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A defendant’s consent to search his or her vehicle obtained by threatening to impound the car absent such a consent, when impounding the car would not be lawful, invalidates the consent.  

• Consensual vehicle searches 

• False promises of leniency 

• Community caretaking and the impoundment of vehicles 

A person’s consent to allow officers to search his or her vehicle is not voluntary under circumstances where the consent obtained is the product of coercion. Threatening to tow their vehicle where to do so would be illegal constitutes coercion. 

Defendant Juan Boitez was driving his mother’s car when he was pulled over by a city of Winters (Yolo County) police officer for failing to stop at a stop sign. Although he stopped his vehicle with his right tires more than 18 inches from the curb, being in a residential cul-de-sac, the car was not in a position where it might impede traffic. With the following events video recorded by the officer’s body camera, Boitez was asked for his license, registration, and proof of insurance. He responded that he had none of these documents, showing the officer a California identification card instead. It was quickly determined that Boitez’s license had been suspended. The sole passenger in the car did not have a license. A second officer arrived at the scene approximately 3½ minutes into the contact. A third officer also responded, although it was not indicated at what point he showed up.  

Upon questioning Boitez, officers determined he was a gang member, but he claimed to no longer be active. He also believed that he “might” be on probation. The officers, however, likened the Boitez and his companion to “dirty dudes,” using this characterization several times. During the contact, Boitez’s sister arrived on the scene, having been called by Boitez when he was initially stopped. She had a license and was available to drive the car from the scene, if need be.  

Continuing the contact with Boitez, the officer told him that he could have the car towed if he chose, but was “trying to cut (him) a little bit of a break,” asking Boitez at the same time if he minded whether the officer searched his car. Without waiting for a response, the officer asked Boitez: “You don't have nothing in there? There’s no guns, drugs, anything like that? Nothing, nothing bad?” Boitez did not answer, but instead simply looked toward the ground and shook his head from side to side.  

The officer had Boitez sit on the curb, telling him he was going to write him a ticket for driving on a suspended license, but was not going to tow his car. Commenting that that was “a pretty good deal,” he then told Boitez that if he did tow the car, he wouldn’t get it back until Monday and would owe a fee for some two or three days for the storage.  

Boitez, still looking down, nodded his head and said: “Alright.” Boitez then asked whether his sister could take the car. The officer responded: “That’s what I’m trying to work out with you, man. You be cool with me brother, I’ll be cool with you.” Boitez again nodded his head and said “Yeah,” apparently giving permission to search the car. The officer asked Boitez whether he was “good with that” and, while Boitez was nodding, asked, “Is that fair?” Boitez again responded, “Yeah.”  

This equivocal conversation continued back and forth for several minutes, with the officer telling Boitez what a good deal he was getting, and Boitez, somewhat reluctantly, implying agreement with the officer that allowing a search of the car in exchange for not impounding it was, in fact, a good deal. Eventually, officers searched the car. A loaded gun was found under the passenger’s seat. A second gun was thereafter recovered from the passenger. Boitez was charged in state court with being a felon in possession of a firearm and other gun-related offenses. His motion to suppress the firearm was denied by the trial court. Boitez filed a pre-trail petition for writ of mandate with the court of appeal. 

The Third District Court of Appeal granted Boitez’s petition, ruling that the search of his car was illegal under the circumstances.  

Specifically, Boitez argued that his consent to search the car?was involuntary because it was acquired through the threat of unlawful police action, i.e., the officer’s false statement that he had authority to tow the car, and that he would do so unless Boitez consented to having it search at the scene.  

The People conceded that the officer did not have authority to tow the car, but argued nonetheless that the totality of the circumstances “allow[s] a finding of voluntary consent.”  

In rejecting this argument, the court accepted the People’s concession that the officer did not have authority to tow the vehicle, noting that “[t]he decision to impound [a] vehicle must be justified by a community caretaking function other than suspicion of evidence of criminal activity.” Although the car was parked illegally (the front wheels being more than 18 inches from the curb), it was not blocking traffic. Nor did it create a driving hazard. Further, there was no indication that if left there, it might be subject to theft or vandalism. And lastly, defendant’s licensed sister was present and available to drive the car away.  

