Sunday, June 09, 2013

Case o' The Week: Another Brick in the Wall - Morgan, Miranda and Confessions

  Bricks of marijuana make a lovely green backdrop, for booking photographs of suspects accused of drug-smuggling.
   (Any subsequent confession is an inadvertent coincidence). United States v. Morgan, 2013 WL 2380467 (9th Cir. June 3, 2013), decision available here.

Players: Decision by Judge Nguyen, joined by Judges Fisher and Callahan. Hard-fought appeal by AFPDs Juan Rocha and Brian Rademacher of the District of Arizona.

Facts: Shirley Anne Morgan was arrested at the border in a vehicle loaded with 77 bricks of marijuana. Id. at *1. She was Mirandized, spoke to Border Agent Charles Armour briefly, then invoked her right to counsel. Id. Morgan was taken to a Border Patrol station 2 ½ hours away, given a form that again told her of her Miranda rights and told to sign it. At some point agents photographed her in front of the drugs. Id. at *2. Morgan said she wanted to speak to the agent again, was put in a cell, and nearly three hours later confessed to smuggling the marijuana in an interview. Id. at *2. When her suppression motion was denied in district court, she entered a conditional plea. Id.

Issue(s): “Morgan claims that the district court erred in refusing to suppress post-arrest statements allegedly obtained in violation of Miranda . . . . Morgan contends that the combination of circumstances—re-reading the Miranda warnings, processing the drugs seized from her vehicle in her presence, and taking her photograph with the seized drugs—constituted the ‘functional equivalent’ of interrogation.” Id.

Held: “Because [the agent’s] actions were not interrogation or its functional equivalent, we affirm.” Id. at *1. “Here, Morgan was not subjected to the functional equivalent to interrogation. [Processing Morgan in the same room as the drugs, and photographing her with the drugs], coupled with the routine reading of the . . .  form [containing Miranda advisements] were not unduly coercive, particularly in light of the fact that [the] agent . . . made no attempt to secure a waiver of Morgan’s rights or elicit any incriminating statements from her.Id. at *3.
Of Note: Morgan could take this issue up because her plea agreement allowed her to preserve the argument for review in the Ninth – it was a “conditional plea.” Unlike many districts, the ND Cal USAO effectively prohibits conditional pleas. (FOIA requests seeking the district’s total number of conditional pleas would make for an interesting and enlightening project.) 
  Broad unilateral waivers of all appellate and habeas rights in plea agreements violate a prosecutor’s code of ethical conduct – or at least, they will when the A.B.A. adopts its new proposed Standard 3-5.9, “Waiver of Rights as Condition of Plea Agreement.” For Professor Rory Little’s article containing this and many other welcome revisions to the standards of conduct for the prosecution function, see article here.  

How to Use: The Ninth tolerates the confession in Morgan, but isn’t happy about it. As Judge Nguyen warns, “there is no reasonable explanation for taking Morgan’s photograph with the seized drugs. We are disturbed by, and in no way condone, this action, which at the very least appears gratuitous and unprofessional.Id. at *4. The confession survives in Morgan because of unique facts that help the government, including a three-hour delay between Morgan’s renewed interest in speaking to the agent and the actual interrogation. Id. at *3. If your client is photographed next to the evidence before confessing, take a shot at factually distinguishing Morgan – on slightly different facts, this confession would not have survived.
For Further Reading: Ray Conrad was the Federal Defender for the Western District of Missouri for thirty-three years. Last week he stepped down and retired, as did his Chief Investigator. Both left the office because of the severe budget cuts required by sequestration – their sacrifice saved five jobs.
For a video where Ray describes his difficult decision, see clip here.  

Image of bricks of marijuana from “Last One Out” image from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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