United States v. Sanchez-Gallegos , 412 F. App'x 58 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS January 4, 2011
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-2146
(D.C. No. 1:07-CR-02053-WJ-1)
ADAN SANCHEZ-GALLEGOS, (D.N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, EBEL and HOLMES, Circuit Judges.
While each member of this panel provides different reasoning to reach the
result, we affirm Mr. Sanchez-Gallegos’s conviction. Both Judge Holmes and
Chief Judge Briscoe conclude that the district court did not err in admitting Mr.
Sanchez-Gallegos’s initial un-Mirandized incriminating statement, reasoning that
Miranda did not apply because Mr. Sanchez-Gallegos was not in custody when he
made this statement. While Judge Holmes reasons that Mr. Sanchez-Gallegos was
not in custody based on the totality of the circumstances considered in the context
*
This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
of a routine fixed border checkpoint as established in United States v. Massie, 65
F.3d 843 (10th Cir. 1995), Chief Judge Briscoe concludes that the encounter with
law enforcement exceeded the parameters of Massie. Nonetheless, Chief Judge
Briscoe reasons that Mr. Sanchez-Gallegos was not in custody based on the
totality of the circumstances. Judge Ebel concludes that the district court erred in
admitting Mr. Sanchez-Gallegos’s initial incriminating statement, reasoning that
Mr. Sanchez-Gallegos was in custody when this statement was made based on the
totality of the circumstances. However, Judge Ebel reasons that this error was
harmless because Mr. Sanchez-Gallegos’s extensive and detailed post-Miranda
statements were admissible and vastly outweighed the impact of the initial un-
Mirandized incriminating statement. Accordingly, for the foregoing reasons, we
AFFIRM Mr. Sanchez-Gallegos’s conviction.
ENTERED FOR THE COURT
PER CURIAM
-2-
09-2146, United States v. Sanchez-Gallegos
HOLMES, J., concurring.
The defendant-appellant, Adan Sanchez-Gallegos, was indicted on one count
of conspiracy to transport illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).
Prior to trial, Mr. Sanchez-Gallegos filed two motions to suppress—one seeking to
suppress physical evidence found in his vehicle and on his person, and the other
seeking to suppress the statements he made to law enforcement officers. The district
court denied both motions, and a jury found Mr. Sanchez-Gallegos guilty of the
charged conspiracy offense. Mr. Sanchez-Gallegos appeals his conviction, arguing,
inter alia, that the district court erred in denying his motion to suppress his initial
allegedly incriminatory statement to law enforcement. Exercising our jurisdiction
pursuant to 28 U.S.C. § 1291, we AFFIRM his conviction.
BACKGROUND 1
Around 1:00 p.m. on December 10, 2005, a Chevrolet Suburban vehicle
bearing a California license plate pulled into a fixed Border Patrol checkpoint on
I-25 near Radium Springs, New Mexico. Border Patrol Agent Gonzalez was
conducting primary inspections, and he approached the vehicle and introduced
himself. He asked in English about the driver’s citizenship, to which the driver
(later determined to be Mr. Sanchez-Gallegos) responded that he was a U.S.
1
We construe all facts in the light most favorable to the government as
the prevailing party. United States v. Salazar, 609 F.3d 1059, 1063 (10th Cir.
2010).
citizen. In conducting the primary inspection, Agent Gonzalez walked around the
vehicle and noted the California license plate. Agent Gonzalez testified that, in
his experience, it was unusual to see California license plates at an I-25
checkpoint because they were more likely to be seen along the east-west corridor
of I-10. Agent Gonzalez returned to the driver and inquired about his travel
plans. The driver had difficulty responding, so Agent Gonzalez switched to
Spanish. 2 Agent Gonzalez repeated his initial inquiry about the driver’s
citizenship, and this time the driver responded that he was a legal permanent
resident from Mexico. Agent Gonzalez asked to see his immigration papers, and
the driver provided a copy—rather than the original—of his Permanent Resident
card, which identified him as Adan Sanchez-Gallegos. In response to questions
about ownership of the vehicle and his travel plans, Mr. Sanchez-Gallegos
explained that he had rented the Suburban, and that he was headed from Anthony,
New Mexico, to Albuquerque, en route to Chicago. Agent Gonzalez testified that
Mr. Sanchez-Gallegos appeared nervous during this encounter as he was avoiding
eye contact, gripping the steering wheel, and talking in a nervous tone.
Agent Gonzalez asked for permission to inspect the vehicle further, and Mr.
Sanchez-Gallegos gave his consent. Agent Gonzalez then had Mr.
Sanchez-Gallegos move the Suburban to the secondary inspection area and
2
The rest of Mr. Sanchez-Gallegos’s encounter with the Border Patrol
agents was conducted in Spanish.
-2-
confirmed that he had Mr. Sanchez-Gallegos’s consent to inspect the vehicle. At
this point, another Border Patrol agent—a trained canine handler—approached the
vehicle. Mr. Sanchez-Gallegos was asked to stand aside while the canine search
was performed. Shortly thereafter, Agent Gonzalez was informed that the canine
had alerted to Mr. Sanchez-Gallegos’s vehicle.
Based on this alert, Agent Gonzalez asked Mr. Sanchez-Gallegos to come
into the checkpoint office so that the vehicle could be inspected further. Before
allowing him to enter the office, Agent Gonzalez asked Mr. Sanchez-Gallegos for
permission to conduct a pat-down search of him as a safety precaution, and Mr.
Sanchez-Gallegos consented to the search. While conducting this search, Agent
Gonzalez felt a large bulge, which Mr. Sanchez-Gallegos explained was his
money for purchasing a trailer or mobile home. Mr. Sanchez-Gallegos showed
Agent Gonzalez the money ($7915 in United States currency plus 1800 Mexican
Pesos).
Agent Gonzalez then “went back” to his “primary duties to conduct more
immigration inspections while the [Border Patrol] agents inspected the vehicle.”
R., Vol. III, at 23 (Suppression Hr’g Tr., dated Dec. 21, 2007). Agent Gonzalez
subsequently asked for and received additional identification from Mr.
Sanchez-Gallegos and busied himself “run[ning] checks” of Mr. Sanchez-
Gallegos’s immigration and criminal histories. Id. at 25. The Border Patrol
agents searching the interior of the Suburban discovered a duffle bag containing
-3-
five Mexican birth certificates and a “Certificate of Good Conduct,” which is a
document issued by the Mexican government.
Agent Gonzalez testified that upon discovering these documents, the agents
were concerned that these documents belonged to six children who were being
smuggled through the desert into the United States. Agent Gonzalez, with another
Border Patrol agent observing, asked Mr. Sanchez-Gallegos about the source and
purpose of the documents and the cash. Mr. Sanchez-Gallegos claimed that he
was unaware of the documents and provided no further explanation for the cash.
