Legal Research AI

United States v. Plugh

Court: Court of Appeals for the Second Circuit
Date filed: 2009-07-31
Citations: 576 F.3d 135
Copy Citations
14 Citing Cases

     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