Sunday, July 23, 2017

Case o' The Week: Ninth Throws the Book(ing Q's) at 'em - Zapien and the "Booking" Exception to Miranda

 This time, “book ‘em” . . . . (and use their custodial statements against ‘em, too).
 United States v. Zapien, 2017 WL 2836162 (9th Cir. July 3, 2017), decision available here.

Players: Per curiam decision with Judges McKeown, Friedland, and D. Nevada District Judge Boulware.  

Facts: Zapien was arrested, Mirandized accused by DEA agents of being a drug dealer, and he invoked his right to counsel. Id. at *1. The agents switched up and began asking custodial, or “booking,” questions -- Zapien then said he wanted to provide additional information. Id. Zapien was Mirandized again, explained he wanted to talk – and then admitted he’d been involved in drug trafficking. Id. Over defense objection, the district court permitted the questions on the theory that the biographical questions did not constitute interrogation. Id. Zapien was convicted of meth charges after a jury trial and sentenced to ten years. Id. at *2.

Issue(s): “On appeal, Luna Zapien challenges the district court’s denial of the motion to suppress . . . . Luna Zapien argues that the questioning following his invocation of his right to counsel constituted interrogation.” Id. at *3.

Held: “We disagree. We conclude that the questioning was covered by the booking exception.” Id.

Of Note: Whether the “booking exception” applies is an intensely fact-bound inquiry. Here, the booking questions didn’t relate to the charged offense, there was no evidence that the agents played upon Zapien’s weaknesses or knew that he was particularly disoriented or upset, or no facts in the record that the agents used the booking questions as a pretext. Id. at *4. The panel also collects other fact patterns, looking at both booking questions and their context. Id. 
  The Zapien outcome is what it is, and the panel carefully portrays the DEA agents as boy scouts scrupulously respecting Miranda protections. As a practical matter, however, when it is investigating agents – and not U.S. Marshals –asking these “booking” questions, and when these agents are launching into these “booking” questions right on the heels of a defendant’s solid invocation, we who represent indigent clients know that this “booking exception” is an inevitable subterfuge of Miranda protections.   

How to Use: Two footnotes may provide a foothold to distinguish Zapien in future “booking exception” cases. First, the per curiam decision dodges the (apparently unresolved) question of whether the government, or the defense, bears the burden of “establishing the applicability of the booking exception.” Id. at *4 & n.1 On a case with closer facts, tagging the government with that burden may save the day. (And really, how can it not be the government’s burden, to show invoke an exception and dodge Miranda limits?)
  The panel is also careful to note that there was no indication that Zapien’s undocumented status (discovered during the booking questions) was “used or leveraged” by the agents. Id. at 4 & n.2. Watch for the abuse of that fact – discovered during booking – even where (as here), undocumented status is not an element of the charged offense.
For Further Reading: How will the richest and most powerful country in history treat the poorest, and most vulnerable, among us?
  That question may be answered in San Francisco.

  On Tuesday, July 18, the acting director of ICE pledged to target Sanctuary Cities with new waves of ICE agents, to apprehend undocumented aliens. See article here
  Two days later, the Honorable District Judge William Orrick (N.D. Cal) denied the federal government’s motion for reconsideration of his Sanctuary City order: his refusal to dismiss the civil suits of Bay Area Sanctuary Cities stands. See Ord. here.  Judge Orrick also concluded that the City of San Francisco stated a sufficient claim for declaratory relief. Id. at 2:9-10.
   Yesterday, Attorney General Sessions gave a speech in Philadelphia and called on local governments to assist the “crackdown on illegal immigration.” See article here
   Fitting that our city, named for Saint Francis of Assisi, has become an epicenter for this brewing immigration battle.

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


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