Once the search of the vehicle was completed, Agent Gonzalez returned to
Mr. Sanchez-Gallegos and expressed his suspicion that Mr. Sanchez-Gallegos was
involved in smuggling children through the desert. In response, Mr. Sanchez-
Gallegos informed Agent Gonzalez that “he had that money as part of a payment
to take some children to . . . Chicago.” Id. at 29. At the time that he gave this
statement, Mr. Sanchez-Gallegos had been at the checkpoint for approximately
forty to fifty minutes.
Following this admission, Agent Gonzalez and the other Border Patrol
agent read Mr. Sanchez-Gallegos a Miranda warning in Spanish and presented an
Advice of Rights form to him that was written in Spanish. Agent Gonzalez read
the form aloud, and Mr. Sanchez-Gallegos signed the form. Mr.
Sanchez-Gallegos then informed Agent Gonzalez that the children were not in the
desert, but rather were in Albuquerque with “Victor.” Mr. Sanchez-Gallegos was
-4-
to pick them up from “Victor” and transport them to their family in Chicago.
Agent Gonzalez then called the duty agent with Immigration and Customs
Enforcement (“ICE”), Agent Carroll, who was unable to come immediately to the
checkpoint. However, Agent Carroll promised to arrange for an ICE agent from
Albuquerque to call Agent Gonzalez.
At approximately 2:20 p.m., Agent Gonzalez received a call from
Albuquerque ICE Agent Franco. Agent Franco asked Agent Gonzalez to see if
Mr. Sanchez-Gonzalez would contact “Victor” in an effort to locate the children.
He agreed to do so, and during this call, “Victor” explained that the children
“were going to be at the Motel 6 near [the] Cesar Chavez exit on I-25.” Id. at 36.
Based on this information, Agent Gonzalez called the motel and asked if a man
had checked in with six children, but at that time, no one matching that
description had checked in.
At approximately 4:30 p.m., Agent Carroll arrived at the checkpoint. He
briefly discussed the situation with Agent Gonzalez, and then interviewed Mr.
Sanchez-Gallegos after again obtaining a waiver of his Miranda rights. Mr.
Sanchez-Gallegos explained that he had flown from Chicago to Albuquerque
several days prior, rented the Suburban, and spent several days looking for a
trailer or mobile home to purchase. After a day or two, he drove south to
Anthony, New Mexico, where he met his friend, “Victor.” He took a day trip to
Juarez, Mexico, and, while there, he received a phone call from “Victor” asking if
-5-
he would smuggle some children, who were illegally present in the United States,
from Albuquerque to Chicago, and he agreed to do so. Upon returning to
Anthony, Mr. Sanchez-Gonzalez received the children’s documentation from
“Victor,” then left Anthony on December 10, 2005, to pick up the children in
Albuquerque.
Meanwhile, Agent Franco set up surveillance in Albuquerque on the Motel
6. At approximately 5:00 p.m., she received information that “Victor” had
checked in with six children and three other adults. The agents knocked on the
doors of his rooms. In one room, the agents found an adult male, later identified
as Victor Manuel Cardoza-Avitia, Mr. Sanchez-Gallegos’s co-defendant; an adult
female, later identified as Victor’s wife; and six children—the same children
whose documentation had been seized from Mr. Sanchez-Gallegos’s luggage.
Agent Franco then called Agent Carroll to tell him the children had been located.
Subsequently, Mr. Sanchez-Gallegos was indicted for conspiracy to transport
illegal aliens.
Mr. Sanchez-Gallegos filed two motions to suppress—one seeking to
suppress the documents found in the Suburban and the cash found on his person,
and the other seeking to suppress the statements he made to Agents Gonzalez and
Carroll. Following a hearing, the district court denied both motions, finding that
the agents had reasonable suspicion to direct Mr. Sanchez-Gallegos to the
secondary inspection area, and probable cause to search the interior of his vehicle
-6-
following the dog alert and the discovery of the cash on his person. The district
court noted that Mr. Sanchez-Gallegos consented to the canine search. The
district court found that Mr. Sanchez-Gallegos was not in custody when he made
his initial incriminating statement, and his subsequent statements to Agents
Gonzalez and Carroll were voluntarily and freely made after waiving his Miranda
rights.
Following the district court’s denial of his motions to suppress, Mr.
Sanchez-Gallegos proceeded to trial and was convicted of one count of conspiracy
to transport illegal aliens. This timely appeal followed.
ANALYSIS
In his opening appellate brief, Mr. Sanchez-Gallegos argued that the district
court erred by: (1) denying his motion to suppress the Mexican birth certificates
found in his vehicle and the money found on his person; (2) denying his motion to
suppress his initial allegedly incriminatory statement and his subsequent
statements; (3) denying his motion to strike prejudicial surplusage from the
superseding indictment; and (4) admitting a list of telephone numbers as a
recorded recollection under Federal Rule of Evidence 803(5).
At oral argument, characterizing the other arguments as “silly” and
“clutter,” counsel for Mr. Sanchez-Gallegos 3 narrowed the contentions on appeal
3
A prior lawyer for Mr. Sanchez-Gallegos, and not his counsel who
(continued...)
-7-
to a single “meritorious” issue—viz., whether the district court should have
suppressed Mr. Sanchez-Gallegos’s first allegedly incriminatory statement 4
because law enforcement failed to inform Mr. Sanchez-Gallegos of his Miranda
rights prior to questioning him. I appreciate defense counsel’s candor in
winnowing the body of issues for our review. However, I ultimately conclude
that the district court did not err in denying Mr. Sanchez-Gallegos’s motion to
suppress his initial statement to Agent Gonzalez because Mr. Sanchez-Gallegos
was not in custody when he made the statement and, therefore, Miranda did not
apply. See United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993) (“[T]wo
requirements must be met before Miranda is applicable; the suspect must be in
‘custody,’ and the questioning must meet the legal definition of ‘interrogation.’”);
see also United States v. Hudson, 210 F.3d 1184, 1186, 1190–93 (10th Cir. 2000)
(discussing the impact of the unique context of a fixed border checkpoint on the
analysis of the meaning of “custodial” under Miranda).
“In considering a district court’s denial of a motion to suppress, this court
reviews factual findings for clear error, viewing the evidence in the light most
favorable to the government, and reviews legal conclusions de novo.” United
3
(...continued)
appeared at oral argument, prepared his opening appellate brief.
4
This first allegedly incriminatory statement was that “he had that
money as part of a payment to take some children to . . . Chicago.” R., Vol. III,
at 29.
-8-
States v. Carbajal-Iriarte, 586 F.3d 795, 799 (10th Cir. 2009). In reviewing the
district court’s decision, “[w]e are permitted to consider evidence introduced at
the suppression hearing, as well as any evidence properly presented at trial.”
