United Statse v. Plugh, No. 07-2620-cr (2d Cir. July 31, 2009) (Jacobs, Wesley, Hall, CJJ)
In September of 2005, FBI agents arrested Gordon Plugh on child pornography charges. In the car, an agent read him his Miranda rights and asked him to sign a waiver form. Plugh told the agent that he understood his rights because he was a former correction officer. But he added that he was “not sure” if he should make any statements and wondered whether he needed a lawyer. Plugh refused to sign the form, however, and said that he did not want to sign anything at that time.
During the long ride to headquarters, the agents told Plugh what he was charged with, and he asked them what he should do. The agents told him that they would relay any cooperation to the AUSA. Later, after processing him at their office, the agents told Plugh that they were about to hand him over to the Marshals and that if he “wanted to make any statements this was the” time to do it. Plugh then agreed to make statements, was re-advised of and waived his Miranda rights, and confessed.
The district court suppressed the resulting statement and, on the government’s appeal, the a divided panel affirmed.
The majority first held that Plugh’s refusal to sign the advice-of-rights form constituted an “unequivocal” invocation of his right to remain silent. Although Plugh’s pre-refusal statements were “ambiguous,” his refusal to sign was a clear signal that he was not willing to waive his rights.
An invocation of the right to remain silent must be “scrupulously honored.” Here, it was not. Under circuit precedent, both telling a suspect that his cooperation will be brought to the prosecutor’s attention and telling him that “now is the time” to talk constitute interrogation. Accordingly, the district court correctly suppressed the confession that was precipitated by these remarks.
In dissent, Chief Judge Jacobs disagreed with the majority’s premise that Plugh’s refusal to sign the written waiver operated as an invocation of his Miranda rights, particularly in light of his nearly simultaneous ambiguous statements.
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