STATE OF IOWA, Plaintiff - Appellant, vs. LUIS FERNANDO ORTIZ, Defendant - Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-466 / 07-1707
Filed November 13, 2008
STATE OF IOWA,
Plaintiff-Appellant,
vs.
LUIS FERNANDO ORTIZ,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Gary E. Wenell,
Judge.
The State was granted discretionary review of the district court’s grant of
the defendant’s motion to suppress statements he made during an interview with
law enforcement officers. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Jean C. Pettinger and Mary Tabor,
Assistant Attorneys General, Patrick Jennings, County Attorney, and Jill
Pitsenbarger, Assistant County Attorney, for appellant.
Shelley Goff, Ruston, Louisana, for appellee.
Heard by Vogel, P.J., and Mahan and Miller, JJ.
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MILLER, J.
The State was granted discretionary review of the district court’s grant of
the defendant’s motion to suppress statements he made during an interview with
law enforcement officers. We reverse and remand.
I.
BACKGROUND FACTS AND PROCEEDINGS.
In July 2006, the Sioux City Police Department received a report of
improper touching between the defendant, Luis Fernando Ortiz, and a young girl.
Because Ortiz’s address was unknown, Detective Ryan Bertrand asked the
child’s mother to arrange for Ortiz to come to her home, allegedly for the purpose
of performing additional home remodeling and repairs. On the date Ortiz was set
to arrive at her house, Detective Bertrand and Special Agent Ricardo Rocha of
the federal Immigration and Customs Enforcement Agency went to the location in
an unmarked car to attempt to speak with Ortiz.
Bertrand testified at the
suppression hearing he had been aware Ortiz spoke little or no English and so
had asked Rocha to a come with him to interpret. He further stated he believed
he had attempted to contact a translation service, as well as a Sioux City police
officer who spoke Spanish, prior to contacting Rocha, but neither was available
to accompany him to the house.
Ortiz arrived at the house at approximately 10:20 a.m. and Bertrand spoke
to him outside near the street. Bertrand identified himself as a police officer,
asked Ortiz his name, and asked him for identification, which Ortiz presented to
Bertrand.
Detective Bertrand then asked Ortiz if he would be willing to
accompany him to the police station for an interview. Special Agent Rocha, who
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is fluent in Spanish, interpreted the conversation between Bertrand and Ortiz
because Ortiz demonstrated he spoke only a small amount of English. Ortiz
agreed without any reluctance to go with Bertrand, saying, “Okay, no problem.”
Rocha testified he told Ortiz in Spanish that he only needed to go if he was
willing, he was not under arrest, and to his knowledge Ortiz never was told he
was under arrest. Both officers were in plain clothes, they did not draw their
weapons, although it is clear from the record that Bertrand’s weapon and badge
were visible during the discussion with Ortiz, and they did not handcuff Ortiz.
Agent Rocha was unable to accompany Detective Bertrand to the police
station and was dropped off at his office. Rocha testified that while he was in the
car there was no conversation regarding the alleged crime or the investigation.
Bertrand agreed there was no conversation with Ortiz regarding the investigation
or Ortiz’s alleged criminal activities during the car ride to the station. Bertrand did
testify he knows a little Spanish and Ortiz knew a little English and thus they may
have engaged in some small talk during the car ride.
At the police station, Bertrand took Ortiz into the building through either
the locked back door or the unlocked front door that is open to the public, he is
uncertain which. He then took Ortiz up to a second-floor interview room by way
of an elevator that requires a key card for access to go up unless the elevator
arrives at the first floor at the time needed. However, no keys or key cards are
required to go down on the elevator or to exit the building.
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Ortiz was taken to the interview room, which is equipped for audio and
video recording, and was given a can of soda. The entirety of the interview was
recorded and received into evidence at the suppression hearing.
At the start of the interview Detective Bertrand gave Ortiz a “Waiver of
Rights” form written in Spanish and asked him to read it.
Officer Salvador
Sanchez of the Sioux City Police Department, who is fluent in Spanish, became
involved in order to interpret during the interview. When Sanchez first entered
the interview room he asked Ortiz if he could read “them,” clearly referring to the
waiver of rights form Bertrand had given him. Ortiz responded in the affirmative.
