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07-2620-cr(L), 07-2746-cr(XAP) USA v. Plugh 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE S ECOND C IRCUIT 4 5 6 7 August Term, 2008 8 9 (Argued: September 25, 2008 Decided: July 31, 2009) 10 1 1 Docket No. 07-2620-cr(L), 07-2746-cr(XAP) 12 13 1 4 United States of America, 15 16 Appellant-Cross-Appellee , 17 1 8 –v.– 19 2 0 Gordon J. Plugh, 21 22 Defendant-Appellee-Cross-Appellant . 23 24 25 2 6 Before: 27 JACOBS , WESLEY , and HALL , Circuit Judges . 28 2 9 The government appeals from an order of the United 3 0 States District Court for the Western District of New York 3 1 (Siragusa, J. ) entered on June 11, 2007, granting defendant 32 Gordon Plugh’s motion to suppress statements made by him on 33 September 28, 2005. Plugh was placed in custody by FBI 3 4 agents who presented Plugh with a waiver-of-rights form and 35 asked him to sign. After stating he was not sure if he 3 6 should talk to the agents or if he should contact a lawyer, 3 7 Plugh refused to sign the form. Subsequently, the agents 3 8 made remarks to Plugh eliciting inculpatory statements, 3 9 which the district court suppressed. We hold that under 40 United States v. Quiroz , 13 F.3d 505 (2d Cir. 1993), PlughPage 2 of 23 1 was entitled to the prophylactic bar prohibiting police 2 questioning when he refused to sign the form, and we hold 3 that the district court did not commit clear error in 4 finding that the agents violated this prophylactic bar. 5 Furthermore, we note that Davis v. United States , 512 U.S. 6 452 (1994) – which requires that a suspect clearly and 7 unambiguously invoke his rights to regain them after having 8 waived them - does not apply. 9 10 AFFIRMED . 11 12 Chief Judge Jacobs dissents in a separate opinion. 13 14 S TEPHEN BACZYNSKI , Assistant United States Attorney, 15 for Kathleen M. Mehltretter, Acting United 1 6 States Attorney for the Western District of 1 7 New York, Buffalo, New York, for Appellant18 Cross-Appellee . 19 20 JEFFREY W ICKS , Rochester, New York, for Defendant21 Appellee-Cross-Appellant . 22 23 24 25 WESLEY , Circuit Judge : 2 6 This appeal raises the question of whether a suspect in 2 7 custody and informed of his rights in accordance with 28 Miranda v. Arizona , 384 U.S. 436 (1966), is entitled to the 2 9 prophylactic bar prohibiting police questioning established 3 0 in Edwards v. Arizona , 451 U.S. 477 (1981) (right to 3 1 counsel), andMichigan v. Mosley, 423 U.S. 96 (1975) (right 32 to silence), when he expresses uncertainty with regard to 33 asserting his Fifth Amendment rights while contemporaneously 3 4 refusing to sign a waiver of rights form. We believe he isPage 3 of 23 1 entitled to the prophylaxis and affirm the district court. 2 By unequivocally refusing to sign the waiver form in 3 response to a custodial agent’s instruction to sign the 4 waiver form if defendant agreed with it, defendant in this 5 case invoked his Fifth Amendment rights, and therefore his 6 custodial agents were required to refrain from further 7 interrogation. 8 Background 9 Investigating child pornography possession and internet 1 0 trafficking, FBI Special Agents Joseph McArdle and James 1 1 McCaffery visited the home of Gordon Plugh in Rochester, New 12 York, on July 14, 2005. The agents questioned Plugh 1 3 regarding possession of child pornography on his computer 1 4 and, upon obtaining Plugh’s permission, searched the 1 5 computer. Upon finding child pornography on the hard drive, 1 6 the FBI obtained an arrest warrant for Plugh, and five 1 7 special agents, including McArdle, arrested Plugh at his 1 8 father’s residence in Wayland, New York, on September 28, 1 9 2005. Upon handcuffing Plugh, McArdle read Plugh his Fifth 2 0 Amendment rights and asked Plugh to sign an advice-of-rightsThe form contained the following, 1 YOUR RIGHTS Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time. WAIVER OF RIGHTS I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer present. [Signature line] The FBI report, dictated the day of Plugh’s arrest, 2 states that Plugh claimed he had worked for the Texas Department of Corrections. Page 4 of 23 1 form. 1 2 According to McArdle, McArdle asked, “Is that true; are 3 you willing to do that?” The district court found that 4 McArdle had stated to Plugh that “[i]f you agree with the 5 statement you can sign the form.” United States v. Plugh , 6 522 F. Supp. 2d 481, 487 (W.D.N.Y. 2007). Plugh stated he 7 understood his rights because he was a former Arizona 2 8 Department of Corrections officer and according to McArdle 9 stated, “I am not sure if I should be talking to you,” andPage 5 of 23 1 “I don’t know if I need a lawyer.” Plugh did not sign the 2 waiver and stated that he did not want to sign anything at 3 that time. Agent McArdle wrote “refused to sign” on the 4 form and then signed the form himself. McArdle testified 5 that Plugh’s refusal to sign was unequivocal. None of the 6 agents asked Plugh any further questions while in Plugh’s 7 father’s home. 8 During the hour-and-fifteen-minute drive to the FBI 9 office in Rochester, the agents transporting Plugh told 1 0 Plugh he had been arrested because child pornography had 1 1 been found on his hard drive. According to the FBI report 12 dictated the day after Plugh’s arrest and signed by McArdle, 1 3 Plugh asked the agents several times “for advice on what to 1 4 do.” According to McArdle, the agents stated that they 1 5 would relay any cooperation made by Plugh to the Assistant 1 6 U.S. Attorney on the case. The agents then told Plugh that 1 7 if Plugh wanted to talk about the case, the agents would 1 8 again advise Plugh of his Mirandarights, but also told him 1 9 that they were not going to talk about the case at that 2 0 point. 