Petition for Writ of Certiorari — Manuel de Jesus Valencia, Petitioner v. California

Supreme Court briefMar 9, 2020

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No. _________

IN THE

Supreme Court of the United States

MANUEL DE JESUS VALENCIA,

Petitioner,

STATE OF CALIFORNIA,

Respondent.

On Petition for a Writ of Certiorari

to the California Court of Appeal,

Second Appellate District, Division Eight

PETITION FOR A WRIT OF CERTIORARI

Stephen Michael Vasil

Counsel of Record for Petitioner

PMB 253

3639 Midway Drive, Suite B

San Diego, CA 92110-5254

(619) 221-5933

appeals@stephenvasil.com

QUESTION PRESENTED

Whether the Fifth and Fourteenth Amendments permit a deceptive ploy in

which uniformed and undercover officers work together to extract a confession from

a suspect who has invoked his Fifth Amendment rights to silence and to counsel.

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT

Petitioner is Manuel de Jesus Valencia. Respondent is the State of California.

No party is a corporation.

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT ......................... ii

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

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

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

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

RELEVANT CONSTITUTIONAL PROVISIONS ........................................................ 2

STATEMENT OF THE CASE ....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................... 6

I. The petition should be granted to decide the important but unsettled question

whether the Fifth and Fourteenth Amendments permit a deceptive ploy in

which uniformed and undercover officers work together to extract a confession

from a suspect who has invoked his Fifth Amendment rights to silence and to

counsel................................................................................................................... 6

A. This Court’s Miranda jurisprudence has not addressed what limits the Fifth

Amendment places on undercover operations after a suspect has invoked his

Fifth Amendment rights to silence and to counsel.......................................... 6

B. The California Supreme Court and Fourth Circuit Court of Appeals disagree

over whether Miranda applies to undercover operations involving suspects

who have invoked their Fifth Amendment rights to silence and to counsel. . 9

II. Miranda’s application to undercover operations involving suspects who have

invoked their Fifth Amendment rights to silence and to counsel should be

resolved now. ...................................................................................................... 12

III. A suspect’s confession to an undercover officer that is induced by a uniformed

officer’s custodial interrogation after the suspect has invoked his Fifth

Amendment rights to silence and to counsel is inadmissible. .......................... 13

IV. In the alternative, confessions that result from an interrogation strategy

deliberately designed to circumvent Miranda and Edwards should be

suppressed. ......................................................................................................... 17

CONCLUSION............................................................................................................. 19

APPENDICES

iii

APPENDIX A, Opinion of the California Court of Appeal, Second Appellate

District, Division Eight ..................................................................................... 1a

APPENDIX B, Denial of Petition for Review from the California Supreme

Court and Dissenting Statement by Liu, J. ...................................................13a

TABLE OF AUTHORITIES

Page

Federal Cases

Arizona v. Mauro,

481 U.S. 520 (1987) ................................................................................................ 16

Arizona v. Roberson,

486 U.S. 675 (1988) .................................................................................................. 7

Brady v. Maryland,

373 U.S. 83 (1963) .................................................................................................... 2

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) .............................................................................................. 1, 2

Edwards v. Arizona,

451 U.S. 477 (1981) ........................................................................................ 5, 7, 14

Illinois v. Perkins,

496 U.S. 292 (1990) .................................................................................... 4, 8, 9, 12

Johnson v. Zerbst,

304 U.S. 458 (1938) ................................................................................................ 14

Malloy v. Hogan,

378 U.S. 1 (1964) ...................................................................................................... 6

