FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-30285

Plaintiff-Appellee, D.C. No.

v. CR-96-00311-  ALH-(2) ANTONIO RODRIGUEZ-PRECIADO, aka

Tony Rodriguez-Preciado, ORDER AND

Defendant-Appellant. AMENDED

OPINION 

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, District Judge, Presiding

Argued and Submitted

September 13, 2004—Portland, Oregon

Filed March 4, 2005

Amended July 29, 2005

Before: J. Clifford Wallace, Ronald M. Gould, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Wallace;

Partial Dissent by Judge Berzon

8687
COUNSEL

James F. Halley, Portland, Oregon, for the defendantappellant. 

Karin J. Immergut, United States Attorney, and J. Russell

Ratto, Special Assistant United States Attorney, Portland,

Oregon, for the plaintiff-appellee. 

ORDER

The court’s majority opinion filed March 4, 2005, slip op.

2539, and appearing at 399 F.3d 1118 (9th Cir. 2005), is

hereby amended as follows:

1. On page 2544, line 9, replace “We affirm.” with “We

affirm, but issue a limited remand pursuant to United

States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en

banc).”

2. On page 2562, line 3, delete “AFFIRMED” and add a

new Section V reading as follows: 

We now address the impact of the recent en banc decision

in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en

UNITED STATES v. RODRIGUEZ-PRECIADO 8691
banc) on this case. Because we cannot “reliably determine

from the record whether the sentence imposed would have

been materially different had the district court known that the

Guidelines were advisory, we will remand to the sentencing

court to answer that question.” Id. at 1084. The mandate shall

issue forthwith. 

AFFIRMED IN PART, REMANDED IN PART.

OPINION

WALLACE, Senior Circuit Judge:

Rodriguez-Preciado appeals from his conviction for various

narcotics-related offenses. He argues that the district court

improperly denied his pre-trial motion to suppress evidence

obtained from his person, his motel room, and his vehicle, as

well as statements that he made in the motel room and during

a subsequent two-day interrogation. In support of these

claims, he contends that the officers did not obtain a valid

consent to enter and search the motel room, and that they

began a custodial interrogation of him in the motel room without giving the warnings prescribed by Miranda v. Arizona,

384 U.S. 436 (1966). Furthermore, he argues he did not validly waive his right to remain silent after he was eventually

given Miranda warnings, the warnings became “stale” and

should have been re-administered at the outset of the second

day of interrogation, and the officers’ failure to advise him of

his right under Article 36 of the Vienna Convention requires

suppression. He also contends the officers did not obtain a

valid consent to search his person and vehicle, and these

searches exceeded the scope of any consent. In addition to

these suppression arguments, he asserts that the district court

violated the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), and

that the prosecutor improperly commented on his failure to

testify, in violation of Griffin v. California, 380 U.S. 609

(1965). 

8692 UNITED STATES v. RODRIGUEZ-PRECIADO
The district court had jurisdiction pursuant to 18 U.S.C.

§ 3231, and we have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm, but issue a limited

remand pursuant to United States v. Ameline, 409 F.3d 1073

(9th Cir. 2005) (en banc).

I.

An ongoing narcotics investigation led law enforcement

officers to an Oregon motel room in search of RodriguezPreciado, who was suspected to be involved in drug trafficking. The officers had questioned Robert Glenn, another target

of the investigation, and learned that Rodriguez-Preciado

could be found at the motel room and would have contraband

in his car. 

Five officers arrived at the motel without a warrant. At

least three officers went to the motel room door dressed in

plain clothes and carrying concealed weapons, including Officer Hascall and Deputy Lilley. They knocked on the door and

a man, later identified as Alberto Silva, answered. While

standing outside the door, Hascall displayed his badge, identified himself as a police officer, and asked Silva whether he

understood English. Silva replied that he did not. Hascall

spoke some Spanish and stated in Spanish that he was a police

officer and asked for permission to enter the room. Silva said

“Si,” backed away from the door, and motioned with his arms

for the officers to enter the room. Hascall also asked Silva in

Spanish whether the motel room was his; Silva replied that it

was. 

Once inside the room, Hascall explained that the officers

were there to investigate suspected narcotics sales activity. He

asked Silva whether he sold narcotics, and Silva said he did

not. Hascall then asked Silva for permission to search the

room for drugs. Silva consented. Throughout this conversation, none of the officers had their hands on their weapons,

and Silva was not handcuffed or otherwise detained. At no

UNITED STATES v. RODRIGUEZ-PRECIADO 8693
point did the officers give Silva Miranda warnings, explain

that he had the right not to consent to the search, or state that

they could obtain a search warrant for the motel room. The

officers found no drugs or weapons during the search, but

they did find, among other things, a shipping label addressed

to Glenn’s business and a fax from Glenn. 

Rodriguez-Preciado entered the motel room while the officers were still there. Hascall displayed his badge, told

Rodriguez-Preciado that he and the others were police officers, and asked Rodriguez-Preciado whether he understood

English. Rodriguez-Preciado said that he did, so Hascall

explained that the officers were there to investigate narcotics

activity, that Silva had consented to a search of the room, and

that the search had not produced “any weapons or drugs or

anything.” During this conversation, the officers did not display or touch their weapons, and did not surround, pat down,

or handcuff Rodriguez-Preciado. Rodriguez-Preciado

expressed no objection to either the officers’ presence in the

room or that Silva had consented to the search. 

Hascall then asked Rodriguez-Preciado whether he had any

drugs in his possession. Rodriguez-Preciado said yes and produced a small paper bindle of cocaine from his shirt pocket.

Hascall immediately advised Rodriguez-Preciado of the

required Miranda warnings and asked whether RodriguezPreciado understood them. Rodriguez-Preciado said that he

did. Hascall did not inform Rodriguez-Preciado of any right

that he, as a Mexican national, might have under the Vienna

Convention. 

After Hascall requested permission to search RodriguezPreciado’s person and his vehicle, Rodriguez-Preciado consented and handed him the keys to the van he had been driving. Rodriguez-Preciado said the van contained no weapons

or drugs. Sergeant Romanaggi searched the van and discovered $3,360 hidden in a child safety seat in the van. Hascall

also found $1,849 in cash in Rodriguez-Preciado’s wallet. 

8694 UNITED STATES v. RODRIGUEZ-PRECIADO
Based on this and other evidence, the officers decided to

interview Rodriguez-Preciado in more detail. He was handcuffed and taken to a Washington County Sheriff’s Office

substation. When he arrived at the interview room, his handcuffs were removed and Hascall and Lilley began questioning

Rodriguez-Preciado, primarily about his relationship with

Glenn. During that conversation, Rodriguez-Preciado

described several instances in which he had sold marijuana

and methamphetamine to Glenn, including a sale of one

pound of methamphetamine that had occurred several days

earlier. Rodriguez-Preciado also described a failed attempt to

obtain the drug “ecstasy” for Glenn (the slang term for a drug

known as MDMA or MDA), and a sale of five kilograms of

cocaine to another individual. 

According to Hascall, the officers’ conversations with

Rodriguez-Preciado at the motel room and while he was being

interrogated at the substation were conducted entirely in

English. Hascall testified the officers had “no difficulty” communicating with Rodriguez-Preciado, with the exception of

some initial confusion about the meaning of the word

“methamphetamine.” This confusion was dispelled after

Rodriguez-Preciado later asked the officers whether they

meant “crystal,” which is the slang term for methamphetamine. 

At one point in the interview, the officers asked RodriguezPreciado, “Where is the rest of the meth?” RodriguezPreciado replied that a pound of methamphetamine was

behind the rear speaker of the van. The record is not clear

whether Hascall specifically sought Rodriguez-Preciado’s

permission to search that area of the van. Hascall informed

Romanaggi, who dismantled the rear speaker and found one

pound of methamphetamine. Earlier searches of the van,

including a canine search, had not uncovered the methamphetamine or any other contraband. 

The officers then asked Rodriguez-Preciado whether he

would be “interested in helping [them] with [their] investigaUNITED STATES v. RODRIGUEZ-PRECIADO 8695
tion of narcotics trafficking and perhaps help himself at the

same time.” Rodriguez-Preciado said that he was interested,

which led to a discussion of various ways in which he might

be of service. When the officers ended their interview, they

placed Rodriguez-Preciado in custody on state narcotics

charges and moved him to the Washington County jail, where

he spent the night. 

Lilley came to the jail the next day to resume the interview

with Rodriguez-Preciado. Lilley was accompanied by

Romanaggi, who understood that Rodriguez-Preciado wished

to cooperate. The officers did not re-advise RodriguezPreciado of the Miranda warnings before initiating this interview, which began approximately sixteen hours after he was

given Miranda warnings the previous day. RodriguezPreciado discussed various drug transactions in which he had

engaged in the past, and gave the names of individuals he had

worked with or who he understood to be involved in the drug

trade. As before, the entire interrogation took place in

English. 

