                 IN THE SUPREME COURT OF IOWA
                                    No. 07–1707

                              Filed May 29, 2009


STATE OF IOWA,

      Appellant,

vs.

LUIS FERNANDO ORTIZ,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Woodbury County, Gary E.

Wenell, Judge.



      The defendant seeks further review of a court of appeals decision

reversing    a   district   court    decision   suppressing   the   defendant’s

statements made during an interrogation by the police. DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT
AFFIRMED AND CASE REMANDED.



      Thomas J. Miller, Attorney General, Jean C. Pettinger and Mary

Tabor, Assistant Attorneys General, Patrick Jennings, Woodbury County

Attorney, and Jill R. Pitsenbarger, Assistant County Attorney, for

appellant.



      Shelley Goff, Ruston, Louisiana, for appellee.
                                    2

WIGGINS, Justice.

      The police brought a suspect to the police station for questioning.

The suspect spoke little or no English. After signing a Spanish-language

“voluntary waiver of rights,” he stated he did not understand his rights.

Then a Spanish-speaking officer read the suspect a Spanish Miranda

advisory. The suspect waived his rights and confessed to inappropriate

contact with a child. The State charged the suspect with lascivious acts

with a child. Prior to trial, the defendant filed a motion to suppress his

statements, alleging he did not knowingly, intelligently, and voluntarily

waive his Miranda rights. The district court granted the motion, and the

State appealed. The court of appeals reversed, finding Ortiz knowingly,

intelligently, and voluntarily waived his rights. Because we agree with

the district court that the State failed to prove by a preponderance of the

evidence the defendant knowingly and intelligently waived his Miranda

rights, we vacate the decision of the court of appeals, affirm the

judgment of the district court, and remand the case for further

proceedings.

      I. Background Facts and Proceedings.

      On July 15, 2006, the Sioux City Police Department received a

report from a woman asserting that Luis Ortiz, who was working on

various remodeling projects in her home, had forced her seven-year-old

daughter to touch his penis.     Because Ortiz’s address was unknown,

Detective Bertrand asked the woman to arrange for Ortiz to come to her

home. On that date, Bertrand went to the woman’s home to attempt to

speak to Ortiz.   Because Bertrand was aware Ortiz spoke little or no

English, he brought Spanish-speaking Special Agent Ricardo Rocha of

the Federal Immigration and Customs Enforcement Agency with him to

interpret. When Ortiz arrived at the house, Bertrand identified himself
                                     3

as a police officer and asked Ortiz, with Rocha translating, if he would be

willing to accompany him to the police station for an interview. At the

time of this request, Bertrand’s badge and gun were on his waist and in

full view of Ortiz. Rocha explained to Ortiz that he was not under arrest

and could refuse to go. Ortiz agreed without any reluctance. Bertrand

did not give Ortiz the choice of driving his own vehicle to the station.

Rocha was not able to accompany Bertrand and Ortiz to the station

because he had other things to do that morning.           Bertrand dropped

Rocha at his office and then took Ortiz to the station.

      At the station, Bertrand took Ortiz to the second floor, using a key

card to access the elevator.    Bertrand put Ortiz in an interview room

equipped with recording capabilities.    Bertrand left Ortiz alone in the

room for approximately thirteen minutes before he returned to the room

with Salvador Sanchez, a Sioux City officer, who spoke Spanish.        The

interview began with Sanchez interpreting for Bertrand and Ortiz. The

relevant substance of the interview as translated into English by a

person certified as a translator by the United States District Court is as

follows:

      Sanchez: How are you, friend?

      Ortiz: Fine.

      Bertrand: Okay, uh, before I can begin, I need to let you
      read your rights. It’s part of the policy.

      Sanchez: Questions. Can you read them?

      Ortiz: Uh-huh.

      Sanchez: Yeah?

      Sanchez: [speaking in a low voice to Bertrand]

      Bertrand: Yeah. [in response to Sanchez]
                              4
Sanchez: [speaking in a low voice to Bertrand]

Bertrand: Uh-huh.

08:27:21: [Sanchez leaves the interview cubicle]

08:28:06: [L. Ortiz signed the waiver]

Bertrand: Do you understand your rights?

Ortiz: But, what are my rights?

Bertrand: Okay, uh, [makes physical gesture to wait and
then looks at the door through which Sanchez left a few
minutes ago]. Uh, we’ll wait, we’ll wait.

Ortiz: [shakes head affirmatively]

Bertrand: Your license.

Ortiz: Uh-huh. [places left hand in front left pocket to
retrieve wallet and remove license to hand to Bertrand]

08:28:55: [Sanchez reenters the interview cubicle]

Bertrand: How are you doing?

Sanchez: Did you understand what you read?

Ortiz: He is telling me the rights, but, what are they, what
are they?

Sanchez: I am going to read them to you again.

Ortiz: Uh-huh.

Sanchez: Okay? [Sanchez takes a paper and starts to read
from it] I have reading [sic.] the statement of . . .

[At 08:28:21 Sanchez puts down the paper the witness had
signed and appeared to pull out his own reference source]

Sanchez: Statement of rights.

Ortiz: Uh-huh.

Sanchez:   Before asking some questions, you have to
understand the following.

