Sunday, March 16, 2008

Case o' the Week: Ninth Unambiguous About Miranda Ambiguity, Rodriguez

Judge Milan Smith (left) delivers an important defense win on Miranda waivers. See United States v. Jose Rodriguez, __ F.3d __, 2008 WL 623982 (9th Cir. Mar. 10, 2008), decision available here. In Rodriguez, the Ninth finds that the old "clarification rule" survived the Supreme Court's limitations in Davis: an ambiguous assertion of Miranda rights at the outset of an interrogation must be clarified by law enforcement before interrogation can proceed.

Players: Big win by Las Vegas AFPD Jason Carr.

Facts: Rodriguez was stopped by a Park Ranger on suspicion of DUI. Id. at *1. The Ranger learned from dispatch that Rodriguez was a felon, then saw a pistol handle in the bed of Rodriguez’s truck. Id. Rodriguez admitted to a .40 caliber pistol under the driver’s seat; he was arrested and his two passengers, detained. Id.

The Ranger read Rodriguez his Miranda rights. When asked if he wanted to speak to the rangers, Rodriguez answered, “I’m good for tonight.” Id. A “short time later,” Rodriguez was questioned and gave a full confession.

He was charged with felon-in-possession and other federal crimes. Id. A magistrate denied Rodriguez’s Miranda challenge, holding “I’m good for tonight” was an ambiguous assertion of the right to silence. Id. at *2. The district court adopted the magistrate’s findings; a conditional plea followed. Id.

Issue(s): 1. Ambiguous? “Rodriguez argues first that this statement . . ., ‘I’m good for tonight,’ was an unambiguous invocation of his right to silence.” Id.

2. Duty to Clarify? “He next argues that, to the extent his statement was ambiguous, [the Ranger] was under a duty to further clarify its meaning before he or any other Ranger proceeded with interrogation.” Id.

Held: 1. Ambiguous? “We . . . hold the statement [‘I’m good for tonight’] to be, at best, an ambiguous invocation of the right to silence.” Id. at *3.

2. Duty to Clarify? “Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation. In this case, the government cannot meet its ‘heavy burden’ of proving an initial knowing and intelligent waiver of Miranda with an ambiguous or equivocal reference to Miranda rights.” Id. at *5.

Of Note: This is a Big Case. Before ‘94, the 5th, 9th, and 11th Circuits had a broad “clarification rule.” Id. at *4. This rule required that “in the face of an ambiguous or equivocal assertion of Miranda rights, made at any time during interrogation, interrogating officers were required to clarify the statement before continuing the interrogation.” Id. In ‘94, the Supreme Court decided Davis v. United States, 512 U.S. 452 (1994). Five Justices in Davis rejected the clarification rule in the context of an ambiguous invocation of counsel after a valid Miranda waiver was obtained. Id. at * 4 (discussing and distinguishing Davis). The key issue for authoring Judge Milan Smith (and Judges Canby and Thompson) was whether the Ninth’s “clarification rule” survived Davis? Happily, it does. In a very thoughtful opinion, Judge Smith explains that the Davis decision only make sense if there has already been an valid waiver. Id. at *4-*5. Thus, in Rodriguez (or in any initial invocation case), the old “clarification rule” survives Davis: it remains the government’s “heavy burden” to show a clear and unambiguous Miranda waiver. (Here's hoping that the composition of this panel (a Reagan and a W. Bush appointee) will stave-off en banc and cert. interest . . . )

How to Use: To avoid the Davis rule, AFPD Carr argued the difference between invocation of the right to silence (Rodriguez) and the right to counsel (Davis). Id. at 4 & n.5. For the fifth time, the Ninth avoided this issue. Id.

A future case that involves: i) an ambiguous mid-stream invocation, ii) to the right to silence (instead of to counsel) deserves another run at Davis on this theory.

For Further Reading: For an interesting – though controversial – look at how law enforcement and courts have gutted the Miranda goals, see Professor Weisselberg’s piece, Mourning Miranda, available here. (Ernesto Miranda, the defendant, is shown right).

For another big (and recent) Ninth Miranda win, re-visit Anderson here.

Steven Kalar, Senior Litigator. Website at


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Anonymous Anonymous said...

Thanks for writing about this decision and its implications. For another comprehensive discussion about how Miranda has been stripped of its original intentions and turned into a tool of law enforcement, see Richard Leo's great new book, Police Interrogation and American Justice.

Monday, March 17, 2008 7:06:00 AM  

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