At some point in the questioning, Romanaggi asked

Rodriguez-Preciado whether “he remembered receiving his

Miranda rights when he was interviewed the night before by

Officer Hascall.” Rodriguez-Preciado responded that he

“thought he had” been advised of his rights. Romanaggi gave

Rodriguez-Preciado a card reciting Miranda warnings in both

English and Spanish. Rodriguez-Preciado appeared to read the

card, and then stated, in response to a question by Romanaggi,

that “he understood his rights.” Romanaggi “then went over

everything” he had previously asked Rodriguez-Preciado. 

A grand jury charged Rodriguez-Preciado with one count

of conspiracy to possess with intent to distribute and conspiracy to distribute methamphetamine, cocaine, MDMA and

MDA, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18

U.S.C. § 2; one count of distribution of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1); and one count of posses8696 UNITED STATES v. RODRIGUEZ-PRECIADO
sion with intent to distribute methamphetamine, in violation

of 21 U.S.C. § 841(a)(1). After failing to appear at his

arraignment, Rodriguez-Preciado was re-captured over four

years later. The trial date was delayed several times due to

continuances granted by the district court. RodriguezPreciado never filed a motion to dismiss the case pursuant to

the Speedy Trial Act. 

The district court held a pretrial hearing on RodriguezPreciado’s motion to suppress, in which he asserted constitutional and other violations and sought to exclude from trial the

evidence found in the motel room, the cocaine he gave to

Hascall in the motel room, the money found in the van and

on his person, the methamphetamine found in the van, and all

statements that he made in the motel room and during the

two-day interrogation. The district court denied the motion.

After a four-day trial, the jury found Rodriguez-Preciado

guilty of all three counts. 

II.

We first address Rodriguez-Preciado’s motion to suppress.

We review the district court’s denial of the motion to suppress

de novo and the underlying factual findings for clear error.

United States v. Bynum, 362 F.3d 574, 578 (9th Cir. 2004).

A.

Rodriguez-Preciado’s first claim is that the officers unlawfully entered and searched the motel room. He contends the

district court clearly erred in finding Silva validly consented

to their entry and search. 

“We . . . review the validity of the warrantless entry and

warrantless search under the clearly erroneous standard,”

United States v. Rosi, 27 F.3d 409, 411 (9th Cir. 1994),

including the district court’s factual finding that Silva voluntarily and knowingly consented to the search. United States v.

UNITED STATES v. RODRIGUEZ-PRECIADO 8697
Patayan Soriano, 361 F.3d 494, 501 (9th Cir. 2004). “It is the

government’s burden to prove that the consent was freely and

voluntarily given. On appeal, evidence regarding the question

of consent must be viewed in the light most favorable to the

fact-finder’s decision.” Id. (internal quotation marks and citations omitted). 

The district court found that Silva knowingly consented to

the entry and search: “Silva did invite Officer Hascall into the

room and gave consent for the search,” notwithstanding

Silva’s inability to speak English and Hascall’s limited Spanish. That finding was not clearly erroneous. 

In addition, the district court found the consent was voluntary. Regarding the consent to the entry, the finding of voluntariness of consent was not clearly erroneous in light of

evidence that Silva welcomed the officers into the room.

Regarding the consent to search, voluntariness “is ‘to be

determined from the totality of all the circumstances,’ ” id.,

quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973),

although we can examine five nonexclusive issues assisting

our inquiry: 

(1) whether the defendant was in custody; (2)

whether the arresting officers had their guns drawn;

(3) whether Miranda warnings were given; (4)

whether the defendant was notified that she had a

right not to consent; and (5) whether the defendant

had been told a search warrant could be obtained. 

United States v. Jones, 286 F.3d 1146, 1152 (9th Cir. 2002),

citing United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.

1989). “[T]hese factors are only guideposts, not a mechanized

formula to resolve the voluntariness inquiry.” Patayan Soriano, 361 F.3d at 502. 

[1] As Silva was not in custody, “Miranda warnings were

inapposite.” Id. at 504. The officers did not draw their guns

8698 UNITED STATES v. RODRIGUEZ-PRECIADO
or threaten to obtain a search warrant if consent was refused.

Furthermore, Hascall testified that after he asked Silva in

Spanish whether the officers could enter the room, Silva said

“si” and motioned for the officers to enter. Although Silva

was not advised he could withhold consent or told a search

warrant could be obtained, “[i]t is not necessary to check off

all five factors.” Id. at 502. Given these circumstances, the

district court did not clearly err in finding that Silva knowingly and voluntarily consented to the search. See United

States v. Cormier, 220 F.3d 1103, 1112-13 (9th Cir. 2000)

(affirming voluntariness finding in similar circumstances). 

The district court also found that Silva had authority to

invite the officers into the room. We will not review that

determination because Rodriguez-Preciado did not “specifically and distinctly” challenge it in his opening brief. Int’l

Union of Bricklayers & Allied Craftsman Local Union No. 20

v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985). 

B.

Next, Rodriguez-Preciado argues that the statements he

made should have been suppressed because of alleged

Miranda violations. He contends that the statements he made

before being given warnings were taken in violation of

Miranda because he was in “custody” for purposes of

Miranda from the moment he entered the motel room. Furthermore, he asserts he did not validly waive his Miranda

rights after they were given to him because his difficulty with

English precluded a knowing and intelligent waiver, and the

“coercive effect of the officers’ presence in [his] motel room”

rendered his waiver involuntary. Finally, he argues the

Miranda warnings he was given at the motel room were

“stale” by the beginning of the interrogation the next day, due

to changed circumstances. We address each contention in

turn.

UNITED STATES v. RODRIGUEZ-PRECIADO 8699
1.

The district court determined that “when [RodriguezPreciado] arrived at the room, he was not in custody.” We

review the custody determination de novo and the underlying

factual findings for clear error. See United States v. Kim, 292

F.3d 969, 973 (9th Cir. 2002). As we recently explained: 

An officer’s obligation to administer Miranda warnings attaches only where there has been such a

restriction on a person’s freedom as to render him in

custody. Whether a suspect is in custody turns on

whether there is a formal arrest or restraint on freedom of movement of the degree associated with a

formal arrest. This inquiry requires a court to examine the totality of the circumstances from the perspective of a reasonable person in the suspect’s

position. 

United States v. Crawford, 372 F.3d 1048, 1059 (9th Cir.

2004) (en banc) (internal quotation marks, citations, and alterations omitted). 

[2] Judged by these standards, the district court did not err

in concluding that Rodriguez-Preciado was not in custody

when he entered the motel room. The officers explicitly

informed him that their search had turned up no incriminating

evidence, none of them displayed or otherwise brought attention to their weapons, and there was no intimation that they

would not permit him to leave if he so desired. RodriguezPreciado’s admission to possessing cocaine was not made

during a custodial interrogation, and therefore the fact that he

was not given Miranda warnings prior to this admission does

not require suppression. 

2.

Rodriguez-Preciado also challenges the determination that

he validly waived his Miranda rights by responding to the

8700 UNITED STATES v. RODRIGUEZ-PRECIADO
officers’ questions after receiving the required warning.

Waivers of Miranda rights need not be explicit; a suspect may

impliedly waive the rights by answering an officer’s questions

after receiving Miranda warnings. Terrovona v. Kincheloe,

912 F.2d 1176, 1179-80 (9th Cir. 1990). “For a waiver of

rights to be valid it must be voluntarily, knowingly, and intelligently given. Whether there has been a valid waiver depends

on the totality of the circumstances, including the background,

experience, and conduct of defendant.” United States v. Doe,

155 F.3d 1070, 1074 (9th Cir. 1998) (en banc) (internal quotation marks and citations omitted). “We review a district

court’s ruling on a Miranda waiver under two standards:

Whether the waiver was knowing and intelligent is a question

of fact that we review for clear error. Whether the waiver was

voluntary is a mixed question of fact and law, which we

review de novo.” United States v. Amano, 229 F.3d 801, 803

(9th Cir. 2000). 

[3] The district court’s finding that Rodriguez-Preciado’s

alleged difficulty with English did not prevent him from

knowingly and intelligently waiving his Miranda rights was

not clearly erroneous. “A waiver is knowing and intelligent if,

under the totality of the circumstances, it is made with a ‘full

awareness of both the nature of the right being abandoned and

the consequences of the decision to abandon it.’ ” Doe, 155

F.3d at 1074, quoting Moran v. Burbine, 475 U.S. 412, 421

(1986). Rodriguez-Preciado “indicated that he understood his

rights after they were explained to him,” United States v.

Bautista-Avila, 6 F.3d 1360, 1366 (9th Cir. 1993), and the district court found that, except for some confusion regarding the

word “methamphetamine,” there was “no indication by any of

the officers that Mr. Rodriguez had difficulty understanding

English nor that the officers had trouble understanding his

English.” Thus, “[d]espite [any] language difficulties encountered by appellant, the evidence seems to indicate that he

understood his rights and . . . knowingly, and intelligently

waived them.” United States v. Bernard S., 795 F.2d 749, 752

(9th Cir. 1986). 