Ortiz: Uh-huh.
                                           5
       Sanchez: Okay? You have the right to remain silent.
       Anything you say can be used against you in the Court. You
       have the right to consult with an attorney before asking
       questions and have this attorney present during the
       questioning. 1 If you cannot pay for the services of an
       attorney, one will be [unintelligible] to you, if you so desire.
       You understand you [sic.].        [Sanchez looks at witness
       apparently waiting for an answer]

       The original waiver signed by Ortiz was written in Spanish.                     It

translates as follows:

                      VOLUNTARY WAIVER OF RIGHTS
                           (WAIVER OF RIGHTS)

               I have read the declaring [sic.] of the [non-word] [sic.]
       upon which I am noticed of my rights on [sic.] the
       constitution and the legal [sic.] and I completely understand
       what my rights are. I have received the opportunity to use
       the telephone to notify an attorney or individual from my
       family. I agree to answer an [sic.] questions and make an
       [sic.] statement. I know exactly what I am doing and I am
       doing so as a volunteer [sic.] and underneath [sic.] my own
       [sic.] will. I do not want to consult with an attorney and I
       don’t want to have an attorney be witnessed [sic.] here to
       inform me of my rights. I have not received any promise of
       immunity of any other type and they have not used any
       physically [sic.] force or pressionment [sic.] of any to force me
       to make a statement.

       After Ortiz twice stated he did not understand his rights contained

in the waiver he signed, Sanchez attempted to read from the signed

waiver. He felt uncomfortable reading the warnings from the waiver form

and pulled a copy of the Miranda warnings translated in Spanish used by

the Federal Drug Enforcement Agency. After receiving these warnings,

Ortiz responded that he understood. Sanchez then stated, “Do you have

       1The  State contends the English translation of this sentence is “You have the
right to consult with an attorney before making any questions and have said attorney
present during the interview” rather than “You have the right to consult with an
attorney before asking questions and have this attorney present during the
questioning.” We believe the translation by the person certified by the United States
District Court, interpreting the sentence using the word “asking,” is more credible. This
discrepancy, however, does not have a bearing on the ultimate outcome of this case.
                                       6

questions right now?” Ortiz replied, “No. Not right now. I want to know

[unintelligible].” Sanchez appeared to cut off the rest of Ortiz’s answer by

stating, “He understood his rights. I asked him if he has any questions,

he says he knows what is going on.” Bertrand then began to interrogate

Ortiz. At no time during the interview at the station did Bertrand tell

Ortiz he was free to go.

      The State charged Ortiz with lascivious acts with a child.      Ortiz

filed a motion to suppress statements made during the interview based

on the Fifth and Sixth Amendments to the United States Constitution.

Ortiz filed this motion after the court granted him an extension of time to

do so. Following a hearing, the district court granted Ortiz’s motion to

suppress, concluding the record failed to show by a preponderance of the

evidence that Ortiz knowingly and intelligently waived his Miranda rights

and that he made his statements voluntarily.           The State filed an

application for discretionary review of the district court’s ruling, which

we granted. We transferred the case to the court of appeals. The court

of appeals reversed the district court’s suppression order, concluding,

“Ortiz was adequately advised of his rights under Miranda and he

knowingly, voluntarily, and intelligently waived those rights.”       Ortiz

sought further review by this court.

      II. Issues.

      The State raises two issues on appeal.      First, the district court

erred in extending the time for Ortiz to file his motion to suppress.

Second, the district court erred in finding the record failed to show by a

preponderance of the evidence that Ortiz knowingly and intelligently

waived his Miranda rights and that he made his statements voluntarily.
                                    7

      III. Scope of Review.

      We review the district court’s good cause determination regarding

the timeliness of a motion to suppress for an abuse of discretion. State

v. Ball, 600 N.W.2d 602, 604–05 (Iowa 1999).        We apply a different

standard of review when we review the merits of the district court’s ruling

on the motion to suppress.

      The Miranda warnings protect a suspect’s Fifth Amendment right

against self-incrimination “ensuring that a suspect knows that he may

choose not to talk to law enforcement officers, to talk only with counsel

present, or to discontinue talking at any time.” Colorado v. Spring, 479

U.S. 564, 574, 107 S. Ct. 851, 857, 93 L. Ed. 2d 954, 966 (1987).

Because the State’s appeal of the district court’s ruling on the motion to

suppress implicates constitutional issues, our review is de novo. State v.

Morgan, 559 N.W.2d 603, 606 (Iowa 1997). For Ortiz’s statements to be

admissible, the State must first prove Ortiz was adequately informed of

his Miranda rights, understood them, and knowingly and intelligently

waived them.    Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135,

1141, 89 L. Ed. 2d 410, 421 (1986) (“[T]he waiver must have been made

with a full awareness of both the nature of the right being abandoned

and the consequences of the decision to abandon it.”); Morgan, 559

N.W.2d at 606. Second, the State must prove Ortiz gave his statement

voluntarily.   Morgan, 559 N.W.2d at 606.     The State must prove by a

preponderance of the evidence that a suspect knowingly, intelligently,

and voluntarily waived his or her Miranda rights. Id.

