Petition for Writ of Certiorari — Fidel Rios Soto, Petitioner v. California

NO. ______________________

IN THE

SUPREME COURT OF THE UNITED STATES

FIDEL RIOS SOTO, Petitioner,

VS.

CALIFORNIA, Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL

SIXTH APPELLATE DISTRICT

PETITION FOR WRIT OF CERTIORARI

ALEXIS HALLER

Counsel of Record

LAW OFFICE OF ALEXIS HALLER

7960B Soquel Drive, #130

Aptos, California 95003

(831) 685-4730

ahaller@ahlawoffice.com

Counsel of Record for Petitioner,

FIDEL RIOS SOTO

QUESTION PRESENTED

At the beginning of a custodial interview with district attorney investigators

a week after his arrest for murder, Petitioner unambiguously invoked his right

to counsel. Investigators nevertheless proceeded with questioning related to

Petitioner’s arrest and the information he had received about the charged

offense, leading to Petitioner’s waiver of his rights under Miranda v. Arizona,

384 U.S. 436 (1966). Petitioner thereafter made highly incriminating

statements during the interview that were admitted at trial.

In Smith v. Illinois, 469 U.S. 91 (1984), this Court held that “all questioning

must cease after an accused requests counsel” during a custodial interview. Id.

at 98 (emphasis in original, citation omitted).

This case presents the following question:

When a suspect invokes the right to counsel during a custodial

interview, can law enforcement officers continue to question the

suspect if their post-invocation inquiries are not reasonably

likely to elicit an incriminatory response?

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LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

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TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISION INVOLVED . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . 9

I.

Under this Court’s Holdings in Edwards and Smith, All

Questioning Must Cease Following a Suspect’s Invocation of

the Right to Counsel During a Custodial Interview. . . . . . . . . . . . . 12

A.

The Edwards Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B.

In Smith, this Court Held that the Edwards Rule

Prohibits All Questioning Following an Accused’s

Invocation of the Right to Counsel. . . . . . . . . . . . . . . . . . . . 16

C.

Smith is Factually Indistinguishable from

Petitioner’s Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

II.

Despite the Holding of Smith, There is a Persistent Conflict

with Regard to Whether Post-Invocation Questioning is

Permitted as Long as It is Not Reasonably Likely to Elicit

an Incriminatory Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

III.

Given the Importance of the Constitutional Issue, the Court

Should Resolve the Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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IV.

This Case Presents the Ideal Vehicle for the Court to Resolve

the Conflict and Reaffirm that Officers May Not Question

a Suspect Following the Unambiguous Invocation of the Right

to Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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TABLE OF AUTHORITIES

Cases

Anderson v. Terhune,

516 F.3d 781 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Arizona v. Roberson,

486 U.S. 675 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14,24

Chapman v. California,

386 U.S. 18 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,26

Chavez v. Martinez,

538 U.S. 760 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

Christopher v. State of Fla.,

824 F.2d 836 (11th Cir. 1987) . . . . . . . . . . . . . . . . . . . . 20-21,25 n.9

Cohens v. State of Virginia,

19 U.S. 264 (1821). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Edwards v. Arizona,

451 U.S. 477 (1981). . . . . . . . . . . . . . . . . . . . . . . . . 7 n.2,9,13,15-16

Fare v. Michael C.,

442 U.S. 707 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,15

Garcia v. Long,

808 F.3d 771 (9th Cir. 2015) . . . . . . . . . . . . . . . . . . . 20,21 n.6,25 n.9

Massiah v. United States,

377 U.S. 201 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 n.5

McNeil v. Wisconsin,

501 U.S. 171 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,15

Michigan v. Harvey,

494 U.S. 344 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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Michigan v. Mosley,

423 U.S. 96 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Minnick v. Mississippi,

498 U.S. 146 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Miranda v. Arizona,

384 U.S. 436 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 n.1,13,23

Missouri v. Seibert,

542 U.S. 600 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Montejo v. Louisiana,

556 U.S. 778 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

North Carolina v. Butler,

441 U.S. 369 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15

Oregon v. Bradshaw,

462 U.S. 1039 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Pennsylvania v. Muniz,

496 U.S. 582 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 n.7

People v. Smith,

466 N.E.2d 236 (Ill. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Rhode Island v. Innis,

446 U.S. 291 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,10,22,23

Rodriguez de Quijas v. Shearson/American Exp., Inc.,

490 U.S. 477 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Smith v. Illinois,

469 U.S. 91 (1984). . . . . . . . . . . . . . . . . . . . 8,10,15,16-19,23,25 n.9

Solem v. Stumes,

465 U.S. 638 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,16

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United States v. Abdallah,

— F.3d —, No. 17-4230, 2018 WL 6613333

(4th Cir. Dec. 18, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Blake,

571 F.3d 331 (4th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,22

United States v. Hunter,

708 F.3d 938 (7th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . 20,21 n.6

United States v. Johnson,

812 F.2d 1329 (11th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . 24 n.8

United States v. Whaley,

13 F.3d 963 (6th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Constitutional Provisions

U.S. Const. Amend. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

U.S. Const. Amend. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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Petitioner Fidel Rios Soto (“Petitioner”) respectfully petitions for a writ

of certiorari to review the judgment of the California Court of Appeal, Sixth

Appellate District, in Case No. H042397.