UNITED STATES v. RODRIGUEZ-PRECIADO 8701
[4] The district court also concluded that RodriguezPreciado’s choice to waive his Miranda warnings was voluntary. “A waiver is voluntary if, under the totality of the circumstances, the confession was the product of a free and

deliberate choice rather than coercion or improper inducement.” Doe, 155 F.3d at 1074. Rodriguez-Preciado points to

no facts, other than the mere presence of officers in his motel

room, suggesting that his waiver of Miranda warnings was

involuntary. Indeed, we have upheld the validity of a waiver

of Miranda warnings in circumstances much more coercive

than those involved in this case. See Terrovona, 912 F.2d at

1179-80 (not specifically addressing issue of voluntariness,

but holding that suspect validly waived his Miranda rights by

speaking to officers, despite fact that questioning occurred in

suspect’s apartment after he had been handcuffed and arrested

without a warrant and while officers were conducting what he

“considered to be a warrantless search of his apartment”).

Here, we have a milder situation: the officers told RodriguezPreciado that their search of the room had not produced any

weapons or drugs. The mere fact that he was questioned in the

motel room “was not ‘sufficiently compelling to overbear

[Rodriguez-Preciado’s] will in light of all attendant circumstances.’ ” United States v. Okafor, 285 F.3d 842, 847 (9th

Cir. 2002), quoting United States v. Leon Guerrero, 847 F.2d

1363, 1366 (9th Cir. 1988). Nor is there any evidence of coercion or improper inducement at either the first or second custodial interview. In these circumstances, the conclusion that

Rodriguez-Preciado’s waiver of Miranda rights was voluntary

was not erroneous. 

3.

We now address the admissibility of statements made on

the second day of the interrogation. Rodriguez-Preciado contends that the officers were required to re-advise him of

Miranda warnings before beginning the second day of questioning. But he does not cite a Supreme Court or Ninth Circuit

decision—and we are aware of none—holding that statements

8702 UNITED STATES v. RODRIGUEZ-PRECIADO
made after Miranda warnings are administered are nonetheless inadmissible if the warnings become “stale.” 

[5] The Supreme Court has eschewed per se rules mandating that a suspect be re-advised of his rights in certain fixed

situations in favor of a more flexible approach focusing on the

totality of the circumstances. See Wyrick v. Fields, 459 U.S.

42, 48-49 (1982) (per curiam) (rejecting per se rule requiring

police to re-advise suspect of his rights before questioning

him about results of polygraph examination). Consistent with

Wyrick’s admonition against “unjustifiable restriction[s] on

reasonable police questioning,” id. at 49, “[t]he courts have

generally rejected a per se rule as to when a suspect must be

readvised of his rights after the passage of time or a change

in questioners.” United States v. Andaverde, 64 F.3d 1305,

1312 (9th Cir. 1995). Indeed, in a decision upholding the

admissibility of statements made nearly fifteen hours after

Miranda warnings were administered, see Guam v. Dela

Pena, 72 F.3d 767, 770 (9th Cir. 1995), we cited with

approval earlier decisions involving intervals of two days, id.,

citing Puplampu v. United States, 422 F.2d 870 (9th Cir.

1970) (per curiam), and three days, id., citing Maguire v.

United States, 396 F.2d 327, 331 (9th Cir. 1968). 

[6] Here, the district court found that Rodriguez-Preciado’s

second day statements were “close in time to the original

advice of rights,” despite the interval of approximately sixteen

hours, and that he “understood those rights as given to him in

English.” In light of our precedents approving delays of similar and greater length, it properly concluded that it was “not

[necessary] that he be advised of his rights” again. See, e.g.,

Andaverde, 64 F.3d at 1313 (statements made one day after

Miranda warning). 

[7] Nor has Rodriguez-Preciado pointed to any other circumstances which “suggest the effectiveness of the earlier

Miranda warnings was diminished” on the second day of the

interrogation. Dela Pena, 72 F.3d at 770. “A rewarning is not

UNITED STATES v. RODRIGUEZ-PRECIADO 8703
required simply because there is a break in questioning.” Id.

at 769. Although Romanaggi took Hascall’s place at the second interrogation, Lilley was present at both custodial interrogations and the questioning in the motel room. See

Andaverde, 64 F.3d at 1312-13 (presence of one officer

throughout two interrogations supported conclusion that failure to re-administer warnings did not require suppression,

notwithstanding presence of new interrogator at second round

of questioning). Nor is it determinative that there was a

change of one interrogator in conjunction with the change of

location (from the motel to the substation to the jail). See id.

at 1313 (repeat of warnings not required even though suspect

“had been moved into a different room and faced a new interrogator”). It is also significant that Rodriguez-Preciado was in

custody continually from the time warnings were first administered through the second day interview. Cf. Dela Pena, 72

F.3d at 769 (Miranda warnings given before suspect in custody need not be re-administered before custodial interrogation). Thus, there were no intervening events which might

have given Rodriguez-Preciado the impression that his rights

had changed in a material way. See id.

Indeed, Rodriguez-Preciado’s own statements indicate that

he still understood his rights on the second day of questioning: when Romanaggi asked him whether he remembered

being advised of his Miranda rights the night before,

Rodriguez-Preciado replied that he “thought he had.” Contrary to the dissent’s suggestion, we do not hold that the “central issue” is “what [Rodriguez-Preciado] remembered

concerning the earlier warnings.” Post at 8726 n.14. We agree

that “the issue is whether Rodriguez-Preciado could have reasonably believed that the Miranda rights . . . of which he was

apprised the night before [were still effective], in light of the

changed circumstances.” Post at 8713. That RodriguezPreciado appeared to remember having received warnings the

night before indicates that he did, in fact, understand that his

rights had not materially changed notwithstanding the change

in circumstances. 

8704 UNITED STATES v. RODRIGUEZ-PRECIADO
At oral argument before us, counsel for Rodriguez-Preciado

asserted for the first time that Missouri v. Seibert, 124 S. Ct.

2601 (2004) (plurality opinion), should affect our analysis of

this issue. We need not decide whether we are bound to follow the plurality opinion in Seibert or only that opinion as

limited by Justice Kennedy, because Seibert did not address

the issue raised in this case. Seibert dealt with the admissibility of statements made after the police give “midstream”

warnings, that is, when police begin a custodial interrogation

without advising the suspect of his Miranda rights, obtain

incriminating statements, and then continue questioning after

administering warnings in order to re-elicit the incriminating

statements. See id. at 2605. The plurality opinion acknowledged that “giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility” at trial for

statements made by a defendant, id. at 2608, but held that

“when interrogators question first and warn later,” the threshold issue is “whether it would be reasonable to find that in

these circumstances the warnings could function ‘effectively’

as Miranda requires.” Id. at 2610. 

In Seibert, it was undisputed that the officers had not given

the suspect Miranda warnings at the outset of the interrogation. Id. at 2606. The Court therefore had no occasion to

address the question presented here: whether Miranda warnings, once given, need to be re-administered due to changed

circumstances. Here, Hascall gave Miranda warnings in

advance of the custodial interrogations, which RodriguezPreciado understood and which provided adequate notice

given the totality of circumstances. See, e.g., Dela Pena, 72

F.3d at 770. The plurality opinion in Seibert, which does not

cite Wyrick, casts no doubt on Wyrick’s totality of the circumstances test, or otherwise indicate that our own previous cases

have considered or emphasized the wrong factors in applying

that test. Thus, Seibert is inapposite. 

[8] We hold that the failure to re-administer warnings on

the second day does not automatically render any of the stateUNITED STATES v. RODRIGUEZ-PRECIADO 8705
ments made that day inadmissible. We reaffirm the Wyrick

and our own precedents totality of the circumstances

approach, and further emphasize that a district court’s factual

findings regarding the continued effectiveness of Miranda

warnings will not be set aside absent clear error. There was

none here. We therefore need not decide whether the second

day statements taken after Rodriguez-Preciado was re-advised

of his Miranda warnings are also admissible on the basis of

those warnings. 

C.

[9] The next issue concerns Article 36 of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77,

which requires law enforcement officials to notify arrested

foreign nationals of their right to contact their consulates.

Rodriguez-Preciado asks us to hold that the officers’ violation

of that provision requires exclusion of his statements. However, we have already squarely rejected this argument. See

United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th

Cir. 2000) (en banc) (“[A]ssuming that some judicial remedies are available for the violation of Article 36, the exclusion

in a criminal prosecution of evidence obtained as the result of

post-arrest interrogation is not among them”). We are bound

by that decision. See Montana v. Johnson, 738 F.2d 1074,

1077 (9th Cir. 1984). 

D.

