                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 07-10217
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-05-00397-KJD
JOSE A. RODRIGUEZ,
                                             OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
                for the District of Nevada
        Kent J. Dawson, District Judge, Presiding

                  Argued and Submitted
       February 12, 2008—San Francisco, California

                   Filed March 10, 2008

  Before: William C. Canby, Jr., David R. Thompson, and
           Milan D. Smith, Jr., Circuit Judges.

           Opinion by Judge Milan D. Smith, Jr.




                           2213
2216              UNITED STATES v. RODRIGUEZ


                         COUNSEL

Jason F. Carr, Assistant Federal Public Defender, Las Vegas,
Nevada, for the defendant-appellant.

Timothy S. Vasquez, Assistant United States Attorney, Las
Vegas, Nevada, for the plaintiff-appellee.


                         OPINION

MILAN D. SMITH, JR., Circuit Judge:

   Defendant-Appellant Jose A. Rodriguez appeals from the
district court’s denial of his motion to suppress incriminating
statements that he claims National Park Rangers obtained in
violation of his Miranda rights. The district court held that,
under Davis v. United States, 512 U.S. 452, 462 (1994), the
Rangers did not have a duty to stop questioning Rodriguez
because he did not unambiguously and unequivocally assert
his right to silence in response to the Park Ranger’s Miranda
warning. We reverse, and hold that the “clear statement” rule
of Davis applies only after the police have already obtained
an unambiguous and unequivocal waiver of Miranda rights.
Prior to obtaining such a waiver, however, an officer must
clarify the meaning of an ambiguous or equivocal response to
the Miranda warning before proceeding with general interro-
gation.

             I.   FACTUAL BACKGROUND

  On October 8, 2005, National Park Service Ranger Dustin
Gunderson observed Appellant-Defendant Jose Rodriguez
                    UNITED STATES v. RODRIGUEZ                     2217
driving his pick-up truck erratically through Lake Mead
National Recreation Area, west of Las Vegas. Gunderson sus-
pected that the truck’s driver was intoxicated, so he stopped
the truck. After running Rodriguez’s driver’s licence and
learning from his radio dispatcher that Rodriguez was a regis-
tered felon, Gunderson asked Rodriguez to step out of the
truck so Gunderson could perform a field sobriety test. As
Gunderson stepped back to administer the test, he noticed the
handle of a pistol protruding from an open orange bag in the
bed of Rodriguez’s truck. This pistol, identified as a Ruger
.22 caliber pistol, had a device, later determined to be a home-
made silencer, attached to it. After securing the firearm,
Gunderson asked Rodriguez if there were any other weapons
in the vehicle. Rodriguez admitted that there was another fire-
arm under the driver’s seat. This was later identified as a
Para-Ordnance .40 caliber pistol. Ranger Gunderson called
for backup, then placed Rodriguez under arrest and detained
the two passengers in Rodriguez’s truck.

  After he and his backup, Ranger Bill Reynolds, secured the
scene, Gunderson read Rodriguez his Miranda rights.
Gunderson then asked Rodriguez if Rodriguez wished to
speak to him. Rodriguez responded, “I’m good for tonight.”
Gunderson later testified that he understood this to mean that
Rodriguez was willing to talk, but he did not immediately
begin interrogation. Rather, a “short time later,” Reynolds
began questioning Rodriguez while Gunderson contacted his
supervisor. In response to Reynolds’s questions, Rodriguez
admitted that the bag, and the gun and silencer it contained,
belonged to him.

  Rodriguez was ultimately charged with two counts of being
a felon in possession of a firearm, 18 U.S.C. § 922(g)(1)—
count I for the Para-Ordnance .40 caliber, count II for the
Ruger .22 caliber1—and one count of possession of an unli-
  1
   Rodriguez raises a multiplicity challenge to these two charges of 18
U.S.C. § 922(g)(1). Because we reverse the district court’s evidentiary
determination, we do not address the multiplicity claim. However, since
the government has conceded multiplicity, we do not anticipate a continu-
ing problem with multiplicity on remand.
2218               UNITED STATES v. RODRIGUEZ
cenced silencer, 26 U.S.C. § 5861(d). Rodriguez filed a pre-
trial motion seeking to suppress both the physical evidence
and the statements he made to the Rangers. He claimed sev-
eral Fourth Amendment violations concerning the scope of
the traffic stop.2 He also alleged that the Rangers obtained his
statements in violation of Miranda because he had invoked
his right to silence. The district court ordered an evidentiary
hearing before a magistrate judge, who conducted a hearing
exploring the circumstances of the seizure and the statement.
Only Gunderson testified as to the circumstances of the
Miranda warning.

