UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. MICHAEL ANTHONY McCARTHY, Defendant–Appellant. No. 09-2259 (D.C. No. 2:08-CR-02665-RB-1) (D. N.M.)

ORDER AND JUDGMENT *

Before KELLY , McWILLIAMS , and LUCERO , Circuit Judges.

Michael Anthony McCarthy appeals the distri ct court’s denial of his motions to suppress statements that he made during a police interrogati on. Because law enforcement officers continued to questio n McCarthy after he unequivoc ally invoked his right to remain silent, we conclude that the statements must be suppressed. Exercising jurisdiction under 28 U.S. C. § 1291, we reverse.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. This court generally disfavors the citation of orders and judgments; nevertheless , an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 16, 2010

Elisabeth A. Shumaker Clerk of Court2 I In the early morning hours of August 15 , 2008, McCarthy stopped his semitrailer at a New Mexico Motor Transportation De partment inspection station. Officers inspecting the cargo inside found nearly 300 kilograms of marijuana. McCarthy was taken into custody and handcuffed to a bench in side the station. Sergeant Robert Barrera, the investigating officer, then read McCart hy his rights pursuant to Miranda v. Arizona , 384 U.S. 436 (1966). Approximately two hours later, Border Operations Task Force Agents William Chadborn and Corey Watkins arrived at the s cene. Barrera informed both agents that McCarthy had been read his Miranda rights. Watkins and Ch adborn awoke a sleeping McCarthy, led him into an office, and bega n questioning him. During the interview, which was recorded, the follo wing exchange took place: AGENT CHADBORN: Alright . . . uh . . . Just wanted to let you know that . . . uh . . . Did you invoke your rights, or did you tell them that you didn’t want to talk to anybody or that you wa nted an attorney present or anything like that? MR. McCARTHY: Unintelligible. AGENT CHADBORN: Okay. I, I, I ca n’t . . . I’m having a hard time understanding you. MR. McCARTHY: I said, I don’t want any . . . I don’t want nothing to say to anyone. AGENT CHADBORN: You don’t have anything to say to anybody?3 MR. McCARTHY: No. AGENT CHADBORN: Okay. Did, did . . . when they read you your rights

. . . MR. McCARTHY: What rights? AGENT CHADBORN: Did, did they read you your Miranda warnings? MR. McCARTHY: What rights do I have? AGENT CHADBORN: Okay. We’ll get through that right now. Chadborn began to re-read McCarthy his Miranda rights, but was interrupted. Watkins, Chadborn, and McCart hy then discussed possible c onsequences of cooperating and refusing to cooperate with the investig ation. When McCarthy attempted to speak about the details of his case, the agents repe atedly told him they could not discuss these matters unless McCarthy signed a form waiving his Miranda rights. Around six a.m., McCarthy signed this form and proceeded to make incriminating statements. 1 He was then transported to a Drug Enforcement Agen cy office for further processing. A grand jury indicted McCarthy on on e count of possession with intent to distribute 100 kilograms or more of marijuan a in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2, and one co unt of conspiracy to possess with intent to distribute 100 kilograms

1 The facts as described by the dissent woul d have it appear as if an insignificant amount of time passed between Chadborn’s initial attempt to re-read McCarthy his Miranda rights and McCarthy’s signing of the waiver form. In fact over thirty minutes passed, during which time McCarthy as ked the agents at least twice to be put in jail. It is also worth noting that both Chadborn and Wa tkins already knew that McCarthy had been Mirandized before they began questioning him.4 or more of marijuana in violation of 21 U. S.C. §§ 841 and 846. McCarthy filed three motions to suppress his stat ements to law enforcement, arguing that Chadborn and

Watkins violated his Miranda rights. 2 The district court denied these motions. Although it found that “ordinary people and reasonable law enforcement officials would understand a clear articulation of the phrase ‘I don’t want nothing to say to an yone’ as an invocation of the right to remain silent ,” the court held that McCart hy’s articulation of this phrase was not clear and his subsequent response, “No,” to the question, “You don’t have anything to say to anybody?” was “somewhat ambiguous.” As a result, it concluded that McCarthy did not clearly and unambiguously in voke his right to re main silent and his post-waiver inculpatory statemen ts were therefore admissible. After his motions were denied, McCarthy entered into a plea agreement reserving the right to appeal the supp ression ruling. The court a ccepted the plea and sentenced McCarthy to twenty-four months’ impr isonment. McCarthy timely appealed.