United States v. Jones, 523 F.3d 1235, 1239 (10th Cir. 2008) (alteration in
original) (quoting United States v. Harris, 313 F.3d 1228, 1233 (10th Cir. 2002))
(internal quotation marks omitted). “A finding is clearly erroneous only if no
factual support can be found in the record or if it is obvious to this court that an
error has occurred.” United States v. Burson, 531 F.3d 1254, 1256 (10th Cir.
2008) (quoting United States v. Alexander, 447 F.3d 1290, 1293–94 (10th Cir.
2006)) (internal quotation marks omitted). “The ultimate question of whether
Miranda applies, however, is reviewed de novo,” Jones, 523 F.3d at 1239,
because “[l]egal determinations, including . . . whether a defendant was in
custody, are reviewed de novo,” United States v. Lamy, 521 F.3d 1257, 1261
(10th Cir. 2008).
“It is well established that police officers are not required to administer
Miranda warnings to everyone whom they question.” United States v. Eckhart,
569 F.3d 1263, 1275 (10th Cir. 2009) (quoting Hudson, 210 F.3d at 1190)
(internal quotation marks omitted), cert. denied, 130 S. Ct. 1752 (2010).
“Instead, the protections set out by the Supreme Court in Miranda only apply
when an individual is subject to custodial interrogation.” Id. (quoting United
-9-
States v. Rogers, 391 F.3d 1165, 1169 (10th Cir. 2004)) (internal quotation marks
omitted). We have explained:
Whether a person is in custody for Miranda purposes depends on
the type of the encounter with police. Of the three types of
police-citizen encounters—voluntary cooperation, an
investigatory detention under Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968), and a formal arrest—Miranda’s
custody element is triggered only in situations associated with
formal arrests. In other words, “[c]ase law is well established
that a defendant is not in custody under either of the first two
encounters and therefore Miranda warnings need not usually be
given.”
Jones, 523 F.3d at 1239 (alteration in original) (quoting United States v. Griffin, 7
F.3d 1512, 1516 (10th Cir. 1993)).
The Supreme Court explained in Miranda that an individual is “in custody”
if he is “deprived of his freedom of action in any significant way.” Miranda v.
Arizona, 384 U.S. 436, 444 (1966). Determining whether Mr. Sanchez-Gallegos
was in custody for Miranda purposes “flows from our seminal inquiry: ‘whether a
reasonable person in [Mr. Sanchez-Gallegos’s] position would have understood
[his] freedom of action to have been restricted to a degree consistent with formal
arrest.’” Lamy, 521 F.3d at 1263 (second alteration in original) (quoting United
States v. Revels, 510 F.3d 1269, 1275 (10th Cir. 2007)). “We therefore must
determine whether ‘a reasonable [person] in the suspect’s position would have
understood [the] situation . . . as the functional equivalent of formal arrest.’”
United States v. Chee, 514 F.3d 1106, 1112 (10th Cir. 2008) (alterations in
-10-
original) (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). A reasonable
person “does not have a guilty state of mind and does not have peculiar mental or
emotional conditions that are not apparent to the questioning officer.” Hudson,
210 F.3d at 1190 (quoting United States v. Erving L., 147 F.3d 1240, 1246 (10th
Cir. 1998)) (internal quotation marks omitted).
This is an objective, fact-intensive inquiry that focuses on the totality of the
circumstances. See id.; see also Jones, 523 F.3d at 1239; Griffin, 7 F.3d at 1518.
“We thus avoid hard line rules and instead allow several non-exhaustive factors to
guide us.” Jones, 523 F.3d at 1240. The relevant factors include: “(1) whether
the circumstances demonstrated a police-dominated atmosphere; (2) whether the
nature and length of the officers’ questioning was accusatory or coercive; and (3)
whether the police made [Mr. Sanchez-Gallegos] aware that [he] was free to
refrain from answering questions, or to otherwise end the interview.” Revels, 510
F.3d at 1275.
Indications that an atmosphere is police-dominated
may include whether the suspect was separated from his family
and isolated in a nonpublic questioning room, whether there was
the threatening presence of several officers, whether there was
any display of weapons or physical contact with the suspect, and
whether the officer’s language and tone indicated that
compliance might be compelled.
Chee, 514 F.3d at 1113 (citing Griffin, 7 F.3d at 1518–19).
-11-
“Although these factors are useful, we emphasize that we must look to the
totality of the circumstances and consider the police-citizen encounter as a whole,
rather than picking some facts and ignoring others.” Jones, 523 F.3d at 1240.
I also must emphasize that context is key in deciding whether Mr. Sanchez-
Gallegos was in custody during his encounter with the Border Patrol agents. The
context here is a fixed border checkpoint. As we explained in Hudson, “[t]he
Supreme Court has concluded that a stop at a fixed border checkpoint constitutes
a Fourth Amendment seizure because a reasonable person would not believe [he]
is free to leave.” 5 210 F.3d at 1190–91 (citing United States v. Martinez-Fuerte,
428 U.S. 543, 556 (1976)). However, “a Fourth Amendment seizure does not
necessarily render a person in custody for purposes of Miranda.” Id. (quoting
United States v. Bengivenga, 845 F.2d 593, 598 (5th Cir. 1988) (en banc))
(internal quotation marks omitted). More specifically, a number of courts,
including our own, have recognized the important distinction between a Fourth
Amendment seizure and Miranda’s custody requirement, and have held that while
a routine stop at a fixed border checkpoint may be a Fourth Amendment seizure,
it is not custodial for Miranda purposes. Id. (citing United States v. Fernandez-
5
As long as the border checkpoint stop comports with the
requirements set out by this court in United States v. Massie, 65 F.3d 843, 847–48
(10th Cir. 1995), such a seizure is reasonable and consistent with the dictates of
the Fourth Amendment.
-12-
Ventura, 132 F.3d 844, 846 (1st Cir. 1998), and United States v. Moya, 74 F.3d
1117, 1120 (11th Cir. 1996)).
The unique context of fixed border checkpoint stops is revealed by the
different legal principles applicable to them. For example, “[a]t a fixed
checkpoint, . . . border patrol agents may stop, briefly detain, and question
individuals without any individualized suspicion that the individuals are engaged
in criminal activity.” Massie, 65 F.3d at 847; accord United States v. Forbes, 528
F.3d 1273, 1277–78 (10th Cir. 2008) (discussing the “well-established principles
applicable to border checkpoints and canine searches”). Such stops must be
“brief and unintrusive” and the questioning “reasonably related” to the duties of
the Border Patrol. Massie, 65 F.3d at 848. “Further detention of an individual
beyond the scope of a routine checkpoint stop must be based upon reasonable
suspicion, consent, or probable cause.” Id. However, “border patrol agents have
virtually unlimited discretion to refer cars to the secondary inspections area,”
Forbes, 528 F.3d at 1277 (quoting United States v. Sanders, 937 F.2d 1495, 1499
(10th Cir. 1991)) (internal quotation marks omitted), and “may make such
referrals without any particularized suspicion of criminal activity,” id.In addition, agents are free to conduct canine searches at the border “so
long as the vehicles and their occupants are otherwise lawfully detained at the
time of the inspection.” Id. Canine inspections are permissible in the absence of
individual suspicion and without the consent of the occupants of the vehicle. See
-13-
Massie, 65 F.3d at 848; see also United States v. Williams, 403 F.3d 1203, 1207
(10th Cir. 2005) (“A canine sniff on the exterior of a vehicle during a lawful
traffic stop does not implicate legitimate privacy interests.”). Finally, a canine’s
alert to the presence of contraband in a vehicle during its exterior sniff gives law
enforcement officers probable cause to search the interior of the vehicle. See
United States v. Rosborough, 366 F.3d 1145, 1152 (10th Cir. 2004); United States
v. Ludwig, 10 F.3d 1523, 1527–28 (10th Cir. 1993).
