USA v. Larry Loucious

Filing

FILED OPINION (RONALD M. GOULD, RICHARD R. CLIFTON and PAUL J. WATFORD) REVERSED. Judge: RMG Authoring, FILED AND ENTERED JUDGMENT. [10304778]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
LARRY LOUCIOUS,
Defendant-Appellee.

No. 16-10121
D.C. No.
2:15-cr-00106JAD-CWH-1
OPINION

Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted November 14, 2016
San Francisco, California
Filed February 7, 2017
Before: Ronald M. Gould, Richard R. Clifton,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Gould

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UNITED STATES V. LOUCIOUS
SUMMARY*

Criminal Law
The panel reversed the district court’s order suppressing
the defendant’s statements in a case in which the defendant
argued that the Miranda warnings he received were
constitutionally deficient because they did not tell him of his
right to consult with an attorney before questioning.
Before the start of custodial interrogation, the defendant
received warnings informing him he had the right to remain
silent; he had the right to the presence of an attorney during
questioning; and that if he could not afford an attorney, an
attorney would be appointed before questioning. The panel
explained that Miranda warnings need not follow a precise
formulation, and held that the warnings given to the
defendant adequately conveyed that he had the right to
consult with an attorney before questioning even though they
did not explicitly inform him of that right. The panel wrote
that this right was reasonably to be inferred.

COUNSEL
Elizabeth O. White (argued), Appellate Chief and Assistant
United States Attorney; Daniel G. Bogden, United States
Attorney; United States Attorney’s Office, Reno, Nevada; for
Plaintiff-Appellant.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. LOUCIOUS

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Wendi L. Overmyer (argued), Assistant Federal Public
Defender; Rene L. Valladares, Federal Public Defender;
Office of the Federal Public Defender, Las Vegas, Nevada;
for Defendant-Appellee.

OPINION
GOULD, Circuit Judge:
Before the start of a custodial interrogation, Defendant
Larry Loucious received warnings informing him he had the
right to remain silent; he had the right to the presence of an
attorney during questioning; and that if he could not afford an
attorney, an attorney would be appointed before questioning.
Loucious moved to suppress the statements he made during
the custodial interrogation, arguing that the Miranda
warnings he received were constitutionally deficient because
they did not tell him of his right to consult with an attorney
before questioning. The district court granted the motion to
suppress the statements, and the United States appealed. We
conclude that Miranda warnings need not follow a precise
formulation, and here the warnings reasonably conveyed that
Loucious had the right to consult an attorney before
questioning. So we reverse the district court’s grant of the
motion to suppress.
I
On March 28, 2015, Officer Sherwood of the Las Vegas
Metropolitan Police Department (LVMPD) stopped a vehicle
for speeding. Defendant Larry Loucious was sitting in the
back seat. Officer Sherwood smelled marijuana as he
approached the driver’s window. Yet, marijuana was not

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UNITED STATES V. LOUCIOUS

found in the vehicle or on the driver and passengers. After
learning that the vehicle’s driver had outstanding arrest
warrants, Officer Sherwood called for backup because he
intended to arrest the driver and search the vehicle. While
waiting for backup, Officer Sherwood obtained the
passengers’ identifications. Soon after, Officer Davis arrived
on the scene to assist. Officer Sherwood gave Officer Davis
the passengers’ IDs so Officer Davis could run the records
check. The check revealed that Loucious had an outstanding
warrant for his arrest. Loucious and the driver were removed
from the vehicle and placed under arrest.
Officer Sherwood then conducted a search of the vehicle
and found a revolver in the back seat near where Loucious
had been sitting. The officers obtained a search warrant, and
Officer Costello—another officer at the scene—seized the
firearm.
After the arrest, Officer Costello questioned Loucious.
Before the custodial interrogation, Officer Costello read
Loucious the following warnings:
You understand you have the right to remain
silent. You understand that anything you say
can be used against you in a court of law.
You have the right to the presence of an
attorney during questioning and if you cannot
afford an attorney, one will be appointed
before questioning. Do you understand those
rights?
After receiving the Miranda warnings, Loucious admitted
that he touched the seized gun a few days earlier.