2 1 When the agents and Plugh arrived at the FBI office, 2 2 the agents placed Plugh in a back interview room. TheyPage 6 of 23 1 informed Plugh that they were about to take him to the U.S. 2 Marshals for booking and that “[i]f he wanted to make any 3 statements this was the point . . . .” Plugh then indicated 4 he would make statements, and he was re-advised of his 5 Miranda rights. Plugh did not ask for an attorney or 6 indicate he wanted to speak to law enforcement. He then 7 made inculpatory statements regarding downloading and 8 possessing child pornography and admitted to lying to the 9 agents about the existence of a Trojan virus on his 1 0 computer. 1 1 Plugh was indicted on January 11, 2007, under 18 U.S.C. 12 § 2252A(a)(2)(A) (receipt of child pornography) and 18 1 3 U.S.C. § 2252A(a)(5)(B) (possession of child pornography). 1 4 Plugh moved to suppress his July 14, 2005, and September 28, 1 5 2005, statements to the FBI, as well as physical evidence 1 6 seized on July 14, 2005. Plugh argued that his statements 1 7 were “involuntary, the product of coercion and violative of 1 8 the right to counsel.” The United States District Court 1 9 for the Western District of New York (Siragusa, J. ) denied 2 0 the motion to suppress the July 14 statements and physical 2 1 evidence but granted the motion to suppress the September 28 2 2 statements. Plugh , 522 F. Supp. 2d at 493-96. The districtPage 7 of 23 1 court held that Plugh’s refusal to sign the waiver form was 2 an “unequivocal” invocation of Plugh’s right to counsel and 3 to remain silent, and that suppression of Plugh’s statements 4 was proper because the officers did not scrupulously honor 5 Plugh’s rights when they “repeatedly [told Plugh] that any 6 cooperation would be brought to the attention of the AUSA 7 and by telling [Plugh] that he was about to be taken to the 8 Marshal’s office.” Id . at 496. The district court noted 9 that even if Plugh “invoked his right to counsel and his 1 0 right to remain silent equivocally or ambiguously . . . 1 1 suppression [was] nonetheless required since [the agents], 12 at least as to the defendant’s right to remain silent, 1 3 failed to limit themselves to narrow questions only for the 1 4 purpose of clarifying the ambiguity, as required by this 1 5 Circuit” under United States v. Ramirez , 79 F.3d 298, 304 1 6 (2d Cir. 1996). Plugh , 522 F. Supp. 2d at 495-96 (internal 1 7 quotation marks omitted). 1 8 On appeal the government acknowledges that Plugh “was 1 9 clear he did not wish to sign anything,” including the 2 0 waiver, at the time he was arrested at his father’s home. 2 1 Regardless of that acknowledgment, the government contends 2 2 that Plugh’s invocation of his Fifth Amendment rights wasWe note that in his motion to suppress the September 3 28, 2005, statement Plugh limits his argument to a claim that the statements were taken in violation of his right to counsel. The district court appears to have dealt with this issue and with Plugh’s right to remain silent. See Plugh , 522 F. Supp. 2d at 496. The government does not contend that the district court erred in this respect and asks us to analyze the right-to-remain-silent issue for its substance. The refusal to sign the waiver calls into question whether Plugh invoked either right, and we will consider both. However, our dissenting colleague seems to view the case, without any explanation, as a right to counsel case only and implies that makes a difference here. SeeDissenting Op. at 5-6. Page 8 of 23 1 not “unequivocal and unambiguous.” The government 2 constructs its argument on the language the Supreme Court 3 employed in Davis v. United States , 512 U.S. 452 (1994). 4 We are called upon to determine whether Plugh retained 5 his right to remain silent and his right to counsel by 3 6 refusing to sign the advice-of-rights form when asked by 7 Agent McArdle to sign the form if he agreed with its 8 contents, notwithstanding his statements immediately prior 9 that he was not certain he wanted to talk to a lawyer or 1 0 that he should talk to the interrogating agents. As we see 1 1 it, we must answer two questions: (1) whether Plugh’s 12 refusal to sign the waiver form in this context was an 1 3 invocation of his Fifth Amendment rights; and (2) if yes, 1 4 whether the agents, subsequent to Plugh’s refusal to signThere is no need to evaluate the district court’s 4 alternative ruling that suppression was required because the officers did not confine themselves to clarifying questions upon Plugh’s purported ambiguous invocation. Neither must we determine the validity of Plugh’s waiver at the time of his interrogation in Rochester. When evaluating a district court order granting a 5 motion to suppress, this Court reviews findings of fact for clear error in the light most favorable to the government and reviews questions of law de novo . Rodriguez , 356 F.3d at 257. Page 9 of 23 1 the waiver form, properly complied with the prophylactic 2 rules requiring the police to refrain from questioning. We 3 find that the prophylactic rules were applicable to Plugh 4 and that the agents did not properly abide by those rules. 4 5 We therefore affirm the district court’s order suppressing 6 the September 28, 2005, statements. 7 Discussion 5 8 I. Whether Plugh Invoked His Fifth Amendment Rights 9 A. The Fifth Amendment’s Protections 1 0 A suspect cannot be required to incriminate himself. 