UNITED STATES, Appellee 

v. 

Gustavo A. DELAROSA, Aviation Ordnanceman Third Class 

U.S. Navy, Appellant 

No. 08-0390 

Crim. App. No. 200602335 

United States Court of Appeals for the Armed Forces

Argued February 3, 2009 

Decided May 6, 2009 

EFFRON, C.J., delivered the opinion of the Court, in which 

BAKER, STUCKY, and RYAN, JJ., joined. ERDMANN, J., filed a 

dissenting opinion. 

Counsel

For Appellant: Lieutenant Brian D. Korn, JAGC, USN (argued); 

Major Richard D. Belliss, USMC. 

For Appellee: Major Elizabeth A. Harvey, USMC (argued); Brian 

K. Keller, Esq. (on brief); Lieutenant Derek D. Butler, JAGC, 

USN. 

Amicus Curiae: Preston Jones (law student) (argued); Brook A. 

Busbee, Esq. (supervising attorney) (on brief); Mike McCollum, 

Esq. (supervising attorney); for the Southern Methodist 

University, Dedman School of Law. 

Military Judge: Daniel E. O’Toole 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Delarosa, No. 08-0390/NA 

2

Chief Judge EFFRON delivered the opinion of the Court. 

A general court-martial composed of officer and enlisted 

members convicted Appellant, contrary to his pleas, of 

aggravated assault on his infant son, in violation of Article 

128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928 

(2000). The sentence adjudged by the court-martial and approved 

by the convening authority included a bad-conduct discharge, 

confinement for three months, forfeiture of all pay and 

allowances, and reduction to pay grade E-1. The United States 

Navy-Marine Corps Court of Criminal Appeals affirmed. United 

States v. Delarosa, No. NMCCA 200602335, 2008 CCA LEXIS 4, at 

*20, 2008 WL 142115, at *7 (N-M. Ct. Crim. App. Jan. 10, 2008) 

(unpublished). 

The present appeal concerns the ruling of the military 

judge denying Appellant’s motion to suppress his confession to 

local civilian law enforcement officers.1

 For the reasons set 

 

1

 On Appellant’s petition, we granted review of the following 

issue: 

 

WHETHER (1) THE LOWER COURT ERRED IN 

ADOPTING A TEST TO DETERMINE WHETHER 

APPELLANT’S ASSERTION OF HIS RIGHT TO REMAIN 

SILENT WAS SCRUPULOUSLY HONORED THAT DIFFERS 

FROM THE TESTS SET FORTH BY THE UNITED 

STATES SUPREME COURT IN MICHIGAN v. MOSLEY, 

423 U.S. 96 (1975) AND UNITED STATES v. 

WATKINS, 34 M.J. 344 (C.M.A. 1992); AND (2) 

WHETHER THE LOWER COURT ERRED IN HOLDING 

THAT THE MILITARY JUDGE CORRECTLY DENIED THE 

DEFENSE MOTION TO SUPPRESS APPELLANT’S 
United States v. Delarosa, No. 08-0390/NA 

3

forth below, we agree that the military judge properly denied 

the suppression motion, and we affirm Appellant’s conviction.2 

I. BACKGROUND 

A. SELF-INCRIMINATION RIGHTS WARNINGS 

 FOR PERSONS IN CUSTODY 

Prior to initiating interrogation, law enforcement 

officials must provide rights warnings to a person in custody. 

See Miranda v. Arizona, 384 U.S. 436, 445 (1966); United States 

v. Tempia, 16 C.M.A 629, 637, 37 C.M.R. 249, 257 (1967); U.S. 

Const. amend V. Military officials and civilians acting on 

their behalf are required to provide rights warnings prior to 

interrogating a member of the armed forces if that servicemember 

is a suspect, irrespective of custody. Article 31(b), UCMJ, 10 

U.S.C. 831(b) (2000); Military Rule of Evidence (M.R.E.) 

305(b)(1), 305(c). The present appeal involves only the former 

requirement -- rights warnings under Miranda for persons in 

custody. 

When Miranda warnings are required, the person must be 

 

CONFESSION MADE TO THE DETECTIVES AT THE 

NORFOLK, VIRGINIA, POLICE DEPARTMENT. 

 2

 Oral argument in this case was heard at the Dedman School of 

Law, Southern Methodist University, Dallas, Texas, as part of 

the Court’s “Project Outreach.” See United States v. Mahoney, 

58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice was 

developed as part of a public awareness program to demonstrate 

the operation of a federal court of appeals and the military 

justice system.
United States v. Delarosa, No. 08-0390/NA 

4

advised of the right to remain silent, that any statement made 

by the person can be used against that person in a court of law, 

that the person has the right to consult with counsel and have 

counsel present during questioning, and that counsel will be 

appointed if the person cannot afford a lawyer. 348 U.S. at 

444. If a suspect provides an ambiguous statement regarding 

invocation of rights after Miranda warnings have been given, law 

enforcement officials are not obligated to cease interrogation. 