The court further held that it was irrelevant whether the officer actually harbored an “honest but mistaken belief that he could (lawfully) tow the car.” A subject’s alleged “voluntary consent cannot be based on the subjective good faith of an officer in making a representation that induced the consent to search.” The U.S. Supreme Court has held that “If subjective good faith alone were the test, the protections of the?Fourth Amendment?would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” (Beck v. Ohio?(1964) 379 U.S. 89, 97.) “Thus, ‘whether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of [a defendant’s] election to abandon his [her, or their] rights.’” (Moran v. Burbine?(1986) 475 U.S. 412, 423.)  

With these basic rules in mind, the court proceeded to analyze the voluntariness of Boitez’s consent given (albeit reluctantly) to the officer to search his car. As analyzed by the court the officer made a “false promise of leniency,” telling Boitez in a roundabout way that if he consented to having his car searched, the officer would not have it towed. This threat was made despite that the officer, whether he recognized this or not, could not legally tow the car.  

The officer’s promise not to tow the car was found to be “a material and inextricable part of the agreement to consent to the search.” The court thus concluded that under “the totality of the circumstances,” Boitez’s consent to search the car was not voluntary.  

The court further ruled that it is not an issue of whether the circumstances might “allow” for a finding of a voluntary consent, as argued by the People, but rather whether the prosecution had met its burden of showing by a “preponderance of the evidence” that Boitez’s consent was voluntary under the circumstances. The court ruled that the People failed to meet this burden of proof. 

The court provides several more pages of legal reasoning as to why Boitez’s consent was not voluntary. Included is that “coercion” is not limited to physical abuse. Also relevant is the number of officers at the scene, whether Boitez was in custody, the use of deception or communication of false information, the use of handcuffs and/or guns, and a whole bunch of other factors that may or may not be relevant to a case such as this one.  

The bottom line is that the defendant in this case was not really given a choice. He had to consent to the search of his car or suffer the inconveniences and costs of having his (or rather, his mother’s) car impounded (at which point, by the way, it would have been searched anyway).  

But note the other side of this coin. Not mentioned is the fact that if the officer did have the legal right to impound the car, threatening to do so probably would not have invalidated the subsequent consent to search. Threatening a consequence the officer may lawfully cause to happen generally will not invalidate the resulting consent. (See People v. Robinson (1957) 149 Cal.App.2nd 282, 286; People v. Goldberg (1984) 161 Cal.App.3rd 170, 188; Bumper v. North Carolina (1968) 391 U.S. 543 [88 S.Ct. 1788; 20 L.Ed.2nd 797] United States v. Soriano (9th Cir. 2003) 361 F.3rd 494, 971; People v. Williams (2007) 156 Cal.App.4th 949, 961.)  

But in this case, Juan Boitez was pretty much brow-beaten into consenting, under the threat of having something happen that the officer had no right to do. The ultimate result was pretty clear-cut. 

The standard for an officer’s pre-search knowledge that a suspect is subject to a Fourth Amendment waiver search is probable cause. 

• Parole search and seizure conditions; an officer’s prior knowledge 
• Parole searches; standard of proof 
• Prohibition on arbitrary, capricious or harassing parole searches 
• The “collective knowledge doctrine” 

A law enforcement officer needs only to have “probable cause” to believe that a person is on active parole before that person may be searched pursuant to a parole search condition. However, arbitrary, capricious or harassing parole searches are prohibited by California statutory and case law.

Pursuant to the “collective knowledge doctrine,” information possessed by one officer may be imputed to another when the officers are either working together or one is acting at the direction or request of another. 

Defendant Christian Alejandro Estrella is a documented gang member belonging to the Angelino Heights Sureños, a criminal gang based in Santa Rosa, California. Having served prison time for an unspecified offense, he was paroled to Lakeport, California. On July 2, 2018, he visited the Lakeport Police Department to register as a convicted gang member, as required by Penal Code §186.30. When Officer Tyler Trouette, Lakeport P.D.’s gang specialist and a member of the Lake County Gang Task Force, was notified that there was a new gang member in their city, he “familiarized himself” with Estrella’s criminal history. 