OPINIONS BELOW

The unreported opinion of the California Court of Appeal, Sixth

Appellate District, affirming the judgment on appeal is attached as Appendix

A. See also People v. Soto (Cal. Ct. App., June 13, 2018, No. H042397) 2018

WL 2949484. The unreported order of the California Supreme Court denying

the petition for review is attached as Appendix B.

JURISDICTION

The judgment of the California Court of Appeal, Sixth Appellate

District, was entered on June 13, 2018. A timely petition for review was

denied by the California Supreme Court on September 26, 2018. This Court

has jurisdiction pursuant to 28 U.S.C. section 1257(a).

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CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual service in time of

War or public danger; nor shall any person be subject for the

same offense to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public

use, without just compensation.”

The Fourteenth Amendment to the United States Constitution (§ 1):

“Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.”

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STATEMENT OF THE CASE

Hilario Avila (“Avila”), an agricultural laborer living in Greenfield,

California, was shot to death in his rental apartment on August 30, 1997. The

evidence introduced at trial showed that Avila lived in the apartment with

Petitioner, Emidio Cruz (“Cruz”), and Consuelo Garcia (“Chelo”). Petitioner,

Cruz and Avila – young men from Mexico – worked in the fields for an

agricultural company called Dominguez Farms. Petitioner slept in the same

room as Chelo, a bartender and occasional prostitute.

Cruz testified that, on the day of the shooting, he was drinking heavily

in the apartment with Petitioner, Avila, and an older man nicknamed Don

Panchito. 4RT 252, 259, 262, 293. He stated that, while speaking in a corner

with Don Panchito, he saw Petitioner emerge from his bedroom with a lever

action rifle. 4RT 243, 293, 298. Cruz testified that Petitioner said “That’s it,

Hilario” (“Ahora sí, Hilario”) and shot Avila – who was seated in a chair –

three times in quick succession. 4RT 246, 250, 249-50, 289-90. Cruz stated

that all shots were fired from the same location, which was 24 feet away from

Avila. 4RT 245. Cruz testified that Petitioner then dropped the rifle and left

the apartment. 4RT 244.

No fingerprints were found on the rifle, and none was found on the

cartridges or casings. 5RT 327, 343. The shell casings were found spread out

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in the apartment, and not in one place. 4RT 221; 5RT 313; People’s Trial

Exhibit 35, 37-38. The rifle was found near the apartment door, and not at the

location indicated by Cruz. 5RT 313; People’s Trial Exhibit 39; Defense

Exhibit B; 4RT 257, 290, 302. There were no fingerprint matches anywhere

in the apartment for Petitioner. 5RT 338-40.

Pedro Dominguez, a foreman at Dominguez Farms in 1997, testified

that, in August 1997, he returned with his family to his house late one night.

3RT 111. Dominguez stated that Petitioner was outside his house and startled

his wife. 3RT 312. Dominguez testified that Petitioner looked upset or

disoriented. 3RT 114. According to Dominguez, Petitioner said he wanted a

ride, and Dominguez agreed. 3RT 112-13. Dominguez testified that, after a

short drive, Petitioner stated that he wanted to go to Fresno or Santa Maria.

3RT 114. Dominguez refused and dropped him off at a nearby store. 3RT

117. Dominguez never saw Petitioner again. 3RT 117-18. The evidence

showed that the final check from Dominguez Farms to Petitioner was issued

on September 5, 1997, for work performed from August 25 to 30. 4RT 156.

On September 10, 1997, Petitioner was charged by criminal complaint

with murder in violation of California Penal Code section 187. 1CT 1. The

complaint also alleged that Petitioner had used a firearm in the commission of

the offense within the meaning of Penal Code section 12022.5, subdivision (a).

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1CT 1-2.

Petitioner was arrested in Glenn County, California, on March 19, 2013.

1CT 212. On March 26, 2013 – the day before his arraignment on the 1997

criminal complaint – DA investigators Antonio Rodriguez and Maribel Torres

interviewed Petitioner at the Monterey County Jail. 4RT 176, 179, 182.

Rodriguez was later designated as the prosecution’s lead investigator at trial.

3RT 68. The interrogation was conducted in Spanish, with Torres serving as

an interpreter. 4RT 210; 1CT 97-98.

Before reading Petitioner his Miranda1 rights, Torres asked Petitioner

“[w]here are you from?” 1CT 98. Petitioner responded “Michoacan.” 1CT

98. Torres said, “Oh, look, from Michoacan. Have you been there?” 1CT 98.

Petitioner stated, “Yes, three years ago, I was there seeing my father and

everything.” 1CT 98. Petitioner and the investigators then had a back-andforth about Petitioner’s cell phone, which had been seized during his arrest and

contained his mother’s phone number in Mexico. 1CT 98-99. After Petitioner

mentioned money that he had earned while living in Seattle, Torres interrupted

and admonished Petitioner under Miranda.

After the Miranda warning, Torres asked Petitioner: “Having these

rights in mind, do you wish to speak with us?” 1CT 100. Petitioner

1

Miranda v. Arizona, 384 U.S. 436 (1966).

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responded, “I would like to have an attorney, because you’re accusing me of

something that I did not do.” 1CT 100; see also Ct. of App. Order of Mar. 23,

2016 (augmenting the appellate record with the audio recording); 3/26/13

Audio Recording, 3:58-4:01. Without acknowledging Petitioner’s invocation,

Torres continued as follows:

Torres:

Ok, so, they already told you...

Petitioner: Yeah, they already told me that, that. . .when they

arrested me they told me it was because of homicide.