Marks v. United States,

430 U.S. 188 (1977) ................................................................................................ 17

Maryland v. Shatzer,

559 U.S. 98 (2010) ...........................................................................................passim

Michigan v. Mosley,

423 U.S. 96 (1975) .................................................................................................. 14

Minnick v. Mississippi,

498 U.S. 146 (1990) ............................................................................................ 7, 14

Miranda v. Arizona,

384 U.S. 436 (1966) .........................................................................................passim

Missouri v. Seibert,

542 U.S. 600 (2004) ............................................................................................ 5, 17

Moran v. Burbine,

475 U.S. 412 (1986) ................................................................................................ 16

Patterson v. Illinois,

487 U.S. 285 (1988) ................................................................................................ 16

Reyes v. Lewis,

833 F.3d 1001 (9th Cir. 2016) ................................................................................ 17

Rhode Island v. Innis,

446 U.S. 291 (1980) .......................................................................................... 14, 15

United States v. Cook,

599 F.3d 1208 (10th Cir. 2010) .............................................................................. 10

United States v. Holness,

706 F.3d 579 (4th Cir. 2013) ...................................................................... 10, 11, 12

United States v. Ray,

803 F.3d 244 (6th Cir. 2015) .................................................................................. 17

United States v. Street,

472 F.3d 1298 (11th Cir. 2006) .............................................................................. 17

United States v. Stubbs,

944 F.2d 828 (11th Cir. 1991) ................................................................................ 10

State Cases

People v. Davis,

115 P.3d 417 (2005) ................................................................................................ 10

Federal Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 1

Constitutional Provisions

U.S. Const., amend. V...........................................................................................passim

U.S. Const., amend. VI ................................................................................................ 11

U.S. Const., amend. XIV .......................................................................................passim

U.S. Const., amend. XIV, § 1 ......................................................................................... 2

Other Authorities

Carol S. Steiker, Counter-Revolution in Constitutional Criminal

Procedure: Two Audiences, Two Answers, 94 Mich. L. Rev. 2466

(1996) ...................................................................................................................... 12

Richard A. Leo, Inside the Interrogation Room, 86 J. Crim. L. &

Criminology 266 (1996) .......................................................................................... 12

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Manuel de Jesus Valencia respectfully petitions for a writ of certiorari

to review the judgment of the California Court of Appeal, Second Appellate District,

Division Eight, in Case No. B283588.

OPINIONS BELOW

The opinion of the California Court of Appeal (Pet. App. 1a) is unpublished but

can be found at 2019 WL 6869128. The order of the California Supreme Court

denying review (Pet. App. 13a) is also unpublished but can be found appended to

the California Court of Appeal’s opinion at 2019 WL 6869128. The California

Supreme Court’s order denying review included a dissenting statement by Justice

Liu, who thought that review should have been granted. Pet. App. 14a. The relevant

trial court proceedings and order are unpublished.

JURISDICTION

The California Supreme Court denied review on December 11, 2019. Pet. App.

13a. This Court has jurisdiction under 28 U.S.C. § 1257(a). Petitioner’s case falls

under the second exceptional category of cases that this Court has considered as

“final” despite the ordering of further proceedings in lower state courts. Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 480-481 (1975). The California Court of

Appeal rejected petitioner’s federal constitutional challenges to his murder

conviction and the gang sentence enhancement, but remanded the case so that the

trial court could correct an error in presentence custody credits and decide whether

to exercise its discretion to strike the firearm enhancement under a change in the

law that occurred after petitioner’s sentencing. Pet. App. 2a, 12a. In denying

petitioner’s petition for discretionary review, the California Supreme Court affirmed

the Court of Appeal’s decision. Pet. App. 13a. Hence, “the federal issue, finally

decided by the highest court in the State, will survive and require decision

regardless of the outcome of future state-court proceedings.” Cox, 420 U.S. at 480;

see also Brady v. Maryland, 373 U.S. 83, 85 n.1 (1963) (finding federal issue that

challenged defendant’s conviction was separate from and would not be mooted by

lower state court’s new trial on punishment).

RELEVANT CONSTITUTIONAL PROVISIONS

The Fifth Amendment states in relevant part, “No person . . . shall be compelled

in any criminal case to be a witness against himself.” U.S. Const. amend. V.

Section 1 of the Fourteenth Amendment states in relevant part, “[N]or shall any

State deprive any person of life, liberty, or property, without due process of law.”

U.S. Const., amend. XIV, § 1.