   The magistrate judge denied the motion to suppress. The
court held that Gunderson “reasonably construed the response
‘I’m good for tonight’ as a waiver of his Miranda rights based
on his observation of Rodriguez’s demeanor and gestures and
the context in which the response was made.” The magistrate
further noted:

      Additionally, because this statement is susceptible of
      different meanings, it is, definitionally, ambiguous.
      The statement “I’m good for tonight” could reason-
      ably mean “I’m willing to talk tonight” or “I don’t
      want to talk tonight.” Thus, even if another law
      enforcement officer in Gunderson’s position would
      not have reasonably construed the phrase as a
      waiver, the court joins those courts which have
      decided that officers are not required to cease ques-
      tioning altogether, or to limit questions to clarify
      whether a suspect intends to invoke the right to
      remain silent unless the suspect clearly expresses his
      wish to remain silent.

The magistrate judge stated that, in Davis v. United States,
512 U.S. at 462, the Supreme Court “held that once a law
enforcement officer administers Miranda warnings to an indi-
  2
   Rodriguez does not pursue the Fourth Amendment issue on appeal.
                  UNITED STATES v. RODRIGUEZ               2219
vidual, that individual must explicitly and unambiguously
invoke his or her right to counsel to prevent further question-
ing.” Holding that this rule applies to invocations of the right
to silence as well, the magistrate judge concluded that because
Rodriguez’s purported invocation of the right to silence was
ambiguous, it was insufficient to cut off further questioning.

   The district court adopted the magistrate judge’s report in
full. Rodriguez entered a conditional guilty plea to all counts.
The district court accepted the guilty plea, and sentenced
Rodriguez to 46 months as to each count, to be served concur-
rently. Rodriguez appealed.

 II.   JURISDICTION AND STANDARD OF REVIEW

   We have jurisdiction to hear this case under 28 U.S.C.
§ 1291.

   Before a defendant’s self-incriminating statements may be
admitted into evidence, “a heavy burden rests on the govern-
ment to demonstrate that the defendant knowingly and intelli-
gently waived his privilege against self-incrimination and his
right to retained or appointed counsel.” Miranda v. Arizona,
384 U.S. 436, 475 (1966).

   This court reviews a trial court’s legal conclusions on
Miranda waivers de novo, and findings of fact underlying
those conclusions for clear error. United States v. Narvaez-
Gomez, 489 F.3d 970, 973 (9th Cir. 2007); United States v.
Becerra-Garcia, 397 F.3d 1167, 1172 (9th Cir. 2005). In this
context, we review the district court’s factual findings con-
cerning the words a defendant used to invoke his Miranda
rights for clear error and whether the words actually invoked
those rights de novo. See United States v. Younger, 398 F.3d
1179, 1185 (9th Cir. 2005).

                     III.   DISCUSSION

   Rodriguez argues first that his statement to Gunderson,
“I’m good for tonight,” was an unambiguous invocation of his
2220                UNITED STATES v. RODRIGUEZ
right to silence. He next argues that, to the extent his state-
ment was ambiguous, Gunderson was under a duty to further
clarify its meaning before he or any other Ranger proceeded
with interrogation. We address each argument in turn.

                               A.

  At the suppression hearing, Gunderson offered the follow-
ing uncontroverted testimony concerning the Miranda warn-
ing he gave Rodriguez:

    Q.   Now, when you were reading Mr. Rodriguez his
         Miranda rights you of course told him that he
         had the right to remain silent?

    A.   Correct.

    Q.   You told him that anything that he said could
         and would be used against him in a court of
         law?

    A.   Correct.

    Q.   You told him that if he could not afford to hire
         an attorney one would be appointed to represent
         him before any questioning, if he wished one?