See Davis v. United States, 512 U.S. 452, 461-62 (1994); Medina 

v. Singletary, 59 F.3d 1095, 1101 (11th Cir. 1995); cf. United

States v. Acosta, 363 F.3d 1141, 1152 (11th Cir. 2004) (applying 

Davis when the appellant told the police that he would make a 

statement but refused to sign a rights waiver form). If a 

suspect’s statement is ambiguous, law enforcement officials may 

attempt to clarify the issue of rights invocation, but they are 

not required to do so. Davis, 512 U.S. at 461 (noting that 

although “it will often be good police practice for the 

interviewing officers to clarify” an ambiguous response, the 

Supreme Court “decline[d] to adopt a rule requiring officers to 

ask clarifying questions”). See, e.g., United States v. Brown, 

287 F.3d 965, 972-73 (10th Cir. 2002) (applying Davis to 

ambiguous initial waiver); United States v. Muhammad, 120 F.3d 

688, 698 (7th Cir. 1997) (same). But see United States v. 

Rodriguez, 518 F.3d 1072, 1079-80 (9th Cir. 2008) (viewing Davis
United States v. Delarosa, No. 08-0390/NA 

5

as applicable only in a post-waiver context, and requiring an 

“interrogating officer to clarify any ambiguity before beginning 

general interrogation”). They may continue questioning unless 

the suspect unambiguously invokes his rights, regardless of 

whether law enforcement officials have endeavored to clarify any 

ambiguity. Davis, 512 U.S. at 461-62. 

If the suspect unambiguously invokes his or her rights 

under Miranda, law enforcement officials may not conduct any 

further questioning of the suspect about the offense unless they 

do so in a manner demonstrating that they have “scrupulously 

honored” the suspect’s invocation of rights. Michigan v. 

Mosley, 423 U.S. 96, 104 (1975); cf. Edwards v. Arizona, 451 

U.S. 477, 484-85 (1981) (holding that a suspect who invokes the 

right to counsel could not be subjected to further interrogation 

until counsel has been made available to him, unless the suspect 

himself reinitiated further communication with the police). 

In the present appeal, the parties do not dispute that 

Appellant received the appropriate warnings under Miranda. In 

that context, the issues on appeal concern whether Appellant 

unambiguously invoked his Miranda rights; and, if so, whether 

the law enforcement officials scrupulously honored those rights 

before conducting any further interrogation. 
United States v. Delarosa, No. 08-0390/NA 

6

B. THE SUPPRESSION MOTION 

1. Procedural setting

Appellant lived in an off-base apartment in Norfolk, 

Virginia, with his wife and five-month-old son. On the evening 

of January 20, 2004, paramedics came to the apartment in 

response to an emergency call from Appellant’s wife. They found 

Appellant performing CPR on his son, who was unconscious and not 

breathing. An ambulance brought the child to a civilian 

hospital in a condition of full cardiac arrest. The initial 

medical diagnosis indicated that the son was a victim of child 

abuse in the form of shaken baby syndrome. Early in the morning 

on January 21, the son was transferred to the pediatric 

intensive care unit. On January 22, after doctors determined 

that the condition was irreversible, the child was removed from 

life support and was declared legally dead. Following an 

autopsy conducted by civilian medical officials on January 23, 

the Norfolk medical examiner issued a report describing the 

cause of death as an acute head injury. 

Later that day, civilian law enforcement officials in 

Norfolk opened a homicide investigation, which was conducted 

primarily by Detectives Bynum and Mayer of the Norfolk Police 

Department. During the investigation, Appellant made the 

incriminating statements at issue in the present appeal. See

infra Part I.B.2. Subsequently, Appellant was charged with 
United States v. Delarosa, No. 08-0390/NA 

7

murder under state law, and the case was referred for trial 

before the Juvenile and Domestic Relations Court of the City of 

Norfolk, Criminal Division. At a preliminary hearing, the 

presiding judge suppressed Appellant’s incriminating statements 

on the ground that the officers did not “scrupulously guard[]” 

his Miranda rights by putting Appellant in “the position of 

having to justify the exercise of a constitutional right.” The 

judge then dismissed the charge based on insufficiency of the 

remaining evidence. 

Military officials instituted separate proceedings under 

the UCMJ the following year, leading to the court-martial that 

is the subject of the present appeal. We note that the 

constitutional and statutory limitations on former jeopardy are 

not at issue when, as in the present case, charges are pursued 

in a federal proceeding -- a court-martial -- after dismissal in 

state court. See U.S. Const. amend. V; Article 44, UCMJ, 10 

U.S.C. § 844; Heath v. Alabama, 474 U.S. 82, 89 (1985) (holding 

that the federal and state governments, for purposes of former 

jeopardy, are treated as separate sovereigns, in which criminal 

proceedings by one sovereign do not preclude proceedings by the 

other). 