STATEMENT OF THE CASE

On the morning of November 25, 2014, a young man was shot and killed at a Los

Angeles bus stop. Although two witnesses saw the shooting suspect just before and

after the shooting, neither could describe his features. After reviewing 17

photographs of members of a local criminal street gang, one of the witnesses

initially eliminated all but four or five photos, then narrowed it down to two, and

finally selected petitioner’s photo, based on his age and skin complexion.

Nearly two weeks later, petitioner, then 18 years old, was arrested for the

shooting. He was taken to the sheriff’s station, where detectives advised him of his

rights under Miranda v. Arizona, 384 U.S. 436 (1966), and began interrogating him.

Pet. App. 2a, 15a. In response to detectives’ questioning, petitioner changed his

account of what he was doing at the time of the murder, but he consistently denied

his involvement. Then he invoked his Fifth Amendment rights to silence and to

counsel. Pet. App. 2a, 15a.

After the interview, a detective devised a ploy: An undercover sheriff’s deputy

would be put in a holding cell with petitioner and pose as a fellow inmate. Pet. App.

2a-3a, 15a-16a. Then petitioner would be placed in a lineup for a witness to identify

him, and, regardless of whether she actually identified him, another sheriff’s deputy

would tell petitioner that he had been identified. Pet. App. 2a-3a, 15a-16a.

The following evening petitioner was placed in a holding cell with undercover

Deputy Sheriff Anthony Castro. In response to Deputy Castro’s questions, petitioner

said he had been arrested for murder but denied having anything to do with it.

Petitioner was taken to the lineup, where the witness was asked to pick out the

shooter from among six or seven people. She did not identify petitioner as the

shooter. Pet. App. 3a, 15a-16a.

Soon after petitioner was returned to the holding cell, a uniformed deputy

entered and told him that he had been picked out of the lineup. Pet. App. 3a, 15a16a. Then Deputy Castro asked, “They got you? Straight up, they got you?” Pet.

App. 4a. “They got me,” replied petitioner. Pet. App. 4a. In response to Deputy

Castro’s further questions, petitioner confessed to the murder and disclosed details

about the shooting. Pet. App. 4a.

The State charged petitioner with murder. The State also alleged that petitioner

committed the murder for the benefit of a criminal street gang and personally

discharged a handgun, causing great bodily injury and death.

Both before the preliminary hearing and again before trial, petitioner moved to

exclude the statements he made to Deputy Castro on the grounds that their

admission would violate his Fifth and Fourteenth Amendment rights to counsel. At

a hearing before the preliminary hearing, the court denied the motion, and ruled

that petitioner’s statements were admissible. At a hearing before trial, a different

judge, who presided over the trial, denied the renewed motion, after finding that

defendant’s confession was admissible under Illinois v. Perkins, 496 U.S. 292 (1990).

The court interpreted Perkins to mean that Miranda applied only to suspects in a

police-dominated, coercive environment. It did not apply to petitioner’s conversation

with someone he mistakenly believed to be a fellow inmate, even if his mistaken

belief was induced by a deceptive ploy orchestrated after he had invoked his

Miranda rights.

At trial, the prosecution played the recording of Deputy Castro and petitioner’s

conversation in the holding cell. Deputy Castro also testified about his conversation

with petitioner. A jury convicted petitioner of premeditated first-degree murder and

found true the gang and firearm allegations. Pet. App. 4a. The trial court sentenced

petitioner to prison for 50 years to life. Pet. App. 4a.

On appeal, the California Court of Appeal affirmed petitioner’s convictions. As is

relevant here, the court concluded that, under Perkins, “Miranda forbids coercion,

not strategic deception that tricks suspects into trusting someone they see as a

fellow prisoner.” Pet. App. 5a. Based on this interpretation of Perkins, the Court of

Appeal held that “Miranda is inapplicable because [petitioner] did not know he was

speaking to a sheriff’s deputy. Police did not dominate the cell’s atmosphere. The

element of government coercion was missing.” Pet. App. 5a. The court also found

that neither Edwards v. Arizona, 451 U.S. 477 (1981), nor Maryland v. Shatzer, 559

U.S. 98 (2010), nor Missouri v. Seibert, 542 U.S. 600 (2004), applied. Pet. App. 6a7a. According to the court, “There was coercion in Shatzer, Edwards, and Missouri

v. Seibert because those defendants knew they were confronting the inquisitorial

might of the government. The coercion in those cases triggered Miranda.

