Petition for Writ of Certiorari — Omar Qazi, Petitioner v. United States

Supreme Court briefJun 6, 2018

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APPENDIX A- TABLE OF CONTENTS

District Court Orders (Case No. 2:15-cr-00014-APG-VCF)

Magistrate's Report and Recommendation (Dkt.# 199), recommending that the

Motion to Suppress (Dkt.# 192) be granted with respect to the inadequacy of the

Miranda warnings, filed on August 04, 2016 ......................................................... A-i

Transcripts of Proceedings (Dkt.# 292) regarding District Judge's Order (Dkt.# 281),

the relevant portions for orally granting the Motion to Suppress, filed on January 3,

2017.........................................................................................................................A-2

Ninth Circuit Orders (CA No. 17-10004)

Unpublished Memorandum, Reversing and Remanding, filed on February 26,

2018 ......................................................................................................................... A-3

Order, denying Petition for Rehearing and Petition for Rehearing En Banc, filed on

May23, 2018 ........................................................................................................... A-4

Omar Qazi

N.S.D.C.

2190 E. Mesquite Ave.

Pahrump, Nevada

Proper Person

Aml

Case 2:15-cr-00014-APG-VCF Document 199 Filed 08/04/16 Page 1 of 9

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

THE UNITED STATES OF AMERICA,

Case No. 2:15—cr-14---APG—VCF

Plaintiff,

VS.

REPORT & RECOMMENDATION

OMAR QAZI,

Defendant.

Before the court are the Government's supplement to its response to Qazi's Miranda issue (ECF

No. 186) and Qazi's reply (ECF No. 191).' Also before the court are Qazi's motion to suppress due to

insufficient Miranda warnings (ECF No. 192), the Government's response (ECF No. 196), and Qazi's

reply (ECF No. 197). For the reasons stated below, Qazi's request to suppress his statements based on a

failure to provide a second set of Miranda warnings should be denied. Qazi's motion to suppress due to

an insufficient Miranda warning (ECF No. 192) should be granted.

I. Background

On January 6, 2015, Omar Qazi exited the Harbor Island Apartments parking lot and nearly

collided with Las Vegas Metropolitan Police (Metro) Officer Glover's patrol car. (ECF. 23) Officer

Glover conducted a traffic stop, suspected Qazi of possessing drugs, and searched his vehicle. (Id) The

officer found marijuana, methamphetamine, and a black handgun under the center console's ashtray.

This court had recommended that Qazi's second motion to suppress be denied as untimely. (ECF No. 158) This court also

recommended, in the alternative, that the parties brief a previously unraised Miranda issue. (id.) The district judge adopted

the recommendation and ordered additional briefing on the Miranda issue. (ECF No. 184) This court will treat the parties'

briefing on whether Qazi should have been given a second set of Miranda warnings as a motion to suppress.

Case 2:15-cr-00014-APG-VCF Document 199 Filed 08/04/16 Page 2 of 9

(Id.) A records search revealed that Qazi was a felon. (Id.) Officer Glover then arrested Qazi for being

a felon in possession of a firearm and read Qazi his Miranda rights. (Id)

Although Officer Glower read from Metro's standard "Advisement for Custodial Interrogation

(Adults)" card, his warning omitted the words "during questioning." The Miranda rights read to Qazi

were as follows:

You have the right to remain silent. Anything you say can be used against you in a court

of law. You have the right to the presence of an attorney. If you cannot afford an

attorney, one will be appointed before questioning. Do you understand these rights?

Metro's standard Miranda warning card includes the words "during questioning" at the end of

the third sentence after the word "attorney." (ECF No. 186-1) These Miranda warnings were given at

approximately 4:09 p.m.

Qazi responded that he understood his rights, and asked the officer some questions about why he

had been stopped. (ECF No. 191) Officer Glover answered the questicns, but did not ask Qazi any

questions about the firearm. (Id.)

After approximately three hours, Detective Kitchen arrived at the scene of the traffic stop. (Id.)

The detective was wearing plain clothes and a ski mask, which covered most of his face. (Id.) He was

not wearing anything that would have made him immediately identifiable as a police detective.

