                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,               No. 12-10056
                Plaintiff-Appellee,
                                            D.C. No.
                 v.                      4:10-cr-02880-
                                          JGZ-CRP-1
SHIRLEY ANNE MORGAN ,
             Defendant-Appellant.         AMENDED
                                           OPINION


      Appeal from the United States District Court
               for the District of Arizona
      Jennifer G. Zipps, District Judge, Presiding

                Argued and Submitted
         March 12, 2013—Berkeley, California

                 Filed June 3, 2013
                Amended July 15, 2013

  Before: Raymond C. Fisher, Consuelo M. Callahan,
      and Jacqueline H. Nguyen, Circuit Judges.

               Opinion by Judge Nguyen
2                 UNITED STATES V . MORGAN

                           SUMMARY*


                           Criminal Law

    Affirming the denial of a motion to suppress post-arrest
statements, the panel held that a Border Patrol agent’s reading
of an I-214 Form, which is normally attendant to arrest and
custody, did not constitute a re-initiation of interrogation in
violation of Miranda v. Arizona, where the agent made no
effort to question the defendant or secure a waiver of her
rights.

    The panel also held that the combination of circumstances
– re-advising the defendant of her Miranda rights, processing
drugs seized from her vehicle in her presence, and taking her
photograph standing behind the seized drugs – did not
constitute the “functional equivalent” of interrogation.


                            COUNSEL

Jon M. Sands, Federal Public Defender; Juan L. Rocha
(argued), Assistant Federal Public Defender; and Brian I.
Rademacher, Assistant Federal Public Defender, Tucson,
Arizona, for Defendant-Appellant.

John S. Leonardo, United States Attorney; Christina M.
Cabanillas, Appellate Chief; and Robert L. Miskell (argued),
Assistant United States Attorney, Tucson, Arizona, for
Plaintiff-Appellee.

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V . MORGAN                     3

                         OPINION

NGUYEN, Circuit Judge:

    Shirley Anne Morgan (“Morgan”) appeals her conviction
for conspiracy to possess with intent to distribute marijuana
in violation of 21 U.S.C. § 846 (count one) and possession
with intent to distribute marijuana in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(vii) (count 2). Morgan claims that
the district court erred in refusing to suppress post-arrest
statements allegedly obtained in violation of Miranda v.
Arizona, 384 U.S. 436 (1966). Specifically, Morgan argues
that after she had invoked her right to counsel, Border Patrol
agent Charles Armour (“Armour”) improperly re-initiated
interrogation by re-reading the Miranda warnings to her at
the detention facility. Alternatively, Morgan contends that
the combination of circumstances—re-reading the Miranda
warnings, processing the drugs seized from her vehicle in her
presence, and taking her photograph with the seized
drugs—constituted the “functional equivalent” of
interrogation. Because agent Armour’s actions were not
interrogation or its functional equivalent, we affirm.

                              I.

                              A.

    On October 9, 2010, Morgan drove a vehicle into the
United States through the San Miguel Gate, an unofficial port
of entry located south of Sells, Arizona. The gate, situated on
the border between the United States and Mexico, is intended
to be used only by members of the Tohono O’odham Nation.
Border Patrol agents are stationed at the gate to conduct
immigration and customs inspections.
4                      UNITED STATES V . MORGAN

    During inspection of Morgan’s vehicle, the agents found
several bundles of drugs concealed in a speaker box. Morgan
was arrested and, after being advised of her Miranda rights,
she agreed to speak to agent Armour. However, after a brief
conversation, Morgan invoked her right to counsel. At that
point, agent Armour terminated the interview.

    Agent Armour then transported Morgan and the seized
drugs to the Casa Grande Border Patrol station located
approximately two and a half hours away from the gate. At
the station, the agents loaded the drugs, seventy-seven bricks
of marijuana, onto a handcart and brought them to the area
where Morgan was being processed so that agent Armour
could keep an eye on the evidence while processing Morgan.
Agent Armour testified that the drugs were brought to the
same room because the evidence “ha[d] to be monitored by
an agent at all times.” He explained that while there were
other agents in the station, he could not have asked them to
watch the drugs for him for hours while he was processing
Morgan’s case, because the agents were also working on
other matters. According to agent Armour, it is “common
practice” to keep the seized evidence in the same room where
an arrestee is being processed.