[Petitioner] was free of this intimidating power, so the opposite holds for him: no

coercion, no Miranda.” Pet. App. 7a.

Petitioner sought discretionary review in the California Supreme Court. He

renewed his arguments that the Fifth and Fourteenth Amendments required that

his statements to Deputy Castro be excluded. The California Supreme Court denied

review without comment. Pet. App. 13a.

Justice Liu issued a dissenting statement, concluding that review should have

been granted. Pet. App. 14a. Justice Liu explained, “Although Perkins gave a green

light to various undercover police operations, it did not address surreptitious

questioning of a suspect after he has invoked Miranda rights.” Pet. App. 23a. He

continued, “I find dubious the claim that it is lawful for the police to continue

questioning a suspect who has invoked Miranda rights and remains in custody so

long as the police disguise the interrogation.” Pet. App. 24a. Justice Liu concluded,

“In sum, the use of deceptive interrogation tactics to deliberately circumvent a

suspect’s invocation of Miranda rights appears to be a common police practice

throughout California. I would grant review to decide whether such tactics are

lawful under the Fifth Amendment.” Pet. App. 27a.

REASONS FOR GRANTING THE WRIT

I. The petition should be granted to decide the important but unsettled

question whether the Fifth and Fourteenth Amendments permit a

deceptive ploy in which uniformed and undercover officers work

together to extract a confession from a suspect who has invoked his

Fifth Amendment rights to silence and to counsel.

A. This Court’s Miranda jurisprudence has not addressed what limits the

Fifth Amendment places on undercover operations after a suspect has

invoked his Fifth Amendment rights to silence and to counsel.

This Court’s Miranda jurisprudence has yet to address a situation in which

police disregard a criminal suspect’s invocation of his Fifth Amendment and

Fourteenth Amendment 1 rights to silence and to counsel by having a uniformed

officer make a statement amounting to custodial interrogation so that an

undercover officer could exploit the statement’s coercive effect on the suspect and

induce a confession. This scenario involves an area of uncertainty in this Court’s

1 Although the Fifth Amendment right to remain silent and right to counsel do not

apply to states directly, but rather indirectly, through the Fourteenth Amendment,

for brevity, this petition refers to petitioner’s Fifth Amendment rights. Malloy v.

Hogan, 378 U.S. 1, 3 (1964).

Miranda jurisprudence because it implicates three different legal rules, none of

which are controlling.

The first rule—announced in Edwards and affirmed in Minnick v. Mississippi,

498 U.S. 146 (1990)—prohibits authorities from continuing to interrogate a suspect

who has invoked his or her Fifth Amendment right to counsel unless counsel is

present. Minnick, 498 U.S. at 153; Edwards, 451 U.S. at 484-485. Because suspects

who invoke their right to counsel signal to authorities that they consider themselves

incapable of managing the coercive environment of custodial interrogation without

the assistance of counsel, any subsequent waiver of their right to counsel is

presumed to be involuntary, and to have resulted from “inherently compelling

pressures.” Shatzer, 559 U.S. at 104-105 (quoting Arizona v. Roberson, 486 U.S. 675,

681 (1988)). Thus, the Edwards no-contact rule protects those who declare

themselves to be vulnerable to custodial interrogation’s coercive effects.

Yet these coercive effects do not immediately vanish upon a suspect’s release

from custody; they linger. Shatzer, 559 U.S. at 108-110. The recognition that the

effects of custodial interrogation linger underlies the second rule, declared in

Shatzer, which extends the Edwards no-contact rule for a period of 14 days

following a suspect’s release from custody. Id. at 110. After 14 days, authorities may

obtain a Miranda waiver. Id. at 115. This extended no-contact period is designed to

give a suspect sufficient time “to get reacclimated to his normal life, to consult with

friends and counsel, and to shake off any residual coercive effects of his prior

custody.” Id. at 110 (emphasis added). Under Shatzer, the Edwards no-contact rule

ends only after both coercive custody and its lingering effects end. Id. at 109-111.