Torres:

Ok, so, they notified you ? [4:10]

Petitioner: They told me over there, when the police, even...

...

Torres:

Let’s see, the papers? It’s that I don’t have any

paperwork. They arrested you in Glenn County. Glenn County?

[4:26] [Shuffling papers].

Rodriguez: Yeah, he’s already been notified.

Torres:

Ok, that’s what he’s telling me.

Rodriguez: Yeah, and there’s the warrant that they gave him.

Torres:

Ok, so, they gave you a copy of your arrest

warrant. Ok? That’s what I’m looking at, the papers they gave

you.

Soto:

Yeah.

Torres:

All this came with you. [Shuffling papers]. Ok, so

they are already explained to you why you’re here. [Shuffling

papers]. You know why. Umm, is that all?

Rodriguez: Si.

Torres:

It says nothing about phone [sic] or anything.

Rodriguez: No.

Torres:

Ok. [Shuffling papers].

Rodriguez: Well, there’s a phone listed here along with the

money, but I didn’t see any phone along with his property.

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[5:03]

Petitioner: I had almost twenty-three-thousand dollars in

cash.

Torres:

Ok. [Shuffling papers].

Petitioner: There, when I was arrested, they said to me,

“Murder”. Can you clearly explain to me what’s happened or

why . . .? [5:24 to 5:33]

Torres:

Ok, but, [shuffling papers] that’s why I read you

your rights, if you wanted to speak with me or not. So, you have

that right at the momento [sic], if you want to keep speaking,

however you wish and I can answer your questions, but having

in mind your rights. Do you want to speak with me or not?

Petitioner: Yes.

1CT 100-01; see also 3/26/13 Audio Recording, 3:58-5:54.

Petitioner

thereafter executed a written Miranda waiver and made a series of

incriminating statements during the remainder of the interview. 1CT 101-28;

A9.

Before trial, the defense moved to exclude Petitioner’s custodial

statement to DA investigators under Miranda and Edwards.2 1CT 92-93. The

trial court denied the motion, holding that Torres’ post-invocation inquiries did

not call “for an incriminating response.” 3RT 66; see also 3RT 64.

The trial court admitted Petitioner’s statements during the custodial

interview, which played a central role in the prosecution’s case before the jury.

See 4RT 173-95, 200-04, 225, 230-31 (testimony by Investigator Rodriguez

2

Edwards v. Arizona, 451 U.S. 477 (1981).

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regarding his interview of Petitioner); 6RT 403-04, 416-21, 424-25, 470-71

(closing and rebuttal arguments); see also infra at 26-29.

The jury found Petitioner guilty of first-degree murder and found the

firearm enhancement to be true. 1CT 201. The trial court thereafter sentenced

Petitioner to a prison term of 35 years to life. 1CT 261.

Petitioner timely appealed, contending, inter alia, that the trial court had

erred under Miranda/Edwards in denying the motion exclude Petitioner’s

custodial statement to DA investigators. The Court of Appeal rejected

Petitioner’s claim. While acknowledging a line of cases stating that all

questioning must cease after an accused requests counsel, the appellate court

concluded that the cases – including Smith, 469 U.S. 91 – were dicta on the

issue. A13-A14. The Court of Appeal held that this Court’s decision in Rhode

Island v. Innis, 446 U.S. 291 (1980), meant that officers were only prohibited

from asking questions that “are ‘reasonably likely to elicit an incriminating

response from the suspect’” after the clear invocation of the right to counsel.

A13, quoting Innis, 446 U.S. at 301; see also id. at A19. The appellate court

concluded that the Innis interrogation standard had not been met, because the

DA investigators “[a]t most . . . hoped to pique [Petitioner’s] curiosity by

alluding to the existence of charges against him, albeit always in the context

of the legitimate inquiry whether he had been apprised of those charges.” A19.

The Court of Appeal also ruled that Petitioner had reinitiated contact with law

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enforcement by asking a question about the warrant. A18-23. After adjusting

Petitioner’s presentence conduct credit, the Court of Appeal affirmed the

judgment. A51.

On July 23, 2018, Petitioner raised his Miranda/Edwards claim in a

timely petition for review filed in the California Supreme Court. The

California Supreme Court denied the petition on September 26, 2018. A54.

REASONS FOR GRANTING THE WRIT

This case raises a critical issue of constitutional criminal procedure:

whether law enforcement officers can continue questioning a suspect after he

or she has clearly invoked the right to counsel, as long as the questions are not

reasonably likely to elicit an incriminatory response. Because the California

appellate court’s decision reflects a split in authorities that profoundly

undermines the right to counsel during a custodial interrogation, the Court

should grant certiorari.

In Edwards v. Arizona, 451 U.S. 477 (1981), this Court held that if a

suspect invokes the right to counsel, the police must immediately cease

questioning until an attorney is present. Despite the bright-line rule set forth

in Edwards, the Court of Appeal in the case at bar held that the DA

investigators were permitted to question a suspect who has unambiguously

invoked his right to counsel, including “to pique his curiosity by alluding to the

existence of charges against him.” A19. Applying Innis, the appellate court

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held that the investigators were only precluded from asking questions that “are

‘reasonably likely to elicit an incriminating response from the suspect.’” A13,

quoting Innis, 446 U.S. at 301.