1 1 U.S. CONST . amend. V. Encapsulated in this protection are 12 certain well-known rights: (1) the right to remain silent; 1 3 and (2) the right to an attorney, either appointed or 1 4 retained. See Miranda v. Arizona , 384 U.S. 436, 444 (1966).Page 10 of 23 1 More than forty years ago, the MirandaCourt noted that the 2 prosecution may not use statements made by a suspect under 3 custodial interrogation unless: (1) the suspect has been 4 apprised of his Fifth Amendment rights; and (2) the suspect 5 knowingly, intelligently, and voluntarily waived those 6 rights. Id. at 444-45. The Supreme Court in the years 7 following Miranda fleshed out the judicial mechanisms for 8 ensuring the viability of these constitutional protections. 9 Included among them is the principle that “courts must 1 0 presume that a defendant did not waive his rights,”North 11 Carolina v. Butler, 441 U.S. 369, 373 (1979), until the 12 government proves otherwise by a preponderance of the 1 3 evidence, Colorado v. Connelly, 479 U.S. 157, 169 (1986). 1 4 Put differently, unless the suspect validly waived his 1 5 rights, we presume he retains them. 1 6 Cases in this area of the law are fact intensive 1 7 because of the number of combinations of: (1) the 1 8 circumstances preceding a suspect’s interrogation; (2) the 1 9 method and manner by which a suspect is informed of his or 2 0 her Miranda rights; and (3) the timing of the suspect’s 2 1 invocation – at the time he receives the warnings or laterIt is entirely possible, and is often the case, that 6 someone will not invoke their rights. Page 11 of 23 1 during the interrogation following an initial waiver. 6 2 To honor a suspect’s Fifth Amendment rights, custodial 3 officers must abide by several prophylactic rules designed 4 to protect the Fifth Amendment rights that come into play 5 once the suspect is in custody. “Under Miranda ’s 6 prophylactic protection of the right against compelled self7 incrimination, any suspect subject to custodial 8 interrogation has the right to have a lawyer present if he 9 so requests, and to be advised of that right.” Montejo v. 10 Louisiana , 129 S. Ct. 2079, 2089 (2009). 1 1 There are additional layers of prophylactic protection. 12 Once a suspect invokes his Fifth Amendment rights he is 1 3 entitled to a second layer of prophylaxis that has its roots 1 4 in Edwards v. Arizona, 477 U.S. 477 (1981). “Under Edwards ’ 1 5 prophylactic protection of the Miranda right, once such a 1 6 defendant has invoked his right to have counsel present, 1 7 interrogation must stop.” Montejo , 129 S. Ct. at 2098-90 1 8 (internal quotation marks omitted). Likewise, if the 1 9 suspect initially decides after receiving the warnings that 2 0 he wishes to remain silent, the custodial officers mustPage 12 of 23 1 “scrupulously honor[]” his “right to cut off questioning.” 2 Michigan v. Mosley, 423 U.S. 96, 104 (1975). 3 An exception to the rule occurs when it is not clear 4 from a suspect’s statements or conduct whether he is 5 asserting his rights. In such cases, custodial officers may 6 ask clarifying questions to determine if a suspect is 7 exercising his rights. See Ramirez , 79 F.3d at 304. But 8 because the default presumption is that a suspect retains 9 his rights and the burden is on the government to prove 1 0 otherwise, custodial officers who press on with questioning 1 1 assuming that a suspect’s statements or conduct are not 12 indications of the suspect’s desire to retain his Fifth 1 3 Amendment rights do so at the risk of suppression of the 1 4 suspect’s subsequent statements. 15 B. Law Applicable to Determining If Plugh Invoked His 16 Fifth Amendment Rights 1 7 In this case, the agents presented Plugh with a waiver 1 8 form and no one disputes that Plugh refused to sign it. 1 9 What then are the implications of Plugh’s refusal? 2 0 In United States v. Quiroz , this Court addressed 2 1 whether refusal to sign a waiver form may constitute an 2 2 invocation of a suspect’s Fifth Amendment rights. 13 F.3dThe custodial officer in Quiroz testified: “After I 7 had asked him if he understood [his rights], I said, would you mind just signing these? He said, I—Before I sign anything, I want to speak to my attorney. Okay, I took them back.” Quiroz , 13 F.3d at 509 (alteration in original). Page 13 of 23 1 505 (2d Cir. 1993). There, the custodial officer “asked 2 [suspect] Quiroz to read the advice-of-rights forms, asked 3 whether he understood the forms, and simply asked Quiroz to 4 sign them.” 13 F.3d at 512. Quiroz “declined to sign 7 5 until he had spoken to an attorney.” Id. at 509. Finding 6 that the “statement was a direct and complete response to 7 the precise question Quiroz had been asked,” the Court 8 determined that the prophylactic requirement that custodial 9 officers refrain from questioning was triggered at that 1 0 moment. Id. at 512. The Quiroz Court had 1 1 no doubt whatever that, had Quiroz signed, [the 12 custodial officer] would have viewed that act as a 1 3 complete waiver of Quiroz’s rights. We can see no 1 4 good reason not to treat Qu i roz’s refusal to sign 1 5 forms in the ab s ence o f coun s e l a s a re fu s a l that 1 6 was coextensive with the waiver [the custodial 1 7 officer] sought. 1 8 In sum, we do not view Quiroz’s refusal to sign 1 9 the forms as a limited request for counsel, any more 2 0 than [the custodial officer’s] re quest to sign the 2 1 formswa sareque s tfo ral imi tedwa ive r . S incewe 2 2 do not view Quiroz’s statement as narrower than the 2 3 [custodial officer’s] request, we see no ambiguity. 