At the court-martial, the prosecution sought a preliminary 

ruling on the admissibility of Appellant’s confession, and the 

defense responded with a motion to suppress. After the parties 
United States v. Delarosa, No. 08-0390/NA 

8

presented extensive testimony and documentary evidence in a 

preliminary session under Article 39(a), UCMJ, 10 U.S.C. § 

839(a) (2000), the military judge denied Appellant’s motion to 

suppress the confession. At the request of the defense, the 

military judge reconsidered the matter but declined to change 

his ruling. The military judge made detailed findings of fact 

and conclusions of law regarding the actions of the civilian law 

enforcement officials in obtaining incriminating statements from 

Appellant. See infra Part I.B.2. 

At trial, the prosecution included the incriminating 

statements as part of its case-in-chief before the court-martial 

panel. A panel of members convicted Appellant, and the Court of 

Criminal Appeals affirmed. 

On appeal of a motion to suppress incriminating statements, 

we “accept[] the military judge’s findings of historical fact 

unless they are clearly erroneous,” and we review the military 

judge’s conclusions of law de novo. See United States v. 

Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000). In the present appeal, 

neither party challenges the military judge’s findings of fact, 

but they disagree as to the conclusions of law. See infra Part 

III. In that posture, we accept the military judge’s factual 

findings as described in the following section. 

2. Findings of fact by the military judge

The following summarizes the military judge’s findings of 
United States v. Delarosa, No. 08-0390/NA 

9

fact pertinent to the present appeal. 

 a. Appellant’s appearance at the police station

Detective Bynum of the Norfolk Police Department contacted 

Appellant on the afternoon of January 23, 2004 -- the day after 

his son died -- and asked him to come to the Police Operations 

Center to identify his son’s body. That afternoon, Appellant 

drove to the Police Operations Center in his own vehicle. 

Detective Bynum met Appellant in the reception area at about 

3:00 p.m. and escorted him through two sets of locked doors into 

an interview room. Appellant was not placed in handcuffs, nor 

was he told he was under arrest. 

b. Appellant’s stated interest in discussing the incident

 with the detectives

The detectives and Appellant engaged in about forty minutes 

of general conversation before Appellant was presented with the 

body identification form. During this time, Appellant was 

responsive and cooperative. Appellant told the detectives that 

the medical examiner’s office had informed him that the death 

had been determined to be a homicide. Appellant indicated 

several times that he wanted to discuss his son’s death with the 

detectives. He told the detectives that he wanted to “tell you 

what you want to know.” The detectives, however, advised 

Appellant that they would not talk about the homicide until they 

completed the body identification form and advised Appellant of 
United States v. Delarosa, No. 08-0390/NA 

10

his rights. Shortly thereafter, Appellant signed the body 

identification form. 

c. The rights advisement

At about 3:50 p.m., Detective Bynum advised Appellant of 

his Miranda rights using the Norfolk Police Department Legal 

Rights Advice Form. The form consisted of seven items with 

blank space after each item for Appellant’s response. The first 

four items set forth the Miranda rights, with each item 

containing a question asking whether Appellant understood the 

applicable right. The fifth item contained a summary statement 

regarding Appellant’s understanding of the rights warnings. The 

sixth item provided an opportunity to waive the rights, and the 

last item addressed the issue of voluntariness. 

Detective Bynum employed a sequential procedure in 

connection with the form. First, he read each item. Then, he 

asked Appellant to read the item aloud and explain what it meant 

in Appellant’s own words. Finally, he asked Appellant to write 

his response on the form. 

d. Appellant’s response to the rights advisement

The first item on the form concerned the right to remain 

silent. Detective Bynum read the item. Then Appellant read it, 

explained it, and wrote “YES,” indicating that he understood the 

right. 

As Detective Bynum attempted to employ the same procedure 
United States v. Delarosa, No. 08-0390/NA 

11

on the remaining items, Appellant repeatedly interrupted him. 

During these interruptions, Appellant stated a number of times 

that he wanted to talk to the detectives. Detective Bynum 

attempted to slow down the process and complete the form in the 

usual manner. 

Appellant indicated that he understood the rights described 

on the form by writing “YES” after each of the first five items. 

However, after the sixth item –- “I further state that I waive 

these rights and desire to make a statement” -- Appellant wrote 

“NO” as his response. After the seventh item -- “This statement 

is completely free and voluntary on my part without any threat 

or promise from anyone” -- Appellant wrote “N/A” as his 

response. 

At that point, Detective Bynum did not know whether 

Appellant had misunderstood the sixth item or whether Appellant 

wished to invoke the right to remain silent. Both detectives 

were surprised and confused by Appellant’s answer. Attempting 

to clarify the matter, Detective Bynum asked Appellant, “‘Why 

did you say “NO”?’” Appellant responded that he wanted to talk 

to the detectives, but that he also wanted a command 

representative present. Detective Bynum responded that the 

standard policy of the Norfolk Police Department did not allow 

anyone to be present during questioning other than the subject, 

but he noted that Appellant had the right to counsel and pointed 
United States v. Delarosa, No. 08-0390/NA 

12

out the third item on the rights advisement form. Appellant did 

not request counsel, but repeated his request for the presence 

of a command representative. 