Sanchez then left the room for a brief period. While he was gone Ortiz read and
signed the waiver of rights form. After he signed, Bertrand asked Ortiz “Do you
understand your rights?” Ortiz replied, “But what are my rights?” Based on
Ortiz’s question, Bertrand waited for Sanchez to return to further assist by
translating. When Sanchez returned he asked Ortiz, “Do you understand what
you read?” Ortiz responded, “He is telling me the rights, but what are they, what
are they?”
Officer Sanchez then began to read the waiver of rights form to Ortiz in
Spanish. However, he stopped after only reading a short portion and instead
read Ortiz the Miranda advisory card used by the federal Drug Enforcement
Administration. Sanchez is deputized with that agency and works on a joint drug
task force. Sanchez testified he used the advisory card because he is more
comfortable with the way the federal form sets forth the Miranda warnings.
Officer Sanchez then asked Ortiz if he understood these rights and wanted to
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answer questions. Ortiz responded that he understood and was willing to answer
questions.
During the interview that followed, Detective Bertrand and Ortiz conversed
in a relaxed manner for about forty-five minutes to an hour. At several points
Ortiz answered Bertrand’s questions before Sanchez had a chance to interpret
the question into Spanish. The officers made no promises or threats to Ortiz.
Ortiz was allowed to keep his cell phone, and in fact received a call and
conversed on his phone while alone in the interview room. Later in the interview
Ortiz stated that the victim touched his penis once or twice for about a second or
two, and once he initiated the touching by grabbing her hand and placing it on his
penis.
The interview concluded with Ortiz writing a statement regarding the
events, the officers taking a saliva swab from Ortiz, and Ortiz’s subsequent
arrest.
On August 4, 2006, the State charged Ortiz, by trial information, with
lascivious acts with a child, in violation of Iowa Code section 709.8(2) (2005). He
was arraigned on August 16, 2006. After a number of continuances, trial was set
for May 16, 2007. On the morning of May 16 Ortiz expressed a desire to dismiss
his court-appointed counsel and hire his own attorney. The district court allowed
him to do so and continued trial until June 26, 2007. On June 21, 2007, ten
months after entering his written arraignment, Ortiz filed a motion to suppress the
statements he made during the interview with law enforcement officers.
Following a hearing, the district court granted Ortiz’s motion to suppress. In
granting the motion the court concluded there was good cause for the
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untimeliness of the motion, that Ortiz was in custody from the time he entered the
police car, and that “This record is deficient and fails to show by a preponderance
of the evidence that the defendant knowing and intelligently waived his Miranda
rights.”
The State filed an application for discretionary review of the district court’s
suppression ruling and our supreme court granted the State’s application. The
State contends on appeal that the district court erred in suppressing the
statements Ortiz made during the interview because (1) good cause did not exist
for Ortiz’s untimely filing of his motion to suppress, (2) Ortiz was not in custody at
the time of the interview, (3) Ortiz knowingly, voluntarily, and intelligently waived
his Miranda rights, and (4) Ortiz’s statements were made voluntarily.
Assuming, without so deciding, that the district court did not abuse its
discretion in determining there was good cause for Ortiz’s untimely filing of his
motion to suppress, see State v. Ball, 600 N.W.2d 602, 604-05 (Iowa 1999)
(finding review of district court’s good cause determination with regard to
timeliness of motion to suppress is for abuse of discretion), we turn directly to the
substantive issues of the State’s appeal.
II.
SCOPE AND STANDARDS OF REVIEW.
We review de novo the ultimate conclusion reached by the district court in
ruling on a motion to suppress. State v. Heminover, 619 N.W.2d 353, 356 (Iowa
2000), abrogated on other grounds by State v. Turner, 630 N.W.2d 601 (Iowa
2001). In doing so, we independently evaluate the totality of the circumstances
shown by the entire record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
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“We give deference to the district court's fact findings due to its opportunity to
assess the credibility of witnesses, but we are not bound by those findings.” Id.
The State preserved error by resisting Ortiz’s motion to suppress, obtaining a
ruling on the issues presented, and seeking and securing discretionary review of
that ruling.
III.
MERITS.
The Fifth Amendment provides: “No person . . . shall be compelled in any
criminal case to be a witness against himself . . . .” It is well settled that this
provision governs state as well as federal criminal proceedings.
Malloy v.
Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493, 12 L. Ed. 2d 653, 659 (1964).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966), established the principle that
if the police take a suspect into custody and then ask him questions
without informing him [that he has a right to remain silent, that any
statement he does make may be used as evidence against him,
and that he has a right to the presence of an attorney, either
retained or appointed], his responses cannot be introduced into
evidence to establish his guilt.
Berkemer v. McCarty, 468 U.S. 420, 429, 104 S. Ct. 3138, 3144, 82 L. Ed. 2d
317, 328 (1984). However, the requirements of Miranda are not triggered unless
there is both custody and interrogation. Turner, 630 N.W.2d at 607.
From the record it is clear that interrogation occurred. Assuming, without
so deciding, that Ortiz was in custody and thus the requirements of Miranda were
triggered, we turn to the issue of the validity of Ortiz’s waiver of his Miranda
rights. The district court ultimately concluded: “[T]he State has failed to make the
showing that the defendant intelligently and knowingly waived his Miranda rights
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and that he made the statements voluntarily.” For the reasons set forth below,
we respectfully disagree.
In Miranda, the Court held that a suspect's waiver of his or her Fifth
Amendment privilege against self-incrimination is valid only if it is made
voluntarily, knowingly, and intelligently. Miranda, 384 U.S. at 444, 86 S. Ct. at
1612, 16 L. Ed. 2d at 706-07. “In assessing the validity of a defendant's Miranda
waiver, the State bears the burden of proving these factors by a preponderance
of the evidence.” State v. Hajtic, 724 N.W.2d 449, 453 (Iowa 2006). The inquiry
into whether a waiver is valid “has two distinct dimensions.” Moran v. Burbine,
475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410, 420-21 (1986).
First, the relinquishment of the right must have been voluntary in
the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception. Second, the waiver
must have been made with a full awareness both of the nature of
the right being abandoned and the consequences of the decision to
abandon it. Only if the “totality of the circumstances surrounding
the interrogation” reveal both an uncoerced choice and the requisite
level of comprehension may a court properly conclude that the
Miranda rights have been waived.
Id. (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560, 2572, 61 L.
Ed. 2d 197, 212 (1979)).
Courts use an objective standard to determine whether a
defendant's waiver is voluntary, knowing, and intelligent. Factors
bearing on voluntariness include the defendant's age, experience,
prior record, level of education, and intelligence; the length of time
the defendant is detained or interrogated; whether physical
punishment was used, including deprivation of food or sleep; the
defendant's ability to understand the questions; the defendant's
physical and emotional condition and his reaction to the
interrogation; whether any deceit or improper promises were used
in gaining the admissions; and any mental weakness the defendant
may possess. Obviously, a defendant's alienage and unfamiliarity
with the American legal system should be included among these
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objective factors, given that the ultimate determination of whether a
waiver is knowing, intelligent, and voluntary must rest on the totality
of the circumstances.
Hajtic, 724 N.W.2d at 453-54 (citations omitted). We are aided in our de novo
review of this case by a complete videotape and audiotape of the Miranda
proceedings and the interrogation that followed.
See id. at 454 (noting
helpfulness of electronically recorded custodial interrogations to the reviewing
court in assessing the validity of a Miranda waiver).
Having examined these factors in the record before us, we conclude
Ortiz’s waiver was knowing, intelligent, and voluntary. At the time of the interview
Ortiz was forty-three years of age. The conversation between Ortiz and Bertrand
was relaxed and lasted only forty-five minutes to an hour, not a lengthy time.
Ortiz did not show any signs of intoxication or any type of mental weakness. The
officers did not employ any intimidation, physical punishment, deceit, threats, or
promises to induce Ortiz to waive his rights. They in fact provided him with a
beverage and allowed him to keep and use his cell phone.
Of the factors set forth above, the one of most concern here is whether
Ortiz was able to understand his rights as given to him and the questions posed
to him by Detective Bertrand due to a partial but not complete language barrier.
It appears the written waiver of rights form that was initially given to Ortiz to sign
was an inadequate explanation of his rights. However, Officer Sanchez read an
additional advisory to Ortiz in Spanish from a DEA form Sanchez had used and
with which he was comfortable. The DEA form advises, and thus Ortiz was
advised by Sanchez in Spanish, that he had the right to remain silent, anything
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he said could be used against him in court, he had the right to consult with an
attorney before answering1 any questions and have the attorney present during
the questioning, and that if he could not pay for the services of an attorney one
would be appointed for him. We conclude this additional advisory adequately
conveyed to Ortiz all of the Miranda rights. After Sanchez read Ortiz his rights
from this additional advisory, Ortiz acknowledged that he understood those rights
and agreed to answer questions.