Detective Kitchen was accompanied by Officer Rotta, a patrol officer who had temporarily been

assigned to assist the detective. Officer Rotta was also dressed in plain clothes, but unlike Detective

Kitchen, Officer Rotta wore his badge on a lanyard around his neck. The badge was placed on the

exterior of his clothing and readily identified Officer Rotta as a Metro officer.

Qazi's motion to suppress based on alleged Fourth Amendment violations related to the search was denied (ECF No. 32)

Case 2:15-cr-00014-APG-VCF Document 199 Filed 08/04/16 Page 3of 9

1--

Officer Rotta walked Qazi over to Detective Kitchen. The detective was standing approximately

30 paces away from where he had initially been arrested. Detective Kitchen began interviewing Qazi at

approximately 7:13 p.m. From interview location, the arresting officer's patrol car and Qazi's vehicle

were still in Qazi's line of sight. Officer Rotta stood next to Qazi during the interview, but he did not

participate.

During this interview, Qazi initially denied knowing anything about the handgun. (ECF No.

186-4) Detective Kitchen explained to Qazi that Qazi might not go to jail for the handgun and that it

would be in Qazi's best interest to cooperate. (Id.) The detective neither promised leniency if Qazi

cooperated nor did he threaten Qazi with harsher penalties if Qazi refused to cooperate. (Id.) Towards

the end of the interview, Qazi stated that he didn't want to go to jail and stated that he had been given

the handgun approximately two weeks before the date of his arrest. (Id.)

At no time during this

interview did Detective Kitchen read Qazi his Miranda rights. Qazi now moves to suppress his

statements based on Detective Kitchen's failure to give him Miranda warnings as well as the

insufficiency of the original Miranda warnings.

II. Legal Standard

In order to safeguard the right against self-incrimination, the police must inform a suspect of

I certain rights before beginning a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 460, 86

S.Ct. 1602, 1620 (1966).

In now familiar words, the defendant must be advised of that:

he has [1] the right to remain silent, [2] that anything he says can be used against him in a

court of law, [3] that he has the right to the presence of an attorney, and [4] that is he

cannot afford an attorney one will be appointed for him prior to any questioning if he so

desires.

Duckworth v. Eagan, 492 U.S. 195, 202, 109 S.Ct. 2875, 2880, 106 L.Ed.2d. 166 (1984).

Case 2:15-cr-00014-APG-VCF Document 199 Filed 08/04/16 Page 4 of 9

III. Discussion

Detective Kitchen Was Not Required to Give Qazi a Second Set of Miranda Warnings

"The Supreme Court has eschewed per se rules mandating that a suspect be re-advised of his

rights in certain fixed situations in favor of a more flexible approach focusing on the totality of the

circumstances." United States v. Rodriguez-Preciado, 399 F.3d 1118, 1128 (9th Cir. 2005) (citing

Wyrickv. Fields, 459 U.S. 42, 48-49, 103 S.Ct. 394,74 L.Ed2d 214 (1982)). The Ninth Circuit has

"generally rejected aper se rule as to when a suspect must be readvised of his rights after the passage of

time or a change in questioners." Id

Qazi has not demonstrated that Officer Glover's Miranda warning had become stale when

Detective Kitchen interviewed him. Detective Kitchen interviewed Qazi nearly three hours after Qazi's

initial arrest. (ECF No. 191) The detective was dressed in plain clothes and interviewed him away from

the scene of his initial arrest. (Id.) Qazi contends that these factors should have prompted Detective

Kitchen to give Qazi a second set of Miranda warnings before the second interrogation. (Id.)

In Rodriguez-P reciado, police officers suspected that the defendant was trafficking drugs from a

motel room. 399 F.3d at 1123. While officers were lawfully searching the room, the defendant arrived.

Id. He admitted to possessing a small amount of cocaine, and was immediately arrested and given

Miranda warnings. Id. at 1124. The defendant identified several drug caches in his vehicle. Id Based

on the information the defendant had already provided, police officers transported him to the local jail

for further interrogation. Id. During this first interrogation, the defendant admitted that he was a drug

trafficker and expressed interest in helping law enforcement. Id. at 1124-25.