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On April 14, 2015, a federal grand jury indicted Loucious
for violations of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for
possession of a firearm as a convicted felon.
Loucious filed motions to suppress the gun and the
statements he made during the custodial interrogation. He
disputed whether Officer Sherwood smelled marijuana and
argued that even if Officer Sherwood had, the smell did not
give probable cause to search the car. Loucious also
contended that the Miranda warnings he received were
deficient because they did not advise him that he had the right
to consult with an attorney before questioning.
The magistrate judge issued a report and recommendation
(R&R), recommending that the motions to suppress be denied
in full. The magistrate judge concluded that Loucious did not
have standing to challenge the search of the car and that the
right to consult with a lawyer before questioning could
“easily be inferred from the warnings actually given.”
Loucious objected to the part of the R&R on the Miranda
warnings, and the district court sustained his objection. The
district court granted Loucious’s motion to suppress the
custodial statements because of its view that Loucious was
not advised he had a right to consult with a lawyer before
questioning and “because that right could not have been
inferred from the warnings given.”
The United States timely appealed the order granting
suppression. We have jurisdiction and reverse.
II
We have jurisdiction under 18 U.S.C. § 3731. We review
the adequacy of Miranda warnings, a question of law, de

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novo. United States v. Noti, 731 F.2d 610, 614 (9th Cir.
1984).
III
The Fifth Amendment guarantees that no person “shall be
compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. Because this privilege
against self-incrimination may be jeopardized when an
individual is taken into custody and subjected to questioning,
the Supreme Court has established procedural safeguards that
require the police to advise criminal suspects of their rights
under the Fifth and Fourteenth Amendments before the start
of custodial interrogation. Miranda v. Arizona, 384 U.S. 436
(1966). Miranda requires that a suspect be told, before
questioning, that “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.
Custodial statements are inadmissible unless the suspect is
warned of his or her Miranda rights and the suspect
knowingly and intelligently decides to forgo those rights. Id.
The Supreme Court has not required a “precise formulation
of the warnings given” to a suspect and has stressed that a
“talismanic incantation” is not necessary to satisfy Miranda’s
“strictures.” California v. Prysock, 453 U.S. 355, 359 (1981)
(per curiam). Instead, “[t]he inquiry is simply whether the
warnings reasonably convey to a suspect his rights as
required by Miranda.” Duckworth v. Eagan, 492 U.S. 195,
203 (1989) (internal quotation marks and alterations omitted).
“Reviewing courts . . . need not examine Miranda warnings
as if construing a will or defining the terms of an easement.”
Id.

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The parties dispute whether the warnings here
administered by the LVMPD conveyed to Loucious his
Miranda rights based on the addition of the words “during
questioning.” The United States contends that the warnings
were sufficient because the right to consult with an attorney
prior to questioning can be inferred from the warnings given.
The warnings explicitly stated that Loucious had the right to
the presence of counsel during questioning and that he had
the right to have counsel appointed before questioning.
Loucious argues that the warnings were deficient because
they did not say that Loucious could consult with an attorney
before questioning so that he could decide whether to speak
with officers at all.
After discussing instructive cases from our court and the
Supreme Court, we conclude that the Miranda warnings
administered by the LVMPD conveyed the substance of the
warning that Loucious could consult with an attorney before
questioning.
In United States v. Noa, 443 F.2d 144 (9th Cir. 1971), we
considered the sufficiency of Miranda warnings that did not
inform the defendant he had the right to consult with
appointed counsel prior to questioning. The defendant was
presented with the following warnings in oral and written
forms:
You have the right to remain silent. Anything
you say can be used against you in court. You
have the right to talk 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 if you wish. If you decide to answer

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UNITED STATES V. LOUCIOUS
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.