The appellate court’s conclusion, which reflects a persistent split in

authorities, is directly contrary to Smith v. Illinois, 469 U.S. 91 (1984), where

the Court held under materially indistinguishable circumstances that “all

questioning must cease after an accused requests counsel.” Id. at 98, citing

Solem v. Stumes, 465 U.S. 638, 646 (1984) (emphasis in original). It also rests

on a misunderstanding of Innis, a case that did not involve express questioning

of a suspect.

The appellate court’s holding – which reflects the approach taken by the

Fourth Circuit – undermines the bright-line rule set forth in Miranda and

Edwards (“Miranda/Edwards rule”). Under the Court of Appeal’s analysis,

officers may continue to question a suspect following his or her invocation, so

long as the questions are deemed not reasonably likely to elicit incriminatory

information. Such an approach invites precisely the type of uncertainty and

ambiguity that the Miranda/Edwards rule was intended to prevent. It also

inexorably leads to the type of improper conduct that occurred here: where

officers ignore a suspect’s clear invocation and continue to “fish” with

questioning, in the hopes that the suspect will take the bait. As recognized by

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the majority in Smith, such a result makes a mockery of the bright-line

Miranda/Edwards rule.

This case represents an ideal vehicle for review. The issue was fully

preserved, both in the trial court and on appeal. There is an audiotape of the

custodial interview, and it is undisputed that Petitioner unambiguously invoked

the right to counsel. It is also beyond cavil that the Miranda/Edwards

violation played a huge role in the prosecution’s case.

The lead DA

investigator testified at length regarding the custodial interview during trial,

and the prosecutor used Petitioner’s statements to devastating effect during

closing and rebuttal arguments. Relying on the interview, the prosecution

showed that Petitioner had admitted possessing the murder weapon at the time

and place of the killing sixteen years before. The prosecution introduced

Petitioner’s drawing during the interview of a lever-action rifle, which

reflected – in the prosecutor’s words – “an exact replica” of the weapon found

at the crime scene. The investigator testified that Petitioner had laughed

during the interrogation when asked if he had killed anyone with the rifle,

which the prosecutor told the jury showed “the mind of a murderer.” And,

based upon Petitioner’s custodial admission to investigators that he had gone

to Mexico immediately after the murder, the prosecutor argued to the jury that

Petitioner was guilty because “[k]illers always flee to Mexico.” Given that

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Petitioner’s statements to the DA investigators were central to the

prosecution’s case, the State cannot prove beyond a reasonable doubt that the

verdict was unattributable to the error. Chapman v. California, 386 U.S. 18,

24 (1967).

The appellate court’s decision reflects an ongoing conflict regarding an

exceptionally important issue of constitutional criminal procedure. The Court

should grant certiorari.

I.

Under this Court’s Holdings in Edwards and Smith, All Questioning

Must Cease Following a Suspect’s Invocation of the Right to

Counsel During a Custodial Interview

Under the Court’s precedent in Edwards and Smith, all questioning

must cease when a suspect invokes the right to counsel during a custodial

interview.

A.

The Edwards Rule

The Fifth Amendment commands that no person “shall be compelled

in any criminal case to be a witness against himself.” U.S. Const. Amend. 5;

see also id., Amend. 14. “‘[T]o reduce the risk of a coerced confession and to

implement the Self–Incrimination Clause,’ this Court in Miranda concluded

that ‘the accused must be adequately and effectively apprised of his rights and

the exercise of those rights must be fully honored.’” Missouri v. Seibert, 542

U.S. 600, 608 (2004), quoting Chavez v. Martinez, 538 U.S. 760, 790 (2003)

-12-

(Kennedy, J., concurring in part and dissenting in part) and Miranda, 384 U.S.

at 467. A suspect’s “‘right to cut off questioning’” is the “critical safeguard”

in Miranda’s framework because “[t]he requirement that law enforcement

authorities must respect a person’s exercise of that option” is what effectively

serves to “counteract[] the coercive pressures of the custodial setting.”

Michigan v. Mosley, 423 U.S. 96, 103-04 (1975).

In Edwards, 451 U.S. 477, this Court added “a second layer of

prophylaxis for the Miranda right to counsel.” McNeil v. Wisconsin, 501 U.S.

171, 176 (1991). The Court held that, once a suspect has asserted his right to

counsel during custodial interview, the suspect “is not subject to further

interrogation by the authorities until counsel has been made available to him,

unless the accused himself initiates further communication, exchanges, or

conversations with the police.” Edwards, 451 U.S. at 484-85. Under the

Edwards corollary, “if a suspect believes that he is not capable of undergoing

such questioning without advice of counsel, then it is presumed that any

subsequent waiver that has come at the authorities’ behest, and not at the

suspect’s own instigation, is itself the product of the ‘inherently compelling

pressures’ and not the purely voluntary choice of the suspect.” Arizona v.

Roberson, 486 U.S. 675, 681 (1988), quoting Miranda, 384 U.S. at 467.

The Court has repeatedly emphasized the “bright-line, prophylactic”

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nature of the Edwards rule. Roberson, 486 U.S. at 682; see also Montejo v.

Louisiana, 556 U.S. 778, 797 (2009). “The merit of the Edwards decision lies

in the clarity of its command and the certainty of its application.” Minnick v.