24 25 Id. 26The dissent apparently assigns no value to the 8 agents’ statements to Plugh upon presenting him with the waiver form. This omission is ironic in light of the dissent’s insistence that “courts must look to all of the circumstances surrounding a purported invocation,” Dissenting Op. at 5 (citing Davis v. United States , 512 U.S. 452, 458-59 (1994)), and that the “cases support the overall principle that the circumstances matter, and that refusal to sign a waiver form is a sign that is informed by context.” Dissenting Op. at 9. Concomitantly, the dissent ignores the emphasis placed on context by this Court in Quiroz , in which we found that under the facts of that case, a suspect’s “statement [refusing to sign] was a direct and complete response to the precise question Quiroz had been asked.” Quiroz , 13 F.3d at 512. Page 14 of 23 1 Quiroz instructs us, therefore, that – absent a 2 suspect’s prior or simultaneous “affirmative announcements 3 of his willingness to speak,” Connecticut v. Barrett , 479 4 U.S. 523, 529 (1987) – when a custodial officer specifically 5 asks a suspect if he will waive his rights by signing a form 6 and does so in such a way that the accused would interpret a 7 refusal to sign as a negative answer, the suspect has taken 8 sufficient action to trigger the Edwardsprophylactic rule 9 and the officers must refrain from questioning the suspect. 8 10 C. Did Plugh Iinvoke” His Fifth Amendment Rights? 1 1 Under Quiroz , the question is whether Plugh’s actions – 12 a refusal to sign the advice-of-rights form in light of the 1 3 agent’s question “Is that true; are you willing to do that?”The dissent asserts that Plugh’s refusal to sign “is 9 fully as consistent with uncertainty as with rejection.” Dissenting Op. at 7. However, the language of the written waiver is clear, and we hear no objection in that regard from the dissent – a signature represents a waiver of one’s Miranda rights. The government in its brief acknowledges that Plugh’s refusal was clear and unequivocal and never suggests, as the dissent does, that the refusal could in Page 15 of 23 1 following his statements “I am not sure if I should be 2 talking to you,” and “I don’t know if I need a lawyer” – 3 were an invocation of his rights. 4 While Plugh’s statements, “I am not sure if I should be 5 talking to you” and “I don’t know if I need a lawyer,” 6 appear ambiguous, Plugh’s ultimate action – his refusal to 7 sign – constituted an unequivocally negative answer to the 8 question posed together by the waiver form and McArdle, 9 namely, whether he was willing to waive his rights. 1 0 McArdle’s direction to Plugh that “[i]f you agree with the 1 1 statement you can sign the form,” Plugh , 522 F. Supp. 2d at 12 487, makes the meaning of Plugh’s response less ambiguous 1 3 than the defendant’s refusal to sign in Quiroz , where the 1 4 officer simply asked “would you mind just signing these?” 15 Quiroz , 13 F.3d at 509. Plugh’s answer in this context, 1 6 under Quiroz , amounts to an invocation, and that is where 1 7 the inquiry ends. Because Plugh invoked his rights, the 9fact indicate uncertainty on Plugh’s part. See Appellant’s

Br. at 8. Instead, the government asserts that ambiguity in Plugh’s statements casts doubt on a conclusion that the invocation considered under the circumstances as a whole was clear and unambiguous. Lastly, the district court characterized Plugh’s refusal to sign the waiver as “unequivocal.” Plugh , 522 F. Supp. 2d at 493-96. We do not believe that this holding will deter police 10 from using waiver forms, as the dissent fears. The testimony of the parties present – the custodial officer and the suspect – will often conflict with regard to what was said at the time the suspect was read his Miranda rights. Police officers recognize this and understand that a written waiver avoids this type of conflict. As noted earlier, if the invocation was ambiguous, 11 which it was not, then the agents could have proceeded to Page 16 of 23 1 custodial officers should have refrained from reinitiating 2 the interrogation, and all subsequent statements made by 3 Plugh were properly suppressed. See Part II., infra . 10 4 D. Applicability of Davis v. United States 5 The government, looking to language in Davis v. United 6 States , 512 U.S. 452 (1994), takes the view that an initial 7 invocation of one’s Fifth Amendment rights such as Plugh’s 8 must be unambiguous and that the ambiguity is resolved 9 against Plugh. The government argues that Plugh did not 1 0 unambiguously invoke his rights and that therefore, the 1 1 agents were free to continue to question him. This view 12 seriously misunderstands the sweep of Davis . 11question Plugh but only in an attempt to resolve the

ambiguity. See Ramirez , 79 F.3d at 304. Page 17 of 23 1 In Davis , the Supreme Court held that if a defendant 2 validly waives his Fifth Amendment rights initially and then 3 thereafter attempts to invoke those rights, the defendant 4 bears the burden of showing that the invocation was 5 unambiguous and unequivocal to trigger the prophylaxis 6 rules. Davis , 512 U.S. at 460-62; accord Diaz v. Senkowski , 7 76 F.3d 61, 65 (2d Cir. 1996). Davisdoes not instruct 8 courts how to analyze an initialinvocation of one’s Fifth 9 Amendment rights following the Mirandawarnings where no 1 0 waiver occurred. In our view, Davis only provides guidance 1 1 for circumstances in which a defendant makes a claim that he 12 subsequently invoked previously waived Fifth Amendment 1 3 rights. 