II In reviewing the denial of a motion to supp ress, we view the evidence in the light most favorable to the government and accept the district court’s factual findings unless they are clearly erroneous. See United States v. Glover , 104 F.3d 1570, 1576 (10th Cir. 1997). We review legal questions, incl uding the issue of whether a defendant unambiguously asserted his right to remain silent, de novo. Cf. United States v. March ,

2 These motions were virtually identical in content.5 999 F.2d 456, 459 (10th Cir. 1993).

Under Miranda , an interrogation must immediat ely cease when an “individual indicates in any manner, at any time prior to or during questioning, that he wishes to

remain silent.” 384 U.S. at 473-74. 3 Statements elicited by police after a defendant invokes this right are inadmissible. See Michigan v. Mosley , 423 U.S. 96, 103-04 (1975). To come within the ambit of this rule, however, a suspect’s invocation of his right to remain silent must be “clear and unambiguous.” United States v. Rambo , 365 F.3d 906, 910 (10th Cir. 2004). 4

In Rambo , we held that a defendant’s response of “No,” to the question, “Do you

want to talk to me about this stuff?” c onstituted a clear and unam biguous invocation of his right to remain silent. 365 F.3d at 910. We reasoned that “[t]here is no nuance nor context to vary the unequivocal meaning of [the defendant’s] single word, monosyllabic response. His response, ‘No ,’ could only mean an invocati on of his right to remain

3 The government appears to argue th at McCarthy was not under interrogation when he made his initial statements. Even if this were true, the protections of Miranda continue to apply because custodial in terrogation was undoubtedly imminent. See Rambo , 365 F.3d at 909 (“For the protections of Miranda to apply, custodial interrogation must be imminent or presen tly occurring.” (citation omitted)).

4 The Supreme Court recently reaffirmed th is standard in Be rghuis v. Thompkins , 560 U.S. ____, 2010 WL 21607 84 (June 1, 2010). Thompkins held that silence does not invoke the right to remain silent; instead, a suspect must “unambiguously” invoke his Miranda rights. 2010 WL 2160784 at *8. The Court noted that Thompkins “would have voiced his right to cut off questioning” had he said “that he wanted to remain silent or that he did not want to talk to the police.” Id. at *9 (quotation omitted). Because Thompkins merely revivifies our existing preceden t, it does not affect our reasoning in this case.6 silent.” Id. The same is true here. McCarthy told Ch adborn that he did not “want nothing to say to anyone.” Chadborn then clarified, “You don’t have anything to say to anybody?” McCarthy responded, “No.” Like the court in Rambo , we discern no nuance or ambiguity in this exchange. In short, no means no. If McCarthy had not already invoked his right to remain silent by stating that he did not “want nothing to say to anyone,” he clearly and unambiguously did so in response to Chadborn’s subsequent question.

Because Chadborn and Watkin s failed to “scrupulously h onor[]” McCarthy’s request to cut off questioning, his post-invocation st atements must be suppressed. See Mosley , 423

U.S. at 103. 5 The government argues that McCarthy’s response was ambiguous because he was

difficult to understand. Howe ver, McCarthy’s answer, “No,” was plain regardless of his heavy accent or tendency to mumble. See Rambo , 365 F.3d at 910 (“Although the context and nuances of a request to end qu estioning can create ambiguity, they cannot overcome a clear expression of the desire to remain silent.”). The government also contends that McCarthy’s “no” response was ambiguous because Chadborn posed his question in the negative. We disagree. A “reasonable police officer in the

5 Because the government does not allege that the agents lawfully reinitiated questioning after McCarthy invoked his right to remain silent, we need not apply Mosley ’s four-factor test. See id. at 104-05; see also United States v. Alexander , 447 F.3d 1290, 1294 (10th Cir. 1996).7 circumstances” presented could not have mi sinterpreted McCarthy’s response. See

United States v. Nelson , 450 F.3d 1201, 1212 (10th Cir. 2006). Nor can the government rely on McCarthy’s post-invocatio n conduct. “[A]n accused’ s postrequest responses to further interrogation may not be used to cas t retrospective doubt on the clarity of the initial request itself.” Smith v. Illinois , 469 U.S. 91, 100 (198 4) (emphasis omitted). Because McCarthy clearly invoked his right to remain silent before the agents elicited incriminating statements, the district court erred in denying his motions to suppress.

III For the foregoing reasons, we REVERSE the denial of McCarthy’s motions to suppress and REMAND for further proceedings.

Entered for the Court

Carlos F. Lucero Circuit JudgeUnited States v. McCarthy , 09-2259 McWILLIAMS, J. dissents. At the outset of my dissent, I would note that when the inspecto r at the check point

read the defendant his Miranda rights, the defendant neither invoked nor waived his right to remain silent. I also agr ee that after Agent Ch adborn arrived, the defendant said, in essence, that he did not want to talk to “a nyone about anything,” which is a rather “clear and unambiguous” invocation of his Miranda right to remain silent. And that immediately thereafter the agent did inquire of the defendan t “when they read you your rights...,” at which point the defendant interrupted and said “what right” and “what rights do I have?” It was in that setting that the agent then pro ceeded to re-read the defendant

his Miranda rights, after retrieving the defendant’ s glasses from his truck, the defendant apparently wanting to read the Miranda rights as the agent read them. Two times during the reading, the defendant asked if they could talk about the “details of his case” and the agent said they could not. At the conclusion of this re-re ading the defendant then signed

a written waiver of his Miranda rights. Certainly, re ading to a detainee his Miranda rights does not in itself violate his right to remain silent. Accordin gly, I would affirm.