In sum, “a routine stop at a fixed border checkpoint, i.e., a stop within the
parameters set forth by this court in Massie” and related cases, as outlined above,
“is not custodial and Miranda warnings are not necessary.” Hudson, 210 F.3d at
1191. This rule of law is animated by our view that “no reasonable person
detained during a routine border stop could believe that her freedom was
restrained to the degree associated with formal arrest.” Id. Given the heightened
security restrictions that the Sovereign routinely and necessarily enforces at fixed
border checkpoints, “[w]e stress that events which might be enough often to
signal ‘custody’ away from the border will not be enough to establish ‘custody’ in
the context of entry into the country.” Moya, 74 F.3d at 1120.
Mr. Sanchez-Gallegos contends that the district court erred in denying his
motion to suppress the first statement that he made to Agent Gonzalez because he
had not been advised of his Miranda rights at the time he made the statement.
The government counters that no Miranda advisement was necessary because Mr.
-14-
Sanchez-Gallegos’s interaction with the Border Patrol agents did not rise to the
level of a custodial interrogation. I believe that the government has the better
argument in this case.
Here, the district court properly concluded that Mr. Sanchez-Gallegos was
not subjected to custodial interrogation. While Mr. Sanchez-Gallegos was not
informed of his right to terminate the encounter, the nature of the pre-Miranda
questioning was neither prolonged nor accusatory. See Jones, 523 F.3d at 1240(explaining that prolonged and accusatory questioning can create a coercive
environment); see also Hudson, 210 F.3d at 1191 (“[Q]uestioning at the border
must rise to a distinctly accusatory level before it can be said that a reasonable
person would feel restraints on his ability to roam to the degree associated with
formal arrest.” (quoting Moya, 74 F.3d at 1120) (internal quotation marks
omitted)).
The exchange that prompted Mr. Sanchez-Gallegos’s first allegedly
incriminatory statement was extremely brief. See Hudson, 210 F.3d at 1192(noting that “[t]he questions were asked over a relatively brief ten-minute time
period”); cf. Massie, 65 F.3d at 849 (“We further conclude the agents’ continued
detention and questioning of Defendants did not exceed the confines of a routine
checkpoint stop. The agents’ questioning lasted only eight to eleven
minutes . . . .”); United States v. Sukiz-Grado, 22 F.3d 1006, 1008–09 (10th Cir.
1994) (“The questions that the agent asked Mr. Sukiz during his two-minute
-15-
detention at the primary inspection area clearly fall within the ambit of routine
inquiry or were justified by the suspicious circumstances observed by the
agent.”).
Before Mr. Sanchez-Gallegos made his incriminating statement, Agent
Gonzalez had explained that he was concerned that there were children attempting
to circumvent the checkpoint by traveling through the desert. Agent Gonzalez
asked Mr. Sanchez-Gallegos about the large amount of American and Mexican
currency found in his pocket during the consensual pat-down search and the
Mexican birth certificates found in his vehicle. 6 In response, Mr. Sanchez-
Gallegos admitted that the money was “payment to take some children to . . .
Chicago.” R., Vol. III, at 29.
6
Agent Gonzalez explained at the suppression hearing that the
following discussion prompted Mr. Sanchez-Gallegos’s first allegedly
incriminatory statement:
I asked him about all the inconsistencies that we had found, and
I told him about the fact that he had lied to me about the travel
plans, that he had told me he was a U.S. citizen, that he had all
this money that he couldn’t explain to me how he got it, and that
he had some birth certificates for children.
I told him that I believed there was a group of children
walking around the checkpoint and that my concern was that, if
they were, then they could be exposed to the elements and
maybe, as I have seen before, die in the desert.
R., Vol. III, at 28.
-16-
While it is true that Mr. Sanchez-Gallegos was removed from his vehicle
and asked to wait in the Border Patrol checkpoint office, Mr. Sanchez-Gallegos
consented to every progressive step in his encounter with Agent Gonzalez leading
up to the questioning that elicited his allegedly incriminatory response. And there
has been no suggestion by Mr. Sanchez-Gallegos that this consent was coerced or
illegally obtained. First, despite not needing Mr. Sanchez-Gallegos’s permission
to refer him to the secondary checkpoint, see Forbes, 528 F.3d at 1277, Agent
Gonzalez sought and received such permission before Mr. Sanchez-Gallegos
moved his vehicle from the primary inspection area to the secondary inspection
area. Second, again without needing permission, Agent Gonzalez sought and
received Mr. Sanchez-Gallegos’s permission prior to having another Border Patrol
Agent conduct an exterior canine sniff of the vehicle. See Williams, 403 F.3d at
1207; Massie, 65 F.3d at 848. Finally, Agent Gonzalez sought and received Mr.
Sanchez-Gallegos’s permission to conduct a pat-down search before having him
wait in the checkpoint office.
Moreover, the atmosphere cannot be described as police-dominated. See
Chee, 514 F.3d at 1113; Griffin, 7 F.3d at 1518–19. Only two agents were
present during the questioning. Mr. Sanchez-Gallegos was never placed in
handcuffs. And he was never subjected to, nor threatened with, any physical
mistreatment. See Eckhart, 569 F.3d at 1276 (explaining that Miranda warnings
were not required where the defendant “was never handcuffed or placed in a
-17-
police cruiser and no weapons were drawn . . . [and] the officers were polite in
their demeanor and did not use or threaten the use of force at any time”).
