United States v. Antonio Rodriguez-Preciado, AKA Tony Rodriguez-Preciado

399 F.3d 1118 UNITED STATES of America, Plaintiff-Appellee, v. Antonio RODRIGUEZ-PRECIADO, aka Tony Rodriguez-Preciado, Defendant-Appellant. No. 03-30285. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 13, 2004. Filed March 4, 2005. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED James F. Halley, Portland, OR, for the defendant-appellant. Karin J. Immergut, United States Attorney, and J. Russell Ratto, Special Assistant United States Attorney, Portland, OR, for the plaintiff-appellee. Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CR-96-00311-ALH-(2). Before WALLACE, GOULD, and BERZON, Circuit Judges. Opinion by Judge WALLACE; Partial Dissent by Judge BERZON. WALLACE, Senior Circuit Judge. 1 Rodriguez-Preciado appeals from his conviction for various narcotics-related offenses. He argues that the district court improperly denied his pre-trial motion to suppress evidence obtained from his person, his motel room, and his vehicle, as well as statements that he made in the motel room and during a subsequent two-day interrogation. In support of…

Opinion by Judge WALLACE; Partial Dissent by Judge BERZON.

Rodriguez-Preeiado appeals from his conviction for various narcotics-related offenses. He argues that the district court improperly denied his pre-trial motion to suppress evidence obtained from his person, his motel room, and his vehicle, as well as statements that he made in the motel room and during a subsequent two-day interrogation. In support of these claims, he contends that the officers did not obtain a valid consent to enter and search the motel room, and that they began a custodial interrogation of him in the *1123 motel room without giving the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Furthermore, he argues he did not validly waive his right to remain silent after he was eventually given Miranda warnings, the warnings became “stale” and should have been re-administered at the outset of the second day of interrogation, and the officers’ failure to advise him of his right under Article 36 of the Vienna Convention requires suppression. He also contends the officers did not obtain a valid consent to search his person and vehicle, and these searches exceeded the…

dissenting in part.

With the exception of subsection II.B.3, I agree with the majority’s opinion in its entirety. I cannot agree, however, with the majority’s conclusion that the Miranda warning administered to Rodríguez-Pre-ciado on the night of June 26 was still effective the following afternoon. 1 By the time of the interrogation in question, Rod-ríguez-Preciado had been moved twice since first being advised of his rights, and was then incarcerated at the local county jail. The combination of the lapse in time and the change in custodial circumstances is sufficient that a suspect could well question whether the same rights still obtained.

I therefore believe that we must address the midstream Miranda warning given to Rodríguez-Preciado during his interrogation on June 27. The propriety of those warnings — and of the interrogation elicited thereafter — turns on what rule, if any, the fractured Supreme Court handed down in Missouri v. Seibert, — U.S. -, 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004). As I explain below, because I would follow the reasoning of the Seibert plurality, I would hold that the district court erred in not suppressing the statements Rodríguez-Preciado made on…