    A.   Correct.

    Q.   You also told him that if he decided to answer
         any questions now, without having counsel
         present, he could also choose to stop answering
         at any time?

    A.   Correct.

    Q.   And you told him that he could request counsel
         at any time during questioning?
                      UNITED STATES v. RODRIGUEZ               2221
      A.   Correct.

      Q.   And after saying that you asked him whether
           understanding those rights, if he wished to
           speak to you?

      A.   Correct.

      Q.   And his answer to that was “I’m good for
           tonight?”

      A.   Correct.

The magistrate judge stated that this response was “definition-
ally ambiguous,” as it could have indicated either that Rodri-
guez was willing to talk, or that he was invoking his right to
silence. Rodriguez disagrees, and contends that his statement
“was neither ambiguous nor equivocal” because he “did not
use words of an equivocal nature, such as ‘maybe’ or
‘might.’ ” It is true that his statement was certainly not
“equivocal” in the sense of evincing indecision or uncertainty.
Compare Davis, 512 U.S. at 459 (describing the statement
“Maybe I should talk to a lawyer” as “an ambiguous or equiv-
ocal reference to an attorney”), with Anderson v. Terhune, No.
04-17237, 2008 WL 399199 at *5 (9th Cir. Feb. 15, 2007) (en
banc) (stating that suspect “did not equivocate in his invoca-
tion” because he did not “us[e] words such as ‘maybe’ or
‘might’ or ‘I think.’ ”). Rodriguez claims, however, that his
statement was also not ambiguous, that it was open to only
one valid interpretation:3 that he was asserting his right to
remain silent.

  [1] We disagree. The phrase “I’m good,” in the context of
  3
   “Ambiguity means ‘admitting more than one interpretation or refer-
ence’ or ‘having a double meaning or reference.’ ” Anderson, 2008 WL
399199 at *5 (quoting The New Shorter Oxford English Dictionary
(1993)).
2222                 UNITED STATES v. RODRIGUEZ
a Miranda waiver, admits of different interpretations. From
Gunderson’s testimony, it appears that the phrase “I’m good
for tonight” was in direct response to an inquiry concerning
whether Rodriguez wanted to talk to Gunderson. The phrase
might have meant, “I’m good [to talk] for tonight.” Alterna-
tively, the phrase “I’m good” can indicate, more idiomati-
cally, that the speaker is declining or refusing an offer—
roughly equivalent to the phrase “no thanks.” In this case, the
phrase could be interpreted as declining Gunderson’s offer to
talk with him. Conversely, the phrase, given at the end of a
Miranda warning which acts, in effect, as an offer of the
rights to counsel and silence, could indicate that Rodriguez
was declining that offer and waiving those rights. We there-
fore hold the statement to be, at best, an ambiguous invoca-
tion of the right to silence.4

                                    B.

   [2] Having determined that the statement was not an unam-
biguous invocation of the right to silence, we must next deter-
mine what Gunderson ought to have done in response. Prior
to 1994, this circuit, along with a number of other jurisdic-
tions, adopted a broad “clarification” rule: in the face of an
ambiguous or equivocal assertion of Miranda rights, made at
any time during interrogation, interrogating officers were
required to clarify the statement before continuing with inter-
rogation. See Nelson v. McCarthy, 637 F.2d 1291, 1296 (9th
Cir. 1981) (“[W]here there has been an equivocal assertion of
a constitutional right [to silence], the attending officer can ask
  4
    At the suppression hearing, Rodriguez attempted to introduce into evi-
dence the results of a survey, posing a hypothetical scenario based on
these facts, in which 53% of respondents in Clark County, Nevada
believed that the words “I’m good for tonight” constituted an invocation
of the right to remain silent. Even if we accept, arguendo, that such survey
data was probative evidence of the meaning of the phrase, this particular
survey, showing only the barest of majorities agreeing on an interpretation
of the phrase, does not convince us that the phrase unambiguously invokes
the right to silence.
                     UNITED STATES v. RODRIGUEZ                       2223
questions to clarify the defendant’s wishes, but then only so
long as he does not continue a general interrogation.”); see
also United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir.
1985); United States v. Mendoza-Cecelia, 963 F.2d 1467,
1472 (11th Cir. 1992); United States v. Cherry, 733 F.2d
1124, 1130 (5th Cir. 1984). The government argues that this
clarification rule has been completely superseded by Davis v.
United States, which expressly rejected a clarification rule on
the facts of the case before it, 512 U.S. at 461, and that,
because Rodriguez’s statement was not an “unambiguous or
unequivocal” invocation of his Miranda rights, id. at 462, we
should deem them to have been waived. We disagree, because
the facts, holding, and reasoning of Davis are distinguishable
from those in this case.