Therefore, in the context of a fixed border checkpoint search, I do not believe that
these circumstances, viewed in the totality, suggest that Mr. Sanchez-Gallegos
was in custody. See Hudson, 219 F.3d at 1191 (concluding that defendants were
not in custody under similar circumstances). 7
7
Our analysis in Hudson is noteworthy:
This court reaches the same conclusion even when the series of
questions is viewed together with the fact that Hudson and Riness
were asked to exit their vehicle during the canine search and that
the bill of lading was not returned to Hudson. As noted above,
there is no question that Hudson and Riness were seized. The
real question then becomes whether these two factors, considered
in the context of the totality of the circumstances, altered the
circumstances of the border stop in a manner to take it outside of
the parameters of Massie. We note that none of the agents
involved in this case ever spoke to Hudson and Riness in a harsh
or threatening manner or made any show of force. Hudson and
Riness voluntarily left their vehicle and consented to the canine
search. Hudson and Riness were never separated from each
other, were never placed in handcuffs or a holding cell, and were
never told they were under arrest. Although it was clear that they
would be unable to leave because of the pendency of the canine
search, they had specifically consented to the search.
Accordingly, the agents’ failure to return the bill of lading at the
time the questioning occurred is completely unremarkable.
Considered against the totality of the circumstances in this case,
none of the factors identified by the district court take this case
outside of the Massie heartland.
210 F.3d at 1192–93.
-18-
To be sure, Mr. Sanchez-Gallegos had been at the checkpoint for as long as
fifty minutes when he made the first allegedly incriminatory statement. However,
this passage of time must be viewed in the context of (1) his consent, and (2) the
fact that Mr. Sanchez-Gallegos was not questioned throughout this entire period.
Mr. Sanchez-Gallegos consented to each governmental action that resulted in the
delay. Furthermore, during a considerable portion of this time, Agent Gonzalez
was either engaged in border-enforcement duties unrelated to Mr. Sanchez-
Gallegos or was running criminal and immigration history checks related to Mr.
Sanchez-Gallegos but not interrogating him. Mr. Sanchez-Gallegos’s first
allegedly incriminatory statement came in response to a very brief period of
questioning by Agent Gonzalez. Consequently, on the facts of this case, I do not
believe that Massie’s limitation to a “brief” period of questioning was
contravened. Compare United States v. Chavira, 614 F.3d 127, 134 (5th Cir.
2010) (“Under all these circumstances, thirty to forty minutes of increasingly
accusatory questioning would indicate to the reasonable person in Chavira’s
situation that her freedom had been restrained to the degree associated with
formal arrest.”), with United States v. Harrell, 894 F.2d 120, 124 (5th Cir. 1990)
(“[W]e cannot say that a 60–75 minute interrogation is per se custodial, especially
where the detainee offers the incriminating statements early in the detention.
Some measure of investigatorial questioning is permissible without invoking
Miranda concerns.”).
-19-
Mr. Sanchez-Gallegos was not in custody when he initially admitted to
receiving money to transport children to Chicago because his freedom was not
curtailed to the degree associated with a formal arrest. Therefore, in the context
of a fixed border checkpoint search, and under the unique circumstances of this
case—that included Mr. Sanchez-Gallegos’s repeated grants of consent which
extended his encounter with law enforcement—Miranda warnings were not
required. Thus, in my view, the district court did not err in denying the motion to
suppress.
-20-
No. 09-2146, United States v. Sanchez-Gallegos
BRISCOE, Chief Judge, concurring:
I agree with the ultimate conclusion that Sanchez-Gallegos was not in
custody when he made his initial incriminating statements and that Miranda,
therefore, does not apply. Thus, I agree that the district court did not err in
denying the motion to suppress these incriminating statements. However, in my
view, Sanchez-Gallegos’s encounter exceeded the parameters for a routine stop at
a fixed border checkpoint established in United States v. Massie, 65 F.3d 843(10th Cir. 1995). Nonetheless, I conclude that Sanchez-Gallegos was not in
custody for purposes of Miranda based on the totality of the circumstances
presented.
I
In United States v. Hudson, this court established that “a routine stop at a
fixed border checkpoint, i.e., a stop within the parameters set forth by this court
in Massie, is not custodial and Miranda warnings are not necessary.” Hudson,
210 F.3d 1184, 1191 (10th Cir. 2000). Thus, the first question to address is
“whether the facts of this case take it outside of the Massie heartland.” Id. I
conclude that Sanchez-Gallegos’s encounter with the border patrol agents
exceeded the Massie parameters for a routine stop at a fixed border checkpoint.
In Massie, this court defined a routine fixed border checkpoint stop as a
“brief and unintrusive” encounter where “a border patrol agent may ask questions
reasonably related to his duties and explore suspicious circumstances.” 65 F.3d at
848 (emphasis added). Further, without exceeding the confines of a routine fixed
border checkpoint stop, an agent may direct individuals to a secondary checkpoint
and can pursue inquiries at the secondary location regarding “vehicle ownership,
cargo, destination, and travel plans, and . . . any suspicious circumstances . . .
observed, as long as the detention remain[s] brief and unintrusive.” Id. at 849(internal quotation marks and citation omitted). Thus, in Massie, this court
characterized as a routine checkpoint stop an encounter at a fixed border
checkpoint involving inquiries that “lasted only eight to eleven minutes from the
time Defendants were stopped at primary to the moment the dog alerted on the
trunk” and that concerned “citizenship, vehicle ownership, vehicle contents,
destination, and travel plans.” Id.Sanchez-Gallegos’s stop at the fixed border checkpoint exceeded the
Massie parameters due the length and intrusiveness of the encounter. Initially,
the encounter began as a routine fixed border checkpoint stop. Specifically, the
border patrol agents asked routine questions and referred Sanchez-Gallegos to the
secondary checkpoint, where he consented to a canine search of his vehicle. See
Hudson, 210 F.3d at 1192–93. However, after the dog alerted to the vehicle,
Sanchez-Gallegos was asked to proceed to the secondary checkpoint office and he
submitted to a consensual pat-down search for the agents’ safety, which revealed
approximately eight thousand dollars in his pocket. While Sanchez-Gallegos
-2-
waited in the secondary checkpoint office, border patrol agents searched the
interior of his vehicle, uncovering six Mexican birth certificates. At this point,
after Sanchez-Gallegos had been detained at the checkpoint for approximately
forty to fifty minutes, the agents engaged in the questioning that elicited the
incriminating statements at issue in this case. I conclude that this encounter
necessarily extended beyond the confines of a brief, unintrusive detention as
required in Massie for a routine stop at a fixed border checkpoint.
II
Even though the encounter exceeded the parameters of Massie, this does
not dictate the conclusion that Sanchez-Gallegos was in custody for purposes of
Miranda. See Hudson, 210 F.3d at 1191 n.8 (“[T]his court does not mean to
suggest that every time a border stop evolves beyond the routine parameters set
forth in Massie a custodial situation is created.”). Rather, this court must still
consider the totality of the circumstances presented to determine “whether a
reasonable person in [the suspect’s] position would have understood [his] freedom
of action to have been restricted to a degree consistent with formal arrest.”
