United States v. Guadalupe Rodriguez-Gastelum

with whom TRASK, CHOY, WALLACE, SNEED and KENNEDY, Circuit Judges, concur:

We took this case en banc to consider whether a suspect in a criminal investigation can waive his right to counsel after having initially made known his desire to have the assistance of counsel. We hold that a per se rule prohibiting such a waiver is neither necessary nor appropriate.

Rodriguez-Gastelum made incriminating statements after he was stopped while driving an automobile loaded with marijuana. 1 He was proceeding toward Tucson in a vehicle which had been under customs surveillance in a Nogales, Arizona, parking lot. Customs Officer Treto approached and advised appellant of his rights in both English and Spanish. Appellant responded that he understood his rights and had no objection to answering the officer’s questions.

Treto asked who owned the car, and appellant said that he did not know. In response to further questions, appellant said that he was a mechanic delivering the car to Tucson. Treto then asked appellant to open the trunk. Appellant “appeared very nervous” and refused. At this point, Treto placed appellant under arrest and took him to the Drug Enforcement Administration (DEA) office…

concurring and dissenting; BROWNING and ANDERSON, Circuit Judges, joining.

I agree with the majority view that a per se rule in these cases is neither necessary nor desirable.

I do not agree, however, that the frightened Mexican in this case meant, when he said, “that’s fine”, to waive then and there the right to counsel which, a moment earlier, he was still trying to invoke. Nor do I agree with the majority’s acceptance of a waiver in United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), cert. denied sub nom. Inciso v. United States, 429 U.S. 1099 , 97 S.Ct. 1118 , 51 L.Ed.2d 546 (1977). The majority’s strong reliance on Pheaster will *489 encourage trial courts to find waivers by’ prisoners where police persist in techniques which force the suspect constantly to reassert his or her right to counsel.

I would hold police interrogators to a strict standard of waiver as set forth in Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938), and as restated in Brewer v. Williams, 430 U.S. 387 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977). The waiver must be explicit, initiated by the suspect, and not in any way induced by the interrogators. Any more lenient rule simply…

569 F.2d 482 UNITED STATES of America, Appellee, v. Guadalupe RODRIGUEZ-GASTELUM, Appellant. No. 76-2241. United States Court of Appeals, Ninth Circuit. Jan. 30, 1978. As Amended Feb. 23, 1978. Frank R. Zapata, Asst. Federal Public Defender, Tucson, Ariz., for appellant. Stephen D. Dichter, Asst. U. S. Atty., Tucson, Ariz., for appellee. Appeal from the United States District Court for the District of Arizona. Before BROWNING, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED, KENNEDY, and ANDERSON, Circuit Judges. 1 WRIGHT, Circuit Judge, with whom TRASK, CHOY, WALLACE, SNEED and KENNEDY, Circuit Judges, concur: 2 We took this case en banc to consider whether a suspect in a criminal investigation can waive his right to counsel after having initially made known his desire to have the assistance of counsel. We hold that a per se rule prohibiting such a waiver is neither necessary nor appropriate. 3 Rodriguez-Gastelum made incriminating statements after he was stopped while driving an automobile loaded with marijuana. 1 He was proceeding toward Tucson in a vehicle which had been under customs surveillance in a Nogales, Arizona, parking lot. Customs Officer Treto…