United States of America v. David Winsor

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID WINSOR,
Defendant - Appellant.
No. 12-30259
D.C. No. 3:08-cr-00099-KI-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Submitted December 2, 2013**
Seattle, Washington
Before: TALLMAN and BEA, Circuit Judges, and MURPHY, District Judge. ***
David Winsor appeals from his conditional guilty plea to receiving child
pornography in violation of 18 U.S.C. §§ 2252(a)(2)(A) and 2252A(b)(1). Winsor
FILED
DEC 06 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Stephen Joseph Murphy, III, District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.

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challenges the district court’s denial of two motions to suppress evidence. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Winsor seeks to suppress evidence seized from his home pursuant to a
search warrant. The district court determined that the warrant’s supporting
affidavit failed to establish probable cause, but nonetheless denied the motion after
concluding that the officers conducting the search acted in good faith and in
reasonable reliance on the warrant. See United States v. Kow, 58 F.3d 423, 428
(9th Cir. 1995).
We review de novo the district court’s application of the good-faith reliance
exception. United States v. Crews, 502 F.3d 1130, 1135 (9th Cir. 2007). The
affidavit in this case established at least a colorable argument for probable cause, in
that “thoughtful and competent” judges might disagree about the existence of
probable cause. See United States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006).
The affidavit established that Winsor made two purchases in two days on two
websites that, according to the ICE agent’s affidavit, contained child pornography.
This establishes at least a colorable argument for probable cause. See id.
Winsor points to two cases in which this court refused to apply the good-
faith exception, but in both cases the supporting affidavit was considerably weaker
than the affidavit here. See United States v. Grant, 682 F.3d 827 (9th Cir. 2012);
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Luong, 470 F.3d 898. This case does not present any of the four situations that
preclude a finding that reliance on a warrant was objectively reasonable. Luong,
470 F.3d at 902.
Also critical to our holding is that the affiant consulted with a government
attorney before submitting the affidavit. See United States v. Brown, 951 F.2d 999,
1005 (9th Cir. 1992) (an officer’s consultation with a government attorney is of
“significant importance to a finding of good faith”). The affiant “discussed the
search warrant and accompanying affidavit in this case with Assistant United
States Attorney (AUSA) Greg Nyhus” and “AUSA Nyhus stated that in his
opinion, the affidavit support[ed] probable cause and [was] legally sufficient for
issuance of the warrant.” On this record, “a reasonably well trained officer would
[not] have known that the search was illegal despite the magistrate’s
authorization.” Luong, 470 F.3d at 902 (citations omitted).1
Winsor contends next that the district court improperly denied his motion to
suppress his confession. We need not decide whether Winsor was in custody when
he confessed because, even if he was, we see no error in the district court’s finding
1 Because we affirm the district court’s application of the good-faith
exception, we decline to address whether the affidavit provided probable cause.
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that he voluntarily, knowingly, and intelligently waived his Miranda rights and
voluntarily confessed.
We review de novo the district court’s determination that a defendant’s
confession and Miranda waiver were voluntary, and for clear error the district
court’s conclusion that the defendant’s Miranda waiver was knowing and
intelligent. United States v. Bautista-Avila, 6 F.3d 1360, 1364 (9th Cir. 1993).
The district court did not err. The officers did not extract Winsor’s waiver
or confession by threat, violence, direct or implied promise, or improper influence.
See United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988). The
questioning officer told Winsor he was not under arrest and was free to leave.
Winsor conceded that nobody told him he must speak to the officers. He knew the
nature of the charged offense when he confessed. See United States v. Shi, 525
F.3d 709, 730 (9th Cir. 2008) (knowledge of the offense is relevant to
voluntariness). And before confessing, he had been read (and acknowledged in
writing that he received) his Miranda rights, and thus knew of his right to counsel.
See id. (being advised of right to counsel is relevant to voluntariness).
Winsor says the officers implied he could avoid arrest by cooperating and
providing a statement, and he points to his non-arrest that day as evidence. But
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this “evidence” is consistent with the officers’ statements to Winsor—before his
Miranda waiver and confession—that he was free to leave at any time.
Winsor also contends that the officers told him half-truths to elicit his
confession. The officers had no obligation to tell Winsor that their questions
would provoke incriminating answers. See United States v. Lares-Valdez, 939
F.2d 688, 690 (9th Cir. 1991). Nor were they prohibited from suggesting that his
cooperation could result in leniency. See United States v. Harrison, 34 F.3d 886,
891 (9th Cir. 1994). Winsor does not allege that the officers threatened a longer
sentence if he was uncooperative. See id. That Winsor’s crime carried a five-year
mandatory minimum term is irrelevant here because the government can (and did)
recommend a three-level downward departure for timely acceptance of
responsibility until Winsor decided not to waive his right to appeal and not to enter
a timely guilty plea.
Finally, Winsor argues that he invoked his right to counsel after receiving
and waiving his Miranda warnings but before confessing. “Invocation of the
Miranda right to counsel requires, at a minimum, some statement that can
reasonably be construed to be an expression of a desire for the assistance of an
attorney.” Davis v. United States, 512 U.S. 452, 459 (1994) (quotation marks and
citations omitted). “But if a suspect makes a reference to an attorney that is
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ambiguous or equivocal in that a reasonable officer in light of the circumstances
would have understood only that the suspect might be invoking the right to
counsel, our precedents do not require the cessation of questioning.” Id. (citations
omitted; emphasis in original). This court reviews for clear error the district
court’s factual finding at the evidentiary hearing concerning the defendant’s words;
we review de novo whether those words actually invoked the right to counsel.
United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994). The district court
concluded that Winsor said something like, “I think I’d like an attorney . . . .
Shouldn’t I have an attorney here?” This factual finding is supported by the
record. See id.
We must not find an otherwise unambiguous statement ambiguous based on
subsequent responses to continued police questioning. Smith v. Illinois, 469 U.S.
91, 97-98 (1984). Even if we determined that the words, “I think I’d like an
attorney” by themselves constituted an unequivocal request for counsel, Winsor
testified that his two-part statement (“I think I’d like an attorney” and “Shouldn’t I
have an attorney here?”) was separated only by “a couple of moments” of silence,
and was not interrupted by additional questioning. Nor does the record indicate
that the officers attempted to engineer the “couple of moments” of silence to elicit
subsequent equivocation. We thus read Winsor’s statement as a whole, see
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Robinson v. Borg, 918 F.2d 1387, 1391 (9th Cir. 1990) (analyzing defendant’s two
uninterrupted statements together), and find that Winsor’s statement was equivocal
rather than an unambiguous request for counsel, see Davis, 512 U.S. at 462
(“Maybe I should talk to a lawyer” was ambiguous); Norman v. Ducharme, 871
F.2d 1483, 1486 (9th Cir. 1989) (defendant’s question to a police officer of
whether he should see a lawyer did not constitute even an equivocal request for
counsel), cert. denied, 494 U.S. 1031 (1990); Clark v. Murphy, 331 F.3d 1062,
1070-71 (9th Cir. 2002) overruled on other grounds by Lockyer v. Andrade, 538
U.S. 63 (2003) (state court’s determination that statements, “I think I would like to
talk to a lawyer” and “should I be telling you, or should I talk to an attorney?” were
ambiguous was not an unreasonable application of Supreme Court precedent);
United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994) (“Do I need a lawyer?”
was a request for an opinion, not an attorney). The district court thus properly
denied Winsor’s motion to suppress his confession.
AFFIRMED.
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