United States v. Revels, 510 F.3d 1269, 1275 (10th Cir. 2007). This inquiry
involves examination of the following non-exhaustive factors: “(1) whether the
circumstances demonstrated a police-dominated atmosphere; (2) whether the
nature and length of the officers’ questioning was accusatory or coercive; and (3)
-3-
whether the police made [the suspect] aware that []he was free to refrain from
answering questions, or to otherwise end the interview.” Id.Examining the totality of the circumstances presented in this case, I
conclude that Sanchez-Gallegos was not in custody for the purposes of Miranda.
First, Sanchez-Gallegos was not questioned in a police-dominated atmosphere.
Specifically, only two border patrol agents were present during the questioning
that elicited the incriminating statements. Further, while the questioning occurred
in the secondary checkpoint office, Sanchez-Gallegos was directed to that
location during the search of his vehicle and after he submitted to a consensual
pat-down search. See United States v. Butler, 249 F.3d 1094, 1100–01 (9th Cir.
2001) (“[T]he mere detention of a person in a border station’s security office from
which he or she is not free to leave, while a search of a vehicle occurs, is not
‘custody’ for [Miranda] purposes.”).
Second, the nature and length of the officers’ questioning was not
accusatory or coercive. Specifically, there is no indication that the border patrol
agents spoke in a threatening or accusatory tone and the agents did not display
their weapons during the inquiry. Further, Sanchez-Gallegos was not placed in
handcuffs or a holding cell, he was not told that he was under arrest, and he was
not questioned for a long period of time. In fact, the questioning that elicited the
incriminating statements at issue in this case was brief. However, Sanchez-
Gallegos was not informed of his right to terminate the encounter with the agents.
-4-
Nevertheless, when considering the totality of the circumstances, I conclude that
Sanchez-Gallegos was not in custody for the purposes of Miranda. See United
States v. Jones, 523 F.3d 1235, 1240 (10th Cir. 2008) (“Although these factors are
useful, we emphasize that we must look to the totality of the circumstances and
consider the police-citizen encounter as a whole, rather than picking some facts
and ignoring others.”).
As Sanchez-Gallegos was not in custody for the purposes of Miranda, I also
conclude that the district court did not err in denying the motion to suppress his
initial incriminating statements.
-5-
No. 09-2146, United States v. Sanchez-Gallegos
EBEL, Circuit Judge, concurring.
I agree with both of my respected panel members that Mr. Sanchez-
Gallegos' conviction should be affirmed. However, I part ways with the majority
in its conclusion that Mr. Sanchez-Gallegos was not in custody when he made his
initial incriminating statement to Border Patrol Agent Gonzalez. In my view, Mr.
Sanchez-Gallegos was in custody at that point, and it was incumbent upon the
agents to warn him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966),
prior to that interrogation. However, I believe that the officers' administration of
the Miranda warning after that initial statement was sufficient to advise Mr.
Sanchez-Gallegos of his rights, and to render the statements made after the
warning—the vast bulk of the statements that led to Mr. Sanchez-Gallegos'
arrest—admissible. Thus, I believe that while the admission of the single pre-
Miranda statement was erroneous, the error was in fact harmless. Accordingly, I
agree that Mr. Sanchez-Gallegos’ conviction should be affirmed.
I. Mr. Sanchez-Gallegos Was In Custody at the Time of His Initial Statement
The majority is correct that “a routine stop at a fixed border checkpoint, i.e.,
a stop within the parameters set forth by this court in [United States v. Massie, 65
F.3d 843 (10th Cir. 1995)], is not custodial and Miranda warnings are not
necessary.” United States v. Hudson, 210 F.3d 1184, 1191 (10th Cir. 2000). In
Massie, we held that “during a routine fixed-checkpoint stop a border patrol agent
may ask questions reasonably related to his duties and explore suspicious
circumstances, but must be brief and unintrusive.” 65 F.3d at 848 (emphasis
added). In that case, we determined that border patrol agents' detention and
questioning of defendants were sufficiently brief and unintrusive so as not to
exceed the confines of a routine checkpoint stop where the “agents' questioning
lasted only eight to eleven minutes from the time Defendants were stopped at [the]
primary [inspection area] to the moment the dog alerted on the trunk,” and where
“[t]he agents questioned Defendants about citizenship, vehicle ownership, vehicle
contents, destination, and travel plans.” Id. at 849.
I agree with Chief Judge Briscoe’s opinion that the facts of this case “take it
outside of the Massie heartland.” Hudson, 210 F.3d at 1191. First, Mr. Sanchez-
Gallegos had been detained for approximately forty to fifty minutes before Agent
Gonzalez asked the questions that elicited Mr. Sanchez-Gallegos' initial
incriminating statement. Second, although consensual, Mr. Sanchez-Gallegos was
directed to a secondary checkpoint, subjected to a canine sniff of his vehicle, and
patted down. The interior of his vehicle was then searched by border patrol agents
and he was questioned in a secondary checkpoint office. In addition, Agent
Gonzalez's questions that elicited Mr. Sanchez-Gallegos' testimony were anything
but unintrusive. As Agent Gonzalez testified at the suppression hearing:
I asked him about all the inconsistencies that we had found, and I
told him about the fact that he had lied to me about the travel
-2-
plans, that he had told me he was a U.S. citizen, that he had all this
money that he couldn't explain to me how he got it, and that he had
some birth certificates for children. I told him that I believed there
was a group of children walking around the checkpoint and that my
concern was that, if they were, they could be exposed to the
elements and maybe, as I have seen before, die in the desert.
R., vol. III at 28. Under these circumstances, the detention and questioning of
Mr. Sanchez-Gallegos exceeded the parameters set forth in Massie.
Chief Judge Briscoe nonetheless concludes that Mr. Sanchez-Gallegos was
not in custody for the purposes of Miranda under the totality of circumstances
presented here. To determine whether a suspect is in custody for the purposes of
Miranda, we “must decide whether a reasonable person in [the suspect's] position
would have understood [his] freedom of action to have been restricted to a degree
consistent with formal arrest.” United States v. Revels, 510 F.3d 1269, 1275
(10th Cir. 2007). “Several relevant factors inform our fact-specific analysis,
including: (1) whether the circumstances demonstrated a police-dominated
atmosphere; (2) whether the nature and length of the officers' questioning was
accusatory or coercive; and (3) whether the police made [the suspect] aware that
[he] was free to refrain from answering questions, or to otherwise end the
interview.” Id. I believe that this analysis inevitably leads to the conclusion that
Mr. Sanchez-Gallegos was in custody.
First, the circumstances demonstrate a police-dominated atmosphere. Mr.
Sanchez-Gallegos was removed from his vehicle, taken to a separate checkpoint
office, and interrogated in the presence of two border patrol agents, while two
-3-
other agents searched his vehicle. Chief Judge Briscoe believes that this does not
suffice to create a police-dominated atmosphere because (1) Mr. Sanchez-
Gallegos was directed to the secondary checkpoint office during the search of his
vehicle and only after he submitted to a consensual pat-down search, and (2) only
two border patrol agents were present during the initial interrogation. I
respectfully disagree. First, as Judge Holmes recognizes, the search of Mr.
