Motions to suppress evidence; Statements defendant made during post-arrest questioning; Miranda v Arizona; United States v Binford; Whether “midstream” Miranda warnings were ineffective under Missouri v Seibert; Sufficiency of the Miranda warnings as to the right to counsel; Harmless error; Evidence obtained in a warrantless search of defendant’s cellphones

The court upheld the admission of defendant-Guerrero’s confession and evidence obtained from a warrantless search of his cellphones, holding that his constitutional rights where not violated. Among other things, given “the entirety of evidence against him, the admission of his post-Miranda statements was harmless.” It also held that his consent to the searches of his cellphones was voluntary. He was convicted of conspiracy, drug trafficking, and money laundering. Before trial, he moved to suppress his confession and the cellphone evidence, arguing that DEA agents violated his Fifth and Sixth Amendment rights when obtaining his confession, and that his Fourth Amendment rights were violated through warrantless cellphone searches. The district court denied his motions. On appeal, the court first held that the government met its “burden of proving by a preponderance of the evidence that” his confession was made without coercion. Arresting him early in the morning at home and not Mirandizing him immediately “were permissible law enforcement” tactics. In addition, the fact that he “‘was initially hesitant to speak with officers . . . but nevertheless decided to speak, does not indicate that his statements were coerced.’” And questioning him in English was not coercive where the agents were aware that he was bilingual. Their question about whether he had guns in his closet involved the agents’ safety and was not designed to elicit “inculpatory information.” The court rejected his argument that the Miranda warnings were “ineffective” because they were given between his arrest at home and the questioning at the DEA office. It noted that “‘midstream-Miranda’ warnings do not automatically render inadmissible a post-Miranda confession.” And it found Seibert’s applicability “questionable” in the absence of any “potentially incriminating nexus between the pre- and post-Miranda questioning.” Further, it held that, “on balance, Seibert’s factors tip in the government’s favor.” He next claimed that his Miranda warnings were deficient as to “his right to consult counsel before and during questioning, and” his right to appointed counsel. But the court found as to the latter that the “warning given here in no way obscured the contours of Guerrero’s right to have counsel appointed.” It further concluded that, considering all the evidence against him, any error was harmless. It also upheld the denial of his motion to suppress the cellphone search evidence, concluding the totality of the circumstances did “not indicate coercion” and rejecting “his attempt to tie insufficient Miranda warnings to his decision to consent to the searches.” Affirmed.