Mississippi, 498 U.S. 146, 151 (1990). The Court has explained that the

bright-line rule “has the virtue of informing police and prosecutors with

specificity as to what they may do in conducting custodial interrogation, and

of informing courts under what circumstances statements obtained during such

interrogation are not admissible.” Fare v. Michael C., 442 U.S. 707, 718

(1979); see also Minnick, 498 U.S. at 151 (“Edwards conserves judicial

resources which would otherwise be expended in making difficult

determinations of voluntariness, and implements the protections of Miranda

in practical and straightforward terms.”).

The bright-line rule also reflects “the unique role the lawyer plays in the

adversary system of criminal justice in this country.” Fare, 442 U.S. at 719.

Because “the lawyer is the one person to whom society as a whole looks as the

protector of the legal rights of [the accused] in his dealings with the police and

the courts . . . . the Court fashioned in Miranda the rigid rule that an accused’s

request for an attorney is per se an invocation of his Fifth Amendment rights,

requiring that all interrogation cease.” Ibid. “Without proper safeguards the

process of in-custody interrogation of persons suspected or accused of crime

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contains inherently compelling pressures which work to undermine the

individual’s will to resist and to compel him to speak where he would not

otherwise do so freely.” North Carolina v. Butler, 441 U.S. 369, 374 (1979).

The “gain in specificity, which benefits the accused and the State alike, has

been thought to outweigh the burdens that the decision in Miranda imposes on

law enforcement agencies and the courts by requiring the suppression of

trustworthy and highly probative evidence even though the confession might

be voluntary under traditional Fifth Amendment analysis.” Fare, 442 U.S. at

718.

The Edwards prophylactic rule requires two distinct inquiries. First, a

court must determine whether the accused actually invoked his right to

counsel. Edwards, 451 U.S. at 484-85. The Edwards rule applies when the

accused has made “some statement that can reasonably be construed to be an

expression of a desire for the assistance of an attorney in dealing with

custodial interrogation by the police.” McNeil, 501 U.S. at 178.

Second, “if the accused invoked his right to counsel, courts may admit

his responses to further questioning only on finding that he (a) initiated further

discussions with the police, and (b) knowingly and intelligently waived the

right he had invoked.” Smith, 469 U.S. at 95. An accused does not re-initiate

dialogue with the authorities simply by responding to “further police-initiated

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custodial interrogation.” Edwards, 451 U.S. at 484. Instead, suspect-initiation

“occurs when, without influence by the authorities, the suspect shows a

willingness and a desire to talk generally about his case.” United States v.

Whaley, 13 F.3d 963, 967 (6th Cir. 1994); see also Solem, 465 U.S. at 646

(stating that, under Edwards, the suspect “ha[s] to initiate subsequent

communication”); Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983) (plur.

opn.). In addition, it is well-settled that even a valid waiver does not remedy

a prior Edwards violation. Michigan v. Harvey, 494 U.S. 344, 345 (1990).

B.

In Smith, this Court Held that the Edwards Rule Prohibits

All Questioning Following an Accused’s Invocation of the

Right to Counsel

As the Court clearly held in Smith, the Edwards rule prohibits any

questioning – even that not reasonably calculated to elicit an incriminatory

response – after a suspect invokes the right to counsel.

In Smith, a police detective told the suspect that “‘[y]ou have a right to

consult with a lawyer and to have a lawyer present with you when you’re being

questioned. Do you understand that?’” Smith, 469 U.S. at 93. The accused

responded “Uh, yeah. I’d like to do that.” Ibid. The following exchange then

occurred:

Q. ... If you want a lawyer and you’re unable to pay for one a

lawyer will be appointed to represent you free of cost, do you

understand that?

A. Okay.

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Q. Do you wish to talk to me at this time without a lawyer being

present?

A. Yeah and no, uh, I don’t know what’s what, really.

Q. Well. You either have [to agree ] to talk to me this time

without a lawyer being present and if you do agree to talk with

me without a lawyer being present you can stop at any time you

want to.

A. All right. I’ll talk to you then.

Ibid.

The issue before the Court in Smith was whether the trial court’s

refusal to suppress the confession violated Miranda and Edwards. Smith, 469

U.S. at 91-92; see also People v. Smith, 466 N.E.2d 236, 241 (Ill. 1984). In

determining whether there was an Edwards violation, the Court first examined

whether the suspect unambiguously invoked his right to counsel. Smith, 469

U.S. at 95-97. Given the state court record, the Smith Court concluded that the

answer to that question was clear. See id. at 97 & n. 5. However, the Court

did not stop there; instead, the Court then reached the constitutional issue of

whether the officer’s continued questioning violated the bright-line rule set

forth in Edwards:

Edwards set forth a bright-line rule that all questioning must

cease after an accused requests counsel. In the absence of such

a bright-line prohibition, the authorities through badger[ing] or

overreaching—explicit or subtle, deliberate or

unintentional—might otherwise wear down the accused and

persuade him to incriminate himself notwithstanding his earlier

request for counsel’s assistance. . . . No authority, and no logic,

permits the interrogator to proceed . . . on his own terms and as

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if the defendant had requested nothing, in the hope that the

defendant might be induced to say something casting

retrospective doubt on his initial statement that he wished to

speak through an attorney or not at all.

Id. at 98-99 (citations and quotations omitted, emphasis added); see also id. at

98 & n. 6. In so holding, the majority of Justices rejected the position that

post-invocation questioning must seek incriminatory information to violate

Edwards. Id. at 98-99; see also id. at 100-01 (Rehnquist, J., joined by Burger,

C.J., and Powell, J., dissenting) (stating that there was no Edwards violation

because “here no ‘interrogation’ was being conducted by the police”).3

Accordingly, under this Court’s decision in Smith, 469 U.S. 91, all

questioning must cease following a suspect’s unambiguous invocation of the

right to counsel, irrespective of whether or not the questions are reasonably

calculated to elicit an incriminatory response.