On July 3, the day after Estrella registered, Officer Trouette visited Estrella at his home, where they discussed the conditions of his parole, such as not associating with a gang and not wearing gang attire. It was specifically mentioned that Estrella was not to wear an Oakland Athletics baseball cap. This is because, as both Estrella and Officer Trouette knew, the A’s baseball cap is commonly worn by members of the Angelino Heights Sureños because, to members of the gang, the “A” on the hat signifies “Angelino,” as opposed to “Athletics.”  

Officer Trouette subsequently made periodic contact with Estrella’s parole officer, discussing the terms and conditions of Estrella’s parole as well as his progress or lack thereof. In April 2019, 10 months after Estrella’s parole began, Estrella’s parole officer told Officer Trouette that Estrella had committed a battery, but that he remained out of custody. Four months later, Officer Trouette was in the field with a rookie, Officer Ryan Cooley, as Cooley’s field training officer (“FTO”), when he observed Estrella standing outside his residence next to a white Honda and wearing an Oakland Athletics baseball cap. Officer Trouette decided “to check up on him and verify that he was abiding by the terms of his parole.” He apparently also wanted to discuss with him the wearing of the cap. He did not, however, inform Officer Cooley of defendant’s parole status nor of his parole search and seizure conditions because he wanted his trainee to “find the relevant information through his own investigation.”  

So, with both officers in uniform and their guns exposed, after alighting from their marked patrol vehicle, they contacted Estrella. (Estrella said in court documents that he was told to stop, while the officers testified that they merely walked up to him, raising the issue of whether Estrella had been “detained” or merely “consensually encountered.”) Officer Cooley asked Estrella what he was up to. As Officer Cooley was soon distracted radioing in their location to dispatch Officer Trouette asked Estrella about the hat, reminding him that wearing it was a violation of his parole and that he “shouldn’t be wearing [it].” Estrella claimed that it was his “work hat” and he only wore it while working on his car. Officer Cooley returned 90 seconds later, and asked Estrella for identification and whether he was on probation or parole. Volunteering his driver’s license, Estrella admitted to being on parole.  

Officer Cooley contacted dispatch again and it was confirmed that Estrella was on California state parole until 2020, and that he had registered as a convicted felon and a member of the Angelino Heights Sureños gang. Based upon his parole status, the officers searched him and his vehicle. As they began searching, Estrella informed Officer Trouette that he had a gun in the car. A loaded Ruger 9mm handgun and nine rounds of ammunition were found in the car’s center console.  

Indicted in federal court for being a felon in possession of a firearm and ammunition (18 U.S.C. § 922(g)(1)), the trial court denied Estrella’s motion to suppress. He thereafter pled guilty and was sentenced to time served, three years of supervised release and a referral to an “alternative to incarceration” program run by the federal district court. (Oh, and he was required to forfeit the gun. Nice to know.) Estrella appealed the denial of his motion to suppress. 

On appeal, Estrella first argued that the warrantless parole search was unlawful as a violation of the Fourth Amendment, because at the time he was detained and searched, the officers did not know for sure that he was still on parole. 

Issues 

(1) Standard of Proof: A temporary detention and warrantless search of a parolee’s person and possessions are in fact exceptions to the general rule that the Fourth Amendment requires a reasonable suspicion (for the detention) and probable cause and a warrant (for the search).  