Detective Bynum reiterated that the department’s policy 

would not permit the presence of a command representative. He 

then told Appellant that the detectives would leave the room and 

provide Appellant with additional time to review the rights 

advisement form. Detective Bynum advised Appellant to knock on 

the interrogation room door when he came to a decision. 

As the detectives departed, Appellant offered a comment 

about the incident under investigation, stating that his son was 

alone with the babysitter for about two hours the day he was 

rushed to the hospital. The detectives did not respond or 

otherwise engage Appellant in substantive discussion about his 

son’s death. They left the room and closed the door. 

e. The waiver 

At 4:25 p.m., approximately thirty-five minutes after the 

detectives left the interview room, Detective Mayer returned and 

asked if Appellant would be willing to take a polygraph 

examination. When Appellant answered “Yes,” Detective Mayer 

responded that he would make the arrangements. 

Detective Mayer again checked in with Appellant at 6:35 

p.m., asking whether Appellant needed anything. When Appellant 

asked to use the restroom, Mayer escorted him through two 
United States v. Delarosa, No. 08-0390/NA 

13

secured doors to the restroom area. Mayer waited outside while 

Appellant used the restroom. 

Upon exiting the restroom, Appellant asked Detective Mayer 

if he could make a telephone call. Mayer responded that 

Appellant could do so but that he would have to wait a while 

because Mayer was in the middle of something else. In response 

to Appellant’s inquiry as to what the detective was doing, Mayer 

stated that Appellant’s wife was in an interview room preparing 

for a polygraph test. Mayer stated that he would arrange for 

Appellant to use the telephone as soon as he was done with 

Appellant’s wife. 

After learning that his wife was undergoing a polygraph 

examination, Appellant indicated that he wanted to speak with 

the detectives about his son’s death. Detective Mayer responded 

that the detectives could not speak with Appellant because he 

had written “NO” on the rights advisement form. Appellant 

stated that he had been confused about the rights form and that 

he now wanted to waive his rights and take a polygraph 

examination. Mayer told Appellant that he and Detective Bynum 

would have to advise Appellant of his rights using a new rights 

advisement form before being able to speak with Appellant. 

Mayer added that the detectives would return to Appellant’s 

interview room as soon as Appellant’s wife finished her 

polygraph examination. 
United States v. Delarosa, No. 08-0390/NA 

14

At 6:56 p.m., Detective Bynum and Detective Mayer reentered 

Appellant’s interview room. They advised Appellant of his 

Miranda rights using a second rights advisement form. This 

time, Appellant wrote “YES” next to each item on the form, 

including the item indicating that Appellant agreed to waive his 

rights and make a statement to the police. 

At 8:00 p.m., Appellant participated in a polygraph 

examination administered by a third detective, Detective Crank. 

Before answering substantive questions, Appellant read and 

signed a third rights advisement form in which he again waived 

his rights. Appellant also responded verbally that he 

understood his rights and that he consented to take the 

polygraph examination as a matter of his own free will. During 

the pre-polygraph interview, Appellant continued to deny any 

involvement in his son’s death. 

f. Appellant’s incriminating statements

During the post-polygraph interview, Appellant broke down 

crying after Detective Crank acknowledged that Appellant loved 

his son. Appellant proceeded to make several incriminating 

verbal responses to both leading and open-ended questions posed 

by Detective Crank. 

Appellant returned to the interview room at 9:28 p.m. In 

response to questioning from Detective Mayer and Detective Bynum 

during a tape-recorded session, Appellant made additional and 
United States v. Delarosa, No. 08-0390/NA 

15

more detailed incriminating statements. The tape-recorded 

statements were transcribed, and Appellant signed a typed 

statement at 11:58 p.m. 

The incriminating statements included admissions that, on 

the night his son was rushed to the hospital in cardiac arrest, 

Appellant had shaken his son after becoming frustrated when his 

son refused to stop crying and go to sleep. Appellant also 

admitted to shaking his son again a few hours later as Appellant 

tried to wake him up to feed him. 

g. The military judge’s additional findings of fact

After the military judge issued his initial findings of 

fact and denied the motion to suppress, the defense asked the 

military judge to reconsider the matter and permit the accused 

to testify on the suppression motion. See M.R.E. 304(f). The 

military judge granted the motion, and Appellant testified that 

he asked for a lawyer and intended to invoke his Miranda rights 

during the first rights advisement. Appellant also testified 

that, during the time Detective Mayer was escorting Appellant to 

the restroom, Mayer pressured Appellant into waiving his rights 

and Appellant felt he did not have a choice but to agree. 