We next address whether any of the evidence seized from

Rodriguez-Preciado’s person or the van should have been

suppressed. We hold that the district court’s conclusion that

“the production of the cocaine from [Rodriguez-Preciado’s]

shirt pocket was voluntary” was not error. We also conclude

that the district court’s finding that Rodriguez-Preciado validly consented to the searches of both his person and the van

was not clearly erroneous. The district court found that

Rodriguez-Preciado had “no inability to communicate,”

8706 UNITED STATES v. RODRIGUEZ-PRECIADO
despite his alleged language difficulties. At the time he consented, the officers’ guns were not in hand, he had already

been informed of his Miranda warnings, and no threat had

been made that a search warrant could be obtained if he

refused consent. The district court’s determination that

Rodriguez-Preciado knowingly and voluntarily consented to

the searches cannot be overturned. 

The central issue, then, is whether the searches were within

the scope of his consent, an issue that we review for clear

error. See United States v. Huffhines, 967 F.2d 314, 319 (9th

Cir. 1992). Rodriguez-Preciado does not argue that the search

of his wallet was outside the scope of his consent, but does

make such a claim with respect to the searches of the van. 

[10] “ ‘The standard for measuring the scope of a suspect’s

consent under the Fourth Amendment is that of ‘objective’

reasonableness—what would the typical reasonable person

have understood by the exchange between the officer and the

suspect?’ ” United States v. Cannon, 29 F.3d 472, 477 (9th

Cir. 1994), quoting Florida v. Jimeno, 500 U.S. 248, 251

(1991). The first search of the van, in which $3,360 was discovered in a child seat, was valid. Because RodriguezPreciado “placed no explicit limit on the scope of that

search,” and the child seat “reasonably could contain contraband,” the officers’ search of the seat was not outside the

scope of consent. United States v. Gutierrez-Mederos, 965

F.2d 800, 803-04 (9th Cir. 1992). 

[11] Likewise, the district court properly refused to suppress the methamphetamine found behind the van’s speaker.

Although Rodriguez-Preciado did not explicitly give consent

to search that particular area, he informed the officers that

drugs could be found there and cannot seriously contend that

it would have been unreasonable to expect the officers to act

on that information, especially in light of his previous unqualified and unrestricted consent to search the van. When an

individual gives general consent to search a vehicle, and

UNITED STATES v. RODRIGUEZ-PRECIADO 8707
thereafter volunteers that evidence may be found in a specific

area inside it, he thereby indicates that a search for that evidence would be within the scope of the original consent. Cf.

Cannon, 29 F.3d at 477 (“Failure to object to the continuation

of a vehicle search after giving general consent to search is

properly considered as an indication that the search was

within the scope of the initial consent” (internal quotation

marks omitted)); United States v. Mines, 883 F.2d 801, 804-

05 (9th Cir. 1989) (“Mines might have withdrawn or limited

his consent, even during the search. His failure to do so indicates he consented to the entire search and everything it

revealed”). Moreover, under the circumstances, RodriguezPreciado’s statement that drugs would be found behind the

speaker itself constituted implied consent to search that area.

Cf. Rosi, 27 F.3d at 413-14 (where individual, after impliedly

consenting to agents’ request to enter condo, “volunteered to

an agent that pertinent evidence might be found in a lamp”

with the “full expectation that the agents would search it” and

“did not object when they proceeded to do so,” district court

did not clearly err in finding that individual “invited” agents

to look in the lamp). 

In addition, the search of the van with a drug-sniffing dog

was within the scope of Rodriguez-Preciado’s consent. See

United States v. Perez, 37 F.3d 510, 515-16 (9th Cir. 1994).

In any event, nothing was found during that search. 

[12] For the foregoing reasons, Rodriguez-Preciado’s

motion to suppress was properly denied. We now turn to his

remaining claims. 

III.

[13] Rodriguez-Preciado argues that one of the continuances granted by the trial court violated section 3161(c)(1) of

the Speedy Trial Act. See 18 U.S.C. § 3161(c)(1). RodriguezPreciado waived his Speedy Trial Act claim by failing to

move for dismissal before trial. See 18 U.S.C. § 3162(a)(2)

8708 UNITED STATES v. RODRIGUEZ-PRECIADO
(“Failure of the defendant to move for dismissal prior to trial

. . . shall constitute a waiver of the right to dismissal”); United

States v. Brickey, 289 F.3d 1144, 1150 (9th Cir. 2002).

Although Rodriguez-Preciado contends that his lawyer’s failure to file a motion to dismiss should not be attributed to him,

he does not assert that his lawyer provided constitutionally

ineffective assistance or offer any other reason why he should

be excused from the statutory consequences of his lawyer’s

decision. His Speedy Trial Act claim was therefore waived.

IV.

Finally, we address Rodriguez-Preciado’s claim that the

prosecutor improperly commented on his decision not to testify. “Claims that a prosecutor committed misconduct during

summation are reviewed for plain error, when as here, trial

counsel did not object.” United States v. Tam, 240 F.3d 797,

804 (9th Cir. 2001). In his closing argument, defense counsel

stated: 

Now, an example of how they hold back information

and don’t want you to really know what’s going on

is when Sara Abbott testifies about the fact that,

well, she wouldn’t socialize with [RodriguezPreciado], but yet I believe she is the one who testified that, well, yeah, I would go get a tattoo, that sort

of thing. 

Then, in the government’s rebuttal argument, the prosecutor quoted defense counsel’s argument and stated: 

So when counsel says, “What’s going on here,” the

Government agrees with him. But the defendant has

not addressed what’s really going on here. 

He never did give you an explanation for what’s

really going on here in the trip receipts. 

UNITED STATES v. RODRIGUEZ-PRECIADO 8709
Rodriguez-Preciado seizes on the reference to “the defendant,” and argues that the prosecutor’s statement violated the

rule prohibiting prosecutorial commentary on a defendant’s

failure to testify. See Griffin, 380 U.S. at 615. “A prosecutor’s

comment is impermissible if it is ‘manifestly intended to call

attention to the defendant’s failure to testify or is of such a

character that the jury would naturally and necessarily take it

to be a comment on the failure to testify.’ ” Beardslee v.

Woodford, 358 F.3d 560, 586 (9th Cir. 2004), quoting United

States v. Tarazon, 989 F.2d 1045, 1051-52 (9th Cir. 1993). 

[14] However, “we have held that a ‘comment on the failure of the defense as opposed to the defendant to counter or

explain the testimony presented or evidence introduced is not

an infringement of the defendant’s Fifth Amendment privilege.’ ” United States v. Mares, 940 F.2d 455, 461 (9th Cir.

1991), quoting Castillo, 866 F.2d at 1083. See also Tam, 240

F.3d at 805 (“[W]hen the government refers to ‘defendant’s

arguments’ but obviously is addressing the arguments made

by defense counsel, there is no Griffin violation”). Taking the

prosecutor’s remarks in context, they were a response to

defense counsel’s closing argument, not a comment that was

“manifestly intended to call attention to [RodriguezPreciado’s] failure to testify.” Beardslee, 358 F.3d at 586.

Instead, the prosecutor’s statements emphasized that the

defense had never rebutted the inference raised by the trip

receipts introduced by the prosecution to demonstrate that

Rodriguez-Preciado had previously traveled to the area to

meet with his co-conspirators. Indeed, Rodriguez-Preciado’s

brief explains that the prosecutor was “[r]esponding to

[defense] counsel’s rhetorical questions about what the evidence meant.” “This argument was directed at the defense,

and did not constitute an infringement on [RodriguezPreciado’s] Fifth Amendment rights.” United States v. Wasserteil, 641 F.2d 704, 710 (9th Cir. 1981). There was no plain

error. 

8710 UNITED STATES v. RODRIGUEZ-PRECIADO
V.

We now address the impact of the recent en banc decision

in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en

banc) on this case. Because we cannot “reliably determine

from the record whether the sentence imposed would have

been materially different had the district court known that the

Guidelines were advisory, we will remand to the sentencing

court to answer that question.” Id. at 1084. The mandate shall

issue forthwith. 

AFFIRMED IN PART, REMANDED IN PART.

BERZON, Circuit Judge, dissenting in part: 

With the exception of subsection II.B.3, I agree with the

majority’s opinion in its entirety. I cannot agree, however,

with the majority’s conclusion that the Miranda warning

administered to Rodriguez-Preciado on the night of June 26

was still effective the following afternoon.1 By the time of the

interrogation in question, Rodriguez-Preciado had been

1

I also disagree with the majority’s assertion that the district court’s

determination on this point was a “factual finding” warranting clear error

review. There is no case law in this circuit concerning the appropriate

standard of review for the district court’s determination of the continuing

“effectiveness” of Miranda warnings. The voluntariness of a confession,

by contrast, another area of Miranda law where we look to the totality of

the circumstances, is an issue that we have reviewed de novo since the

Supreme Court’s decision in Miller v. Fenton, 474 U.S. 104, 112-18

(1985). See, e.g., Tolbert v. Page, 182 F.3d 677, 682 n.8 (9th Cir. 1999)

(en banc). To the extent that the majority suggests only that purely factual

findings, such as what the defendant said, are reviewed for clear error, I

do not disagree. But United States v. Andaverde, 64 F.3d 1305 (9th Cir.

