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United States v. Portillo-Rivera

United States District Court, D. Arizona

December 2, 2015

United States of America, Plaintiff,
v.
Marcelino Portillo-Rivera, Defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, and ORDER

Neil V. Wake United States District Judge

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.

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 Portillo-Rivera. 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.

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 ...


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