The military judge issued additional findings of fact in 

which he found that Appellant’s testimony on the suppression 

issue was not credible. The military judge concluded that 

Appellant’s testimony did not require revision of the previously 
United States v. Delarosa, No. 08-0390/NA 

16

adjudicated findings of fact. We note that the parties have not 

challenged the military judge’s findings of fact as clearly 

erroneous, see supra Part B.1., and we have not identified a 

basis for concluding that the findings were clearly erroneous. 

Accordingly, we assess the issues of law based upon the military 

judge’s findings of fact. 

II. DISCUSSION 

At the outset, we consider whether Appellant unambiguously 

invoked his Miranda rights. If Appellant made an unambiguous 

invocation of his rights, law enforcement officials were 

obligated to scrupulously honor his invocation before engaging 

in any further discussion regarding waiver. See Davis, 512 U.S. 

at 459, 461-62. If, however, Appellant did not unambiguously 

invoke his rights, law enforcement officials had “no obligation 

to stop questioning him.” Id. at 462. If Appellant did not 

unambiguously invoke his rights, permissible questioning could 

include clarification of ambiguities. As the Supreme Court has 

stated, “it will often be good police practice for the 

interviewing officers to clarify” an ambiguous response. Id. at 

461 (noting that the Court “decline[d] to adopt a rule requiring 

officers to ask clarifying questions”). See supra Part I.A. 

A. INVOCATION AND WAIVER 

In assessing whether a person provided an unambiguous 
United States v. Delarosa, No. 08-0390/NA 

17

invocation of Miranda rights, the Supreme Court has stated that 

the invocation must be “sufficiently clear[] that a reasonable 

police officer in the circumstances would understand the 

statement to be a request for an attorney” or to remain silent. 

Davis, 512 U.S. at 459. The Supreme Court has addressed without 

resolving the question of whether an invocation “may be 

characterized as ambiguous or equivocal as a result of events 

preceding the request or of nuances inherent in the request 

itself.” Smith v. Illinois, 469 U.S. 91, 99-100 (1984). The 

courts of appeals have considered events immediately preceding, 

as well as concurrent with, the invocation in the course of 

addressing the issue of ambiguity. See United States v. Abela, 

380 F.3d 915, 926 (6th Cir. 2004) (finding it appropriate for a 

reviewing court to look to the surrounding circumstances to 

evaluate the clarity of a suspect’s request for counsel); 

Acosta, 363 F.3d at 1154-55 (holding that the appellant’s rights 

invocation was ambiguous after considering that the appellant 

stated that he was willing to speak to the police while also 

stating that he would not waive his rights); Bui v. DiPaolo, 170 

F.3d 232, 241 (1st Cir. 1999) (holding that the appellant’s 

invocation was ambiguous when the statement that he did not want 

to talk about the reasons for his arrest was preceded by and 

concurrent with a back-and-forth exchange with the police); 

Medina, 59 F.3d at 1101; cf. Rodriguez, 518 F.3d at 1077 
United States v. Delarosa, No. 08-0390/NA 

18

(holding that the appellant’s phrase “I’m good for tonight” 

constituted an ambiguous invocation of his right to silence 

after examining the nuances of the language). 

The Court of Criminal Appeals treated Appellant’s insertion 

of the word “NO” next to the rights-waiver question on the form 

as an ambiguous invocation of rights in the context of the 

surrounding events. The court then stated: “[O]nce the 

appellant made clear that his willingness to make a statement 

was contingent on having a command representative present, the 

ambiguity [surrounding his invocation of rights] was resolved.” 

Delarosa, 2008 CCA LEXIS 4, at *12, 2008 WL 142115, at *4. The 

court next engaged in a detailed examination of whether the 

further actions by the detectives “scrupulously honored” 

Appellant’s invocation of rights under Mosely, 423 U.S. 96. The 

court concluded that the detectives complied with Mosely, and 

held that Appellant’s incriminating statements were admissible. 

Delarosa, 2008 CCA LEXIS 4 at *12-*19, 2008 WL 142115, at *4-*7. 

To the extent that the court below concluded that Appellant 

unambiguously invoked his Miranda rights, we disagree. The 

interaction between Appellant and the detectives during the 

period from the initial rights advisement through Appellant’s 

decision to waive his Miranda rights -- as reflected in the 

findings of fact by the military judge -- underscores the 

ambiguous nature of Appellant’s pre-waiver responses. See supra
United States v. Delarosa, No. 08-0390/NA 

19

Part II.B.2. 

Immediately before the initial rights advisement, Appellant 

indicated several times that he wanted to discuss his son’s 

death with the detectives. Likewise, in the midst of the rights 

advisement, Appellant repeatedly interrupted Detective Bynum, 

stating a number of times that he wanted to talk to the 

detectives. In light of Appellant’s repeated statements 

reflecting an intent to cooperate, Appellant’s “NO” response on 

the rights advisement form was ambiguous. 