    While processing Morgan, agent Armour read her a
portion of a standard form—the I-214 Form—that contained
the Miranda advisements.1 Morgan then signed the I-214

    1
        The portion of the I-214 Form that was read to Morgan states:

             W arning as to Rights. Before we ask you any
             questions, you must understand your rights. You have
             the right to remain silent. Anything you say can be
             used against you in court, or in any immigration or
             administrative proceeding. You have the right to talk
                    UNITED STATES V . MORGAN                         5

Form, acknowledging that the advisements were read to her
and she understood her rights. Although the I-214 Form
contained a waiver section,2 agent Armour did not read this
section to Morgan or attempt in any way to secure from her
a waiver of her Miranda rights.

    According to agent Armour, agents at the Casa Grande
Border Patrol station are required, as part of the routine
processing of every arrestee, to read the Miranda warnings
from the I-214 Form and to obtain an acknowledgement from
the arrestee that the form was read. This is so regardless of
whether the arrestee has previously invoked his or her
Miranda rights at the scene of the arrest. In Morgan’s case,
agent Armour did not read the waiver of rights section to her
because she had previously invoked her right to counsel.

    After Morgan acknowledged her rights, she stated that she
wished to speak to agent Armour. He replied that he could
not talk to her without the presence of her attorney because


          to a lawyer for advice before we ask you any questions
          and to have him with you during questioning. If you
          cannot afford a lawyer, one will be appointed for you
          before questioning, if you wish. If you decide to
          answer questions now without a lawyer present, you
          will still have the right to stop answering at any time.
          You also have the right to stop answering at any time
          until you talk to a lawyer.

 2
     The waiver section states:

          W aiver. I am willing to make a statement and answer
          questions. I do not want a lawyer at this time. I
          understand and know what I am doing. No promises or
          threats have been made to me and no pressure or
          coercion of any kind is being used against me.
6               UNITED STATES V . MORGAN

she had already invoked her right to counsel. Morgan replied
that she did not need an attorney and wanted to waive her
right to counsel. Agent Armour then gave her the opportunity
to read and sign the waiver section of the I-214 Form. Agent
Armour placed her in a jail cell while he finished processing
the case. During Morgan’s interview, which took place
nearly three hours later, she admitted to smuggling marijuana.

    Prior to her interview, and at some point during
processing, an agent took Morgan’s picture using a web cam.
The picture shows Morgan standing behind the seized drugs.
There is no evidence as to whether the picture was taken
before or after she waived her Miranda rights on the I-214
Form. Agent Armour testified that the photograph was taken
to be posted on Morgan’s jail cell door so that the agents
could readily identify the cell’s occupant. However, agent
Armour was unable to explain why the drugs were included
in the picture.

                              B.

    On October 20, 2010, Morgan was indicted for conspiracy
to possess with intent to distribute marijuana, in violation of
21 U.S.C. § 846, and possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(vii). Morgan filed a motion to suppress her
statements to agent Armour at the station, which the district
court denied. Morgan then entered into a conditional plea
agreement in which she reserved the right to appeal the denial
of her motion to suppress. This appeal followed.
                UNITED STATES V . MORGAN                      7

                              C.

   We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the district court’s denial of a motion to suppress.
United States v. Brobst, 558 F.3d 982, 991 (9th Cir. 2009).

                              II.

                              A.

    Morgan argues that agent Armour’s reading of the I-214
Form constituted a re-initiation of interrogation in violation
of Miranda v. Arizona, 384 U.S. 436 (1966). It is undisputed
that Morgan invoked her right to counsel when she was
arrested at the San Miguel Gate. The issue, therefore, is
whether Morgan was “interrogated” when agent Armour re-
advised Morgan of her Miranda rights at the station.