1995), the case on which the majority principally relies for its conclusion

that the original warning remained effective in this case, treated that issue

as a question of voluntariness and reviewed it de novo. See id. at 1310. I

would do the same. 

UNITED STATES v. RODRIGUEZ-PRECIADO 8711
moved twice since first being advised of his rights, and was

then incarcerated at the local county jail. The combination of

the lapse in time and the change in custodial circumstances is

sufficient that a suspect could well question whether the same

rights still obtained. 

I therefore believe that we must address the midstream

Miranda warning given to Rodriguez-Preciado during his

interrogation on June 27. The propriety of those warnings —

and of the interrogation elicited thereafter — turns on what

rule, if any, the fractured Supreme Court handed down in Missouri v. Seibert, 124 S. Ct. 2601 (2004). As I explain below,

because I would follow the reasoning of the Seibert plurality,

I would hold that the district court erred in not suppressing the

statements Rodriguez-Preciado made on June 27 and the evidence discovered as a result of those statements. 

The district court’s error in this regard may well have been

harmless beyond a reasonable doubt. The government, however, has not pressed that position here. At least one previous

panel of this circuit has suggested, albeit in passing, that the

failure to raise harmless error constitutes waiver. See United

States v. Vallejo, 237 F.3d 1008, 1026 (9th Cir. 2001).

Though some of our sister circuits have recognized limited

circumstances in which harmless error may be considered sua

sponte, see, e.g., United States v. Rodriguez Cortes, 949 F.2d

532, 542-43 (1st Cir. 1991). I do not believe that this is such

a case, for reasons I elaborate upon below. I would therefore

reverse Rodriguez-Preciado’s conviction and remand for a

new trial.

I.

As the majority recognizes, “[t]he courts have generally

rejected a per se rule as to when a suspect must be readvised

of his rights after the passage of time or a change in questioners.” United States v. Andaverde, 64 F.3d 1305, 1312 (9th Cir.

1995); see also United States v. Ross, 123 F.3d 1181, 1188

8712 UNITED STATES v. RODRIGUEZ-PRECIADO
(9th Cir. 1997) (“The caselaw does not delineate how long

Miranda warnings protect a defendant or at what point that

protection evaporates.”). Instead, we are charged with looking

at the totality of the circumstances in each individual case.

See Wyrick v. Fields, 459 U.S. 42, 48-49 (1982) (per curiam).

In framing our totality-of-the-circumstances inquiry, the

operative question is whether a reasonable defendant in

Rodriguez-Preciado’s position would consider that the

Miranda warning given to him the night before at the Satellite

Motel still applied to anything he said the following day, after

he had been booked and lodged at the county jail. In this case,

the majority and I agree that the issue is whether RodriguezPreciado could have reasonably believed that the Miranda

rights — including the right to remain silent and to consult

with counsel — of which he was apprised the night before did

not still obtain on June 27, in light of the changed circumstances. We disagree, however, over the controlling import of

Rodriguez-Preciado’s statement that he “thought he had”

received the Miranda warnings the night before. The majority

holds that Rodriguez-Preciado’s statement “indicates that he

did, in fact, understand that his rights had not materially

changed notwithstanding the change in circumstances.” Ante

at 8704. In contrast, I believe that the statement says nothing

about whether Rodriguez-Preciado understood the earlier

warnings to apply to the current circumstances. And, in my

view, the totality of the other circumstances weigh in favor of

the conclusion that the police should have re-advised

Rodriguez-Preciado before beginning questioning on June 27.

The majority relies heavily on our decision in Andaverde,

where we held that a one-day time gap was not enough, on its

own, to vitiate the continuing effectiveness of the first

Miranda warning, see 64 F.3d at 1313, and on Guam v. Dela

Pena, 72 F.3d 767 (9th Cir. 1995), in which we held that a

fifteen-hour interval between a Miranda warning and a custodial interrogation was acceptable, id. at 769-70.2

 In Dela

2Also of relevance is our earlier decision in United States v. Nordling,

804 F.2d 1466 (9th Cir. 1986), where the court found no requirement that

UNITED STATES v. RODRIGUEZ-PRECIADO 8713
Pena, however, the court emphasized that the relevant time

difference was not the fifteen hours that elapsed between the

Miranda warning and the interrogation, but the far shorter

time period that elapsed between the end of the first, noncustodial interview (at the beginning of which the Miranda

warning had been given) and the custodial interrogation. See

id. at 769. Moreover, neither precedent involved other

changed circumstances to the degree presented here. 

In Dela Pena, the central issue before the court was

whether Miranda warnings given to a suspect before he was

“in custody” needed to be repeated once the police began a

custodial interrogation. Two facts were central to the court’s

decision that they did not: First, the police reminded Dela

Pena of his waiver of his Miranda rights before the custodial

interrogation began. See id. The court held that “it was not

necessary to repeat the earlier Miranda warnings,” id. at 769

n.1 (emphasis added), yet it stressed several times the extent

to which the officers reminded Dela Pena of his earlier

waiver. See, e.g., id. at 770. 

Second, the lapse of time was the only significant changed

circumstance. Although Dela Pena was not in custody at the

time he was first given his Miranda warnings, he was in the

police station, the same place where the custodial interrogation eventually took place. Id. at 770 (“Other than this passage

of time, Dela Pena points to nothing to suggest the effectiveness of the earlier Miranda warnings was diminished.”). The

same interrogator questioned him in the same room, and,

though fifteen hours elapsed from the initial provision of the

a suspect be readvised of his Miranda rights when the interrogation was

continued by different questioners and “[n]o appreciable time had

elapsed.” Id. at 1471. The Nordling court did not explicitly state what it

meant by “no appreciable time,” though it cited, with approval, an Eighth

Circuit case holding that a five-hour gap between interviews did not

require re-administration of the warnings. See id. (citing Stumes v. Solem,

752 F.2d 317 (8th Cir. 1985)). 

8714 UNITED STATES v. RODRIGUEZ-PRECIADO
Miranda warnings to the beginning of the custodial interrogation, only six-and-a-half hours elapsed between the two interviews. See id. at 769 (noting that questioning ended at 4:00

a.m., and recommenced at 10:35 that same morning). Here,

roughly fourteen hours elapsed between the end of the first

interrogation and the beginning of the second.3

Similarly, in Andaverde, the defendant was first questioned

by a police officer, who properly Mirandized him. Shortly

thereafter, he was questioned by a probation officer, who did

not re-advise Andaverde of his Miranda rights. The same probation officer interviewed Andaverde again the following day,

and, though the opinion is not lucid on this point, it appears

that both interviews took place in the same location.4 Relying

— somewhat erroneously — on Jarrell v. Balkcom, 735 F.2d

1242, 1254 (11th Cir. 1984),5 the court held that the probation

officer was not required to re-advise Andaverde of his

Miranda rights initially, since “the two interrogations were an

uninterrupted sequence of events,” Andaverde, 64 F.3d at

1312, and that the one-day6 interval, standing alone, was

3Though the record in this case is not explicit, it appears that the

Miranda warning was administered to Rodriguez-Preciado at the Satellite

Motel shortly after 9:00 p.m. on June 26, and that the interrogation on

June 27 began shortly after 1:15 p.m. The interrogation at the county jail

conducted on the night of June 26 appears to have concluded by 11:30

p.m. 

4The court in Andaverde noted that “[t]he next day, October 28, Keeth

again questioned Andaverde at the jail.” 64 F.3d at 1308 (emphasis

added). Earlier in the opinion, the court suggests that the original questioning happened at the police station. See id. But the court’s use of the word

“again,” without noting any other change in circumstances, seems to indicate that the two interviews were both conducted in the same general

place. 

5The Andaverde court miscited Jarrell as a Ninth Circuit decision. See

64 F.3d at 1312. 

6The facts in Andaverde are unclear concerning when the interrogations

took place on each day. Therefore, though the majority here reads

Andaverde as approving a “one day” delay, see ante at 8703, and though

Andaverde itself spoke of a period of “one day,” see 64 F.3d at 1313, it

is entirely possible that the actual delay between the end of the second

interrogation and the beginning of the third was closer to twelve hours, see

id. at 1308 & n.2, less than the interval in this case. 

UNITED STATES v. RODRIGUEZ-PRECIADO 8715
insufficient to render the original warning ineffective, id. at

1313. 

In Andaverde, then, as in Dela Pena, the only material consideration detracting from the continued effectiveness of the

Miranda warnings was the time between the interviews. Even

at their broadest, Andaverde and Dela Pena, taken together,

thus hold that an interval of up to one day between questioning does not necessarily require officers to re-advise suspects

of their Miranda rights. At the same time, neither Andaverde

nor Dela Pena embraces the opposite holding — that an interval of up to one day necessarily validates a later interview,

regardless of other circumstances. 