C.

Smith is Factually Indistinguishable from Petitioner’s Case

Smith is materially identical to Petitioner’s case. In each case, law

enforcement officers administered the Miranda warning; in Smith, the suspect

invoked his right to counsel during the warning itself, whereas in the case at

bar Petitioner did so immediately afterwards. Compare Smith, 469 U.S. at 93

3

As set forth above, the officer’s questions and statements in Smith

related to the accused’s rights; none was reasonably calculated to elicit an

incriminatory response. Smith, 469 U.S. at 93.

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with 1CT 100.4 In both cases, the suspect’s clear invocation was followed by

additional questions – in Smith, the question constituted the remainder of the

Miranda warning, while in Petitioner’s case the questions related to his arrest

and his knowledge of the murder charge. Compare Smith, 469 U.S. at 93 with

1CT 100. Each suspect then made a statement indicating that he may now be

willing to talk. Compare Smith, 469 U.S. at 93 with 1CT 100-01. In each

case, the officer answered with a poorly-phrased and incomplete statement of

the suspect’s rights, in response to which the suspect agreed to speak.

Compare Smith, 469 U.S. at 93 with 1CT 101. Under Smith, the postinvocation questioning by the DA investigators in the case at bar violated

Edwards.5

II.

Despite the Holding of Smith, There is a Persistent Conflict with

Regard to Whether Post-Invocation Questioning is Permitted as

Long as It is Not Reasonably Likely to Elicit an Incriminatory

Response

Notwithstanding this Court’s clear holding in Smith, the courts are split

with regard to whether post-invocation questioning is permitted as long as it

4

As the Court explained, the fact that the suspect in Smith invoked

during (as opposed to after) the Miranda warning had no constitutional

significance. See Smith, 469 U.S. at 98, n. 6.

5

Since the criminal complaint had been filed against Petitioner nearly

sixteen years earlier, Petitioner also “had a Sixth Amendment right to counsel

as well as the Fifth Amendment right arising under Miranda.” A24; see also,

e.g., Massiah v. United States, 377 U.S. 201 (1964). However, defense

counsel failed to preserve that issue at trial.

-19-

is not reasonably likely to elicit an incriminatory response. The conflict deeply

undermines the bright-line rule set forth in Edwards.

Following Smith, many courts hold that all questioning must cease

following a suspect’s invocation of the right to counsel, even when the

questions do not seek to elicit an incriminatory response. See, e.g., Garcia v.

Long, 808 F.3d 771, 778 (9th Cir. 2015) (holding that the Supreme Court has

“clearly established” that “an unambiguous and unequivocal Miranda

invocation ‘cuts off’ questioning—even questioning intended to clarify that the

accused is invoking his Miranda rights”); United States v. Hunter, 708 F.3d

938, 947 (7th Cir. 2013) (stating that Edwards prohibits “allowing police

officers to continue asking questions—no matter how ‘benign’ or

‘open-ended’—after a suspect unambiguously requests an attorney”);

Anderson v. Terhune, 516 F.3d 781, 791 (9th Cir. 2008) (“Smith mandates that

all questioning must immediately cease once the right to remain silent is

invoked, and that any subsequent statements by the defendant in response to

continued interrogation cannot be used to find a waiver or cast ambiguity on

the earlier invocation.”); Christopher v. State of Fla., 824 F.2d 836, 840, 84243 (11th Cir. 1987) (in case where questions and statements were not

reasonably likely to elicit an incriminatory response, holding that “continued

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questioning” following an unequivocal invocation violates Miranda).6

The Fourth Circuit disagrees. In United States v. Blake, 571 F.3d 331

(4th Cir. 2009), the Fourth Circuit held that the post-invocation question “‘I

bet you want to talk now, huh?’” did not violate Edwards rule because it was

not reasonably likely to elicit an incriminatory response. Id. at 336, 338-40;

see also United States v. Abdallah, — F.3d —, No. 17-4230, 2018 WL

6613333, at *8 (4th Cir. Dec. 18, 2018) (examining whether the specific postinvocation question was “reasonably likely to elicit an incriminating

response”). That is the same approach followed by the appellate court below.

A19.7

6

While the Court of Appeal again dismissed these decisions as mere

dicta (A13-14), the Seventh, Ninth and Eleventh Circuits in fact squarely held

that even benign post-invocation questioning violates Miranda/Edwards.

Garcia, 808 F.3d at 777-78; Hunter, 708 F.3d at 940, 947; Christopher, 824

F.2d at 840, 842-43.

7

The appellate court below also erroneously relied on the booking

exception to the Edwards rule. A13, 16-17; see also Pennsylvania v. Muniz,

496 U.S. 582, 601 (1990). This is not a booking exception case, since

Petitioner was arrested on March 19, 2013 – a week before the interview in

Monterey County. 1CT 100, 212-13; 4RT 175. His jailhouse interview was

conducted by DA Investigators, not sheriff’s deputies, and occurred after his

Sixth Amendment right to counsel had attached and the day before his

arraignment. 4RT 176, 179, 182. This was a custodial interview arranged by

the prosecutor’s lead investigator to obtain incriminating statements from

Petitioner, and not an “innocent query” about biographical data during booking

after an arrest. A15.