1 4 In order to use statements made by a suspect without 1 5 counsel present while under custodial interrogation, the 1 6 burden is on the government to prove the suspect waived his 1 7 rights. See Connelly, 479 U.S. at 169. Once the government 1 8 has met its burden, the suspect has the burden of proving 1 9 that he resurrected rights previously waived. The 2 0 invocation must be unambiguous and unequivocal. “To avoidIn United States v. Rodriguez , the Ninth Circuit 12 noted that “ Davis addressed what the suspect must do to restore his Miranda rights after having already knowingly and voluntarily waived them.” 518 F.3d 1072, 1079 (9th Cir. 2008) (emphasis in original). The Rodriguez court correctly noted that “the majority of state supreme [and intermediate] courts to consider the issue have” also concluded that Davis ’s ambiguous statement requirement was limited to the post-waiver context. Id. at 1079 n.6. One other federal court has noted that Davis should be seen as a post-waiver case, but did not analyze its application to pre-waiver scenarios. See United States v. Eastman , 256 F.Supp.2d 1012, 1019 (D.S.D. 2003). Page 18 of 23 1 difficulties of proof and to provide guidance to officers 2 conducting interrogations, this is an objective inquiry.” 3 Davis , 512 U.S. at 458-59. 4 The Court fashioned the rule to avoid “transform[ing] 5 the Miranda safeguards into wholly irrational obstacles to 6 legitimate police investigative activity.” Id. at 460 7 (internal quotation marks omitted). The rule ensures that a 8 suspect does not use the Fifth Amendment as a sword – to 9 excise unfavorable evidence – after discarding it as a 1 0 shield. 1 1 The DavisCourt was careful to note that only “ after a 12 knowing and voluntary waiver of the Miranda rights, law 1 3 enforcement officers may continue questioning until and 1 4 unless the suspect clearly requests an attorney.” Davis , 12Page 19 of 23 1 512 U.S. at 461 (emphasis added); see also id. at 459 2 (noting that an ambiguous reference to an attorney would not 3 compel the “ cessation of questioning”) (emphasis added); id. 4 (noting that a “statement [that] fails to meet the requisite 5 level of clarity . . . does not require that the officers 6 stop questioning the suspect”) (emphasis added); id. 7 (declining to extend Edwardsto require officers to “ cease 8 questioning” upon an equivocal statement by a suspect) 9 (emphasis added). Clearly, Davisis not in play here. 10 II. Whether the agents properly honored Plugh’s rights after 11 invocation 12 Plugh invoked his Fifth Amendment rights to counsel and 1 3 silence. “[W]hen counsel is requested, interrogation must 1 4 cease, and officials may not reinitiate interrogation 1 5 without counsel present, whether or not the accused has 1 6 consulted with his attorney.” Minnick v. Mississippi , 498 1 7 U.S. 146, 153 (1990). Should the suspect “decide[] to 1 8 remain silent,” the custodial officers must “scrupulously 1 9 honor[]” that decision. Mosley, 423 U.S. at 104. 2 0 An officer interrogates “‘whenever a person in custody 2 1 is subjected to either express questioning or its functional 2 2 equivalent.’” United States v. Montana , 958 F.2d 516, 518Page 20 of 23 1 (2d Cir. 1992) (quotingRhode Island v. Innis , 446 U.S. 291, 2 300-01 (1980)). “Interrogation includes both express 3 questioning as well as ‘any words or actions on the part of 4 the police (other than those normally attendant to arrest 5 and custody) that the police should know are reasonably 6 likely to elicit an incriminating response from the 7 suspect.’” Id. (quoting Innis , 446 U.S. at 301). 8 In Montana , this Court determined that an officer’s 9 “unsolicited statement informing the defendant[] that any 1 0 cooperation would be brought to the attention of the 1 1 Assistant United States Attorney constituted interrogation.” 12 Id. at 518-19 (internal quotation marks omitted). And in 13 Campaneria , we concluded that an officer who stated “If you 1 4 want to talk to us, now is the time to do it” had thereby 1 5 committed “precisely the sort of conduct the prophylactic 1 6 rule seeks to prevent.” Campaneria , 891 F.2d at 1021. 1 7 The district court found that the agents “repeatedly 1 8 [told] the defendant that any cooperation would be brought 1 9 to the attention of the AUSA” as well as told Plugh “that he 2 0 was about to be taken to the Marshal’s office, so that if he 2 1 wanted to make any statements this was the time.” Plugh , 2 2 522 F. Supp. 2d at 496. We see no clear error in thesePage 21 of 23 1 findings of fact. The district court concluded that the 2 agents’ conduct constituted impermissible interrogation and, 3 after reviewing this question of law de novo , we agree. 4 The dissent presses for a reversal premised on the 5 “ambiguity” of Plugh’s waiver. It acknowledges that under 6 Ramirez , 79 F.3d at 304, “the police may ask questions to 7 clarify whether the suspect in fact wishes to invoke, or to 8 waive” in right-to-remain-silent cases. However, the 9 dissent goes on to note that Davisis less restrictive 1 0 because it “specifically declined to limit police to 1 1 clarifying questions in [right-to-counsel cases].” 12 Dissenting Op. at 5. 1 3 The dissent overlooks an important part of the district 1 4 court’s opinion. The district court held that 1 5 notwithstanding whether Plugh’s statements were ambiguous – 1 6 and regardless of the significance of Plugh’s refusal to 1 7 sign the waiver form under Quiroz , 13 F.3d at 511 – 1 8 “suppression is . . . required since [the agents], at least 1 9 as to the defendant’s right to remain silent, failed to 2 0 limit themselves to narrow questions only for the purpose of 2 1 clarifying the ambiguity, as required by [ Ramirez ].” Plugh , 2 2 522 F. Supp. 2d at 495-96 (internal quotation marksPage 22 of 23 1 omitted). 