The third rule, announced in Perkins, states that Edwards applies only to

suspects who are subjected to custodial interrogation. Perkins, 496 U.S. at 296-297,

300. The rationale underlying this rule is that the Miranda warnings were designed

to counteract “the danger of coercion result[ing] from the interaction of custody and

official interrogation.” Id. at p. 297. The suspect in Perkins was in custody on an

unrelated charge when he told another inmate and an undercover police officer that

he had committed an unsolved murder. Id. at 294-295. This Court held that the

undercover officer was not required to give the suspect Miranda warnings because

“[t]he essential ingredients of a ‘police-dominated atmosphere’ and compulsion are

not present when an incarcerated person speaks freely to someone whom he

believes to be a fellow inmate.” Id. at 296. Since the defendant did not know he was

speaking to government agents, he was not subjected to the “mutually reinforcing

pressures” that result from “[q]uestioning by captors, who appear to control the

suspect’s fate.” Id. at 297. Hence, under Perkins, the Edwards rule is triggered only

by custodial interrogation.

Although Perkins held that an undercover police officer need not give Miranda

warnings to a suspect who has never been subjected to custodial interrogation, that

decision did not address a situation in which a uniformed officer worked in tandem

with an undercover officer to induce a confession from a suspect who had already

invoked his Fifth Amendment rights to silence and to counsel. See Perkins, 496 U.S.

at 296-297, 300. The limits of Perkins’ holding was pointed out by Justice Brennan

in his concurring opinion: “Nothing in the Court’s opinion suggests that, had

respondent previously invoked his Fifth Amendment right to counsel or right to

silence, his statements would be admissible.” Perkins, 496 U.S. at 300 n.* (Brennan,

J., concurring in the judgment). Rather, if the suspect “had invoked either right,”

Justice Brennan explained, “the inquiry would focus on whether he subsequently

waived the particular right.” Id. (Brennan, J., concurring in the judgment).

Neither Edwards nor Shatzer nor Perkins addressed a situation like the one

presented here: after a criminal suspect invoked his Fifth Amendment rights to

silence and to counsel, law enforcement deliberately disregarded those rights by

having a uniformed deputy sheriff make a statement to the suspect that amounted

to custodial interrogation so that an undercover deputy could exploit the

statement’s lingering coercive effects to induce the suspect to confess.

B. The California Supreme Court and Fourth Circuit Court of Appeals

disagree over whether Miranda applies to undercover operations

involving suspects who have invoked their Fifth Amendment rights to

silence and to counsel.

The California Supreme Court’s interpretation of Perkins—adopted here by the

California Court of Appeal—differs from the Fourth Circuit Court of Appeals’

interpretation. Pet. App. 5a. The California Supreme Court has interpreted Perkins

as creating a bright-line rule that statements to undercover government agents are

never the product of coercive custody, even if those statements were in part elicited

by a uniformed officer’s improper interrogation of a suspect after he invoked his

Fifth Amendment right to counsel. People v. Davis, 115 P.3d 417, 448 (2005). In

Davis, the California Supreme Court concluded that a detective’s lie to an incustody suspect, falsely telling him that his fingerprints were found on the murder

weapon, was the functional equivalent of interrogation because it “indirectly

accused defendant of personally shooting the victims,” and therefore “was likely to

elicit an incriminating response.” Id. at 448. Yet Davis held that the defendant’s

subsequent incriminating statements to his cellmates, though provoked by the

detective’s lie, were nevertheless admissible, since “when he made these statements

to his cellmates there was no longer a coercive, police-dominated atmosphere, and

no official compulsion for him to speak.” Id.