   In Davis, the defendant, whom the Naval Investigative Ser-
vice suspected of murder, was issued his Miranda warning
and expressly “waived his rights to remain silent and to coun-
sel, both orally and in writing” upon being taken into interro-
gation. 512 U.S. at 455. “About an hour and a half into the
interview,” after, it seems, he had begun to suspect that the
interrogation was not going his way, he said to his interroga-
tors, “Maybe I should talk to a lawyer.”5 Id. The investigating
agents asked whether this meant that he was asking for a law-
yer, to which the suspect replied, “No, I don’t want a lawyer.”
Id. Interrogation then continued. The five-member Court
majority held that “if a suspect makes a reference to an attor-
ney that is ambiguous or equivocal in that a reasonable officer
  5
    Rodriguez also argues that the holding of Davis does not apply to his
case because Davis concerned an invocation of the right to counsel,
whereas Rodriguez’s statement concerned his right to silence. Because we
decide this case on other grounds, we decline to address this question. We
note, however, that in four other cases this circuit has declined to address
this question. See Anderson, 2008 WL 399199 at *4 n.3; Arnold v. Run-
nells, 421 F.3d 859, 866 n.8 (9th Cir. 2005); United States v. Soliz, 129
F.3d 499, 504 n.3 (9th Cir. 1997), overruled on other grounds by United
States v. Johnson, 256 F.3d 895 (9th Cir. 2001) (en banc); Evans v.
Demosthenes, 98 F.3d 1174, 1176 (9th Cir. 1996).
2224              UNITED STATES v. RODRIGUEZ
in light of the circumstances would have understood only that
the suspect might be invoking the right to counsel, our prece-
dents do not require the cessation of questioning.” Id. at 459.
It further expressly “decline[d] to adopt a rule requiring offi-
cers to ask clarifying questions. If the suspect’s statement is
not an unambiguous or unequivocal request for counsel, the
officers have no obligation to stop questioning him.” Id. at
461-62.

   [3] The holding of Davis, however, addressed itself nar-
rowly to the facts of the case: “We therefore hold that, after
a knowing and voluntary waiver of the Miranda rights, law
enforcement officers may continue questioning until and
unless the suspect clearly requests an attorney.” Id. at 461
(emphasis added). The text of the opinion is also narrowly
drawn: it asks whether “further questioning” is permitted
upon an equivocal or ambiguous invocation of the right to
counsel, id. at 454, 458 (emphasis added), or, rather, whether
questioning must “cease,” id. at 456, 459, 460 (“cessation”),
461, 462, or “stop,” id. at 459, 462—all implying that legal
questioning, following a valid initial Miranda waiver, was
already occurring. Indeed, prior compliance with Miranda is
critical to the logic of the Supreme Court’s holding:

    [T]he primary protection afforded suspects subject to
    custodial interrogation is the Miranda warnings
    themselves. “[F]ull comprehension of the rights to
    remain silent and request an attorney [is] sufficient
    to dispel whatever coercion is inherent in the interro-
    gation process.” A suspect who knowingly and volun-
    tarily waives his right to counsel after having that
    right explained to him has indicated his willingness
    to deal with the police unassisted. Although Edwards
    provides an additional protection—if a suspect sub-
    sequently requests an attorney, questioning must
    cease—it is one that must be affirmatively invoked
    by the suspect.
                      UNITED STATES v. RODRIGUEZ                        2225
Id. at 460-61 (citations omitted, emphasis added).