      IV. Good Cause Determination.

      The State contends Ortiz waived his constitutional objections by

failing to file his motion to suppress in accordance with Iowa Rule of

Criminal Procedure 2.11(4).    The rule requires Ortiz to file his motion
                                    8

within forty days of the arraignment.     Iowa R. Crim. P. 2.11(4).   If a

defendant fails to file the motion within that time, the objection is

waived. State v. Terry, 569 N.W.2d 364, 368 (Iowa 1997). However, if

the court finds good cause for the late filing, the court can excuse the

untimeliness. Id.

      The trial information was filed August 4, 2006, and Ortiz pled not

guilty in a written arraignment on August 16. The initial trial date was

set for November 28. This trial date was continued multiple times, with

the State agreeing to each continuance.

      In May 2007 Ortiz filed a letter with the court complaining that his

attorney had not done anything on the case. The court removed Ortiz’s

counsel and appointed another attorney to represent Ortiz. At the end of

May, that attorney moved to withdraw, and another attorney filed an

appearance on Ortiz’s behalf.

      On June 7 the court had a pretrial conference with the State and

Ortiz’s present attorney regarding the June 26 trial date.            This

conference appears to be the first time an attorney was willing to do the

work necessary to defend Ortiz properly. At the conference, the attorney

indicated she wished to take a deposition of the police officers who

interviewed Ortiz because there was a question as to whether Ortiz

knowingly waived his rights prior to giving his statement.       Without

objection, the court continued the trial to July 10.       The court also

granted the attorney’s request to take the depositions and stated that

any motion to suppress, together with any translations of the interview,

should be filed no later than June 21. An order formalizing the June 7

conference was entered on June 8.       The defendant complied with the

court order and filed his motion to suppress on June 21.
                                     9

      Ortiz’s prior counsel did not do anything in furtherance of

exploring the possibility of filing a motion to suppress.      Shortly after

Ortiz’s last counsel filed her appearance, she diligently explored the

possibility of filing such a motion. If the case did go to trial without the

court ruling on the motion to suppress, Ortiz would have had an

ineffective-assistance-of-counsel claim against his attorney that would

have to be litigated had he been convicted.       See State v. Rhiner, 352

N.W.2d 258, 261, 264 (Iowa 1984) (holding failure to timely file a motion

to suppress that the court should have granted is cause for an

ineffective-assistance-of-counsel claim and a reversal of the verdict).

      The district court considered the untimely motion due to the

multiple changes of counsel and prior counsel’s failure to represent Ortiz

properly.   The district court knew that if Ortiz’s motion to suppress

should have been granted and the court failed to consider it pretrial, any

guilty verdict in Ortiz’s case may have been subject to reversal on an

ineffective-assistance-of-counsel claim.    It is the public policy of this

state that litigation should be final at the earliest possible date. To avoid

additional litigation in this matter the court did the proper thing by

considering the motion rather than waiting for its merits to be

determined in a postconviction relief proceeding.          Accordingly, the

district court did not abuse its discretion in hearing the motion under

the circumstances of this case.

      V. Motion to Suppress.

      A. Miranda. In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,

16 L. Ed. 2d 694 (1966), the Supreme Court required the police to advise

suspects of their rights under the Fifth and Fourteenth Amendments

before beginning a custodial interrogation. The Supreme Court required

that the suspect must be told:
                                    10
      he has the right to remain silent, that anything he says can
      be used against him in a court of law, that he has the right
      to the presence of an attorney, and that if he cannot afford
      an attorney one will be appointed for him prior to any
      questioning if he so desires.

Id. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726. The requirement that

police officers advise suspects of their Miranda rights is more than a

mere procedural nicety or legal technicality.          Id. at 476, 86 S. Ct. at

1629, 16 L. Ed. 2d at 725 (“The requirement of warnings and waiver of

rights is . . . fundamental with respect to the Fifth Amendment privilege

and   not   simply   a   preliminary     ritual   to     existing   methods   of

interrogation.”). The police must take the giving of the Miranda warnings

seriously and must not presume that suspects “are already aware of

what rights they possess prior to being questioned.” United States v. San

Juan-Cruz, 314 F.3d 384, 389 (9th Cir. 2002).

      Suspects may waive their Miranda rights as long as the suspect

has done so knowingly, intelligently, and voluntarily. Miranda, 384 U.S.

at 444, 475, 86 S. Ct. at 1612, 1628, 16 L. Ed. 2d at 706–07, 724. For a

waiver to be made knowingly and intelligently, “the waiver must have

been made with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.” Moran,

475 U.S. at 421, 106 S. Ct. at 1141, 89 L. Ed. 2d at 421. For a waiver to

be made voluntarily, the relinquishment of the right must have been

voluntary, meaning it was the product of the suspect’s free and

deliberate choice rather than intimidation, coercion, or deception. Id.

      The question of whether a suspect in fact knowingly, intelligently,

and voluntarily waived his or her Miranda rights is to be made by

inquiring into the totality of the circumstances surrounding the

interrogation, to ascertain whether the suspect in fact “decided to forgo

his rights to remain silent and to have the assistance of counsel.” Fare v.
                                   11

Michael C., 442 U.S. 707, 724–25, 99 S. Ct. 2560, 2571–72, 61 L. Ed. 2d

197, 212 (1979).   Statements made by a suspect during a custodial

interrogation are inadmissible unless a suspect is specifically warned of

his or her Miranda rights and freely decides to forgo those rights. New

York v. Quarles, 467 U.S. 649, 654, 104 S. Ct. 2626, 2630, 81 L. Ed. 2d

550, 556 (1984).