The defendant was subsequently booked on state drug charges and spent the night at the local

jail. Id. The next morning, one of the police officers who had interrogated the defendant the previous

day decided to resume the interview. Id. at 1125. This officer was accompanied by another officer who

Case 2:15-cr-00014-APG-VCF Document 199 Filed 08/04/16 Page 5 of 9

had not been involved in the defendant's initial arrest or his first interrogation. Id. The officers did not

readvise the defendant of his Miranda rights before beginning the second interview, which took place

approximately 16 hours after police officer had originally given the defendant his Miranda warnings.

Id. During the second interview, the defendant made numerous incriminating states about his

involvement with local drug traffickers. Id.

On appeal, the defendant challenged the district court's denial of his motion to suppress based on

violations of his Miranda rights. Id. at 1228. The Ninth Circuit affirmed the denial of the defendant's

motion to suppress. The panel found that the passage of 16 hours between the defendant's first and

second interrogations did not render original Miranda warnings "stale." Id. at 1229. The panel also

found that, even though the second interview took place at a different location and was conducted by a

different officer, nothing suggested that the "effectiveness of the earlier Miranda warnings was

diminished." Id.

The three-hour delay, change of location, and change of interrogator did not warrant a fresh set

of Miranda warnings. Id. Under Rodriguez-Preciado, Metro officers could have waited 16 hours,

transported Qazi to jail, and had Qazi interrogated by a different officer without giving him a fresh set of

Miranda warnings. Id. Detective Kitchen interviewed Qazi near the scene of the traffic stop and within

three hours of his arrest. (ECF No. 191) He was also assisted by Officer Rotta, who was readily

identifiable as a Metro officer. Under these circumstances, a fresh set of Miranda warnings was not

required. See Rodriguez-Preciado, 399 F.3d at 1129. Qazi's request to suppress his statements for lack

of a second Miranda warning should be denied.

Oazi's Confession Was Voluntary

A confession is involuntary if it is the product of physical or psychological coercion. United

States v. Preston, 751 F.3d 1008, 1017 (9th Cir. 2014). "The due process test takes into consideration

Case 2:15-cr-00014-APG-VCF Document 199 .Filed 08/04/16 Page 6 of 9

the totality of all the surrounding circumstances—both the characteristics of the accused and the details

of the interrogation." Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405

(2000).

Detective Kitchen spoke in a moderated tone, did not threaten Qazi, or physically harm him.

(ECF No. 186-4) Based on the body camera video and interview recording, there is no evidence to

suggest that Qazi's confession was involuntary.

Officer Glover's Miranda Warning to Oazi Were Insufficient

Qazi argues that Officer Glover's Miranda warning were insufficient because he omitted the

words "during questioning" from Metro's standardized Miranda warnings. (ECF No. 192)

Police officers must inform defendants that they have the right to consult with an attorney before

and during questioning. People of the Territory of Guam v. Shaer, 758 F.2d 1341, 1342 (9th Cir. 1985).

Although police officers are not required to use any particular language in their Miranda

warnings, California v. Prysock, 453 U.S. 355, 359, 101 S. Ct. 2806, 2809, 69 L. Ed. 2d 696 (1981), the

warnings must be unambiguous and simple enough so that uneducated and inexperienced defendants

will understand their Miranda rights. United States v. Perez-Lopez, 348 F.3d 839, 848 (9th Cir. 2003);

United States v. Connell, 869 F.2d 1349, 1352 (9th Cir. 1989) (holding that a warning is adequate if "the

existence of the right can easily be inferred from the warnings actually given")

Statements elicited after an inadequate Miranda warning may not be used to prove the

defendant's guilt and must be suppressed. Connell, 869 F.2d at 1353.

In Snaer, Guam's Miranda warnings were as follows:

Before we ask you any questions, you must understand your rights.

You have the right to remain silent. You do not have to talk to me unless you want to do

SO.

Case 2:15-cr-00014-APG-VCF Document 199 Filed 08/04/16 Page 8 of 9

unclear: a defendant could not know whether his attorney would be a neutral observer or an

active participant in the interrogation. Id.

Officer Glover's Miranda warnings fell short of those given in Chavez. He omitted the

critical words "during questioning" from Metro's standard Miranda advisement. This omission

rendered the warnings given to Qazi even more ambiguous than Metro's standard warnings.

From the sentence "[y]ou have the right to the presence of an attorney." it would have been

unclear to Qazi whether his attorney could actively participate in the interrogation or was merely

there to observe. See Id.