We further find that Ortiz clearly demonstrated an ability to understand the
questions asked by Detective Bertrand. First, Officer Sanchez was present for
the entire interview and translated the questions into Spanish. Second, Ortiz
asked Sanchez about his rights, showing his ability and willingness to ask
questions if he did not understand something. Finally, Ortiz did state to Bertrand
that he knew some English and demonstrated that he did so by answering some
of Bertrand’s questions before they were translated into Spanish and at various
times speaking in English.
Accordingly, we conclude Ortiz’s rights under Miranda were adequately
conveyed to him and that after being so advised he knowingly, intelligently, and
voluntarily waived those rights. We believe he had a full awareness of both the
nature of the rights being waived as well as the consequences of such waiver,
and his relinquishment of these rights was a product of a free and deliberate
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There does appear to have been one error in the rights form or its translation by Officer
Sanchez. As read by Office Sanchez, Ortiz was informed in part that he had the right to
consult with an attorney “before asking questions,” rather than being informed he had
the right to consult with an attorney before being asked questions, or answering
questions. We do not believe this small error was of such a significance as to affect
Ortiz’s understanding of his rights, as the record otherwise appears to show he in fact
understood them.
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choice. See Moran, 475 U.S. at 421, 106 S. Ct. at 1141, 89 L. Ed. 2d at 420-21.
The district court erred in determining Ortiz’s waiver was not valid.
Ortiz further contends his inculpatory statements to the police were not
admissible because they were not made voluntarily.
The Fifth Amendment protection against self incrimination applies not just
to criminal trials, but also allows a person “not to answer official questions put to
him in any other proceeding, civil or criminal, formal or informal, where the
answers might incriminate him in future criminal proceedings.”
Minnesota v.
Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed. 2d 409, 418 (1984)
(quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322, 38 L. Ed. 2d
274, 281 (1973)). On this issue the State must show by a preponderance of the
evidence that the statements were voluntarily made.
State v. Payton, 481
N.W.2d 325, 328 (Iowa 1992). We employ a totality-of-circumstances test in
determining voluntariness: it must appear the statements were the product of “an
essentially free and unconstrained choice, made by the defendant whose will
was not overborne or whose capacity for self-determination was not critically
impaired.”
Id.
“The question of voluntariness is a matter of sorting out the
impetus for the inculpatory statement.
To be admissible the statement must
freely emanate from the mind of the speaker.” State v. Hodges, 326 N.W.2d 345,
348 (Iowa 1982).
Many factors bear on the issue of voluntariness. These
include the defendant's knowledge and waiver of his Miranda rights;
the defendant’s age, experience, prior record, level of education
and intelligence; the length of time defendant is detained and
interrogated; whether physical punishment was used, including the
deprivation of food or sleep; defendant’s ability to understand the
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questions; the defendant’s physical and emotional condition and his
reaction to the interrogation; whether any deceit or improper
promises were used in gaining the admissions; [and] any mental
weakness the defendant may possess.
Id. at 348 (internal citations omitted).
For all of the reasons set forth above, including our determination Ortiz
was adequately advised of his rights under Miranda and his waiver of such rights
was valid, we conclude the record shows that Ortiz’s inculpatory statements were
made of an essentially free and unconstrained choice.
Ortiz’s will was not
overborne and his capacity for self-determination was not critically impaired when
making these statements. Thus, we conclude the State has demonstrated by a
preponderance of the evidence that Ortiz’s inculpatory statements were
voluntary.
The district court erred in determining Ortiz did not make the
challenged statements voluntarily.
IV.
CONCLUSION.
Based on our de novo review, and for the reasons set forth above, we
conclude the district court erred in suppressing the statements Ortiz made during
the interview with law enforcement officers. We conclude Ortiz was adequately
advised of his rights under Miranda and he knowingly, voluntarily, and
intelligently waived those rights.
We further conclude Ortiz’s inculpatory
statements to law enforcement were voluntary. We therefore reverse the district
court’s suppression order and remand the case for further proceedings not
inconsistent with this opinion.
REVERSED AND REMANDED.
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