      B.   Custodial Interrogation. The State claims Ortiz was not in

custody at the time of his interrogation; therefore, the police were not

required to give him Miranda warnings prior to the interrogation. The

Miranda opinion provides that a suspect is in custody upon formal arrest

or under any other circumstances where the suspect is deprived of his or

her freedom of action in any significant way. Miranda, 384 U.S. at 444,

86 S. Ct. at 1612, 16 L. Ed. 2d at 706. In determining whether a suspect

is “in custody” at a particular time, we examine the extent of the

restraints placed on the suspect during the interrogation in light of

whether “a reasonable man in the suspect’s position would have

understood his situation” to be one of custody.    Berkemer v. McCarty,

468 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1984).

We apply this test objectively. State v. Miranda, 672 N.W.2d 753, 759

(Iowa 2003). In making our determination, we consider the following four

factors:

            (1) the language used to summon the individual;

            (2) the purpose, place, and manner of interrogation;

            (3) the extent to which the defendant is confronted
            with evidence of [his] guilt; and

            (4) whether the defendant is free to leave the place of
            questioning.

Id.
                                    12

      An application of these factors reveals that when Bertrand

approached Ortiz, he asked Ortiz if he would accompany him to the

police station for the purpose of being interviewed. At the time of the

request, Bertrand’s badge and gun were on his waist and in full view of

Ortiz. Although Rocha explained to Ortiz that he was not under arrest

and could refuse to go to the station, Ortiz agreed without any

reluctance. When Ortiz agreed to go to the station, Bertrand did not give

Ortiz the choice of driving his own vehicle to the station.    Therefore,

Ortiz’s transportation was miles away from the station.

      At the station, Bertrand took Ortiz to the second floor and put him

in an interview room.    Bertrand had to use a key card to access the

elevator, leaving the impression a key card would be required to exit the

area as well. Prior to any questioning, the police attempted to give Ortiz

his Miranda warnings, warnings required to be given prior to a custodial

interrogation.   Even though Bertrand never told Ortiz he was under

arrest at the station, Bertrand also never told Ortiz he was free to leave

the station. See United States v. Longbehn, 850 F.2d 450, 453 (8th Cir.

1988) (finding defendant in custody where record reflected no evidence

that suspect was free to leave). But see Oregon v. Mathiason, 429 U.S.

492, 494–95, 97 S. Ct. 711, 713–14, 50 L. Ed. 2d 714, 719 (1977)

(finding of coercion mitigated where suspect was free to leave and was

informed he was not under arrest). Even if Ortiz wanted to leave, he had

no transportation to return to his vehicle.

      The purpose of the interrogation was to obtain Ortiz’s confession.

In furtherance of that purpose, after asking some preliminary questions,

Bertrand confronts Ortiz with the mother’s allegations of inappropriate

contact between Ortiz and her daughter. Next, Bertrand launches into
                                    13

the interrogation by asking Ortiz how many times he had inappropriate

contact with the girl.

      Although the State maintains Ortiz was not in custody, in light of

all the circumstances, we believe once Ortiz was transported to the police

station and put in the interview room a reasonable person in Ortiz’s

position would have understood his situation to be one of custody. Thus,

Bertrand was required to give Ortiz his Miranda warnings before

beginning the interrogation.

      C. Knowing and Intelligent Waiver. The State has the burden to

prove by a preponderance of the evidence that Ortiz knowingly and

intelligently waived his Miranda rights. Morgan, 559 N.W.2d at 606. The

Supreme Court has never required a precise formulation of the Miranda

warnings.   Duckworth v. Eagan, 492 U.S. 195, 202, 109 S. Ct. 2875,

2880, 106 L. Ed. 2d 166, 176–77 (1989).          To determine whether a

suspect’s waiver of his or her Miranda rights was knowing and

intelligent, we must inquire if the suspect knew that he or she did not

have to speak to the police without counsel and understood that

statements provided to the police could be used against him or her.

United States v. Yunis, 859 F.2d 953, 964–65 (D.C. Cir. 1988). This does

not mean a suspect must understand the tactical advantage of keeping

silent in order to make a valid waiver. Id. at 965.

      Although language barriers may have hindered Ortiz’s ability to

knowingly and intelligently waive his Miranda rights, the translation of

the Miranda rights need not be a perfect one, so long as Ortiz understood

that he did not need to speak to the police without counsel and that any

statement he made could be used against him.            United States v.

Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990). However, regardless

of what language is used to convey the warnings to Ortiz, the warnings
                                    14

must “ ‘be clear and not susceptible to equivocation’ ” and provide

“ ‘ “meaningful advice to the unlettered and unlearned in language which

[he] can comprehend and on which [he] can knowingly act.” ’ ” United

States v. Perez-Lopez, 348 F.3d 839, 848 (9th Cir. 2003) (quoting San

Juan-Cruz, 314 F.3d at 387).