   [4] In other words, the “clear statement” rule of Davis
addresses only the scope of invocations of Miranda rights in
a post-waiver context. It is well settled that “[i]nvocation and
waiver [of Miranda rights] are entirely distinct inquiries, and
the two must not be blurred by merging them together.” Smith
v. Illinois, 469 U.S. 91, 98 (1984). Davis addressed what the
suspect must do to restore his Miranda rights after having
already knowingly and voluntarily waived them. It did not
address what the police must obtain, in the initial waiver con-
text, to begin questioning.6
  6
    In holding that the “unambiguous or unequivocal request” rule of
Davis is limited to the post-waiver scenario, we note that the majority of
state supreme courts to consider the issue have reached the same conclu-
sion. See State v. Tuttle, 650 N.W.2d 20, 28 (S.D. 2002) (“Davis, in sum,
applies to an equivocal postwaiver invocation of rights. For an initial
waiver, however, the State still bears ‘a heavy burden to demonstrate that
the defendant knowingly and intelligently waived’ Miranda rights.” (quot-
ing Miranda, 384 U.S. at 475)); State v. Holloway, 760 A.2d 223, 228
(Me. 2000) (declining “to require an unambiguous invocation of the right
to remain silent and the right to an attorney in the absence of a prior waiv-
er” ); State v. Leyva, 951 P.2d 738, 743 (Utah 1997) (“The Court in Davis
made clear that its holding applied only to a suspect’s attempt to reinvoke
his Miranda rights ‘after a knowing and voluntary waiver’ of the same. . . .
Plainly, [it] did not intend its holding to extend to prewaiver scenarios, and
we see no reason to so extend it.” (quoting Davis, 512 U.S. at 461)). A
number of state intermediate courts of appeal have likewise adopted this
position. See, e.g., Noyakuk v. State, 127 P.3d 856, 868-69 (Alaska Ct.
App. 2006); State v. Collins, 937 So.2d 86, 93 (Ala. Crim. App. 2005);
Freeman v. State, 857 A.2d 557, 573 (Md. Ct. Spec. App. 2004).
   We acknowledge that a number of decisions have applied the Davis rule
in a pre-waiver or initial waiver context, see, e.g., United States v. Brown,
287 F.3d 965, 972 (10th Cir. 2002); United States v. Muhammad, 120 F.3d
688, 697-98 (7th Cir. 1997); Monroe v. State, 126 P.3d 97, 101 (Wyo.
2006). However, we are aware of only one published opinion, from any
jurisdiction, to do so after expressly considering the initial waiver/post-
waiver distinction. See In re Christopher K., 841 N.E.2d 945, 964-65 (Ill.
2005) (holding that, while “the United States Supreme Court has left open
the issue of whether the objective test applies in a prewaiver setting,” it
would nonetheless apply the “clear statement” rule of Davis to an initial
waiver inquiry where “the suspect makes a reference to counsel immedi-
ately after he has been advised of his Miranda rights.”).
2226                   UNITED STATES v. RODRIGUEZ
   The existence of a prior waiver explains how Davis can be
reconciled with the Supreme Court’s historic presumption
against finding waiver of constitutional rights. Miranda itself,
in describing the government’s burden to prove waiver as
“heavy,” stated that “[t]his Court has always set high stan-
dards of proof for the waiver of constitutional rights, and we
reassert these standards as applied to in custody interroga-
tion.” 384 U.S. at 475 (citation omitted). Prior to the Miranda
warning and waiver, the police have no right to question the
suspect. Id. at 471 (describing the warning as “an absolute
prerequisite to interrogation”). Once that “heavy burden” has
been met, however, Davis indicated that the benefits of
Miranda have been realized: the suspect has understood his
rights and has freely chosen to proceed. It is then the police’s
right to interrogate the suspect, and the suspect, in effect, who
bears the “burden” of cutting off questioning by unambigu-
ously retracting the clear waiver he has already given.7
  7
   The importance of prior waiver accords with the practical conse-
quences that the Davis majority fears it would bring about if it were to
decide that ambiguous statements might trigger Edwards duties:
      The Edwards rule—questioning must cease if the suspect asks for
      a lawyer—provides a bright line that can be applied by officers
      in the real world of investigation and interrogation without
      unduly hampering the gathering of information. But if we were
      to require questioning to cease if a suspect makes a statement that
      might be a request for an attorney, this clarity and ease of appli-
      cation would be lost. Police officers would be forced to make dif-
      ficult judgment calls about whether the suspect in fact wants a
      lawyer even though he has not said so, with the threat of suppres-
      sion if they guess wrong.
Davis, 512 U.S. at 461. Such a concern is explicable only in the context
of an ongoing interrogation, which would be interrupted by the need to
clarify ambiguous remarks. By contrast, the Miranda warning, and the
corresponding waiver requested at its end, is to be given as “an absolute
prerequisite to interrogation.” Miranda, 384 U.S. at 471, and therefore is
already a bright-line rule that interrupts nothing. If it is not unreasonable
to ask a police officer to administer the warning, it is also not unreason-
able to ask him to get an unequivocal waiver before commencing general
interrogation.
                  UNITED STATES v. RODRIGUEZ                2227
   [5] Davis, therefore, abrogated our clarification rule only
to the extent that our rule required clarification of invocations
made post-waiver. Nelson v. McCarthy, however, expressly
contemplated both pre- and post-waiver assertions of Miranda
rights. 637 F.2d at 1296-97 (recounting the facts of United
States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. 1978)
(en banc), an initial waiver case). To the extent Nelson
requires pre-waiver clarification of a suspect’s wishes con-
cerning his Miranda rights, it has not been superseded by
Davis, and remains binding precedent. Prior to obtaining an
unambiguous and unequivocal waiver, a duty rests with the
interrogating officer to clarify any ambiguity before begin-
ning general interrogation. In this case, the government can-
not meet its “heavy burden” of proving an initial knowing and
intelligent waiver of Miranda with an ambiguous or equivocal
reference to Miranda rights.