By contrast, at least two district courts have suggested that

re-administration of Miranda would have been necessary in a

case presenting facts analogous to those here. Of perhaps

most interest is the Middle District of Pennsylvania’s decision

in United States v. Vasquez, 889 F. Supp. 171 (M.D. Pa.

1995), in which the court applied a five-factor test to determine whether a statement made after a significant delay since

Miranda warnings were given should be admissible. Borrowing from the Pennsylvania Supreme Court’s decision in Commonwealth v. Hughes, 555 A.2d 1264 (Pa. 1989), Vasquez

spelled out five considerations:

“(1) the time lapse between the last Miranda warnings and the appellant’s statement; (2) interruptions

in the continuity of the interrogation; (3) whether

there was a change of location between the place

where the last Miranda warnings were given and the

place where the appellant’s statement was made; (4)

whether the same officer who gave the warnings also

conducted the interrogation resulting in the appellant’s statement; and (5) whether the statement elicited during the complained-of interrogation differed

significantly from other statements which had been

preceded by Miranda warnings.” 

8716 UNITED STATES v. RODRIGUEZ-PRECIADO
Vasquez, 889 F. Supp. at 177 (quoting Hughes, 555 A.2d at

1276); see also id. at 178 (“[W]e believe [this list] provides

an excellent barometer against which to at least begin the

review of the circumstances in a particular case.”).7

A host of district courts have since relied on the Vasquez

factors. In particular, the Eastern District of Michigan applied

Vasquez to a case factually similar to this one, concluding in

United States v. Jones, 147 F. Supp. 2d 752 (E.D. Mich.

2001), that statements from a subsequent interrogation eighteen hours after the Miranda warnings, by a different law

enforcement officer, and in a different place, should not be

admissible:

More than eighteen hours had passed . . . between

the Miranda warnings that Sgt. Payer gave Defendant on February 14 and Defendant’s interview with

Agent Kendall on February 15. During that period,

there was an interruption in the continuity of the

interrogation, as Sgt. Payer had ceased his questioning at 1:13 a.m. on February 15 and Agent Kendall

did not begin his interview earlier than 6:00 p.m.

There was a change in location between the interview that Sgt. Payer conducted and the interrogation

done by Agent Kendall. The former was at the police

station; the latter was at the federal building. Agent

Kendall, who conducted the interview of Defendant

on February 15, was not the same officer who

administered the warnings on February 14. All of

these factors militate toward the conclusion that

7The Vasquez court concluded that the five factors weighed in favor of

admitting Vasquez’s statements. Its determination turned on the short time

delay, the fact that Vasquez knew he was going to be interviewed by different officers, and Vasquez’s “long experience and frequent contact with

the criminal justice system.” 889 F. Supp. at 178. At most, only one of the

five factors weighed in Vasquez’s favor, and the court found that factor

— the interview by different officers — negligible given Vasquez’s prior

knowledge that such a change was to occur. 

UNITED STATES v. RODRIGUEZ-PRECIADO 8717
Defendant could not fully appreciate a waiver of his

Miranda rights when he spoke to Agent Kendall on

February 15 and that his statements to Agent Kendall

must therefore be suppressed. The Court apprehends

no factors militating toward the opposite conclusion.

Jones, 147 F. Supp. 2d at 761-62 (citations omitted). 

What is notable about Vasquez and Jones is that in both

cases, the court looked at the various factors from the perspective of the suspect, centering on whether he could reasonably believe that the first warning did not still have force —

that is, on whether the original warning was still fully effective. As discussed in more detail below, this is the core principle enunciated, albeit in a different context, by the Supreme

Court plurality in Seibert. Interpreting this case through the

reasonableness lens, and applying the Vasquez factors, I conclude that a suspect could reasonably believe that the rights of

which he was earlier advised no longer obtained. 

First, fourteen hours passed between the end of the second

June 26 interview by Officer Hascall and the beginning of

Rodriguez-Preciado’s June 27 interview by Sergeant

Romanaggi. During this period, there was a significant interruption in the interrogation, as Officer Hascall had concluded

his two separate interrogations of Rodriguez-Preciado the

night before. There was a change in location,8 as the June 27

interview was conducted at the county jail, where RodriguezPreciado had been booked and lodged the night before. And

the interrogating officer, Sergeant Romanaggi, was not the

officer who had provided Miranda warnings the night before,

nor was he in the motel room when the warnings were given.

On these facts alone, Vasquez and Jones suggest that the

8

In point of fact, there had been two changes in location since the warnings were first administered — from the Satellite Motel to the police substation, and from the substation to the jail. 

8718 UNITED STATES v. RODRIGUEZ-PRECIADO
Miranda warning given to Rodriguez-Preciado at the Satellite

Motel on the night of June 26 was no longer effective on the

afternoon of June 27. Add to this Rodriguez-Preciado’s fundamental change in status, from a suspect arrested in his own

motel room to an incarcerated defendant taken from his cell

in a county jail for interrogation, and the case for suppressing

his June 27 statements is all the stronger. 

Once a suspect is subjected to pretrial detention — as

opposed, for example, to arrested but released while awaiting

trial — he is obligated to follow the directions and orders he

is given, declining to do so at his peril. See Bell v. Wolfish,

441 U.S. 520, 537-40 (1979). Under those circumstances, a

suspect in Rodriguez-Preciado’s position could reasonably

doubt the efficacy of the original warning, positing that the

same rules might not apply after being booked and incarcerated as applied before he became, in effect, a prisoner. While

an individual learned in the law would know otherwise,

Miranda warnings assume that the suspect is a tabula rasa,

lacking knowledge of his or her legal rights. To that end,

Miranda provides prophylactic warnings so as to avoid the

need for later inquiry into subjective voluntariness. That being

the case, it is inconsistent with the preventative nature of the

Miranda requirement to assume that a suspect is aware of the

diverse circumstances in which the rights covered by Miranda

warnings obtain. 

I conclude that, taking all of the pertinent factors together,

as Wyrick instructs, a reasonable person receiving the

Miranda warning issued by Officer Hascall on the night of

June 26 in the motel room would not necessarily assume that

the same ground rules applied regarding interrogation conducted the next day, under quite different custodial circumstances and by different interrogators. I would therefore hold

that all statements made during the June 27 interrogation

before Romanaggi re-advised Rodriguez-Preciado of his

Miranda rights should have been suppressed.

UNITED STATES v. RODRIGUEZ-PRECIADO 8719
II.

The question remains whether the statements made after

Romanaggi delivered the Miranda warning are admissible.

Their admissibility is an open question in this circuit. 

We are no longer bound by United States v. Orso, 266 F.3d

1030 (9th Cir. 2001) (en banc), as the Supreme Court explicitly overruled that decision in Missouri v. Seibert, 124 S. Ct.

at 2607,9 last Term. Seibert did not, however, create a per se

rule barring the admissibility of all statements taken subsequent to mid-interrogation Miranda warnings. 

Instead, a plurality of the Court carved out an objective

exception to Oregon v. Elstad, 470 U.S. 298 (1985), which

had held that statements taken subsequent to midstream

Miranda warnings should only be suppressed if they were not

knowingly or voluntarily made. Id. at 309. For the Seibert

plurality, the admissibility of statements taken post-Miranda

in such a case turns on whether a midstream warning was

effective under the circumstances. 

As Justice Souter wrote for the four-member plurality,

The threshold issue when interrogators question first

and warn later is . . . whether it would be reasonable

to find that in these circumstances the warnings

could function “effectively” as Miranda requires.

Could the warnings effectively advise the suspect

that he had a real choice about giving an admissible

statement at that juncture? Could they reasonably

9The Court granted certiorari in Seibert to resolve a circuit split between

Orso and a similar holding by the First Circuit, on the one hand, and the

Eighth and D.C. Circuit decisions in conflict with Orso, on the other. See

Seibert, 124 S. Ct. at 2607 (plurality opinion) (citing United States v.

Gale, 952 F.2d 1412, 1418 (D.C. Cir. 1992); United States v. Carter, 884

F.2d 368, 373 (8th Cir. 1989); Orso, 266 F.3d at 1034-39; and United

States v. Esquilin, 208 F.3d 315, 319-21 (1st Cir. 2000)). 

8720 UNITED STATES v. RODRIGUEZ-PRECIADO
convey that he could choose to stop talking even if

he had talked earlier? For unless the warnings could

place a suspect who has just been interrogated in a

position to make such an informed choice, there is

no practical justification for accepting the formal

warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from

the first, unwarned and inadmissible segment.

Seibert, 124 S. Ct. at 2610 (plurality opinion) (emphasis

added); see also id. at 2611 (“When [Miranda] warnings are

inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and ‘deprive a defendant of

knowledge essential to his ability to understand the nature of

his rights and the consequences of abandoning them.’ ” (quoting Moran v. Burbine, 475 U.S. 412, 424 (1986))). Whether

statements given after midstream Miranda warnings should

be admissible, the plurality concluded, turned entirely on

“whether Miranda warnings delivered midstream could be

effective enough to accomplish their object.” Id. at 2612.