Here, the Court of Appeal applied Davis’s interpretation of Perkins to conclude

that Miranda and Edwards did not apply because petitioner confessed to an

undercover sheriff’s deputy, not the uniformed deputy. Pet. App. 5a-7a; Davis, 115

P.3d at 448. The federal Courts of Appeals largely agree with Davis. E.g., United

States v. Cook, 599 F.3d 1208, 1213-1216 & n.2 (10th Cir. 2010); United States v.

Stubbs, 944 F.2d 828, 831-832 (11th Cir. 1991).

The Fourth Circuit Court of Appeals, however, has not interpreted Perkins to

cover all statements to undercover police agents under all circumstances. United

States v. Holness, 706 F.3d 579, 597 (4th Cir. 2013). In Holness, after defendant

Ryan Holness invoked his Fifth Amendment right to counsel, he was arrested,

charged with murder under Maryland state law, and put in jail, where he made a

series of incriminating statements to his cellmate. Id. at 585-586. The cellmate

divulged these statements to a prosecutor, and police encouraged the cellmate to

contact authorities if Holness volunteered more information. Id. at 586. Later, the

cellmate used a recording device furnished by authorities to dictate the contents of

an incriminating letter composed by Holness. Id. That recording enabled police to

obtain a search warrant for Holness’s cell, and the subsequent search led to the

discovery of another incriminating letter. Id.

Eventually, state charges were dismissed, and the United States Attorney’s

office in Baltimore charged Holness with several crimes, including interstate

domestic violence. Holness, 706 F.3d at 587. Holness moved to suppress his

statements to his cellmate and any evidence obtained as a result of those

statements. Id. The district court denied the motion, Holness was convicted of three

charges, and Holness appealed, arguing that his Sixth Amendment right to counsel

had been violated. Id. at 587-588. Although the Fourth Circuit Court of Appeals

rejected Holness’s Sixth Amendment argument, it exercised its discretion to

consider whether the State of Maryland’s conduct violated his Fifth Amendment

rights. Id. at 589-590, 592-593. After reviewing this Court’s analyses in Shatzer and

Perkins, the Holness court concluded, “In consideration of the views expressed by

Justice Brennan in his separate opinion—left unchallenged by the majority—we are

unprepared to say that the Supreme Court in Perkins held for all time that suspects

in prison can under no circumstances be in coercive custody in the presence of an

unknown police agent.” Id. at 597. The court noted that “further development of the

record might reveal that the personal dynamic between Holness and [his cellmate]

‘generate[d] “inherently compelling pressures which work[ed] to undermine

[Holness’s] will to resist and to compel him to speak where he would not otherwise

do so freely.”’” Id. at 597-598 (quoting Perkins, 496 U.S. at 296 (quoting Miranda,

384 U.S. at 467)) (first brackets added). Ultimately, the court decided a remand was

unnecessary because any violation of Holness’s Fifth Amendment rights was

harmless beyond a reasonable doubt. Id. at 598-600.

II. Miranda’s application to undercover operations involving suspects who

have invoked their Fifth Amendment rights to silence and to counsel

should be resolved now.

Miranda is not a recondite concept known only to the bench and bar. It is “a

household word in American popular culture.” Richard A. Leo, Inside the

Interrogation Room, 86 J. Crim. L. & Criminology 266, 286 (1996). Most Americans

know about an arrested suspect’s right to remain silent and right to an attorney.

See Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure: Two

Audiences, Two Answers, 94 Mich. L. Rev. 2466, 2538 n.336 (1996) (noting that

first-year law students credit their knowledge of the Miranda warnings to police

television programs). But, as Justice Liu emphasized in his dissenting statement to

the California Supreme Court’s denial of discretionary review, it is likely that “most

Americans do not know and would not expect that the police may continue to

question a person who remains in custody after invoking Miranda rights so long as

the questioning occurs through trickery or deceit.” Pet. App. 21a. Nor would they

have reason to know or expect that the police may continue questioning: “The

warnings are not stated in terms that would lead a reasonable person to believe

that invoking the right to silence or right to counsel leaves the police free to

continue questioning through covert means.” Pet. App. 25a.

