Court upholds Sahuarita drug conviction, rejects Miranda challenge

WASHINGTON – A federal appeals court Monday upheld a Sahuarita drug conviction, rejecting the defendant’s claim that he confessed only after Drug Enforcement Administration agents continued to question him in violation of his Miranda rights.

Brigido Luna Zapien said the confession should not have been admitted in his trial because it came after he invoked his right to have an attorney present for the questioning.

But a three-judge panel of the 9th U.S. Circuit Court of Appeals disagreed, agreeing with a lower court that the questions the agents asked “were biographical questions … not reasonably likely to elicit an incriminating response.”

The court upheld Zapien’s conviction and, in a separate ruling, upheld his 10-year sentence.

The U.S. Attorney’s Office could not be reached to comment on the ruling Monday, but
Zapien’s attorney, Francisco Leon, said “the court got it wrong” and he plans to ask for a rehearing.

The case began in January 2012 when the DEA got a tip that Zapien was a drug dealer. Over the next few days, agents saw him “interacting with a confidential informant” and eventually participating in a drug deal on Feb. 10, 2012, according to the court.

Sahuarita Police arrested him and took him to the Sahuarita police station where he was turned over to DEA agents for questioning within an hour. One of the officers read Zapien, a Spanish speaker, his Miranda rights in Spanish.

Zapien said he understood his rights, but was willing to speak to officers without an attorney present. But when the questioning turned to drugs, and officers said they had evidence Zapien had been involved in a deal, he then invoked his right to have a lawyer present.

The agents said they stopped asking drug-related questions at that point, but continued to ask a series of biographical questions so they could fill out paperwork. At some point during those questions, Zapien said he wanted to give a statement about the drug trafficking.

The agents reminded him again of his rights but he wanted to “speak to (the agents) without the presence of an attorney,” the court said, at which point he volunteered a confession that was later used in his trial.

Zapien moved to suppress his confession before trial, but a magistrate judge and district judge both agreed that the confession was admissible. After a five-day trial, Zapien was convicted of conspiracy and possession with intent to distribute 450 grams of methamphetamine and sentenced to 10 years in prison.

On appeal, Zapien argued that continued questioning by the officers amounted to interrogation without his attorney present and thus violated his right to remain silent.

But the appellate panel said the questions were more along the lines of booking questions, which can be asked by officers.

“No factual findings by the district court or evidence suggest that the agents ‘played upon’ Luna Zapien’s ‘weaknesses’ or ‘knew that (he) was unusually disoriented or upset at the time,'” the court said. “And no findings indicate that Luna Zapien ‘was particularly susceptible to (the) line of questioning’ or that the agents ‘used the questions as mere pretext to elicit incriminating information.”