Sanchez-Gallegos' vehicle was completed before he was subjected to the
interrogation that elicited his incriminating statement. Second, it is unclear why
two border patrol agents questioning Mr. Sanchez-Gallegos alone in a border
checkpoint office is insufficient to constitute a police-dominated atmosphere.
Moreover, more than two agents were present at the checkpoint, as at least two
others searched Mr. Sanchez-Gallegos' vehicle. Therefore, I find that this factor
supports a conclusion that Mr. Sanchez-Gallegos was in custody at the time of the
interrogation.
The second factor— whether the nature and length of the officers'
questioning was accusatory or coercive—is a closer call. On the one hand, I think
it is an inescapable conclusion that the agents' questioning was accusatory. Agent
Gonzales not only accused Mr. Sanchez-Gallegos of lying and giving inconsistent
statements, but Gonzales showed Mr. Sanchez-Gallegos the birth certificates and
told him that a group of children “could be exposed to the elements and maybe, as
-4-
I have seen before, die in the desert.” R., vol. III at 28. I fail to see how such
questioning is not plainly accusatory.
On the other hand, as my respected panel members point out, Mr. Sanchez-
Gallegos was not subjected to or threatened with any physical mistreatment, was
not placed in handcuffs or a holding cell, and was not questioned for a long
period of time before the Miranda warning was given. Under these
circumstances, the agent's questioning, while accusatory, did not rise to the level
of coercion. Compare United States v. Eckhart, 569 F.3d 1263, 1276 (10th Cir.
2009) (finding stop to be noncoercive where defendant “was never handcuffed or
placed in a police cruiser and no weapons were drawn” and “the officers were
polite in their demeanor and did not use or threaten the use of force at any time”),
United States v. Lamy, 521 F.3d 1257, 1263 (10th Cir. 2008) (finding second
factor not met where “the interview lasted for about an hour and . . . there was no
indication that the questioning was unusually confrontational”), and United States
v. Bennett, 329 F.3d 769, 775 (10th Cir. 2003) (finding that coercive factors were
not present where police did not restrain the defendant while questioning him and
told him he was not under arrest), with United States v. Perdue, 8 F.3d 1455,
1464, 1467 (10th Cir. 1993) (finding “overwhelmingly” coercive atmosphere
where defendant “was forced out of his car and onto the ground at gunpoint” and
then questioned by officers “while police helicopters hovered above” and “while
-5-
the officers kept their guns drawn on him and his pregnant fiancée”).
Accordingly, this factor cuts both ways in the analysis.
Finally, as the majority acknowledges, Mr. Sanchez-Gallegos was never
informed by the agents that he was free to end the interview. This weighs
significantly in favor of finding custodial interrogation in this case. See Revels,
510 F.3d at 1276 (finding that the suspect was in custody for Miranda purposes
where “the police never indicated to [the suspect] that she was free to leave or
otherwise at liberty to terminate the police questioning”); United States v. Griffin,
7 F.3d 1512, 1518 (10th Cir. 1993) (“[T]he lack of a police advisement that the
suspect is at liberty to decline to answer questions or free to leave is a significant
indication of a custodial detention.”).
Under the totality of the circumstances described above, I conclude that Mr.
Sanchez-Gallegos was in custody when he was questioned by Agent Gonzalez,
and therefore that the failure to give Mr. Sanchez-Gallegos a Miranda warning
rendered his initial statement inadmissible. However, I do not believe that this
error warrants reversal. As discussed below, the subsequent Miranda warning
given to Mr. Sanchez-Gallegos was effective to render his later statements
admissible, and thus the district court's admission of Mr. Sanchez-Gallegos' pre-
Miranda statement was harmless.
-6-
II. The District Court Did Not Err in Admitting Mr. Sanchez-Gallegos'
Post-Miranda Statements.
After Mr. Sanchez-Gallegos made the initial incriminating statement, Agent
Gonzalez read Mr. Sanchez-Gallegos his Miranda rights and Mr. Sanchez-
Gallegos waived his right to remain silent. He then proceeded to confess to
involvement with the crime, and even went so far as to call Victor so that ICE
agents could find the children. The question, then, becomes whether the Miranda
warning given after the incriminating statement sufficed to render the post-
warning statements admissible, notwithstanding the prior violation of Mr.
Sanchez-Gallegos' Miranda rights.
In Missouri v. Seibert, the Supreme Court in a fragmented opinion found that a
Miranda warning given mid-interrogation pursuant to a “question-first tactic” was
insufficient to render the defendant's later statements admissible. 542 U.S. 600,
617 (2004). The four-justice plurality set forth the following five “relevant facts
that bear on whether Miranda warnings delivered midstream could be effective”:
[1] the completeness and detail of the questions and answers
in the first round of interrogation, [2] the overlapping content
of the two statements, [3] the timing and setting of the first
and the second, [4] the continuity of police personnel, and
[5] the degree to which the interrogator's questions treated
the second round as continuous with the first.
Id. at 615.
In a concurring opinion, however, Justice Kennedy argued for “a
much narrower test applicable only to the infrequent case . . . in which
-7-
the two-step interrogation technique was used in a calculated way to
undermine the Miranda warning.” Id. at 622 (Kennedy, J., concurring
in the judgment). Where a two-step interrogation technique was not so
used, Justice Kennedy believed that “[t]he admissibility of postwarning
statements should continue to be governed by the principles of [Oregon
v. Elstad 470 U.S. 298(1985)].” Id. In Elstad, the Court concluded that
“absent deliberately coercive or improper tactics in obtaining the initial
statement, the mere fact that a suspect has made an unwarned admission
does not warrant a presumption of compulsion,” and thus “[a]
subsequent administration of Miranda warnings to a suspect who has
given a voluntary but unwarned statement ordinarily should suffice to
remove the conditions that precluded admission of the earlier
statement.” Elstad, 470 U.S. at 314. Accordingly, the Court held that
statements made after a voluntary Miranda waiver could be admissible
as long as the pre-Miranda statements were also uncoerced. Id. at 318.