2 The dicta in Davissuggesting that police need not 3 limit themselves to clarifying questions in that case made 4 sense in that case, but makes no sense at all here. In 5 Davis , the officers did not have to limit their questions to 6 resolving an ambiguity of defendant’s attempt to reassert 7 his Fifth Amendment rights as the police were not bound to 8 cease questioning untilDavis unambiguously reasserted his 9 rights. In situations where no waiver has occurred, the 1 0 police must clarify whether an ambiguous statement is meant 1 1 as an invocation because “ Edwardsset forth a bright line 12 rule that allquestioning must cease after an accused 1 3 requests counsel.” Smith , 469 U.S. at 98 (citation omitted 1 4 and italics in original). 15 Conclusion 1 6 This is a case about whether a suspect invoked his 1 7 Fifth Amendment rights in the absence of any waiver. Davis 1 8 is a case about the steps a suspect must take to demonstrate 1 9 that he wishes to resurrect and invoke previously waived 2 0 rights. In the context of the facts of this case, Plugh’s 2 1 refusal to sign the waiver document was an invocation of his 2 2 rights and entitles him to Edwardsprophylaxis. The agentsPage 23 of 23 1 were not permitted to question him. 2 The district court’s order of June 11, 2007, granting 3 defendant’s motion to suppress his statements made on 4 September 28, 2005, is hereby AFFIRMED .1 1 Dennis Jacobs, Chief Judge, dissenting: 2 3 When, after Miranda warnings, a suspect is undecided as 4 to whether a lawyer is wanted, or responds ambiguously, the 5 police may renew that inquiry. See United States v. 6 Ramirez, 79 F.3d 298, 304 (2d Cir. 1996) (“[W]here a suspect 7 has invoked his right equivocally or ambiguously, the 8 officers are permitted to ask narrow questions only for the 9 purpose of clarifying the ambiguity.”). The issue on this 1 0 appeal is whether the police are barred from renewing the 1 1 inquiry if the suspect who says he is undecided also refuses 12 to sign a written waiver of Miranda rights. The majority 1 3 holds that such a refusal to sign a written waiver operates 1 4 as an invocation of Miranda rights and thus precludes any 1 5 further inquiry by police to resolve the uncertainty. 1 6 However, because the refusal to sign a waiver is wholly 1 7 consistent with the expression of uncertainty, I 1 8 respectfully dissent. 19 20 I 2 1 When the government appeals from the suppression of 2 2 evidence, we review the district court’s factual findings2 1 for clear error, viewing the evidence in the light most 2 favorable to the government. United States v. Rodriguez, 3 356 F.3d 254, 257 (2d Cir. 2004). Given that standard, the 4 facts are as follows: 5 After the FBI agents arrested Plugh, the agents read 6 him his Miranda rights, asked him to sign a written waiver, 7 and inquired orally whether he was willing to waive. Plugh 8 said he was not sure whether he wanted to talk to the 9 agents, and said he did not know whether he needed a lawyer. 1 0 He was certain, however, that he did not want to sign the 1 1 waiver form, and the agents recorded his refusal to sign. 12 On the hour-long trip to the federal building in 1 3 Rochester, the agents told Plugh that while they “didn’t 1 4 care” whether he talked to them, they would relay any 1 5 cooperation to the prosecutor. Plugh asked what cooperation 1 6 meant, but the agents told Plugh that they could make no 1 7 promises, that Plugh should say nothing to them about his 1 8 case, and that they would only discuss the case if Plugh 1 9 explicitly waived after again being read his rights. The 2 0 agents asked no substantive questions during the drive to 2 1 Rochester. 2 2 On arrival in Rochester, the agents told Plugh that3 1 they were going to transfer him to the custody of the United 2 States Marshals and that if he wanted to make a statement, 3 the time had come to do so. Thereupon, Plugh said that he 4 would make a statement; the agents again gave Miranda 5 warnings; Plugh signed a written waiver of his rights; and 6 the inculpatory statement at issue was made. 7 8 II 9 Police may not use statements made by a suspect under 1 0 custodial interrogation unless the suspect is apprised of 1 1 his Fifth Amendment rights, and waives them knowingly, 12 intelligently, and voluntarily. Miranda v. Arizona, 384 1 3 U.S. 436, 444-45 (1966). If he invokes his right to 1 4 counsel, police must cease questioning until the suspect has 1 5 an attorney present. Miranda, 384 U.S. at 474; Edwards v. 1 6 Arizona, 451 U.S. 477, 485 (1981). If he waives, police may 1 7 go ahead with questioning. Davis v. United States, 512 U.S. 1 8 452, 458 (1994). 1 9 Did Plugh’s refusal to sign a waiver constitute an 2 0 invocation of his rights notwithstanding his simultaneous 2 1 oral statement that he didn’t yet know whether he wanted a 2 2 lawyer or whether he should talk to the agents? To1 Examples of ambiguous statements abound. See Davis, 1 2 512 U.S. at 462 (“Maybe I should talk to a lawyer”); Burket 3 v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000) (“I think I 4 need a lawyer.”; United States v. Zamora, 222 F.3d 756, 765- 5 66 (10th Cir. 2000) (“I might want to talk to an 6 attorney.”); Mueller v. Angelone, 181 F.3d 557, 573-74 (4th 7 Cir. 1999) (“Do you think I need an attorney here?”); 8 Coleman v. Singletary, 30 F.3d 1420, 1424-25 (11th Cir. 9 1994) (in response to an offer to have a public defender 10 present,“I don’t know”); Ledbetter v. Edwards, 35 F.3d 11 1062, 1069-70 (6th Cir. 1994) (“it would be nice” to have an 12 attorney); United States v. Fouche, 776 F.2d 1398, 1405 (9th 13 Cir. 1985) (“I might want to talk to a lawyer”). 4 1 effectively invoke the right, a suspect “must articulate his 2 desire to have counsel present sufficiently clearly that a 3 reasonable police officer in the circumstances would 4 understand the statement to be a request for an attorney.” 5 Davis v. United States, 512 U.S. 452, 459 (1994). This 6 inquiry--whether a suspect has in fact invoked his rights-- 7 is an objective one that takes into account all of the 8 circumstances. Id. at 458-59. 