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III.

Given the Importance of the Constitutional Issue, the Court Should

Resolve the Conflict

The Court should grant certiorari to resolve the conflict for three

reasons.

First, the minority rule – as exemplified by the appellate court’s opinion

below – is directly contrary to this Court’s holding in Smith. To ensure

national uniformity with respect to a critical rule of constitutional criminal

procedure, the Court should grant certiorari.

Second, certiorari should be granted to resolve lingering confusion

regarding this Court’s decision in Innis. As stated above, the Court of Appeal

in the case at bar – and the Fourth Circuit in Blake – concluded that Innis

meant that only post-invocation questioning that is reasonably likely to elicit

an incriminatory response runs afoul of Edwards. A19; Blake, 571 F.3d 331,

339-40. However, Innis did not involve questioning of the suspect. Innis, 446

U.S. at 294-95. Because Innis did not address whether post-invocation

questioning violated the Miranda rule, the decision is not precedent for the

situation presented in the case at bar. See Cohens v. State of Virginia, 19 U.S.

264, 399 (1821) (“It is a maxim not to be disregarded, that general expressions,

in every opinion, are to be taken in connection with the case in which those

expressions are used.”). In addition, the Innis Court made clear that “the

Miranda safeguards come into play whenever a person in custody is subjected

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to either express questioning or its functional equivalent. That is to say, the

term ‘interrogation’ under Miranda refers not only to express questioning, but

also to any words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should know are

reasonably likely to elicit an incriminating response from the suspect.” Innis,

446 U.S. at 300-01 (footnotes omitted) (emphasis added); see also id. at 299

& n. 3. In other words, contrary to the appellate court’s conclusion, the Innis

Court stated that Miranda already prohibits any “express questioning” after a

suspect’s invocation. See also Miranda, 384 U.S. at 444-45.

In any event, the Smith Court was certainly aware of Innis, which it

cited as a reaffirmation of the Edwards rule. Smith, 469 U.S. at 95, n. 2, citing

Innis, 446 U.S. at 298. Since Smith held that all questioning violated the

Edwards rule, Innis cannot be interpreted to require the opposite result. See

Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484

(1989) (“If a precedent of this Court has direct application in a case, . . . the

Court of Appeals should follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.”). To clarify that there

is no need to apply the Innis “reasonable likelihood” standard in a case

involving express questioning, the Court should grant certiorari.

Third, certiorari should be granted because the minority rule profoundly

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undermines the bright-line rule set forth in Edwards. Under the appellate

court’s analysis, officers may continue to question a suspect following his or

her invocation of the right to counsel, so long as the questions are not

reasonably likely to elicit an incriminatory response. Such an approach invites

precisely the type of uncertainty and ambiguity that the Edwards rule was

intended to prevent, in a manner that ultimately undermines the interests of law

enforcement, the courts, and defendants. See, e.g., Roberson, 486 U.S. at 680

(internal quotations and citations omitted, brackets in original) (“As we have

stressed on numerous occasions, [o]ne of the principal advantages of Miranda

is the ease and clarity of its application.”).8 It also invites exactly the type of

conduct that occurred here: where law enforcement officers ignore the

invocation and simply continue to “fish” with questions, as if nothing of

significance has occurred. The Court of Appeal indicated that it was even

permissible for DA investigators to ask questions to “pique the curiosity” of

a suspect, including with regard to Petitioner’s arrest a week before. The line

drawn by the appellate court is not bright; it’s invisible.

8

See also United States v. Johnson, 812 F.2d 1329, 1331 (11th Cir.

1986) (“No interest would be served by attempting to list matters that may or

may not be discussed by law enforcement officers with an accused in custody

after the accused has indicated that a lawyer is desired before further

interrogation. It best serves all interests, especially law enforcement, to remain

close to the ‘bright line’: interrogation must cease when an accused in custody

requests the presence of a lawyer before further interrogation.”).

-24-

The situation is even less clear from the perspective of the suspect.

Under the Court of Appeal’s opinion, a suspect who has clearly invoked the

right to counsel faces additional questioning, the scope and type of which is

solely in the discretion of law enforcement. The suspect must navigate this

inquisitional minefield alone and without the counsel he has already requested.

Again, that is precisely the type of situation that the Edwards rule was intended

to prevent.9

Given the importance of the bright-line rule set forth in Edwards, this

Court should grant certiorari to re-affirm the holding of Smith and make clear

that any post-invocation questioning is prohibited, whether or not it is

reasonably likely to elicit an incriminatory response.

IV.

This Case Presents the Ideal Vehicle for the Court to Resolve the

Conflict and Reaffirm that Officers May Not Question a Suspect

Following the Unambiguous Invocation of the Right to Counsel

This case is the ideal vehicle for the Court to resolve the split and

9

The appellate court’s conclusion that Petitioner had “reinitiated”

contact with law enforcement exemplifies how far the minority’s approach

strays from the bright-line rule in Edwards. As explained by this Court in

Smith, the fact that a suspect opens the door to further discussion after the

investigators’ continued post-invocation questioning does not remedy a prior

Edwards violation. Smith, 469 U.S. at 98, n. 7; see also, e.g., Garcia, 808 F.3d

at 778-79, citations and quotations omitted (holding that the “California Court

of Appeal’s use of [the defendant’s] postrequest statements to call his initial

‘no’ into question was contrary to” the “bright-line rule” in Smith);

Christopher, 824 F.2d at 845 (stating that “just as one cannot start an engine

that is already running, a suspect cannot ‘initiate’ an on-going interrogation”).