Immediately after Appellant wrote “NO” in response to the 

question of whether he would waive his rights, Detective Bynum 

attempted to clarify Appellant’s response. Appellant said he 

would talk to the detectives with a command representative 

present, a request that the detectives declined to grant. When 

the detectives said that they would leave the room to give him 

additional time to consider the issue of waiver, Appellant 

highlighted the ambiguity of his request for a command 

representative by initiating a conversation containing a 

potentially exculpatory comment about babysitting arrangements 

for his son on the date of the injury. Under these 

circumstances, the detectives reasonably treated Appellant’s 

responses as ambiguous.3

 

 

3 We note that Appellant later stated that he had written “NO” on 

the first form because he was confused about the form and he now 
United States v. Delarosa, No. 08-0390/NA 

20

Throughout the process, the detectives continued to pursue 

clarification of his intent until they obtained an affirmative 

waiver of his Miranda rights. See Davis, 512 U.S. at 461-62. 

Considering the circumstances prior to and during Appellant’s 

writing “NO” on the rights advisement form, it was reasonable 

for the detectives to view Appellant’s actions as a whole as 

ambiguous with respect to invocation of the right to remain 

silent. See Medina, 59 F.3d at 1104-05 (declining to adopt a 

per se rule that a suspect’s response of “No” when asked if he 

wants to talk to a police officer means the officer cannot go 

forward with questioning). Likewise, when Appellant initiated a 

conversation containing a potentially exculpatory comment 

immediately after requesting the presence of a command 

representative, the detectives reasonably treated his actions as 

ambiguous with respect to invocation of the right to remain 

silent. Under these circumstances, the detectives were not 

required to cease questioning Appellant, and they were likewise 

free to resume questioning at any time. Davis, 512 U.S. at 461-

62; Medina, 59 F.3d at 1105. 

 

wanted to waive his rights. Although Appellant’s subsequent 

statements form no part of our analysis on the issue of 

ambiguity, see Smith, 469 U.S. at 100, we note that Appellant’s 

subsequent statements confirm our conclusion that Appellant’s 

responses were ambiguous. 
United States v. Delarosa, No. 08-0390/NA 

21

B. VOLUNTARINESS 

Although Appellant focuses primarily on the issue of 

waiver, he also offers a brief challenge to the voluntariness of 

his admissions. See M.R.E. 304(c)(3). After reviewing the 

totality of the circumstances, we also find that Appellant’s 

confession was “voluntarily, knowingly, and intelligently” 

given. See Miranda, 384 U.S. at 444. Appellant was advised of 

his Fifth Amendment rights from a standardized legal rights 

advisement form on three separate occasions during the course of 

his interrogation. Although Appellant was provided with 

repeated opportunities to invoke his Miranda rights, he never 

unambiguously invoked his right to counsel or his right to 

remain silent. The atmosphere of the interrogation was not 

laced with coercion or intimidation. The military judge 

reviewed the videotapes of the pre-polygraph and post-polygraph 

interviews and found that the detective’s tone was never 

verbally abusive or threatening. Appellant acknowledged that no 

one had threatened him into making a statement and that it was a 

product of his own free will. The military judge did not err in 

denying Appellant’s motion to suppress the confession. 

III. DECISION 

 The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed. 
United States v. Delarosa, No. 08-0390/NA 

 ERDMANN, Judge (dissenting): 

I respectfully disagree with the majority’s conclusion that 

Delarosa ambiguously asserted his right to remain silent. I 

further conclude that, under the circumstances of this case, 

Delarosa’s assertion of his right to remain silent was not 

scrupulously honored. Therefore, I dissent. 

The initial difference between my position and the 

majority’s centers on whether Delarosa unambiguously invoked his 

right to remain silent. I agree with the United States NavyMarine Corps Court of Criminal Appeals’ conclusion on this 

question: “[O]nce [Delarosa] made clear that his willingness to 

make a statement was contingent on having a command 

representative present, the ambiguity was resolved.” United 

States v. Delarosa, No. NMCCA 200602335, 2008 CCA LEXIS 4, at 

*12, 2008 WL 142115, at *4 (N-M. Ct. Crim. App. Jan. 10, 2008) 

(unpublished). This conclusion of law reflects appropriate 

consideration of the findings of fact, which are not clearly 

erroneous, and is rationally derived from all the circumstances. 

There is no reason to depart from that conclusion and find 

ambiguity where none exists. 

Delarosa’s written response as to whether he would waive 

his rights and make a statement was clear enough on its face.1

 

 

1 It could be reasonably argued that Delarosa clearly and 

unambiguously asserted his right to remain silent when, after 
United States v. Delarosa, No. 08-0390/NA 

2

However, granting that Delarosa’s prior conduct may have 

indicated a willingness to talk and perhaps created some 

uncertainty about the meaning of his invocation, the detectives 

immediately clarified any apparent confusion. Upon determining 

that Delarosa would not waive his right to remain silent unless 

a command representative was present, and since police policy 

would not allow that presence, the detectives had the necessary 

clarification and Delarosa’s invocation was unambiguous. 