9 Plugh’s oral statements to the agents at the time of 1 0 the arrest--“I am not sure if I should be talking to you” 1 1 and “I don’t know if I need a lawyer”--were equivocal, 12 rendering his decision ambiguous. If the record showed no 1 1 3 more than these statements, the case would be 1 4 straightforward; Plugh would lose. The only wrinkle is that 1 5 (simultaneously) Plugh refused to sign a written waiver of1 The majority suggests that Davis’s refusal to limit 2 2 police makes sense because Davis (they contend) applies only 3 to re-invocations, when a suspect must state his desire 4 unambiguously. As discussed infrain Part III, Davis is not 5 limited to re-invocation cases, but instead applies to any 6 invocation of Miranda rights. In any case, the very 7 intricacy of the majority’s argument is self-refuting: the 8 purpose of the suppression rule is to keep the police 9 honest, a project that requires that the doctrines governing 10 police conduct be accessible to persons other than 11 professors of constitutional law. 5 1 his rights. 2 Davis instructs that courts must look to all of the 3 circumstances surrounding a purported invocation to 4 determine whether it was unambiguous. Davis, 512 U.S. at 5 458-59. All of the circumstances here--Plugh’s oral 6 statements as well as his refusal to sign a waiver--bespeak 7 indecision and ambiguity. 8 When a suspect makes ambiguous statements regarding his 9 right to silence, we have held that the police may ask no 1 0 questions other than to clarify whether the suspect in fact 1 1 wishes to invoke, or to waive, or to stay on the fence. 12 Ramirez, 79 F.3d at 304. Ramirez (a right-to-silence case 1 3 that pre-dated Davis) was thus more restrictive than Davis 1 4 (a right-to-counsel case), which specifically declined to 1 5 limit police to clarifying questions in such circumstances. 2 1 6 Davis 512 U.S. at 461-62.6 1 If, as the majority opinion seems to suggest, the 2 agents categorically violated the Ramirez rule by telling 3 Plugh that his cooperation would be relayed to the 4 prosecutor and that “this was the point” to talk, then 5 suppression is justified on that basis alone. Maj’y Op at 9 6 n.4, 17 n.11, 22-24. But if that were so, suppression would 7 be warranted regardless of whether Plugh’s statements were 8 ambiguous, in which case all the rest of the majority 9 opinion would be unnecessary. But the majority opinion is 1 0 not superfluous, because--even if the Ramirez rule survives 1 1 Davis--the agents didlimit themselves to clarification. 12 The majority cites the following cases to suggest that 1 3 the sorts of statements the agents made here constitute 1 4 inappropriate interrogation in violation of the Ramirez 1 5 rule: United States v. Montana, 958 F.2d 516, 518 (2d Cir. 1 6 1992) (statement informing the defendants that any 1 7 cooperation would be brought to the attention of the 1 8 prosecutor); Campaneria v. Reid, 891 F.2d 1014, 1021 (2d 1 9 Cir. 1989) (statement suggesting that “now is the time” for 2 0 suspect to talk to police). But these cases--unlike 2 1 Ramirez--involve statements made by police officers after 2 2 the suspect had unambiguously invoked his rights. In such7 1 cases, statements such as these serve only to badger the 2 suspect to change his mind. See Campaneria, 891 F.2d at 3 1021 (since “[n]othing was ambiguous or equivocal” about 4 suspect’s invocation, officer’s remark “was not aimed at 5 resolving any ambiguity in [suspect’s] statement, but rather 6 at changing his mind”). But if a suspect has not clearly 7 invoked his rights, then an offer to relay his cooperation 8 to the prosecutor and words of encouragement to make up his 9 mind serve primarily to clarify his initial ambiguous 1 0 statement. The agents’ conduct was accordingly free of any 1 1 misconduct or error. For these reasons, I would admit 12 Plugh’s incriminating statement. 13 14 III 1 5 The majority opinion holds that the ambiguity of 1 6 Plugh’s statements was dispelled by his refusal to sign the 1 7 written waiver--which is said to be his final answer to the 1 8 question whether he wished to waive his Miranda rights. 1 9 Maj’y Op at 16. This is odd, because a refusal to sign is 2 0 fully as consistent with uncertainty as with rejection. But 2 1 the majority opinion suggests that the question is 2 2 controlled by our decision in United States v. Quiroz, 138 1 F.3d 505 (2d Cir. 1993). In Quiroz, the suspect said he 2 would not sign the waiver (or anything) without talking to a 3 lawyer . Id. at 509. We held that Quiroz thus invoked the 4 rights listed in the waiver. Id. at 512. We could “see no 5 good reason not to treat Quiroz’s refusal to sign forms in 6 the absence of counsel as a refusal that was coextensive 7 with” the written waiver. Quiroz, Id. at 512 (emphasis 8 added). 9 Quiroz is therefore one of those cases holding that, if 1 0 a suspect both refuses to sign a waiver andindicates 1 1 (either orally or by silence) that he does not wish to 12 answer questions, his response constitutes an invocation of 1 3 Miranda rights. See United States v. Heldt, 745 F.2d 1275, 1 4 1277 & n.3 (9th Cir. 1984) (valid invocation where the 1 5 suspect refused to sign a waiver and told the officer he did 1 6 not want to waive his rights or answer questions); United 1 7 States v. Christian, 571 F.2d 64, 69 (1st Cir. 1978) (valid 1 8 invocation where the suspect refused to sign a waiver but 1 9 did sign a statement of rights). 