      After reviewing the totality of the circumstances surrounding

Ortiz’s interrogation, we agree with the district court that the State has

failed to meet its burden to show by a preponderance of the evidence that

Ortiz waived his Miranda rights knowingly and intelligently. First, the

State failed to establish Ortiz spoke and understood English. Because of

this language barrier, it was incumbent upon the State to prove that the

warnings given to Ortiz in Spanish provided him meaningful advice in a

language he could comprehend and on which he could knowingly act.

      Second, Bertrand gave Ortiz a written warning that made no sense.

Although the literal translation contains bits and pieces of the required

Miranda warning, the record is devoid of any testimony that a Spanish-

reading individual would read the written warning and glean any

indication of his or her Miranda rights. The record factually reveals that

after Ortiz read and signed this waiver, he asked not once, but twice as
to what his rights were.
      Third, both Ortiz and the State introduced the literal translation of

the Miranda warnings as read by Sanchez.        Ortiz’s translation states

Sanchez told Ortiz, “You have the right to consult with an attorney before

asking questions and have this attorney present during the questioning.”

The State’s translation states Sanchez told Ortiz, “You have the right to

consult with an attorney before making any questions and have said

attorney present during the interview.” Miranda requires that a suspect

be informed, “that he has the right to the presence of an attorney, and
                                    15

that if he cannot afford an attorney one will be appointed for him prior to

any questioning if he so desires.” Miranda, 384 U.S. at 479, 86 S. Ct. at

1630, 16 L. Ed. 2d at 726 (emphasis added).

      Both Ortiz’s and the State’s translations convey to an English-

speaking individual that before Ortiz asked or made a question he had a

right to have an attorney present. Neither translation conveys to Ortiz

that he has the right to an attorney before being asked to answer any

questions. If this warning, as translated into English, was given to an

English-speaking   person,   the    person’s   statement   would     not   be

admissible because the warning given does not contain the essence of

Miranda. Miranda requires that a suspect be informed that he or she

has a right to counsel before being asked questions rather than before

asking or making questions.     The warning Ortiz received confuses the

issue of who is asking or making the questions and fails to adequately

inform him of his Miranda rights.

      The State seems to argue that due to the nature and syntax of the

Spanish language a suspect who spoke and understood Spanish would

understand the Spanish Miranda warning to convey that prior to or

during any interrogation by the police, the suspect would have a right to

consult with an attorney. Although this argument may have some merit,

the record contains no evidence that would allow us to find the Spanish

Miranda warning was sufficient. Neither party called an interpreter to

testify how a Spanish-speaking individual would understand the Spanish

translation of Miranda. The only evidence of what was conveyed to Ortiz

was copies of the translation that was admitted into evidence. The bare

translation of Sanchez’s words does not satisfy the State’s burden to

prove Ortiz knowingly and intelligently waived his Miranda rights.
                                     16

      Finally, after Sanchez read Ortiz his rights, Sanchez then asked
Ortiz, “Do you have questions right now?” Ortiz replied, “No. Not right
now. I want to know [unintelligible].” Sanchez appeared to cut off the
rest of Ortiz’s answer by telling Bertrand, “He understood his rights. I
asked him if he has any questions, he says he knows what is going on.”
Bertrand then began to interrogate Ortiz. We are concerned about the
haste used by Sanchez and Bertrand to begin the interrogation after
Ortiz stated, “I want to know [unintelligible].” We are not convinced that
Ortiz’s unintelligible statement was not a request for further clarification.
It is the State’s burden to prove his unintelligible statement was not a
request for further clarification. Under this record, we cannot make a
finding the unintelligible statement was not such a request.
      Accordingly, under the totality of the circumstances, the State has
failed to meet its burden that Ortiz knowingly and intelligently waived his
Miranda rights.    Consequently, the district court was correct when it
suppressed Ortiz’s statements made during his interview at the Sioux
City police department.
      D. Voluntary Waiver. Even though the district court found Ortiz
did not voluntarily waive his Miranda rights, we need not decide this
issue having found the waiver was not given knowingly and intelligently.
      VI. Disposition.
      Because we agree with the district court that Ortiz did not
knowingly and intelligently waive his Miranda rights, we vacate the
decision of the court of appeals and affirm the judgment of the district
court. Therefore, we remand this case to the district court to proceed in
a manner consistent with this decision.
      DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED AND CASE REMANDED.
      All justices concur except Streit and Cady, JJ., who dissent.
                                            17

                                                             Ortiz, #35/07–1707

STREIT, Justice (dissenting).

       I disagree. The Miranda warning read to Luis Ortiz conveyed the

key requirements of Miranda, specifically the right to consult with an

attorney and have the attorney present during questioning.                          Ortiz’s

waiver and subsequent confession were voluntary considering the totality

of the circumstances. I would affirm the court of appeals and reverse the

district court.