Effectiveness, the plurality suggested, was a question of what

the suspect reasonably believed. Depending on the circumstances, midstream warnings can “be seen as challenging the

comprehensibility and efficacy of the Miranda warnings to

the point that a reasonable person in the suspect’s shoes

would not have understood them to convey a message that she

retained a choice about continuing to talk.” Id. at 2613. 

Concurring in the judgment, however, Justice Kennedy

concluded that such a reasonableness test, which “envisions

an objective inquiry from the perspective of the suspect, and

applies in the case of both intentional and unintentional twostage interrogations. . . . cuts too broadly.” Id. at 2615-16

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

believed that Elstad should govern absent a showing that the

law enforcement officers deliberately attempted an end-run

around Miranda, as in Seibert. See id. 

UNITED STATES v. RODRIGUEZ-PRECIADO 8721
That no opinion in Seibert commanded the agreement of a

majority of the Justices creates a difficulty in determining

which rule to apply here. Generally, where there is no majority opinion, the narrowest opinion adhered to by at least five

Justices controls. See Marks v. United States, 430 U.S. 188,

193 (1977); see also Townsend v. Quasim, 328 F.3d 511, 519

n.3 (9th Cir. 2003) (citing Smith v. Univ. of Wash., Law Sch.,

233 F.3d 1188, 1199 (9th Cir. 2000)). Applying the Marks

rule to Seibert, however, is not a straightforward endeavor. 

Justice Kennedy concurred in Seibert on a ground arguably

narrower10 than that relied upon by the plurality. He stated

that deliberateness on the part of the police — or the lack

thereof — should guide the inquiry, not the objective effectiveness factors outlined in Justice Souter’s plurality opinion.11

But three of the four Justices in the plurality and the four dissenters decisively rejected any subjective good faith consideration, based on deliberateness on the part of the police.12 In

10Justice Kennedy characterized his opinion as “narrower.” See Seibert,

124 S. Ct. at 2616 (Kennedy, J., concurring in the judgment). 

11Leaving aside its substantive analysis, Justice Kennedy’s opinion created a clear fifth vote for overruling our en banc decision in Orso, in

which we had held that a confession after a midstream Miranda warning

should be suppressed only if the pre-warning confession was “involuntary,

and any taint therefrom had not dissipated by the time [the defendant] was

read the Miranda warnings.” 266 F.3d at 1039. This position, echoed in

Justice O’Connor’s dissent in Seibert, is at odds with Justice Kennedy’s

conclusion that, subject to deliberateness on the part of the police, “postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps.” 124 S. Ct. at 2615

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

agreed that the Elstad-based voluntariness approach that Orso approved

could not stand, there can be no question as to whether Orso remains the

law of the circuit. The operative issue is why it does not. 

12Arguably, Justice Breyer’s concurring opinion, though he fully concurred in (and joined) Justice Souter’s opinion for the plurality, differs

from the plurality on the deliberateness point. See, e.g., Seibert, 124 S. Ct.

at 2614 (Breyer, J., concurring) (joining Justice Kennedy’s opinion “insofar as it . . . makes clear that a good-faith exception applies”). Accepting

this position for the sake of argument, the tally is seven to two against the

subjective-intent-of-the-interrogator position. 

8722 UNITED STATES v. RODRIGUEZ-PRECIADO
dissent, Justice O’Connor, joined by the Chief Justice and

Justices Scalia and Thomas, repeatedly agreed with the plurality that the subjective intent of the interrogator cannot control.

See, e.g., Seibert, 124 S. Ct. at 2616 (O’Connor, J., dissenting) (“[T]he plurality correctly declines to focus its analysis

on the subjective intent of the interrogating officer.”); id. at

2617 (“The plurality’s rejection of an intent-based test is also,

in my view, correct.”); id. (“Because voluntariness is a matter

of the suspect’s state of mind, we focus our analysis on the

way in which suspects experience interrogation. . . . Thoughts

kept inside a police officer’s head cannot affect that experience.”); id. at 2618 (“[R]ecognizing an exception to Elstad for

intentional violations would require focusing constitutional

analysis on a police officer’s subjective intent, an unattractive

proposition that we all but uniformly avoid.”). Most definitive

is Justice O’Connor’s statement at the end of Part I of her dissent: “[T]he approach espoused by Justice KENNEDY is ill

advised. . . . This approach untethers the analysis from facts

knowable to, and therefore having any potential directly to

affect, the suspect.” Id. at 2618-19. 

The dissenters went on to disagree with the plurality over

the force of Elstad: The plurality, along with Justice Kennedy,

favored creating an exception to Elstad, although the opinions

differed fundamentally as to the nature of the exception. The

dissent, in contrast, took issue with the extent to which the

plurality “devour[ed]” Elstad. Id. at 2616. Under Elstad, the

dissent suggested, “if [the defendant’s] first statement is

shown to have been involuntary, the court must examine

whether the taint dissipated through the passing of time or a

change in circumstances . . . .” Id. at 2619. In so maintaining,

however, the dissent also necessarily disagreed with the plurality that the relevant standard should be the objective effectiveness of the warnings. Instead, Justice O’Connor suggested

that question-first interrogations should be analyzed “under

the voluntariness standards central to the Fifth Amendment

and reiterated in Elstad.” Id. 

UNITED STATES v. RODRIGUEZ-PRECIADO 8723
This analysis of the Seibert opinions indicates that while

Justice Kennedy’s was the crucial fifth vote for the result, and

for the proposition that Elstad does not strictly govern cases

with midstream Miranda warnings, Justice Kennedy’s opinion is not the narrowest opinion embodying a position supported by at least five Justices in the majority. It embodies a

position supported by two Justices, at most. 

The Marks rule is not helpful under these circumstances.

As several circuits have convincingly explained, “the Marks

rule is applicable only where ‘one opinion can be meaningfully regarded as “narrower” than another’ ” and “can ‘represent a common denominator of the Court’s reasoning.’ ”

Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161,

170 (3d Cir. 1999) (quoting King v. Palmer, 950 F.2d 771,

781 (D.C. Cir. 1991) (en banc)); see also United States v.

Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir. 2003);

A.T. Massey Coal Co., Inc. v. Massanari, 305 F.3d 226, 236

(4th Cir. 2002). The D.C. Circuit further explained this point

in King v. Palmer: 

Marks is workable — one opinion can meaningfully

be regarded as “narrower” than another — only

when one opinion is a logical subset of other,

broader opinions. In essence, the narrowest opinion

must present a common denominator of the Court’s

reasoning; it must embody a position implicitly

approved by at least five Justices who support the

judgment . . . . When . . . one opinion supporting the

judgment does not fit entirely within a broader circle

drawn by the others, Marks is problematic. If applied

in situations where the various opinions supporting

the judgment are mutually exclusive, Marks will turn

a single opinion that lacks majority support into

national law. 

950 F.2d at 781-82. 

8724 UNITED STATES v. RODRIGUEZ-PRECIADO
“In such a case,” the Third Circuit has suggested, “the only

binding aspect of a splintered decision is its specific result.”

Anker Energy, 177 F.3d at 170. Seibert, however, is not a

splintered decision in which “a fragmented Court [has]

decide[d] a case and no single rationale explaining the result

enjoys the assent of five Justices.” Marks, 430 U.S. at 193.

Broken into separate holdings, all but one of the central points

of Seibert enjoys the support of five Justices: The rejection of

subjective intent enjoys the assent of at least seven Justices.

The overruling of Orso enjoys the support of five Justices.

The existence of exceptions to Elstad enjoys the support of

five Justices. The only point not enjoying the assent of five

Justices is the appropriate admissibility standard to apply, on

which the Court is split 4-1-4. 

As I read it, in agreement with the other circuits’ opinions

discussed above, Marks does not prescribe the adoption as

governing precedent of a position squarely rejected by seven

Justices.13 Justice Kennedy’s opinion on the admissibility

standard therefore cannot govern. 

If Justice Kennedy’s opinion does not govern, then what

does? There are three possibilities: The dissent controls; the

plurality controls; or there is no controlling position, and we

are free to start from scratch — with Orso no longer binding

precedent. 

The Seibert dissent cannot govern because the holding that

Elstad does not control in a case like this one received five

votes. The dissent’s position in Seibert is therefore irreconcil13A rule that Marks does not apply to cases where the result of applying

it is indiscernible or illogical finds contemporary support in a brief passage of Justice O’Connor’s opinion in Grutter v. Bollinger, 539 U.S. 306

(2003). Commenting on whether Justice Powell’s solo opinion in Bakke

controlled, the Grutter Court concluded that “it does not seem ‘useful to

pursue the Marks inquiry to the utmost logical possibility when it has so

obviously baffled and divided the lower courts that have considered it.’ ”

Id. at 325 (quoting Nichols v. United States, 511 U.S. 738, 745-46 (1994)).

