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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Marcelino Portillo-Rivera, 

Defendant. 

No. CR-15-01183-PHX-NVW

FINDINGS OF FACT, 

CONCLUSIONS OF LAW, and 

ORDER 

Before the Court is Defendant’s Motion to Suppress Defendant’s Statements for 

Miranda Violation and Lack of Voluntariness (Doc. 17) and accompanying briefs. Based 

on the following findings of fact and conclusions of law, the motion will be denied. 

I. BACKGROUND 

The following facts are undisputed. On September 16, 2015, United States Border 

Patrol agents encountered Marcelino Portillo-Rivera approximately fifteen miles south of 

Eloy, Arizona. They determined he was in the United States illegally and detained him. 

They searched the area and found a loaded shotgun and ammunition. Portillo-Rivera said 

the shotgun was not his and that it belonged to his friends. The agents read him his 

Miranda rights and drove him to a Border Patrol station. 

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At the station, Portillo-Rivera was advised of his Miranda rights again. He signed 

a waiver of these rights (“the Miranda waiver”) and asked a question about his attorney. 

An agent filed a follow-up report (“the Report”) stating Portillo-Rivera “did not agree to 

answer questions and give a statement.” Later, the agent filed an amended report stating 

Portillo-Rivera “did agree to answer questions and give a statement.” 

After Portillo-Rivera signed the Miranda waiver, three agents jointly interviewed 

him. The interview was video recorded. At the beginning of the interview, the agents 

reviewed the Miranda waiver with Portillo-Rivera. He asked another question about his 

attorney, and an agent answered. Portillo-Rivera then admitted the shotgun was his and 

that he hid it when he saw agents approaching. He also signed a form allowing the agents 

to search his cell phone (“the Consent form”). The subsequent search revealed 

photographs of the shotgun. Now he is charged with being an alien in possession of a 

firearm in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). 

Portillo-Rivera moves to suppress his statements given during interrogation and 

any evidence resulting therefrom. (Doc. 17 at 1.) He claims (i) he invoked his right to 

counsel during the interview, which prohibited further questioning under Edwards v. 

Arizona, 451 U.S. 477 (1981); (ii) the agents failed to clarify his request for counsel as 

required under Davis v. United States, 512 U.S. 452 (1994); and (iii) the agents used a 

two-step interrogation technique in violation of Missouri v. Seibert, 542 U.S. 600 (2004). 

(Id. at 1-2, 5-6.) 

On November 24, 2015, an evidentiary hearing was held. Portillo-Rivera was 

represented by counsel. The Court heard testimony from Border Patrol agents who 

detained and interviewed Portillo-Rivera, the agent who filed the Report, and PortilloRivera. The Miranda waiver, the Consent form, and a transcript and recording of the 

interview were admitted in evidence. The Court took the matter under advisement and 

now makes the following findings of fact and conclusions of law. 

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II. FINDINGS OF FACT 

1. Portillo-Rivera understood his Miranda rights upon hearing them read by a 

Border Patrol agent before arriving at the station. 

2. Portillo-Rivera understood his Miranda rights upon reading the Miranda

waiver at the station. 

3. Portillo-Rivera’s first signature on the Miranda waiver attests that he 

understood his Miranda rights. 

4. Portillo-Rivera’s second signature on the Miranda waiver attests that he 

knowingly and intelligently waived his Miranda rights. 

5. The Report’s initial statement that Portillo-Rivera “did not agree to answer 

questions and give a statement” was a typographical error caused by 

checking the wrong box on a computer screen. 

6. Before the recorded interview, Portillo-Rivera asked whether he would still 

be able to have an attorney during trial if he talked with the Border Patrol 

agents. An agent answered yes. 

7. At the beginning of the interview, Portillo-Rivera was asked whether he 

understood his Miranda rights. He nodded yes and said “Mm-hm.”1

8. Portillo-Rivera was also asked whether he was willing to talk without an 

attorney. He nodded yes. 

9. Portillo-Rivera was also asked whether he had any questions about his 

rights. He said: “I asked [an agent] why he was having me sign [the 

Miranda waiver] if I have an attorney there since I have court on the 

fourth.” He reiterated: “[I]f I signed [the Miranda waiver] would I still 

have the right to talk to my attorney who... who I have in court.” 

 1

 Although the interview was conducted in Spanish, the transcript has an English 

translation. Direct quotations are from the transcript. 

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10. In response to these questions, an agent said: “Yes. Like at any time if you 

don’t want to... like answer any questions you can say that I don’t want to 

talk anymore, I want my attorney.” 

11. Portillo-Rivera did not say anything else about an attorney. 

12. Portillo-Rivera did not unambiguously request an attorney. 

13. The agents did not deliberately interrogate Portillo-Rivera before giving a 

Miranda warning. 

14. Portillo-Rivera’s testimony at the hearing contained multiple contradictions 

and was not credible. To the extent he claimed something beyond what is 

otherwise demonstrated in the record, the Court is not persuaded. 

III. CONCLUSIONS OF LAW 

1. Portillo-Rivera did not invoke the right to counsel with the clarity necessary 

to prohibit further questioning. Davis, 512 U.S. at 459 (“[I]f a suspect 

makes a reference to an attorney that is ambiguous or equivocal . . . , our 

precedents do not require the cessation of questioning.”). 

2. The agents were not obliged to clarify Portillo-Rivera’s questions about 

counsel. Davis, 512 U.S. at 461 (“[W]hen a suspect makes an ambiguous 

or equivocal statement it will often be good police practice for the 

interviewing officers to clarify whether or not he actually wants an 

attorney. . . . But we decline to adopt a rule requiring officers to ask 

clarifying questions.”). 

3. The agents did not use an unlawful two-step interrogation process. See

Seibert, 542 U.S. at 611 (plurality opinion) (addressing “technique of 

interrogating in successive, unwarned and warned phases”); Seibert, 542 

U.S. at 622 (Kennedy, J., concurring) (limiting the holding to “deliberate” 

uses of this technique). 

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IT IS THEREFORE ORDERED that Defendant’s Motion to Suppress Defendant’s 

Statements for Miranda Violation and Lack of Voluntariness (Doc. 17) is denied. 

 Dated this 2nd day of December, 2015. 

Neil V. Wake

United States District Judge

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