       I. Background Facts.

       The majority does not take into account some key facts. At the

police station, Officer Bertrand took Ortiz to an interview room and gave

Ortiz a “Waiver of Rights” form 2 written in Spanish and asked him to

       2The   defendant’s expert translated the waiver of rights form as follows:
                                VOLUNTARY WAIVER OF RIGHTS
                                      (WAIVER OF RIGHTS)
              I have read the declaring [sic.] of the [non-word] upon which I am
       noticed of my rights on [sic.] the constitution and the legal [sic.] and I
       completely understand what my rights are.              I have received the
       opportunity to use the telephone to notify an attorney or individual from
       my family. I agree to answer an [sic.] questions and make an [sic.]
       statement. I know exactly what I am doing and I am doing so as a
       volunteer [sic.] and underneath [sic.] my own [sic.] will. I do not want to
       consult with an attorney and I don’t want to have an attorney be
       witnessed [sic.] here to inform me of my rights. I have not received any
       promise of immunity of any other type and they have not used any
       physically [sic.] force or pressionment [sic.] of any to force me to make a
       statement.
The original Spanish reads:
                      RENUNCIA VOLUNTARIA DE LOS DERECHOS
                                   (WAIVER OF RIGHTS)
               He leido el declaracion de advertiso en que estoy avisado de mis
       derechos del constitucion y del juridico y entiendo completamente cuales
       son mis derechos. He recibido la oportunidad de usar el telefone para
       notificar un licenciado o una persona de mi familia. Estoy de acuerdo a
       contestar cualquier preguntos y hacer un declaracion. Se exactamente lo
       que estoy haciendo y eso lo hago de voluntario y debajo mi propira
       voluntad. No quiero consultar con un licenciado y no quiero tener un
                                        18

read it.    The form was not by any means a valid Miranda waiver.

Although it acknowledges the right to an attorney, it did not mention the

right to remain silent or have an attorney appointed if you cannot afford

one. Officer Salvador Sanchez, of the Sioux City Police Department, was

present as an interpreter. Sanchez asked Ortiz if he could read the form,

and Ortiz responded that he could.           Sanchez then left the room for a

moment, and Ortiz signed the waiver of rights form. After Ortiz signed

the form, Bertrand asked him, “Do you understand your rights?” Ortiz

responded, “But what are my rights?” Bertrand waited for Sanchez to

return.    When Sanchez returned, he asked Ortiz, “Do you understand

what you read?” Ortiz responded, “He is telling me the rights, but what

are they, what are they?” This was a direct question as to what this form

meant when it said “I completely understand what my rights are.”                 If

anything, this demonstrated Ortiz knew exactly what was going on. He

had not been told his rights.        He asked with clarity what they were.

Sanchez then began reading out loud the waiver of rights form that Ortiz

had signed. Sanchez stopped reading (perhaps realizing the Waiver of

Rights form would not adequately tell him his rights) and instead read

Ortiz the Spanish Miranda advisory card used by the federal Drug

Enforcement Administration. 3        The following is a translation by the

defendant’s expert of the advisory Sanchez recited to Ortiz:

      Before asking some questions, you have to understand the
      following. Okay? You have the right to remain silent.
_____________________________
      licenciado presenciarse aqui para avisarme de mis derechos. No he
      recibido ninguna promesa de inminudad ni de cualquier otro tipo y no
      han usado ninguna fuerza fisicamente ni presura de cualquier tipo para
      forzarme de hacer una declaracion.

      3Sanchez    works on a joint drug task force. He testified that he is more
comfortable with the Miranda form used by the Drug Enforcement Administration, form
13A, a card which includes a Miranda warning in English on one side and a Spanish
version on the other side.
                                             19
       Anything you say can be used against you in the court. You
       have the right to consult with an attorney before asking
       questions and have this attorney present during the
       questioning.   If you cannot pay for the services of an
       attorney, one will be [unintelligible] to you, if you so desire.
       You understand you? 4

(Emphasis added.) Ortiz responded that he had no questions. He then

confessed to making the girl touch his penis.

       II. Knowing and Intelligent Waiver.

       In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d

694 (1966), the United States Supreme Court determined that the Fifth

and Fourteenth Amendments require the police to inform a suspect he

has a right to remain silent and a right to counsel during custodial

interrogation. A defendant can waive these rights “provided the waiver is

made voluntarily, knowingly, and intelligently.”                Miranda, 384 U.S. at




       4The   original Spanish advisory Sanchez recited to Ortiz is as follows:

       Antes de hacer algunas preguntas, usted tiene que entender de lo
       siguiente: Okay, usted tiene el derecho de permanecer callado.
       Cualquier cosa que usted diga se puede usar en su contra en la corte.
       Usted tiene el derecho de consultar con abogado antes de hacerle
       algunas preguntas y tener dicho abogado presente durante el
       interrogatorio. Si usted no puede pagar por los servicios de un abogado,
       uno será nombrado para usted, antes de cualquier interrogatirio, si
       usted desea. Entiendes usted?

Sanchez read the federal DEA Miranda advisory correctly, without any word
substitutions. The translation cited in the text above is from the defendant’s expert,
Michael D. Powers, Ph.D. and United States Certified Court Interpreter in Spanish. The
state’s interpreter, Giovanna Canet, a certified Spanish interpreter for the State of Iowa,
translates the key phrase “Usted tiene el derecho de consultar con abogado antes de
hacerle algunas preguntas y tener dicho abogado presente durante el interrogatorio”
slightly differently than the defendant’s expert. Her translation, in State’s Exhibit 5,
reads “You have the right to consult with an attorney before making any questions [and]
have said attorney present during the interview.”