Once the uncertainty about Delarosa’s apparent change of 

heart was resolved, any law enforcement actions designed or 

reasonably likely to overcome Delarosa’s resolve to remain 

silent were impermissible: “If the individual indicates in any 

manner, at any time prior to or during questioning, that he 

wishes to remain silent, the interrogation must cease. At this 

 

being advised of his rights and indicating an understanding of 

them, Delarosa wrote “NO” in response to a written question 

asking whether he wished to waive his rights and make a 

statement. See United States v. Rambo, 365 F.3d 906, 910 (10th 

Cir. 2004) (“There is no nuance nor context to vary the 

unequivocal meaning of Rambo’s single word, monosyllabic 

response. His response, ‘No,’ could only mean an invocation of 

the right to remain silent.”). The clarity of this invocation 

is enhanced by the fact that Delarosa wrote “N/A” in the next 

blank on the rights warning form which called for an affirmation 

of the voluntariness of any statement. After a rights warning, 

an informed decision to remain silent arguably vitiates any 

previous, uninformed reflections of willingness to talk, and 

even asking the suspect “why” could be viewed as a failure to 

scrupulously honor that informed invocation of the right to 

remain silent. But see Medina v. Singletary, 59 F.3d 1095, 1105 

(11th Cir. 1995). 
United States v. Delarosa, No. 08-0390/NA 

3

point he has shown that he intends to exercise his Fifth 

Amendment privilege.” Miranda v. Arizona, 384 U.S. 436, 473-74 

(1966). 

If a reasonable police officer in the circumstances would 

understand that statement to be an invocation of the right to 

remain silent, then that invocation is not ambiguous. Burket v. 

Angelone, 208 F.3d 172, 200 (4th Cir. 2000) (citing United 

States v. Davis, 512 U.S. 452, 459 (1994)). Here, the 

detectives themselves recognized that Delarosa invoked his right 

to remain silent. Detective Mayer testified that “[Delarosa] 

had put ‘No’ to question number 6, so we couldn’t talk to him.” 

Similarly, when Delarosa learned his wife was taking a polygraph 

exam and indicated he wished to make a statement, “Detective 

Mayer responded that since the accused wrote ‘NO’ on the rights 

waiver form they would have to re-advise him of his rights.” 

These statements reflect that Detective Mayer understood that 

Delarosa had unambiguously invoked his right to remain silent. 

Under these circumstances I agree with the police officer at the 

scene and the lower court that Delarosa unambiguously invoked 

his right to remain silent when he indicated he was unwilling to 

talk without a command representative present. 

The invocation of the right to remain silent does not, 

however, impose a permanent bar against further questioning. 

Weeks v. Angelone, 176 F.3d 249, 267 (4th Cir. 1999), and 
United States v. Delarosa, No. 08-0390/NA 

4

Vujosevic v. Rafferty, 844 F.2d 1023, 1028 (3d Cir. 1988) (both 

citing Michigan v. Mosley, 423 U.S. 96, 102-03 (1975)). The 

admissibility of any subsequent statements depends upon an 

analysis as to whether the law enforcement officials involved 

“scrupulously honored” the invocation of the right to remain 

silent. Mosley, 423 U.S. at 103-04. “[T]he touchstone is 

whether a ‘review of the circumstances’ leading up to the 

suspect’s confession reveals that his ‘right to cut off 

questioning was fully respected.’” Weeks, 176 F.3d at 268 

(quoting Mosley, 423 U.S. at 104). 

From the outset, the Norfolk police detectives seemed 

determined to get Delarosa to speak. They admittedly used a 

ruse to get Delarosa to the police station and “Detective Bynum 

admitted that he would have done anything he legally could have 

done to keep the accused at the [Police Operations Center], if 

he had asked to leave.” At no point did the detectives inform 

Delarosa that he was free to go. Rather, they expressed an 

intention to keep Delarosa at the police station and they 

succeeded in doing just that despite lacking probable cause to 

arrest Delarosa. 

After Delarosa invoked his right to remain silent, the 

detectives did not cease their efforts to get Delarosa to talk. 

Detective Bynum immediately asked Delarosa, “‘Why did you say 

“No”?’” Delarosa explained that he wanted a representative from 
United States v. Delarosa, No. 08-0390/NA 

5

his command present. As the detectives left the interrogation 

room, Bynum told Delarosa to “consider” his decision, which 

under the circumstances could only mean to “reconsider,” and to 

knock on the door when he decided what he wanted to do. The 

door in question was the exit to a small, spartan interrogation 

room where Delarosa sat isolated. A reasonable man, having been 

informed of his custodial interrogation rights and then told to 

knock on the only available exit after reconsidering his 

previous election to remain silent would conclude he was not 

free to leave unless he changed his mind. 