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reaffirm that officers cannot question a suspect following a clear invocation

of the right to counsel.

First, the Miranda/Edwards claim was fully preserved, both at trial and

on appeal. There is consequently no issue of forfeiture or waiver.

Second, the facts underlying the Miranda/Edwards claim are

undisputed. A6-9. There is an audio recording and transcript of the custodial

interview. A6, A11. In addition, like Smith but unlike many cases involving

an Edwards claim, there is no dispute that Petitioner clearly invoked his right

to counsel after the Miranda warning. A11.

Third, this case is an excellent candidate for review because the State

cannot “prove beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Chapman, 386 U.S. at 24. While the

appellate court did not directly address the prejudice issue, the court

acknowledged the devastating nature of the evidence arising from Petitioner’s

custodial interview. A10. DA Investigator Rodriguez, who testified at length

to his interrogation of Petitioner, told the jury that Petitioner had admitted

possessing the murder weapon at the time in question, and that Petitioner had

indeed drawn an accurate picture of the rifle used in the killing. 4RT 202-04;

see also People’s Trial Exhibit 70 (drawing of lever-action rifle). The

prosecutor later argued that Petitioner had drawn “an exact replica” of the

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murder weapon (6RT 416), and stated that Petitioner’s knowledge of the rifle

showed that he had pulled the trigger on the day of the murder. See, e.g., 6RT

420. Rodriguez also explained that Petitioner “laughed” when asked if he ever

killed anyone with the rifle, which the prosecutor contended revealed the

“mind of a murderer.” 6RT 420.

In addition, Rodriguez testified that Petitioner had admitted leaving

Greenfield to go to Mexico during the timeframe of Avila’s killing, and had

acknowledged calling his boss “Pedro” from Mexico to try and get his last

check. 4RT 200-01. The prosecutor argued in closing that Petitioner’s flight

showed that he was guilty, because “[k]illers always flee to Mexico.” 6RT

403-04; see also 6RT 424-25.

Rodriguez also testified to a range of false statements that Petitioner

had made during the interview, which the prosecutor used – to great effect –

to show consciousness of guilt. 4RT 182-83, 185-86, 196-97, 206; see also,

e.g., 4RT 421 (prosecutor arguing that the Petitioner’s statements were “false

and misleading, there’s no way around that” and that the jury can “consider it

in determining his guilt”). The jury was told that it could convict based upon

Petitioner’s statements to DA investigators alone, or upon the statements with

only a “slight” amount of other evidence. 1CT 287; 6RT 470. Moreover, the

interview’s admission resulted in the jury learning a number of highly-

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inflammatory facts, including that: (a) two non-testifying witnesses had told

police that Petitioner was at the scene of the murder, (b) Petitioner repeatedly

invoked the right to counsel during the interview, and (c) Petitioner engaged

in bizarre behavior at a prior murder-suicide scene. 4RT 189, 230 (statements

of non-testifying witnesses); 4RT 181, 229-31 (Petitioner’s invocation); 4RT

182, 184-85, 191-93 (murder-suicide). It is, in short, difficult to overstate the

prejudicial impact of the admission of the custodial statement.

Apart from Petitioner’s statement, the prosecution’s case relied on the

testimony of Cruz – one of only two other potential suspects in the shooting

of Avila. The evidence showed that Cruz had been drinking heavily on the day

of the shooting. 4RT 252, 259, 261-62; 5RT 326, 328, 330. The physical

evidence – including the location of the shell casings – did not match Cruz’s

description of the shooting, and none of Petitioner’s fingerprints was found

anywhere in the apartment, including on the rifle, the cartridges or the casings.

See supra at 3-4. And Cruz failed to provide any motive for the shooting;

instead, he stated that Petitioner and Avila were friends, and testified that there

had been no altercation between the two. 4RT 293. From the jurors’

questions, it is clear that the jury was troubled both by the lack of physical

evidence corroborating Cruz’s testimony and by the lack of any apparent

motive for the shooting. See, e.g., 2CT 313, 315 (jurors questioning whether

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“the left over live round be [sic] tested for prints?” and whether “any of the

bullets/casings checked for fingerprints?”); 2CT 317 (jury asking the court

during deliberation “[w]as there any human residue on the gun?”); 2CT 306

(juror note asking “Did ‘Chelo’ and Hilario ever date? Or was ‘Chelo’ Julio’s

girlfriend only?”); 2CT 307 (juror note asking “Did the deceased had [sic] a

relationship with the defendant? Did the deceased had [sic] an argument with

the defendant prior to the incident? If so, when?”).

Where, as here, the custodial interrogation played a central role in the

prosecution’s case-in-chief and arguments to the jury, the State cannot prove

beyond a reasonable doubt that the error was harmless. The prejudicial impact

of the error below renders this case an ideal vehicle to resolve the conflict and

reaffirm the holding of Smith.

Based upon the foregoing, this Court should grant certiorari.

CONCLUSION

Based upon the foregoing, a writ of certiorari should issue to review the

judgment of the California Court of Appeal, Sixth Appellate District.

Dated: December 26, 2018

Respectfully submitted,

__________________________

ALEXIS HALLER

Attorney for Petitioner,

Fidel Rios Soto

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