at 1104-05 (declining to adopt a

per se rule that a suspect’s response of “No” when asked if he

wants to talk to a police officer means the officer cannot go

forward with questioning). Likewise, when Appellant initiated a

conversation containing a potentially exculpatory comment

immediately after requesting the presence of a command

representative, the detectives reasonably treated his actions as

ambiguous with respect to invocation of the right to remain

silent. Under these circumstances, the detectives were not

required to cease questioning Appellant, and they were likewise

free to resume questioning at any time. Davis, 512 U.S. at 461-

62; Medina, 59 F.3d at 1105.

wanted to waive his rights. Although Appellant’s subsequent
statements form no part of our analysis on the issue of
ambiguity, see Smith, 469 U.S. at 100, we note that Appellant’s
subsequent statements confirm our conclusion that Appellant’s
responses were ambiguous.

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B. VOLUNTARINESS

Although Appellant focuses primarily on the issue of

waiver, he also offers a brief challenge to the voluntariness of

his admissions. See M.R.E. 304(c)(3). After reviewing the

totality of the circumstances, we also find that Appellant’s

confession was “voluntarily, knowingly, and intelligently”

given. See Miranda, 384 U.S. at 444. Appellant was advised of

his Fifth Amendment rights from a standardized legal rights

advisement form on three separate occasions during the course of

his interrogation. Although Appellant was provided with

repeated opportunities to invoke his Miranda rights, he never

unambiguously invoked his right to counsel or his right to

remain silent. The atmosphere of the interrogation was not

laced with coercion or intimidation. The military judge

reviewed the videotapes of the pre-polygraph and post-polygraph

interviews and found that the detective’s tone was never

verbally abusive or threatening. Appellant acknowledged that no

one had threatened him into making a statement and that it was a

product of his own free will. The military judge did not err in

denying Appellant’s motion to suppress the confession.

III. DECISION

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.

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ERDMANN, Judge (dissenting):

I respectfully disagree with the majority’s conclusion that

Delarosa ambiguously asserted his right to remain silent. I

further conclude that, under the circumstances of this case,

Delarosa’s assertion of his right to remain silent was not

scrupulously honored. Therefore, I dissent.

The initial difference between my position and the

majority’s centers on whether Delarosa unambiguously invoked his

right to remain silent. I agree with the United States Navy-

Marine Corps Court of Criminal Appeals’ conclusion on this

question: “[O]nce [Delarosa] made clear that his willingness to

make a statement was contingent on having a command

representative present, the ambiguity was resolved.” United

States v. Delarosa, No. NMCCA 200602335, 2008 CCA LEXIS 4, at

*12, 2008 WL 142115, at *4 (N-M. Ct. Crim. App. Jan. 10, 2008)

(unpublished). This conclusion of law reflects appropriate

consideration of the findings of fact, which are not clearly

erroneous, and is rationally derived from all the circumstances.

There is no reason to depart from that conclusion and find

ambiguity where none exists.

Delarosa’s written response as to whether he would waive

his rights and make a statement was clear enough on its face.1

1
It could be reasonably argued that Delarosa clearly and
unambiguously asserted his right to remain silent when, after
United States v. Delarosa, No. 08-0390/NA

However, granting that Delarosa’s prior conduct may have

indicated a willingness to talk and perhaps created some

uncertainty about the meaning of his invocation, the detectives

immediately clarified any apparent confusion. Upon determining

that Delarosa would not waive his right to remain silent unless

a command representative was present, and since police policy

would not allow that presence, the detectives had the necessary

clarification and Delarosa’s invocation was unambiguous.