Nonetheless, the detectives did not wait for Delarosa to 

make up his own mind. After about thirty-five minutes Detective 

Mayer opened the door and asked if Delarosa was willing to take 

a polygraph exam. Although such a question in and of itself may 

not be an interrogation, see Rhode Island v. Innis, 446 U.S. 

291, 308 (1980) (Stevens, J., dissenting), the question imparts 

a desire to have the suspect talk about the matter under 

investigation. Having kept Delarosa isolated after he invoked 

his right to remain silent and with no change in circumstance, 

Norfolk detectives directly asked Delarosa to make a statement 

via a polygraph exam without any reference to his rights or his 

prior invocation of the right to remain silent. While this 

tactic certainly did not scrupulously honor Delarosa’s 

invocation of the right to remain silent, it was effective. 
United States v. Delarosa, No. 08-0390/NA 

6

Delarosa abandoned his resolve to remain silent and agreed to 

take a polygraph exam, but was again left alone in the 

interrogation room while the detectives picked up his wife for 

questioning. 

For approximately the next two hours, Delarosa remained 

isolated in the interrogation room. Detective Mayer then asked 

if Delarosa needed anything and Delarosa indicated he wished to 

use the bathroom. Mayer escorted Delarosa to the bathroom and 

remained outside while Delarosa was in the bathroom. After he 

exited the bathroom, Delarosa asked to use the telephone and 

Mayer responded that it would be a while because Mayer was busy. 

When Delarosa asked what was going on, Mayer responded that 

Delarosa’s wife was in an interview room preparing for a 

polygraph exam and that Delarosa could use the phone after the 

polygraph exam was complete. Delarosa expressed some surprise 

that his wife was at the police station and asked to talk to 

with her. He was told that he could not see her until after her 

polygraph exam. At this point Delarosa, who had already 

abandoned his resolve to remain silent when he agreed to a 

polygraph exam, again indicated that he wanted to talk to the 

detectives. Mayer responded that he would have to re-advise 

Delarosa of his rights. 

The circumstances of Delarosa’s case stand in contrast to 

those of Mosley and United States v. Watkins, 34 M.J. 344 
United States v. Delarosa, No. 08-0390/NA 

7

(C.M.A. 1992), where officers were found to have honored a 

suspect’s invocation of rights. In Mosley the Supreme Court 

found it significant that: (1) after Mosley invoked his right 

to remain silent, officers ceased questioning right away; (2) a 

significant period of time elapsed before questioning resumed; 

(3) the officers informed Mosley of his rights a second time; 

and (4) the later questioning was about a distinctly different 

offense. 423 U.S. at 106-07. In Watkins this court found the 

following factors significant with respect to whether Watkins’ 

invocation of the right to remain silent had been honored: (1) 

agents gathered additional evidence and sought to interview 

Watkins two and one-half hours after he initially invoked his 

right to remain silent; (2) Watkins was reminded of the earlier 

rights warning; (3) the second interview was at Watkins’ 

quarters and not in the “coercive environment arising from being 

in custody at the police station”; and (4) after Watkins 

requested counsel the interview stopped, but Watkins himself 

initiated further conversation. 34 M.J. at 347. 

Contrast Mosley and Watkins with the manner in which the 

Norfolk police treated Delarosa’s invocation of the right to 

remain silent. When Delarosa invoked his right, he was first 

questioned as to why he was invoking it. Once it was clarified 

that he was invoking his right to remain silent, he was told to 

“consider what he would like to do.” Delarosa was kept in an 
United States v. Delarosa, No. 08-0390/NA 

8

eight-by-twelve-foot interrogation room at the police station 

despite the absence of probable cause to arrest him and was told 

to knock on the door only after he had considered his decision 

to remain silent. Thirty-five minutes later the same officers 

in the same location once again approached Delarosa and asked if 

he would take a polygraph exam with no mention of his rights or 

his prior invocation of the right to remain silent. Although 

Delarosa agreed to take a polygraph exam at that time, he was 

left in isolation for another two hours. After discovering that 

the police were preparing to administer a polygraph exam to his 

wife, Delarosa once again abandoned his resolve and informed the 

detectives that he wanted to waive his rights and talk with 

them. 

These circumstances eroded any resolve Delarosa had to 

remain silent and that erosion was the product of the conduct of 

the Norfolk detectives. I therefore conclude that Delarosa 

unambiguously invoked his constitutional right to remain silent 

and that the Norfolk detectives did not scrupulously honor that 

invocation. Delarosa’s ultimate waiver of the right to remain 

silent and his written confession were not the product of a free 

and voluntary election. I would reverse the decision of the 

United States Navy-Marine Corps Court of Criminal Appeals, set 

aside the findings and sentence, and authorize a rehearing.