2 0 By the same token, a suspect who refuses to sign a 2 1 waiver, but nevertheless acts in a manner inconsistent with 2 2 invocation of his rights, has signified an implicit waiver.9 1 See United States v. House, 939 F.2d 659, 662-63 (8th Cir. 2 1991) (suspect’s decision to answer questions after refusing 3 to sign a written waiver constituted an implicit waiver, 4 rather than an invocation, of his Miranda rights); United 5 States v. Boon San Chong, 829 F.2d 1572, 1574 (11th Cir. 6 1987) (suspect’s decision to answer certain questions after 7 reading an advice of rights form constituted a waiver of his 8 Miranda rights, notwithstanding his refusal to sign a 9 written waiver). 1 0 Taken together, these cases support the overall 1 1 principle that the circumstances matter, and that refusal to 12 sign a waiver form is a sign that is informed by context. 1 3 The majority opinion is therefore a departure, holding as it 1 4 does that a suspect’s refusal to sign a written waiver 1 5 constitutes an invocation of rights regardless of anything 1 6 else the suspect may say or do. However, “[a] refusal to 1 7 sign a waiver may indicate nothing more than a reluctance to 1 8 put pen to paper under the circumstances of custody.” 1 9 Goodwin v. Johnson, 224 F.3d 450, 456 (5th Cir. 2000) 2 0 (quoting United States v. McDaniel, 463 F.2d 129, 135 (5th 2 1 Cir. 1979)). 2 2 If a suspect’s refusal to sign a written waiver can be10 1 enough to bar police from asking any further questions, 2 regardless of whether the suspect is willing to talk to 3 police, then police will simply stop using written waiver 4 forms. Why take the risk that a suspect won’t want to put 5 pen to paper? The result will be a return to the very 6 confusion and uncertainty regarding a suspect’s invocation 7 of rights that written waivers were designed to overcome. 8 Nothing in Quiroz compels such a result. 9 10 IV 1 1 The majority opinion creates a second novelty in the 12 law: that Miranda rights can be invoked ambiguously. This 1 3 conflicts with Davis, which holds that a suspect “must 1 4 articulate his desire to have counsel present sufficiently 1 5 clearly that a reasonable police officer in the 1 6 circumstances would understand the statement to be a request 1 7 for an attorney,” and that “[i]f the statement fails to meet 1 8 the requisite level of clarity, Edwards does not require 1 9 that the officers stop questioning the suspect.” Davis, 512 2 0 U.S. at 458. 2 1 The majority distinguishes Davis on the ground that it 2 2 involved a re-invocation--that is, a suspect’s invocation11 1 following his initial waiver. Davis did involve a re2 invocation, but the Supreme Court did not limit Davis to its 3 facts or context. The majority quotes some language in 4 Davis (Maj’y Op at 18-19) as “implying that [Davis’] 5 application is limited to situations in which a custodial 6 officer has already begun interrogation after a valid 7 waiver.” I read the cited language to reflect the reality 8 that police often begin to question a suspect before the 9 circumstances warrant a Miranda warning. Davis applies, as 1 0 Davis says, “at any time during the interview.” Davis, 512 1 1 U.S. at 458; see also McNeil v. Wisconsin, 501 U.S. 171, 178 12 (1991) (the Edwards prophylactic rule “requires, at a 1 3 minimum, some statement that can reasonably be construed to 1 4 be an expression of a desire for the assistance of an 1 5 attorney in dealing with custodial interrogation by the 1 6 police” (emphasis omitted)); Smith v. Illinois, 469 U.S. 91, 1 7 94-95 (1985) (application of the Edwards prophylactic rule 1 8 requires a court to “determine whether the accused actually 1 9 invoked his right to counsel” (emphasis added)). 2 0 A Ninth Circuit panel has suggested that Davis is 2 1 limited to post-waiver cases. United States v. Rodriguez, 2 2 518 F.3d 1072, 1078-79 (9th Cir. 2008) (“[T]he ‘clear12 1 statement’ rule of Davis addresses only the scope of 2 invocations of Miranda rights in a post-waiver context.”). 3 But a majority of the circuits have applied Davis in pre4 waiver cases. See United States v. Johnson, 400 F.3d 187, 5 194-95 (4th Cir. 2005) (applying Davis to a pre-waiver 6 statement); United States v. Lee, 413 F.3d 622, 626 (7th 7 Cir. 2005) (same); United States v. Brown, 287 F.3d 965, 8 972-73 (10th Cir. 2002) (same); United States v. Syslo, 303 9 F.3d 860, 866 (8th Cir. 2002) (same); United States v. 1 0 Suarez, 263 F.3d 468, 482-83 (6th Cir. 2001) (same); Grant1 1 Chase v. Comm’r, New Hampshire Dep’t of Corr., 145 F.3d 431, 12 436 & n.5 (1st Cir. 1998) (same); United States v. Posada1 3 Rios, 158 F.3d 832, 867 (5th Cir. 1998) (same). 1 4 “The fundamental purpose of the [Supreme Court’s] 1 5 decision in Miranda was ‘to assure that the individual’s 1 6 right to choose between speech and silence remains 1 7 unfettered throughout the interrogation process.’” 1 8 Connecticut v. Barrett, 479 U.S. 523, 528 (1987) (emphasis 1 9 added) (quoting Miranda, 384 U.S. at 469). Once 2 0 Miranda warnings are given, the law has no preference as 2 1 between invocation and waiver. “Once warned, the suspect is 2 2 free to exercise his own volition in deciding whether or not13 1 to make a statement to the authorities.” Oregon v. Elstad, 2 470 U.S. 298, 308 (1985) (emphasis added). In short, it is 3 the suspect’s choice--and therefore his initiative--to 4 invoke his rights. We must “presume that a defendant did 5 not waive his rights” absent evidence to the contrary, North 6 Carolina v. Butler, 441 U.S. 369, 373 (1979); but if the 7 government can prove that the defendant did not make that 8 choice “sufficiently clearly that a reasonable police 9 officer in the circumstances would understand the statement 1 0 to be” an invocation, Davis, 512 U.S. at 458, neither 1 1 Miranda nor its progeny require the suppression of any 12 subsequent statements. 1 3 I would reverse.