The U.S. Supreme Court has upheld the constitutionality of California’s statutory warrantless, suspicionless search conditions for parolees under Penal Code section 3067(b)(3). (See Samson v. California (2006) 547 U.S. 843.) The Supreme Court held in Samson that section 3067(b)(3) “satisfies the mandates of the?Fourth Amendment, as the state’s interests in public safety and reintegration (of the parolee back into society) outweigh the privacy interests of its parolees.” (pg. 857.) “As parole is ‘an established variation on imprisonment’ subject to strict monitoring and behavioral conditions,?id.?at 850 (quoting Morrissey ), parolees’ expectations of privacy are ‘severely diminished . . . by virtue of their status alone,’?id.?at 852.?Those limited privacy interests are comprehensively outmatched by the state’s ‘“overwhelming interest” in supervising parolees’ to reduce recidivism and ‘promot[e] reintegration and positive citizenship.’?Id.?at 853?(quoting?Penn. Bd. of Probation & Parole v. Scott (1998) 524 U.S. 357, 365. . . .)”  However, it is also a rule that for a parole search to be lawful, the officer must know at the time that the person being detained is in fact on parole.  Discovering a detainee’s parole status after a warrantless-suspicionless detention and search have been completed is insufficient to justify the detention and search.  As noted by the defendant: “(A)n officer must possess ‘actual knowledge’ of the suspect's parole status before conducting a suspicionless search or seizure pursuant to a parole condition.”  (See also People v. Sanders (2003) 31 Cal.4th 318.)  In the instant case, upon initially contacting defendant, Officer Trouette knew at the very least that defendant had been on parole at least as of four months earlier.  Absent from the record is any evidence (at least initially) that Officer Trouette knew that defendant was still on parole.  Assuming this was an issue at all, the Court here established the rule for the first time that all Officer Trouette needed was “probable cause” to believe defendant was still on parole.  Knowing that defendant was initially released from prison on parole only 14 months earlier, that he was still on parole four months prior to this particular contact, and that state parole (at least it this time in history) was for at least two to three years, the Court held that this was sufficieint to give Officer Trouette the necessary “probable cause” to believe that he was still on parole, even if he didn’t know for sure how long that was to last.  Thus, defendant’s detention and subsequent parole search were lawful.  ), parolees’ expectations of privacy are ‘severely diminished...by virtue of their status alone,’?id.?at 852.? 

Those limited privacy interests are comprehensively outmatched by the state’s “‘overwhelming interest’ in supervising parolees to reduce recidivism and ‘promot[e] reintegration and positive citizenship.’?Id.?at 853?(quoting?Penn. Bd. of Probation & Parole v. Scott (1998) 524 U.S. 357, 365.)”  

However, it is also a rule that for a parole search to be lawful, the officer must know at the time that the person being detained is in fact on parole. Discovering a detainee’s parole status after a warrantless, suspicionless detention and search have been completed is insufficient to justify the detention and search. As noted by Estrella’s argument: “(A)n officer must possess ‘actual knowledge’ of the suspect’s parole status before conducting a suspicionless search or seizure pursuant to a parole condition.” (See also People v. Sanders (2003) 31 Cal.4th 318.)  

In the instant case, upon initially contacting Estrella, Officer Trouette knew at the very least that Estrella had been on parole, at least as of four months earlier. Absent from the record is any evidence (at least initially) that Officer Trouette knew Estrella was still on parole. Assuming this was an issue, the court here established the rule for the first time that all Officer Trouette needed was “probable cause” to believe Estrella was still on parole. Knowing that Estrella was initially released from prison on parole only 14 months earlier, that he was still on parole four months prior to this particular contact, and that state parole, at least it this time, was for at least two to three years, the court held that this was sufficient to give Officer Trouette the necessary “probable cause” to believe that he was still on parole, even if he didn’t know for sure how long that was to last. Thus, Estrella’s detention and subsequent parole search were ruled lawful.  

(2) Harassment: Estrella also argued that the officers violated California law in that by contacting and detaining him, they were “harassing him.” Indeed, California statutory law prohibits officers from conducting parole searches “for the sole purpose of harassment.” (P.C. § 3067(d).) Case law expands upon this protection a bit, prohibiting parole searches that are “wholly arbitrary...based merely on a whim or caprice or when there is no reasonable claim of a legitimate law enforcement purpose.” (People v. Cervantes (2002) 103 Cal.App.4th 1404, 1408.)  

Under California law, a Fourth Amendment waiver search constitutes harassment if it is “unrelated to rehabilitative, reformative or legitimate law enforcement purposes, or when the search is motivated by personal animosity toward the parolee.”?People v. Reyes (1998) 19 Cal. 4th 743.)  

This prohibition has been determined, however, to be decidedly narrow: “It is only when the motivation for the search is wholly arbitrary, when it is based merely on a whim or caprice or when there is no reasonable claim of a legitimate law enforcement purpose...that a search based on a probation (or parole) search condition is unlawful.”?(People v. Cervantes, supra.)  

Estrella argued here that the officers’ interaction with him was nothing but a “training tool” for the rookie officer, and that they really had no legitimate reason to detain or search him. Estrella argued that this was not a legitimate purpose for a parole search, and that his search and seizure were therefore, by definition, “arbitrary and capricious.”  