   [6] We do not hold that all waivers of Miranda rights must
be express: “a suspect may impliedly waive the rights by
answering an officer’s questions after receiving Miranda
warnings.” United States v. Rodriguez-Preciado, 399 F.3d
1118, 1127, amended, 416 F.3d 939 (9th Cir. 2005). A sus-
pect who blurts out a confession after receiving and under-
standing a Miranda warning has unambiguously waived his
rights, albeit impliedly. In this case, however, we cannot find
implied waiver. Rodriguez’s statement, “I’m good for
tonight,” however ambiguous, was unquestionably a response
to Gunderson’s Miranda warning and offer to begin interroga-
tion. Whatever it means, his “statement either is such an
assertion [of Miranda rights] or it is not.” Smith v. Illinois,
469 U.S. at 97-98 (quotation marks and citation omitted). The
interrogating officers were under a duty to clarify what Rodri-
guez meant—and if he meant he didn’t want to talk, that right
should have been “scrupulously honored.” Michigan v. Mos-
ley, 423 U.S. 96, 104 (1975). Indeed, an inference of implied
waiver would be especially inappropriate here, where the
interrogating officer, rather than clarifying what “I’m good
for tonight” meant, or even beginning questioning immedi-
2228             UNITED STATES v. RODRIGUEZ
ately, instead left Rodriguez alone and allowed another officer
to begin interrogation a short time later. “We understand the
phrase ‘scrupulously honor’ to have practical meaning,”
Anderson, 2008 WL 399199 at *9, and “a valid waiver will
not be presumed . . . simply from the fact that a confession
was in fact eventually obtained.” Miranda, 384 U.S. at 475.

                   IV.   CONCLUSION

   [7] We hold that the clarification rule of Nelson v. McCar-
thy survives Davis v. United States, except in situations where
the suspect under interrogation has already given an unequiv-
ocal and unambiguous waiver of his Miranda rights. Because
Rodriguez’s statement in response to the Miranda warning
was ambiguous, and because his interrogator failed to clarify
Rodriguez’s wishes with respect to his Miranda warnings, the
district court erred in admitting his subsequent incriminating
statements into evidence.

   The decision of the district court is REVERSED, and the
case is REMANDED for further proceedings consistent with
this opinion.