It also unclear when and where Qazi's attorney could be present. The word "during

questioning" clarify that, at the very least, the attorney could be present while Detective Kitchen

interrogated Qazi. Without those words there are doubts about whether the attorney could be

present during the interview or if Metro officers could exclude the attorney. See id. Officer

Glover's Miranda warnings were deficient and Qazi's incriminating statement should be

suppressed.

This court recognizes that there is currently an intra-district split regarding the adequacy of

Metro's standard Miranda warnings. Id. (finding Metro's standard Miranda warning inadequate); but

see United States v. Waters, No. 2:15-cr-80 JCM (VCF); 2016 WL 310738 at* 6 (finding the same

Miranda warning to be adequate). The warning given to Qazi omitted important words that rendered it

deficient as given. As Qazi was not given Metro's standard Miranda warning, this court need not

determine the adequacy of Metro's standard Miranda warning.

ACCORDINGLY, and for good cause shown,

IT IS HEREBY RECOMMENDED that Qazi's request to suppress his statements based on a

failure to re-Mirandize him (ECF No. 191) be DENIED.

Case 2:15-cr-00014-APG-VCF Document 199 Filed 08/04/16 Page 9 of 9

IT IS FURTHER RECOMMENDED that Qazi's request to suppress his statements based on

insufficient Miranda warnings (ECF No. 192) be GRANTED.

IT IS SO RECOMMENDED.

DATED this 4th day of August, 2016.

CAM FERENBACH

UNITED STATES MAGISTRATE JUDGE

A-3

(1 of 7)

Case: 1740004, 02/26/2018, ID: 10776838, DktEntry: 36-1, Page 1 of 2

FILED

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FEB 262018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

No. 17-10004

D.C. No.

2:1 5-cr-000 14-APG-VCF- 1

MEMORANDUM*

OMAR QAZI,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Nevada

Andrew P. Gordon, District Judge, Presiding

Submitted February 16, 2018**

San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,*** District Judge.

The government appeals the district court's order suppressing Omar Qazi's

post-arrest statements upon finding that Qazi was given a deficient Miranda v.

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

The Honorable Robert S. Lasnik, United States District Judge for the

Western District of Washington, sitting by designation.

(2 of 7)

Case: 1740004, 02/26f2018 ID: 10776838,DEmr36-J Page 2of2

Arizona, 384 U.S. 436 (1966), warning. We have jurisdiction under 18 U.S.C.

§ 3731, and we reverse.

Qazi argues that the Miranda warning was insufficient because it failed to

inform him that he had a right to an attorney "before and during questioning" and

that the statement given was merely the Miranda Court's "summary," not its

holding. We review the sufficiency of a Miranda warning de novo. United States v.

Loucious, 847 F.3d 1146, 1148-49 (9th Cir. 2017).

Miranda held that "the following measures are required": "Prior to any

questioning, the person must be warned that.. he has a right to the presence of

an attorney." 384 U.S. at 444 (emphasis added); see also id. at 478-79 (reiterating

similar language). Qazi was informed: "You have the right to the presence of an

attorney." "[W]e emphasize that while Supreme Court case law does not require a

verbatim recitation of Miranda's warnings, it does not proscribe it either."

Loucious, 847 F.3d at 1151 (emphasis added). Here, the Miranda warning given to

Qazi was nearly verbatim to the language in Miranda, changing only the pronoun

and the verb. Qazi was not given an insufficient Miranda warning.

REVERSED AND REMANDED.

IFLA I EA I

UNITED STATES COURT OF APPEALS

MAY 232018

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

No. 17-10004

D.C. No.

2:1 5-cr-000 14-APG-VCF- 1

District of Nevada,

Las Vegas

OMAR QAZI,

Defendant-Appellee.

[E1 I]i1

Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,* District Judge.

The panel has voted to deny the petition for panel rehearing. Judge Bea and

N.R. Smith have voted to deny the petition for panel rehearing en banc, and Judge

Lasnik has so recommended.

The full court was advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

The petition for rehearing and the petition for rehearing en banc are

The Honorable Robert S. Lasnik, United States District Judge for the

Western District of Washington, sitting by designation.

Appellee's legal counsel's Motion to Withdraw as Counsel is GRANTED,

and his Motion for Appointment of Substitute Counsel is DENIED as moot.

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