       DEA Form 13A includes both an English and a Spanish Miranda advisory to be
read to the suspect prior to interrogation. The English version on the form reads “You
have the right to talk to a lawyer for advice before we ask you any questions and to have
a lawyer with you during questioning.” DEA Form 13A.
                                          20

444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707. “The State must prove, by a

preponderance of the evidence, that constitutional rights were knowingly

waived and that statements of an inculpatory nature were voluntarily

given.”    State v. Morgan, 559 N.W.2d 603, 606 (Iowa 1997).                  Absent

Miranda warnings and a valid waiver of those rights, statements made

during an interrogation are inadmissible. Miranda, 384 U.S. at 479, 86

S. Ct. at 1630, 16 L. Ed. 2d at 726.

       In determining whether a defendant has validly waived his Miranda

rights, we must consider the following:

       First, the relinquishment of the right must have been
       voluntary in the sense that it was the product of a free and
       deliberate choice rather than intimidation, coercion, or
       deception. Second, the waiver must have been made with a
       full awareness of both the nature of the right being
       abandoned and the consequences of the decision to abandon
       it. Only if the “totality of the circumstances surrounding the
       interrogation” reveal both an uncoerced choice and the
       requisite level of comprehension may a court properly
       conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d
410, 420–21 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.

Ct. 2560, 2572, 61 L. Ed. 2d 197, 212 (1979)).

       Ortiz does not assert that his waiver was coerced.                Rather, he

contends because the recitation of his rights did not properly explain a

lawyer would be available to him before answering questions, he did not

fully understand the rights he was waiving. Ortiz argues informing him

he has the right to consult with an attorney before “asking questions” 5 is

significantly different from having the right to consult with an attorney

before “answering questions” and does not satisfy the requirements of

Miranda.

       5As noted above, the State’s interpreter translated the phrase “antes de hacerle

algunas preguntas” as “before making any questions.”
                                      21

      Miranda does not require that a “precise formulation of the

warning [be] given to a criminal defendant.” California v. Prysock, 453

U.S. 355, 359, 101 S. Ct. 2806, 2809, 69 L. Ed. 2d 696, 701 (1981). The

United States Supreme Court has “never insisted that Miranda warnings

be given in the exact form described in that decision.”      Duckworth v.

Eagan, 492 U.S. 195, 202, 109 S. Ct. 2875, 2880, 106 L. Ed. 2d 166,

176 (1989). We have adopted the federal standard and have determined

that Miranda warnings need only “reasonably relay to an accused his

rights as required by the Miranda decision.”      State v. Schwartz, 467

N.W.2d 240, 246 (Iowa 1991).

      The fact that Miranda rights are translated into the suspect’s

native language does not change the analysis. See, e.g., United States v.

Perez-Lopez, 348 F.3d 839, 848–49 (9th Cir. 2003). As the Tenth Circuit

has noted,

      Although language barriers may inhibit a suspect’s ability to
      knowingly and intelligently waive his Miranda rights, when a
      defendant is advised of his rights in his native tongue and
      claims to understand such rights, a valid waiver may be
      effectuated. The translation of a suspect’s Miranda rights
      need not be a perfect one, so long as the defendant
      understands that he does not need to speak to police and
      that any statement he makes may be used against him.

United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990)

(citations omitted).

      In Prysock and Duckworth, the United States Supreme Court found

the Miranda warnings given were adequate where they apprised the

individual of the following rights:    (1) the right to remain silent, and

anything the individual says can be used against him or her in a court,

(2) the right to the presence of an attorney during questioning, and (3)

the right to have an attorney appointed at no cost if the individual cannot

afford one. Duckworth, 492 U.S. at 203, 109 S. Ct. at 2880, 106 L. Ed.
                                      22

2d at 177; Prysock, 453 U.S. at 361, 101 S. Ct. at 2810, 69 L. Ed. 2d at

702.

       In determining whether a warning fully conveys the Miranda rights,

federal courts are split on whether it is necessary to inform the individual

that he has the right to an attorney present during questioning as

opposed to a general advisement of the right to have an attorney present.

The Fifth, Sixth, and Ninth Circuits have held that the suspect is entitled

to be expressly informed that he has the right to an attorney present

during questioning. See United States v. Tillman, 963 F.2d 137, 140–41

(6th Cir. 1992) (holding “the right to the presence of an attorney” did not

adequately inform suspect of the right to the presence of an attorney

during questioning); United States v. Noti, 731 F.2d 610, 615 (9th Cir.

1984) (constitutional rights violated where defendant only informed of

right to presence of attorney before questioning and not during

questioning); Windsor v. United States, 389 F.2d 530, 533 (5th Cir. 1968)

(“Merely telling [defendant] that he could speak with an attorney . . .

before he said anything at all is not the same as informing him that he is

entitled to the presence of an attorney during interrogation and that one

will be appointed if he cannot afford one.”).

       In contrast, the Fourth and Eighth Circuits have determined a

general advisement that the suspect has a right to the presence of an

attorney was adequate, and it was not necessary to expressly inform the

suspect he has the right to an attorney present during questioning. See

United States v. Frankson, 83 F.3d 79, 82 (4th Cir. 1996) (general

warning   “you   have   the   right   to an     attorney”   satisfied   Miranda

requirements); United States v. Caldwell, 954 F.2d 496, 502 (8th Cir.