This Court issued Miranda in part “to give concrete constitutional guidelines for

law enforcement agencies and courts to follow.” Miranda, 384 U.S. at 441-442.

Those guidelines, however, remain incomplete, allowing police to disregard or

circumvent Miranda’s protections for criminal suspects in ways that the American

public would not expect. Although the public remains largely ignorant of how the

police have exploited the unresolved issues in this Court’s Miranda jurisprudence to

continue questioning suspects even after they have invoked their Fifth Amendment

rights to silence and to counsel, there is a grave danger that increasing public

awareness of these kinds of police practices could engender “public cynicism and

distrust of legal institutions.” Pet. App. 29a. This Court should grant certiorari to

ensure that both the police and the citizenry know what Miranda allows and what

Miranda forbids.

III. A suspect’s confession to an undercover officer that is induced by a

uniformed officer’s custodial interrogation after the suspect has

invoked his Fifth Amendment rights to silence and to counsel is

inadmissible.

The admission of petitioner’s confession to an undercover sheriff’s deputy

violated his Fifth and Fourteenth Amendment privilege against self-incrimination

because a uniformed deputy disregarded petitioner’s invoked rights to silence and to

counsel by making a statement that amounted to custodial interrogation. Once

petitioner invoked his Fifth Amendment rights to silence and to counsel, he limited

authorities’ subsequent conduct in two ways: First, after he invoked his right to

remain silent, authorities could no longer interrogate him, and they could not

reinitiate interrogation later, unless petitioner first knowingly, intelligently, and

voluntarily waived his right to remain silent. Miranda, 384 U.S. at 473-475;

Michigan v. Mosley, 423 U.S. 96, 103-106 (1975); see also Johnson v. Zerbst, 304

U.S. 458, 464 (1938). Second, after he invoked his right to counsel, authorities could

no longer interrogate him in the absence of counsel, unless he himself initiated

further communication. Edwards, 451 U.S. at 484-485; Minnick, 498 U.S. at 153.

When the uniformed deputy sheriff told petitioner that he had been identified in

the lineup, the deputy violated petitioner’s right to remain silent, because he did not

first obtain petitioner’s knowing, intelligent, and voluntary waiver of that right, and

he violated petitioner’s right to counsel, because counsel was not present. Miranda,

384 U.S. at 473-475; Minnick, 498 U.S. at 153. Even though the deputy did not ask

a question, his lie that petitioner was identified as the shooter in the lineup was the

functional equivalent of custodial interrogation because authorities should have

known the lie was “reasonably likely to elicit an incriminating response.” Rhode

Island v. Innis, 446 U.S. 291, 301 (1980). Falsely telling petitioner that he had been

identified as the shooter was likely to pressure him either to defend himself by

offering an excuse, alibi, or some other explanation, or to capitulate by confessing

guilt. Any admissions or inconsistencies among petitioner’s out-of-court statements

could be used by the prosecution as evidence of his guilt. See id. at 301 n.5 (“By

‘incriminating response’ we refer to any response—whether inculpatory or

exculpatory—that the prosecution may seek to introduce at trial.”).

This kind of deception resembles one of the deceptive practices that Miranda

considered to be equivalent to interrogation. Innis, 446 U.S. at 299. Miranda

criticized the use of lineups in which a coached witness identifies a defendant as the

culprit to prepare him for further interrogation. Id. (citing Miranda, 384 U.S. at

453). It also considered “psychological ploys” in which authorities posit a suspect’s

guilt as amounting to interrogation. Innis, 446 U.S. at 299 (citing Miranda, 384

U.S. at 450). These practices resemble the stratagem used here.

Authorities planned for petitioner to be told he was identified as the shooter at

the lineup, even if he was not identified. There would be no reason to include this

deception in the undercover operation unless law enforcement reasonably believed

it would cause petitioner to incriminate himself. Innis, 446 U.S. at 301 n.7 (“In

particular, where a police practice is designed to elicit an incriminating response

from the accused, it is unlikely that the practice will not also be one which the

police should have known was reasonably likely to have that effect”).