UNITED STATES v. RODRIGUEZ-PRECIADO 8725
able with the conclusion of the majority of the Court. The plurality opinion is not binding precedent either, at least as to the

admissibility standard, for no fifth vote supporting its rationale is to be found. Instead, I suggest that Seibert leaves this

court in a situation where there is no binding Supreme Court

or Ninth Circuit precedent as to the governing standard. 

Nothing bars this court, however, from adopting the Seibert

plurality’s standard as the law of the circuit. See United States

v. Hearst, 563 F.2d 1331, 1345 n.10 (9th Cir. 1977) (following as “persuasive” the Supreme Court’s plurality opinion in

Lanza v. New York, 370 U.S. 139 (1962)). Various of our sister circuits have also adopted the decisions of Supreme Court

pluralities as the law of the circuit. See, e.g., Kirsch v.

Plovidba, 971 F.2d 1026, 1028-29 (3d Cir. 1992) (adopting a

three-Justice plurality in Scindia Steam Nav. Co. v. De Los

Santos, 451 U.S. 156 (1981), as the law of the circuit); accord

Davis v. Portline Transportes Maritime Internacional, 16

F.3d 532, 536 n.4 (3d Cir. 1994) (recognizing Kirsch as so

holding). Absent any governing law to the contrary, I would

follow a similar path here and adopt the rule advocated by the

Seibert plurality as the law of this circuit. 

Applying the Seibert plurality’s standard, the admissibility

of statements given subsequent to midstream Miranda warnings turns on whether “a reasonable person in the suspect’s

shoes could have seen the station house questioning as a new

and distinct experience, [and] the Miranda warnings could

have made sense as presenting a genuine choice whether to

follow up on the earlier admission.” 124 S. Ct. at 2612 (plurality opinion).14 The factors the plurality identified as rele14Adopting this standard would also reduce the complexity of the first

issue considered in this opinion — whether the original Miranda warnings

were still effective at the outset of the June 27 interview. As the Seibert

plurality/dissent emphasizes, the central issue is what the suspect could

reasonably have believed, based on the totality of circumstances, regarding the continued effectiveness of the earlier warnings — not, as the

majority would have it here, what he remembered concerning the earlier

warnings. 

8726 UNITED STATES v. RODRIGUEZ-PRECIADO
vant to this inquiry are “the completeness and detail of the

questions and answers in the first round of interrogation, the

overlapping content of the two statements, the timing and setting of the first and the second [interrogations], the continuity

of police personnel, and the degree to which the interrogator’s

questions treated the second round as continuous with the

first.” Id. 

In cases such as this one, where the warning was delivered

in the midst of the same interrogation in the same place by the

same officer, and where the officer goes back over the very

same questions he asked before re-advising the suspect of his

Miranda rights, the Seibert plurality approach results in

exclusion of the statements taken after the midstream warning. I would so hold.

III.

It is possible, however, that the district court’s error in not

suppressing Rodriguez-Preciado’s June 27 statements is

harmless beyond a reasonable doubt. The error is certainly

harmless as it pertains to Rodriguez-Preciado’s sentence,

since the sentence was calculated based on drug quantity

levels that, even without his June 27 statements, would still

have resulted in the same base offense level under section

2D1.1(c)(2) of the U.S. Sentencing Guidelines.15

15Rodriguez-Preciado confessed to being in possession of — and distributing — various drug quantities, including at least six pounds of

methamphetamine (five or six to Glenn and one to Jim Grenfell), a halfkilo of cocaine (to Grenfell), a quarter-pound of cocaine (in another

instance), and nineteen to twenty-three pounds of marijuana. The police

were able independently to tie various other drug quantities to RodriguezPreciado, but as the Presentence Report (PSR) makes clear, at least thirtyfive pounds of marijuana, thirteen and one-quarter pounds of methamphetamine, and five kilograms of cocaine were attributed to RodriguezPreciado based solely on the statements he made to the police, nearly all

of which came on June 27. 

Because these statements should have been suppressed, the quantities

should not have figured into Rodriguez-Preciado’s sentence. As the PSR

UNITED STATES v. RODRIGUEZ-PRECIADO 8727
The government never suggested, however, in its briefs or

at argument, that such error was harmless as to either the sentence or the underlying conviction. Whether we can review

for harmless error sua sponte is, perhaps surprisingly, a question that the Ninth Circuit has never directly considered,

though most circuits to reach this question have answered it

in the affirmative, subject to considerations including “the

length and complexity of the record, whether the harmlessness of the error or errors found is certain or debatable, and

whether reversal will result in protracted, costly, and ultimately futile proceedings in the district court.” United States

v. Giovannetti, 928 F.2d 225, 227 (7th Cir. 1991).16 The only

Ninth Circuit case even remotely on point, United States v.

identifies, the drug quantities based entirely on Rodriguez-Preciado’s

statements add up to a total of 7,025 kilograms of marijuana. RodriguezPreciado’s total sentence was based on a total drug quantity of 22,739

kilograms of marijuana. Therefore, absent the drug quantities that were

attributed to him based on his June 27 statements, Rodriguez-Preciado’s

sentence should have been based on a total quantity of 15,714 kilograms

of marijuana. But this quantity nets the exact same base offense level —

36 — under U.S.S.G. § 2D1.1(c)(2) as the 22,739 kilograms actually

relied upon by the district court. Because recalculation of the quantity

based on the admissible evidence would not lead to a lesser base offense

level, the district court’s error in not suppressing Rodriguez-Preciado’s

June 27 statements, as it pertains to sentencing, was objectively harmless.

See United States v. Alvarez, 358 F.3d 1194, 1213 (9th Cir. 2004); see also

United States v. Scheele, 231 F.3d 492, 499-500 & n.4 (9th Cir. 2000). 

16Though none of the Giovannetti line of cases cite to them, the mandatory language contained in the corresponding provisions of the Federal

Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and

the Judicial Code, supports the notion that harmless error may be reviewed

sua sponte. Compare FED. R. CIV. P. 61 (“The court at every stage of the

proceeding must disregard any error or defect in the proceeding which

does not affect the substantial rights of the parties.”), and FED. R. CRIM.

P. 52(a) (“Any error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.”), with 28 U.S.C. § 2111 (“On the

hearing of any appeal or writ of certiorari in any case, the court shall give

judgment after an examination of the record without regard to errors or

defects which do not affect the substantial rights of the parties.”). See generally Chapman v. California, 386 U.S. 18, 21-24 & n.5 (1967) (discussing the background and purpose of these provisions). 

8728 UNITED STATES v. RODRIGUEZ-PRECIADO
Vallejo, tersely held that failure to raise harmless error constitutes waiver, without reaching whether a court could consider

the issue sua sponte. See 237 F.3d at 1026 (“The Government

does not argue that this error was harmless and thus waives

that argument.”);17 see also Calvert v. Wilson, 288 F.3d 823,

835-37 (6th Cir. 2002) (Cole, J., concurring in the judgment)

(citing Vallejo and summarizing the extant harmless error/

waiver case law). 

As the First Circuit has explained, the approach outlined in

Giovannetti is sensible because, “[i]n a case of clearly harmless error it would be a waste of judicial resources to require

a new trial where the result is likely to be the same. In a complex case, it would be equally wasteful of judicial resources

to require the appellate bench to delve independently into a

complex record without the aid of the government’s brief and

the defendant’s responses to it.” Rodriguez Cortes, 949 F.2d

at 543. Put another way, the touchstone of whether courts

should reach harmless error sua sponte is the extent to which

the harmlessness of the error is open to question. 

Here, though the harmlessness is clear for RodriguezPreciado’s sentence, I believe that is unclear as to his conviction, particularly for the third count of the indictment, conspiracy to possess with intent to distribute. A substantial

amount of the evidence introduced at trial concerning the

existence of a conspiracy — and Rodriguez-Preciado’s role

therein — came from Sergeant Romanaggi’s testimony concerning his June 27 interrogation of Rodriguez-Preciado. It is

entirely possible that the jury would still have found

Rodriguez-Preciado guilty without that evidence. The salient

point, however, is that the harmlessness of Romanaggi’s testimony with respect to the conspiracy charge is at the very least

“debatable.” That is enough, under the Giovannetti line of

cases, to bar sua sponte harmless error review.

17In Vallejo, the court concluded that the error was not harmless in any

event. See 237 F.3d at 1026. 

UNITED STATES v. RODRIGUEZ-PRECIADO 8729
* * *

Because I would not reach whether the district court’s

refusal to suppress Rodriguez-Preciado’s June 27 statements

constitutes harmless error as to his conviction, I would reverse

and remand for a new trial. I therefore respectfully dissent

from subsection II.B.3 of the majority’s opinion, and, because

of the above harmless error discussion, from the result its

analysis necessarily compels.

8730 UNITED STATES v. RODRIGUEZ-PRECIADO