    The term “interrogation” refers to “express questioning”
or its “functional equivalent,” which includes “words or
actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response.”
Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

     Here, agent Armour re-advised Morgan of her Miranda
rights from the I-214 Form as part of the station’s standard
processing procedure. Agent Armour testified that the station
has “a checklist for prosecution and one of the forms that has
to be included in every prosecution” is the I-214 Form, which
is read to every arrestee regardless of whether the arrestee has
previously invoked his or her rights at the scene of the arrest.
Because the reading of the I-214 Form is “normally attendant
to arrest and custody,” and agent Armour made no effort to
8               UNITED STATES V . MORGAN

question Morgan or secure a waiver of her rights, we hold
that his actions were not the functional equivalent of express
questioning such that they were an “interrogation” in
violation of Miranda. See Guam v. Ichiyasu, 838 F.2d 353,
358 (9th Cir. 1988) (“The reading of Miranda warnings most
certainly is an action ‘normally attendant to arrest,’ not to be
considered police coercion.”).

                              B.

    Alternatively, Morgan argues that the combination of
circumstances—re-advising her of the Miranda rights,
processing the drugs seized from her vehicle in her presence,
and taking her photograph standing behind the seized
drugs—constituted the “functional equivalent” of
interrogation. We disagree. “The standard for determining
whether an officer’s comments or actions constitute the
‘functional equivalent’ of interrogation is quite high . . . .”
United States v. Foster, 227 F.3d 1096, 1103 (9th Cir. 2000).
Subjecting a suspect to “subtle compulsion,” without more,
is not the functional equivalent of interrogation. Innis,
446 U.S. at 303. Rather, a defendant must show that his
statement “was the product of words or actions on the part of
the police that they should have known were reasonably
likely to elicit an incriminating response.” Id.; see, e.g.,
United States v. Moreno-Flores, 33 F.3d 1164, 1169–70 (9th
Cir. 1994) (holding that an agent’s statements to the
defendant that the agent had seized approximately 600
pounds of cocaine and that the suspect was in trouble were
not the functional equivalent of interrogation because they did
not invite a response from the suspect); Shedelbower v.
Estelle, 885 F.2d 570, 573 (9th Cir. 1989) (holding that an
officer’s statements to the defendant that his accomplice was
in custody, and that the victim identified the defendant’s
                UNITED STATES V . MORGAN                     9

photograph as one of the men who raped her, were not the
functional equivalent of interrogation because they were not
the type of comments that would elicit an incriminating
remark). As the Supreme Court explained in Innis, “the
police . . . cannot be held accountable for the unforeseeable
results of their words or actions.” 446 U.S. at 301–02.

    Here, Morgan was not subjected to the functional
equivalent of interrogation. Agent Armour processed Morgan
in the same room where the drugs were located because he
needed to monitor the evidence at the same time. Even
assuming that the photograph of Morgan was taken prior to
the re-advisement of her Miranda rights, it was done as part
of the station’s processing procedure. These actions, coupled
with the routine reading of the I-214 Form, were not unduly
coercive, particularly in light of the fact that agent Armour
made no attempt to secure a waiver of Morgan’s rights or
elicit any incriminating statements from her. In fact, even
after Morgan expressly waived her rights, agent Armour
waited nearly three hours before interviewing her. Cf. United
States v. Orso, 266 F.3d 1030, 1033–34 (9th Cir. 2001)
(holding that an officer’s long and detailed conversation with
the defendant about incriminating evidence against her was
the functional equivalent of interrogation when viewed
together with the officer’s testimony that he purposely
delayed Mirandizing defendant to elicit inculpatory
statements), overruled on other grounds by Missouri v.
Seibert, 542 U.S. 600 (2004).

   We agree with the district court that, in the absence of any
explanation from the government, photographing Morgan
10                 UNITED STATES V . MORGAN

with the seized drugs is disconcerting.3 Nevertheless,
viewing the totality of the circumstances, we hold that agent
Armour’s actions were not “reasonably likely to elicit an
incriminating response” and, therefore, did not constitute the
functional equivalent of interrogation.

                                  III.

   Because Morgan was not subjected to interrogation or its
functional equivalent, we affirm the district court’s denial of
Morgan’s motion to suppress her post-arrest statements.

      AFFIRMED.




  3
    W e express no view as to whether there may be a valid rationale for
this practice. W e simply note that the government offered no explanation
for it despite having several opportunities to do so.