“[A] suspect who has once responded to unwarned yet uncoercive
questioning is not thereby disabled from waiving his rights and
confessing after he has been given the requisite Miranda warnings.” Id.In United States v. Carrizales-Toldeo, we noted that determining
the holding of Siebert is not easy in light of the fragmented nature of
the opinion. 454 F.3d 1142, 1151 (10th Cir. 2006). We declined to
-8-
determine whether the four-justice plurality or Justice Kennedy's
concurrence reflects the holding of Seibert, and instead applied both
tests to the facts of that case. Id. However, I would hold that Justice
Kennedy's concurrence, as the narrowest grounds for the Supreme
Court's decision to suppress, represents the holding of Seibert. 1
Under the test advanced by Justice Kennedy, Mr. Sanchez-
Gallegos' post-Miranda statements are admissible. The record does not
reflect that a “two-step interrogation technique was used in a calculated
way to undermine the Miranda warning.” 542 U.S. at 622 (Kennedy, J.,
1
The majority of our sister circuits have reached the same conclusion. See
United States v. Capers, No. 07-1830-cr, 2010 U.S. App. LEXIS 24516, at *14
(2d Cir. Dec. 1, 2010) (noting that the Second Circuit applies Justice Kennedy's
approach); United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir. 2007) (“We
treat Justice Kennedy's concurrence as controlling since it provided the fifth vote
necessary for a majority and since it was decided on narrower grounds than the
plurality opinion.”); United States v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006)
(“Because Seibert is a plurality decision and Justice Kennedy concurred in the
result on the narrowest grounds, it is his concurring opinion that provides the
controlling law.”); United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006)
(“[W]e find Seibert's holding in Justice Kennedy's opinion concurring in the
judgment.”); United States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006)
(finding that Justice Kennedy's “narrower test . . . represents Seibert's holding”);
United States v. Kiam, 432 F.3d 524, 532 (3d Cir. 2006) (“This Court applies the
Seibert plurality opinion as narrowed by Justice Kennedy.”); United States v.
Mashburn, 406 F.3d 303, 309 (4th Cir. 2005) (“Justice Kennedy's opinion
therefore represents the holding of the Seibert Court: The admissibility of
postwarning statements is governed by Elstad unless the deliberate 'question-first'
strategy is employed.”). But see United States v. Heron, 564 F.3d 879, 884 (7th
Cir. Ill. 2009) (“Although Justice Kennedy provided the crucial fifth vote for the
majority, we find it a strain at best to view his concurrence taken as a whole as
the narrowest ground on which a majority of the Court could agree. . . . Justice
Kennedy's intent-based test was rejected by both the plurality opinion and the
dissent in Seibert.”).
-9-
concurring in the judgment). Thus, we look to Elstad, which held that
later statements could be admissible as long as the pre-Miranda
statements were uncoerced. Elstad, 470 U.S. at 318. As discussed
above, while the agent's pre-warning questioning was accusatory, it did
not rise to the level of coercion such that Mr. Sanchez-Gallegos' post-
Miranda statements are inadmissible under Elstad. Accordingly, I find
that Mr. Sanchez-Gallegos' statements made after receiving the Miranda
warning were properly admitted. 2
2
I acknowledge that the conclusion might be different under the plurality's
test in Seibert. This test “concern[s] the relationship between the first and second
interrogations.” Carrizales-Toldeo, 454 F.3d at 1150. In this case, there was
little distinction in the two phases of questioning. Although questions and
answers became more specific during the second interrogation, the content clearly
overlapped, as both interrogations concerned the transportation of children.
Moreover, there was no break in the timing, setting, or personnel of the two
interrogations. Finally, the questioning treated the second round as continuous
with the first, as the second followed immediately upon the first and followed up
on Mr. Sanchez-Gallegos' pre-Miranda statement.
-10-
III. The Admission of Mr. Sanchez-Gallegos' Pre-Miranda
Statement Was Harmless Error
Although the district court erred in admitting Mr. Sanchez-Gallegos' pre-
Miranda statement, this Court may nevertheless affirm his conviction if that error
was harmless. “The Supreme Court has applied harmless error analysis to a wide
range of constitutional errors, including the admission of unlawful confessions.”
Perdue, 8 F.3d at 1469 (internal quotation marks omitted). “A constitutional error
is harmless and may be disregarded if it appears beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained.” United States
v. Holly, 488 F.3d 1298, 1307 (10th Cir. 2007) (internal quotation marks
omitted).
As a general rule, it is the government's burden to prove that an error was
harmless. See United States v. Lott, 310 F.3d 1231, 1251 (10th Cir. 2002) (citing
United States v. Miller, 111 F.3d 747, 751 (10th Cir. 1997)). Here, the
government failed to argue in its brief or at oral argument that the admission of
Sanchez-Gallegos' unwarned confession at trial was harmless. “Nevertheless,
where the government has failed to assert harmless error, this court may in its
discretion initiate harmless error review in an appropriate case.” Holly, 488 F.3d
at 1307 (internal quotation marks and citation omitted). “In deciding whether to
exercise its discretion to address harmlessness, this court considers '(1) the length
and complexity of the record; (2) whether the harmlessness of the errors is certain
or debatable; and (3) whether a reversal would result in protracted, costly, and
-11-
futile proceedings in the district court.'” Id. at 1308 (quoting United States v.
Samaniego, 187 F.3d 1222, 1225 (10th Cir. 1999)). 3
Considering harmless error sua sponte is appropriate in this case. As to the
first factor, the record in this case comprises three volumes and more than 600
pages of material, but consists primarily of transcripts. Though a long and
complex record normally weighs against sua sponte harmless-error review
unguided by the arguments of the parties, Samaniego, 187 F.3d at 1225, in this
case the record, while lengthy, is relatively straightforward, as is the case against
Mr. Sanchez-Gallegos.
As to the second factor, even where a record is long and complex, sua
sponte harmless-error review may be appropriate “where the certainty of the
harmlessness is readily apparent.” Holly, 488 F.3d at 1308. Here, there can be
little doubt that the error of admitting testimony of Sanchez-Gallegos' one-
sentence unwarned statement was harmless. Whereas this statement was short
and vague, in his properly admitted post-Miranda statements, Mr. Sanchez-
Gallegos explained the situation to the officers in detail and even assisted the
officers in finding Victor and the children. The detail and extent of the post-
3
As noted by the Court in Holly, we have “quite reasonably” questioned
the relevance of the third factor. Holly, 488 F.3d at 1308 n.8; Samaniego, 187
F.3d 1225 n.2 (“Without eviscerating the doctrine, cost and potentially protracted
proceedings cannot preclude reversal if an error was not harmless.”). Here, as in
Holly, because the first two factors indicate that a sua sponte harmless-error
review is appropriate in this case, we do not need to address the third factor.
Holly, 488 F.3d at 1308 n.8.
-12-
Miranda statements so vastly outweigh the pre-Miranda statement that it is
“beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.” Holly, 488 F.3d at 1307. Accordingly, a sua sponte harmless-
error review is appropriate in this case, and inexorably leads to the conclusion
that the admission of Mr. Sanchez-Gallegos' pre-Miranda statement was harmless.
IV. Conclusion
While I believe that Mr. Sanchez-Gallegos was in custody at the time he
made the unwarned admission, the subsequent Miranda warning sufficed to make
the later statements admissible, and in light of the substance of those later
statements, the admission at trial of the pre-warned statement was harmless error.
I therefore concur with the judgment of the majority.
-13-