                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 05 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30145

             Plaintiff - Appellant,              D.C. No. 2:08-cr-00245-RSL-1

  v.
                                                 MEMORANDUM *
DEVAUGHN DORSEY, also known as
Buster,

             Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Western District of Washington
                  Robert S. Lasnik, Chief District Judge, Presiding

                     Argued and Submitted December 8, 2009
                              Seattle, Washington

Before: GOULD and TALLMAN, Circuit Judges, and BENITEZ, ** District Judge.

       The United States appeals the district court’s order suppressing Devaughn

Dorsey’s incriminating statements made during an interrogation on May 22, 2008.

The district court conducted an evidentiary hearing, including review of the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
videotaped interview, before ruling. It determined that Dorsey was arrested on the

morning of May 22, 2008, and the arresting officers read him his Miranda rights.

See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966). That afternoon, he was

taken to the Seattle Police Department and escorted to an interview room, where he

was again read his Miranda rights. At that time, Dorsey signed the

acknowledgment of rights form.

      During the subsequent interrogation, the Government concedes that Dorsey

unequivocally invoked his right to counsel. Rather than immediately ending the

interview, the detectives attempted to clarify whether Dorsey had invoked his right

to counsel. When they were satisfied that he was willing to speak without counsel

they continued the interrogation for a few minutes before one of the officers asked

to speak to the other outside the room. The detectives told Dorsey that they had to

make a phone call and that they would be right back.

      A half hour later, Dorsey asked to use the restroom and upon his return

asked a detective unconnected to the interrogation, “They tell you they comin’

back in? . . . I mean, they said they was comin’ back. I mean, what they gonna

do?” After another half hour, one of the interrogating detectives returned and

asked, “What do you need, Dorsey?” After some discussion back and forth about

whether Dorsey had asked to speak with the detective, Dorsey said, “I been told


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ya’ll that. Ya’ll left. I didn’t tell you guys to leave. Ya’ll left.” When the

detective asked again, “Well do you wanna talk to us then?” Dorsey replied, “I

signed the paper to talk to you, didn’t I?” At that time, the detectives all returned

to the room and read Dorsey his Miranda warnings for a third time. Dorsey

indicated that he understood his rights and signed the acknowledgment and waiver

of rights form. During the subsequent interrogation Dorsey made several

incriminating statements.

      The district court suppressed these statements, holding that as a matter of

fact, the first interrogation did not end when the detectives left the room and told

Dorsey that they would be right back, and as a matter of law that all subsequent

incriminating statements were products of a violation of Miranda and Edwards v.

Arizona, 451 U.S. 477, 484–85 (1981). “Whether the exclusionary rule applies to

a given case is reviewed de novo, while the underlying factual findings are

reviewed for clear error.” United States v. Crawford, 372 F.3d 1048, 1053 (9th

Cir. 2004) (en banc) (citing United States v. Hammett, 236 F.3d 1054, 1057 (9th

Cir. 2001)).

      Whether or not the detectives ended the interview when they left the room is

a very close question. Although we might have decided the issue differently had

we been the decision maker, we cannot hold that the determination that the


                                           3
interrogation did not end was illogical, implausible, or without support in the

record. Because the district court found the interrogation did not end immediately

after Dorsey asked for his lawyer or even after the detectives left the interview

room, all incriminating statements made thereafter were obtained in violation of

Edwards, 451 U.S. at 484–85, and were properly excluded.

      AFFIRMED.




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