Once the uncertainty about Delarosa’s apparent change of

heart was resolved, any law enforcement actions designed or

reasonably likely to overcome Delarosa’s resolve to remain

silent were impermissible: “If the individual indicates in any

manner, at any time prior to or during questioning, that he

wishes to remain silent, the interrogation must cease. At this

being advised of his rights and indicating an understanding of
them, Delarosa wrote “NO” in response to a written question
asking whether he wished to waive his rights and make a
statement. See United States v. Rambo, 365 F.3d 906, 910 (10th
Cir. 2004) (“There is no nuance nor context to vary the
unequivocal meaning of Rambo’s single word, monosyllabic
response. His response, ‘No,’ could only mean an invocation of
the right to remain silent.”). The clarity of this invocation
is enhanced by the fact that Delarosa wrote “N/A” in the next
blank on the rights warning form which called for an affirmation
of the voluntariness of any statement. After a rights warning,
an informed decision to remain silent arguably vitiates any
previous, uninformed reflections of willingness to talk, and
even asking the suspect “why” could be viewed as a failure to
scrupulously honor that informed invocation of the right to
remain silent. But see Medina v. Singletary, 59 F.3d 1095, 1105
(11th Cir. 1995).

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point he has shown that he intends to exercise his Fifth

Amendment privilege.” Miranda v. Arizona, 384 U.S. 436, 473-74

(1966).

If a reasonable police officer in the circumstances would

understand that statement to be an invocation of the right to

remain silent, then that invocation is not ambiguous. Burket v.

Angelone, 208 F.3d 172, 200 (4th Cir. 2000) (citing United

States v. Davis, 512 U.S. 452, 459 (1994)). Here, the

detectives themselves recognized that Delarosa invoked his right

to remain silent. Detective Mayer testified that “[Delarosa]

had put ‘No’ to question number 6, so we couldn’t talk to him.”

Similarly, when Delarosa learned his wife was taking a polygraph

exam and indicated he wished to make a statement, “Detective

Mayer responded that since the accused wrote ‘NO’ on the rights

waiver form they would have to re-advise him of his rights.”

These statements reflect that Detective Mayer understood that

Delarosa had unambiguously invoked his right to remain silent.

Under these circumstances I agree with the police officer at the

scene and the lower court that Delarosa unambiguously invoked

his right to remain silent when he indicated he was unwilling to

talk without a command representative present.

The invocation of the right to remain silent does not,

however, impose a permanent bar against further questioning.

Weeks v. Angelone, 176 F.3d 249, 267 (4th Cir. 1999), and

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Vujosevic v. Rafferty, 844 F.2d 1023, 1028 (3d Cir. 1988) (both

citing Michigan v. Mosley, 423 U.S. 96, 102-03 (1975)). The

admissibility of any subsequent statements depends upon an

analysis as to whether the law enforcement officials involved

“scrupulously honored” the invocation of the right to remain

silent. Mosley, 423 U.S. at 103-04. “[T]he touchstone is

whether a ‘review of the circumstances’ leading up to the

suspect’s confession reveals that his ‘right to cut off

questioning was fully respected.’” Weeks, 176 F.3d at 268

(quoting Mosley, 423 U.S. at 104).

From the outset, the Norfolk police detectives seemed

determined to get Delarosa to speak. They admittedly used a

ruse to get Delarosa to the police station and “Detective Bynum

admitted that he would have done anything he legally could have

done to keep the accused at the [Police Operations Center], if

he had asked to leave.” At no point did the detectives inform

Delarosa that he was free to go. Rather, they expressed an

intention to keep Delarosa at the police station and they

succeeded in doing just that despite lacking probable cause to

arrest Delarosa.

After Delarosa invoked his right to remain silent, the

detectives did not cease their efforts to get Delarosa to talk.

Detective Bynum immediately asked Delarosa, “‘Why did you say

“No”?’” Delarosa explained that he wanted a representative from

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his command present. As the detectives left the interrogation

room, Bynum told Delarosa to “consider” his decision, which

under the circumstances could only mean to “reconsider,” and to

knock on the door when he decided what he wanted to do. The

door in question was the exit to a small, spartan interrogation

room where Delarosa sat isolated. A reasonable man, having been

informed of his custodial interrogation rights and then told to

knock on the only available exit after reconsidering his

previous election to remain silent would conclude he was not

free to leave unless he changed his mind.

Nonetheless, the detectives did not wait for Delarosa to

make up his own mind. After about thirty-five minutes Detective

Mayer opened the door and asked if Delarosa was willing to take

a polygraph exam. Although such a question in and of itself may

not be an interrogation, see Rhode Island v. Innis, 446 U.S.