The Court determined that it need not decide whether using him as a training tool was “arbitrary and capricious,” in that the record does not support defendant’s claim that the officers searched and seized him exclusively as a training exercise. To the contrary, Officer Trouette’s decision to conduct a parole compliance check was based at least in part upon his observation of Estrella wearing an Oakland Athletics hat — a symbol of the Angelino Heights Sureños and a violation of Estrella’s parole conditions. While using Estrella as an opportunity to help train Officer Cooley may have been at least part of reason for contacting defendant, this fact alone did not convert the contact into harassment, the court ruled. 

The primary point of this case is to establish the rule that you only need probable cause to believe a person is on parole to justify a warrantless parole search. Once that probable cause exists, you, as a law enforcement officer, may search him, his vehicle, his residence, etc., without any further justification, so long as not done for purposes of harassment, etc.  

What I wish the court had covered a little better is what might be considered an extension to this rule:  That is, if you have the necessary probable cause to believe a person is on parole, you don’t need any further justification to initiate a detention for the purpose of conducting a parole search. In other words, it is not necessary that a detaining officer have any reason at all to believe a parolee (or a probationer on search and seizure conditions) is then and there in violation of the terms of his parole (or probationary) Fourth waiver.  

I’ve heard from various sources that some very experienced officers (who perhaps should know better) are telling their subordinates that you need at least a reasonable suspicion to believe a parolee is in violation of the law in some way (e.g., armed, in possession of drugs, etc.) before you can stop and detain him for the purposes of conducting a parole search.  

That is simply wrong! If you had to get over a “reasonable suspicion” hump just to conduct a warrantless, suspicionless search of a parolee, what good is the warrantless, suspicionless search condition for parolees (and for probations with search and seizure conditions)?  

In defense of the officers who are putting out this erroneous information, there is very little published case law giving us the rules. But if you check People v. Viers (1991) 1 Cal.App.4th 990, at pages 992-993, you will note the court’s conclusion that an existing search and seizure condition justifies a corresponding detention without a reasonable suspicion of criminal activity, including while in a vehicle, and a suspicionless search of the car under the terms of the defendant’s Fourth waiver. (Viers, by the way, was eventually overruled on other grounds.)  

See also People v. Douglas (2015) 240 Cal.App.4th 855, at pg. 863, where the court notes: “If a police officer knows an individual is on PRCS, he may lawfully detain that person for the purpose of searching him or her, so long as the detention and search are not arbitrary, capricious or harassing.” (“PRCS” stands for Post-Release Community Supervision Act of 2011 [Pen. Code §§ 3450 et seq.] and is comprised of statutes that provide for the housing of certain low level non-violent felony state prisoners in local county jails.) 

Later (at pg. 865), the Douglas court further notes: “(W)e conclude that?an individual who has been released from custody under PRCS is subject to search (and detention incident thereto) so long as the officer knows the individual is on PRCS.” Although sparse, the law (and common sense) dictates that you do not need an independent reasonable suspicion to stop and detain an individual who is subject to a Fourth waiver search as a prelude to a suspicionless search of that Fourth waiver suspect.  

The court mentions one other interesting tidbit (see Fn. 6) that I hadn’t heard discussed in a long time: the “collective knowledge doctrine.” Officer Trouette led his rookie, Officer Cooley, into this contact without telling him what he (Trouette) already knew about Estrella’s history. Despite holding this information back, what Officer Cooley himself knew subjectively was never really an issue. But had it been, the issue would likely have been overcome via the collective knowledge doctrine. Pursuant to this doctrine, it has been held that knowledge may be imputed between different officers (1) “where law enforcement agents are working together in an investigation but have not explicitly communicated the facts each has independently learned,” or (2) “where an officer...with direct personal knowledge of?all?the facts necessary to give rise to reasonable suspicion...directs or requests that another officer...conduct a stop, search, or arrest.” (See?United States v. Villasenor (9th Cir. 2010) 608 F.3rd 467, 475; quoting United States v. Ramirez (9th Cir. 2007) 473 F.3rd 1026, 1032-1033.)  

Despite not having anything new on this theory for some time, it’s a good concept to remember and use when appropriate.  

To be legally sufficient, a Miranda invocation, when it follows a previous waiver, must be clear and unequivocal. 

