Suppression Based on Miranda Violation Upheld

U.S. v. Santistevan, -- F.3d --, 2012 WL 6554750 (10th Cir. 12/17/12) (CO) - the COA affirms the district court's grant of a motion to suppress statements made after invocation of the right to counsel. After Mr. Santistevan turned himself in on unrelated charges, an agent advised him of his Miranda rights and asked to speak with him about some robberies. Mr. Santistevan declined and the interview ended. Six days later, Mr. Santistevan's girlfriend called the agent and told him that Mr. Santistevan wanted to speak with him. On his way to the jail the next morning, the agent received a call from a public defender who said she represented Mr. Santistevan, had spoken with him that morning, and that he did not wish to speak. She also said she had given Mr. Santistevan a letter to give to the agent if he came to the jail. When the agent got to the jail, he asked Mr. Santistevan if he had a letter and Mr. Santistevan handed him the letter from counsel stating Mr. Santistevan did not wish to speak to the agent without counsel. Nonetheless, the agent asked Mr. Santistevan if he wished to speak with him about the robberies without a lawyer present and Mr. Santistevan said he did, then signed a waiver and made incriminating statements about two robberies. The district court held that Mr. Santistevan unambiguously invoked his right to counsel by handing the letter to the agent without disclaiming its contents. At that point, all questioning should have stopped. Notably, the COA states, "The dissent also warns that our holding instructs law enforcement officers on how to get around Miranda by teaching them what questions to ask when they know a defendant has a letter from counsel. We would like to think that law enforcement officers act in good faith."