291, 308 (1980) (Stevens, J., dissenting), the question imparts

a desire to have the suspect talk about the matter under

investigation. Having kept Delarosa isolated after he invoked

his right to remain silent and with no change in circumstance,

Norfolk detectives directly asked Delarosa to make a statement

via a polygraph exam without any reference to his rights or his

prior invocation of the right to remain silent. While this

tactic certainly did not scrupulously honor Delarosa’s

invocation of the right to remain silent, it was effective.

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Delarosa abandoned his resolve to remain silent and agreed to

take a polygraph exam, but was again left alone in the

interrogation room while the detectives picked up his wife for

questioning.

For approximately the next two hours, Delarosa remained

isolated in the interrogation room. Detective Mayer then asked

if Delarosa needed anything and Delarosa indicated he wished to

use the bathroom. Mayer escorted Delarosa to the bathroom and

remained outside while Delarosa was in the bathroom. After he

exited the bathroom, Delarosa asked to use the telephone and

Mayer responded that it would be a while because Mayer was busy.

When Delarosa asked what was going on, Mayer responded that

Delarosa’s wife was in an interview room preparing for a

polygraph exam and that Delarosa could use the phone after the

polygraph exam was complete. Delarosa expressed some surprise

that his wife was at the police station and asked to talk to

with her. He was told that he could not see her until after her

polygraph exam. At this point Delarosa, who had already

abandoned his resolve to remain silent when he agreed to a

polygraph exam, again indicated that he wanted to talk to the

detectives. Mayer responded that he would have to re-advise

Delarosa of his rights.

The circumstances of Delarosa’s case stand in contrast to

those of Mosley and United States v. Watkins, 34 M.J. 344

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(C.M.A. 1992), where officers were found to have honored a

suspect’s invocation of rights. In Mosley the Supreme Court

found it significant that: (1) after Mosley invoked his right

to remain silent, officers ceased questioning right away; (2) a

significant period of time elapsed before questioning resumed;

(3) the officers informed Mosley of his rights a second time;

and (4) the later questioning was about a distinctly different

offense. 423 U.S. at 106-07. In Watkins this court found the

following factors significant with respect to whether Watkins’

invocation of the right to remain silent had been honored: (1)

agents gathered additional evidence and sought to interview

Watkins two and one-half hours after he initially invoked his

right to remain silent; (2) Watkins was reminded of the earlier

rights warning; (3) the second interview was at Watkins’

quarters and not in the “coercive environment arising from being

in custody at the police station”; and (4) after Watkins

requested counsel the interview stopped, but Watkins himself

initiated further conversation. 34 M.J. at 347.

Contrast Mosley and Watkins with the manner in which the

Norfolk police treated Delarosa’s invocation of the right to

remain silent. When Delarosa invoked his right, he was first

questioned as to why he was invoking it. Once it was clarified

that he was invoking his right to remain silent, he was told to

“consider what he would like to do.” Delarosa was kept in an

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eight-by-twelve-foot interrogation room at the police station

despite the absence of probable cause to arrest him and was told

to knock on the door only after he had considered his decision

to remain silent. Thirty-five minutes later the same officers

in the same location once again approached Delarosa and asked if

he would take a polygraph exam with no mention of his rights or

his prior invocation of the right to remain silent. Although

Delarosa agreed to take a polygraph exam at that time, he was

left in isolation for another two hours. After discovering that

the police were preparing to administer a polygraph exam to his

wife, Delarosa once again abandoned his resolve and informed the

detectives that he wanted to waive his rights and talk with

them.

These circumstances eroded any resolve Delarosa had to

remain silent and that erosion was the product of the conduct of

the Norfolk detectives. I therefore conclude that Delarosa

unambiguously invoked his constitutional right to remain silent

and that the Norfolk detectives did not scrupulously honor that

invocation. Delarosa’s ultimate waiver of the right to remain

silent and his written confession were not the product of a free

and voluntary election. I would reverse the decision of the

United States Navy-Marine Corps Court of Criminal Appeals, set

aside the findings and sentence, and authorize a rehearing.

8