• Miranda v. Arizona 
• Legally effective invocation of Miranda after a previous waiver 
• Defense counsel’s ineffective assistance 

An attempt to invoke one’s Miranda rights after a previous wavier of those rights must be clear and unequivocal to be legally sufficient. 

Defendant Lucio Villegas lived with his wife and their two daughters (“Jane Doe Three” and another daughter) in a house in Napa Valley in 2018 and 2019. “Jane Does One” and “Two” lived with their parents in a garage on the same property. The families were close and Villegas was Jane Doe One’s godfather. Villegas had many opportunities to be alone with each of the victims. As for Jane Doe One, she complained that when she was 11 years old, Villegas would use his hand to touch her breasts and vagina over her clothes, done in a rubbing motion. On one occasion, Villegas put his hand under her shirt, on top of her bra, and moved it around. When this case eventually came to trial, she testified that she wanted Villegas to stop, but she did not tell anyone because she was scared. Jane Doe One’s mother, “L.R.,” observed Villegas touching Jane Doe One’s outer clothing on one occasion in May of 2018, and threatened to call the police. Villegas, however, threatened in return to call immigration on her, which (apparently being in the country illegally) frightened her. A year later, in May 2019, L.R. became suspicious that the molestations were continuing because each day, upon coming home from work, Villegas wanted the girls to come out and play. So she asked both her daughters, Jane Does One and Two. Both said that Villegas had been touching them inappropriately for some time. All of this was then reported to the police.  

Jane Doe Two was subsequently interviewed by city of Napa Detective Dustin Dodd, an experienced forensic interviewer of alleged victims of child molestations. Although unable to remember any of this by the time of trial, as she was 10 years old at the time, Jane Doe Two told Detective Dodd that between the previous Christmas and her birthday, Villegas “tickled her and dragged his hand across her chest over her clothes.” She also told Detective Dodd that on another occasion, when she was playing outside by herself, Villegas had “tickled” her and then touched her vaginal area over her clothes.  

With this information, Detective Dodd interviewed Villegas at the police station shortly thereafter, on May 22, 2019. Villegas waived his Miranda rights and agreed to talk with the detective. During this interview, Villegas admitted that on one occasion he had hugged Jane Doe One and that in the process, her “boobie did get grabbed.” Villegas also admitted to “squeez[ing]?a little boob” two times, acknowledging that he had made a mistake. After Villegas was charged with molesting Jane Does One and Two, it came to light that defendant’s own daughter (Jane Doe Three) had been subjected to numerous sexual assaults by Villegas beginning when she was 14 years old, 11 years before the trial. This was discovered on May 23, 2019, after Jane Doe Three (then 23) told her fiancé, who reported it to the police.  

In the subsequent trial, Jane Doe Three testified to numerous incidents of molestation, rape, forced oral copulation and rape by a foreign object (his finger), all occurring over an extended time. As a result of this abuse, Jane Doe Three testified to feeling depressed, experiencing PTSD, couldn’t “really think because [she was] constantly scared that [she] might get hurt” and that she tried to take her own life “a few” times.  

Before trial, however, as a result of this new information from Jane Doe Three, Detective Dodd interviewed Villegas a second time. This interview took place two days after Jane Does One and Two were interviewed. Villegas was readvised of his Miranda rights. Again waiving his rights, Villegas agreed to talk to the detective. When told of his daughter’s (Jane Doe Three’s) accusations, Villegas initially said that he did not remember what had happened between him and his daughter. He then questioned whether the detective was lying to him about talking to her. When assured that Jane Doe Three had been interviewed, Villegas responded: “Well that was just one mistake, I won’t say anything else. It was a mistake and whatever she says, I won’t say more things anymore.”  

When the detective continued with the questioning, attempting to elicit from him what it was that he considered a mistake, Villegas repeated only that: “I will tell you that it was a mistake and that’s it,” and “That’s the only thing I’ll say.” After a few more questions, Villegas ended the conversation with this: “That...that you said – say – what she said, it happened. ...She’s telling the truth. She – that’s the truth.” The statements were all admitted into evidence without objection from Villegas’ attorney. He was convicted of all counts and ultimately, after a sentence reduction by the appellate court, sentenced to 170 years to life, plus a bunch of fines. Villegas appealed, arguing incompetency of counsel for failing to object to the admission of his incriminating statement. 