When the uniformed deputy sheriff violated the Miranda and Edwards rules by

reinitiating interrogation without counsel present and without obtaining

petitioner’s knowing, intelligent, and voluntary waiver of his rights, the deputy

injected custodial interrogation into the undercover operation. The coercive effects

of that interrogation did not immediately dissipate when the uniformed deputy left

the holding cell. They persisted. See Shatzer, 559 U.S. at 108-110. This allowed the

deputy’s Miranda and Edwards violation to lay the groundwork for the undercover

deputy’s questions that induced petitioner to confess to the shooting. The resultant

confession therefore was the product of the uniformed deputy’s Miranda and

Edwards violation.

Because the lingering, compelling influence of the uniformed deputy’s custodial

interrogation was exploited by the undercover deputy, petitioner’s confession was

not “the product of his free choice.” Miranda, 384 U.S. at 458; see also Moran v.

Burbine, 475 U.S. 412, 421 (1986) (observing that a Miranda waiver should be “the

product of a free and deliberate choice rather than intimidation, coercion, or

deception”). Nor did the deputies’ deceptive ploy “[p]reserv[e] the integrity of an

accused’s choice to communicate with police only through counsel.” Patterson v.

Illinois, 487 U.S. 285, 291 (1988). In short, law enforcement’s stratagem

undermined the Miranda and Edwards rules’ core purpose: “preventing government

officials from using the coercive nature of confinement to extract confessions that

would not be given in an unrestrained environment.” Arizona v. Mauro, 481 U.S.

520, 529-530 (1987). As Justice Liu explained in his dissenting statement, “The

right to cut off questioning and seek assistance of counsel is deeply embedded in the

consciousness of our citizenry as a fundamental protection against the formidable

power of the police. It trivializes this protection to say it can be defeated by a simple

ruse.” Pet. App. 29a.

IV. In the alternative, confessions that result from an interrogation

strategy deliberately designed to circumvent Miranda and Edwards

should be suppressed.

Petitioner’s statements to the undercover deputy should have been suppressed

because they resulted from law enforcement officers’ deliberate disregard of

petitioner’s rights to silence and to counsel. Although this remedy has never been

ordered by this Court, it is supported by this Court’s decision in Missouri v. Seibert.

Seibert, 542 U.S. at 617 (plurality opinion); id. at 621-622 (Kennedy, J., concurring

in the judgment). In Seibert, this Court held that a defendant’s post-Miranda

statement was inadmissible because it resulted from a deliberate two-step

interrogation technique in which police gave the defendant Miranda warnings only

after first eliciting unwarned incriminating statements. Id. at 617 (plurality

opinion); id. at 621-622 (Kennedy, J., concurring in the judgment). Since Justice

Kennedy concurred in the judgment on the narrowest grounds, his concurring

opinion represents Seibert’s holding. E.g. Reyes v. Lewis, 833 F.3d 1001, 1002-1003,

1028 (9th Cir. 2016); United States v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006);

see also Marks v. United States, 430 U.S. 188, 193 (1977); contra, e.g., United States

v. Ray, 803 F.3d 244, 270-272 (6th Cir. 2015) (Justice Souter’s plurality opinion

controls). Justice Kennedy concluded that all postwarning statements produced by

this kind of deliberate two-step technique designed to circumvent Miranda must be

suppressed unless curative measures are taken. Seibert, 542 U.S. at 621-622

(Kennedy, J., concurring in the judgment).

Here, authorities deliberately disregarded petitioner’s requests that

interrogation cease and that he be provided with counsel when they had a

uniformed deputy make a statement amounting to custodial interrogation so that

an undercover deputy could exploit the statement’s effect on petitioner by

questioning him further. Although the uniformed deputy made only a single

statement, this stratagem could be developed to have a uniformed deputy

repeatedly interrogate a suspect, only to retreat and allow an undercover deputy to

mine the suspect for a confession. This kind of tandem questioning fails to honor a

suspect’s request that he only be questioned in the presence of counsel. See Shatzer,

559 U.S. at 104-105.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be

granted.

Respectfully submitted,