1992) (general warning that defendant has the right to an attorney
                                         23

sufficient and no strict requirement that “a defendant be explicitly

advised of his right to an attorney before and during questioning”).

       Advising the suspect he has a right to the presence of an attorney

during questioning more precisely conveys the key requirements of

Miranda than simply informing the suspect he has a right to the

presence of an attorney in general.           Here, the warnings given to Ortiz

“touched all aspects and requirements of Miranda.” Schwartz, 467

N.W.2d at 246.        It contained the essence of the Miranda warnings.

Sanchez informed Ortiz of his right to speak to a lawyer during

questioning, and that a lawyer would be appointed for him if he could

not afford one. He also informed Ortiz he had the right to remain silent

and anything he said could be used against him in court. Assuming the

translation offered by the defendant’s expert to be correct, 6 Sanchez’s

statement that Ortiz could speak to a lawyer before asking questions (as

opposed to before answering questions) does not make a substantive

difference in Ortiz’s rights since the translation conveyed the key

requirement of having counsel present during questioning.                  Given the

context of the sentence, it is unfair to conclude Ortiz understood he had

a right to an attorney only while he asked the officers questions.
Furthermore, in the written waiver of rights Ortiz signed, he “agreed to

answer . . . questions and to make . . . [a] statement.” Ortiz was not

misled about his rights. Exchanging one word (“asking” for “answering”)

did not change the substance of the rights conveyed. Sanchez informed

Ortiz, “You have the right to consult with an attorney before asking [or


       6Only  the defendant’s interpreter translated the phrase “usted tiene el derecho
de consultar con un abogado, antes de harcele algunas preguntas” as “you have the
right to consult with an attorney before asking questions.” The State’s interpreter
translated the phrase “antes de hacerle algunas preguntas” as “before making any
questions,” and the English version on DEA Form 13A reads “you have the right to talk
to a lawyer for advice before we ask you any questions.”
                                     24

making] questions and have this attorney present during the questioning

[or interview].” Further, federal courts have recognized DEA Form 13A,

the Spanish Miranda advisory Sanchez read to Ortiz, provides the

Miranda warning in Spanish.         See, e.g., United States v. Labrada-

Bustamante, 428 F.3d 1252, 1257 n.3 (9th Cir. 2005) (“A DEA Form 13A

states the Miranda warnings in both English and Spanish.”).

      Ortiz was “clearly informed that he has the right to consult with a

lawyer and to have the lawyer with him during interrogation.” Miranda,

384 U.S. at 471, 86 S. Ct. at 1626, 16 L. Ed. 2d at 722. In addition,

Sanchez asked Ortiz a few times whether he understood his rights and

whether he had any questions.       Ortiz’s waiver was made “with a full

awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.” Moran, 475 U.S. at 421,

106 S. Ct. at 1141, 89 L. Ed. 2d at 420–21.

      Even though Ortiz was told he had the right to an attorney before

asking questions, he received information of no consequence.       In the

context of the warning, this advisement was superfluous. There was no

confusion created by this phrase. We have not come across any cases

where the defendant complains his warning was inadequate because he

was informed only that he had a right to counsel during questioning but

not before questioning. The core right, as set forth in Miranda, is the

right to consult with an attorney and have the attorney present during

interrogation. Miranda, 384 U.S. at 471, 86 S. Ct. at 1626, 16 L. Ed. 2d

at 722 (“Accordingly we hold that an individual held for interrogation

must be clearly informed that he has the right to consult with a lawyer

and to have the lawyer with him during interrogation . . . .”).

      I agree with the court of appeals that Ortiz’s confession was

voluntary. The district court, in concluding Ortiz’s waiver and confession
                                          25

were involuntary, relied on a written translation of the interview. Upon

reviewing the video-recorded 7 waiver of rights and confession (and the

accompanying interpretation), it is clear Ortiz’s statements were “the

product of an essentially free and unconstrained choice, made by the

defendant whose will was not overborne or whose capacity for self-

determination was not critically impaired.” State v. Payton, 481 N.W.2d

325, 328 (Iowa 1992). The interview lasted about an hour. The officers

did not intimidate, deceive, threaten, or promise anything to Ortiz to

induce him to waive his rights or confess. Although the transcript reads

somewhat choppy and suggests the officers cut off Ortiz on a few

occasions, the video recording reveals the officers allowed Ortiz time to

both answer and ask questions. There was no haste. Ortiz was even

allowed to call his wife (or girlfriend) on his cell phone. 8 The tone of the

questioning was neither harsh nor coercive. Considering the totality of

the circumstances, Ortiz’s waiver and subsequent confession were “made

voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444, 86

S. Ct. at 1612, 16 L. Ed. 2d at 707.

       As the Miranda warnings given to Ortiz conveyed the key

requirements of Miranda, specifically the right to consult with an
attorney and have the attorney present during questioning, and his

confession was voluntary, his confession should be admissible.

       Cady, J., joins this dissent.




       7This case is an excellent example of the value of electronically recorded police
interrogations. See State v. Hajtic, 724 N.W.2d 449, 456 (Iowa 2006) (“We believe
electronic recording, particularly videotaping, of custodial interrogations should be
encouraged . . . .”).

       8Duringthis call, he admitted there was a problem with the daughter and that
“she touched me.” These statements are not an issue in this appeal.