The First District Court of Appeal (Div. 1) affirmed. The central issue on appeal was the admissibility of Villegas’ incriminating statements to the investigator.  

This issue was litigated via a back door, so to speak, in that Villegas’ attorney forfeited the defendant’s right to challenge this issue by not objecting to it at trial. So, what the court discussed was whether Villegas’ conviction should be reversed due to the “incompetence of counsel,” a Sixth Amendment issue, as opposed to Fifth Amendment. (Also litigated, but not discussed here, was Villegas’ ultimate sentence and the fines imposed.)  

The question decided on appeal was whether Villegas had invoked his right to silence when he told the detective: “I won’t say anything else,” “I won’t say more things anymore” and “(T)hat’s the only thing I’ll say.” The basic rule under Miranda is simple and well-settled: “If a defendant invokes his [or her]?Miranda?rights, questioning must cease.” (People v. Sanchez?(2019) 7 Cal.5th 14, 49.)  However, what constitutes an invocation of one’s Miranda rights is different depending upon whether that attempt to invoke occurs at the initiation of questioning or after a prior waiver of those rights.  

If, upon the initial administration of one’s Miranda rights, the suspect’s response can be interpreted by any words or conduct as reasonably inconsistent with a present willingness to discuss the case freely and completely, then he or she has invoked. Questioning must cease. (People v. Crittenden (1994) 9 Cal.4th 83, 129.)  

If, however, as in this case, the defendant has previously waived his Miranda rights and agreed to talk with police, any?subsequent?invocation of the right to counsel or the right to remain silent must be unequivocal and unambiguous. (Berghuis v. Thompkins (2010) 560 U.S. 370, 381; People v. Henderson(2020) 9 Cal.5th 1013, 1022.)   The test in this second situation is whether the invocation was “articulated sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be an invocation of such rights.” (People v. Nelson?(2012) 53 Cal.4th 367, 380.)  The prosecution in either situation bears the burden of proof by a preponderance of the evidence to show that the statements were admissible.  In this case, the Court had no trouble finding that after having previously waived his Miranda rights (twice, as a matter of fact), he failed to subsequently make a “clear assertion” of the right to silence or counsel.  To the contrary, the Court found defendant’s statements to be more akin to him telling the detective; “[t]hat's my story, and I'll stick with it.” Prior similar cases have consistently held that such statements are insufficient to clearly invoke a defendant’s Miranda rights  (See People v. Ramirez?(2022) 13 Cal.5th 997, 1104; People v. Martinez?(2010) 47 Cal.4th 911, 944; In re Joe R.?(1980) 27 Cal.3rd 496, 515–516.) As such, the Court found that defendant’s attorney was not incompetent for having failed to object to the admission of his incriminating statements in that it would have done him no good to do so.   1013, 1022.)  

The test in this second situation is whether the invocation was “articulated sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be an invocation of such rights.” (People v. Nelson?(2012) 53 Cal.4th 367, 380.) The prosecution in either situation bears the burden of proof by a preponderance of the evidence to show that the statements were admissible. In this case, the court had no trouble finding that after having previously waived his Miranda rights (twice, as a matter of fact), he failed to subsequently make a “clear assertion” of the right to silence or counsel. To the contrary, the court found that Villegas’ statements to be more akin to him telling the detective “That’s my story, and I’ll stick with it.”  

Prior similar cases have held consistently that such statements are insufficient to clearly invoke a defendant’s Miranda rights (See People v. Ramirez?(2022) 13 Cal.5th 997, 1104; People v. Martinez?(2010) 47 Cal.4th 911, 944; In re Joe R.?(1980) 27 Cal.3rd 496, 515–516.) As such, the court found that Villegas’ attorney was not incompetent for having failed to object to the admission of his incriminating statements in that it would have done him no good to do so.  

I, as an ardent student of Miranda case law, have found prior cases all somewhat confusing when it comes to a logical explanation as to why different cases imposed seemingly totally different standards, finding some Miranda invocations legally sufficient and others not. I suspect that it has to do when the timing of the admonition (upon an initial interrogation vs. after a prior wavier) but couldn’t find a case that specifically spelled this out for me. Now we have such a case