Id. at 145. The defendant moved to suppress his statements,
arguing that the Miranda warnings were inadequate because
they did not warn him that he had the right to consult with an
appointed attorney prior to questioning. Id. at 146. We
disagreed, and held that the warnings “conveyed the
substance of a warning of the right to consult with appointed
counsel prior to and during questioning” because the warning
regarding the right to appointed counsel followed the
reference to the right to consult with an attorney before and
during questioning. Id.
We later considered how explicit Miranda warnings must
be in telling a defendant of the right to consult with an
attorney before questioning in People of the Territory of
Guam v. Snaer, 758 F.2d 1341 (9th Cir. 1985). In Snaer, the
custodial interrogation warning form read:
Before we ask you any questions, you must
understand your rights. You have the right to
remain silent. You do not have to talk to me
unless you want to do so. If you do want to
talk to me, I must advice (sic) you that
whatever you say can and will be used as
evidence against you in court. You have a
right to consult with a lawyer and to have a
lawyer present with you while you are being
questioned. If you want a lawyer but are
unable to pay for one, a lawyer will be

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appointed to represent you free of any cost to
you. Knowing these rights, do you want to
talk to me without having a lawyer present?
You may stop talking to me at any time and
you may also demand a lawyer at any time.
Id. at 1342. We concluded that the warnings informing the
defendant that he had the right to consult with an attorney and
to have a lawyer present while he was being questioned
“adequately convey[ed] notice of the right to consult with an
attorney before questioning.” Id. at 1343. We also
admonished that the warning form met “the minimum
requirements of the Constitution” and suggested that Guam
revise its form to more clearly inform defendants of their
right to consult with counsel before questioning. Id.
In Florida v. Powell, 559 U.S. 50 (2010), the Supreme
Court addressed how clearly Miranda warnings must
announce a defendant’s right to the presence of counsel
during questioning. In Powell, the defendant was told:
You have the right to remain silent. If you
give up the right to remain silent, anything
you say can be used against you in court. You
have the right to talk to a lawyer before
answering any of our questions. If you cannot
afford to hire a lawyer, one will be appointed
for you without cost and before any
questioning. You have the right to use any of
these rights at any time you want during this
interview.
Id. at 54. The defendant challenged the sufficiency of the
warnings because he was not explicitly told that he had the

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right to the presence of an attorney during questioning. Id.
The Court held that the warnings given did not “entirely omit
any information Miranda required” the warnings to impart;
thus the suspect received adequate notification. Id. at 62
(internal quotation marks and citation omitted). The
warnings conveyed that the defendant could consult with a
lawyer before questioning and that he could use this right any
time during the interview. Id. As an alternative to the
warning given to Powell, the Court lauded the warnings
typically administered by the Federal Bureau of Investigation,
which read, in relevant part: “You have the right to talk to a
lawyer for advice before we ask you any questions. You have
the right to have a lawyer with you during questioning.” Id.
at 64. The Court explained that this advice was “admirably
informative” because it advised suspects “of the full contours
of each [Miranda] right.” Id. The Court, however, declined
to “declare [this] precise formulation necessary to meet
Miranda’s requirements.” Id. Instead, the Court determined
that the warnings received by Powell used different words but
“communicated the same essential message.” Id.
Noa, Snaer, and Powell illustrate the specificity required
of Miranda warnings, and support our conclusion that
Loucious need not have been informed explicitly of his right
to consult with counsel prior to questioning. The Miranda
warnings at issue here adequately conveyed notice of the
right to consult with an attorney before questioning.
Loucious contends that the warnings could only be
understood to suggest that an attorney “could be appointed
immediately before questioning for the sole purpose of being
present during questioning.” We disagree. A more
reasonable reading of the warnings Loucious received—that
should he not be able to afford an attorney one would be
appointed before questioning and that he had the right to the

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presence of an attorney during questioning—taken together
conveyed that Loucious could consult with that attorney
before questioning. It makes no sense to think that a suspect
who is appointed counsel before questioning would not be
permitted to consult with that attorney before questioning
began. Instead, the warnings reasonably conveyed the
inference that Loucious could consult with an attorney prior
to and during questioning. See United States v. Connell, 869
F.2d 1349, 1351–53 (9th Cir. 1989) (explaining that
reviewing courts may make logical inferences from Miranda
rights explicitly given).
Finally, we emphasize that while Supreme Court case law
does not require a verbatim recitation of Miranda’s warnings,
it does not proscribe it either. See Prysock, 453 U.S. at 359.
As we have stated, “[t]he police can always be certain that
Miranda has been satisfied if they simply read the defendant
his rights from a prepared card . . . . A verbatim reading
would, in all instances, preclude claims such as
[Loucious’s].” Noti, 731 F.2d at 615.
IV
The Miranda warnings given to Loucious adequately
conveyed that he had the right to consult with an attorney
before questioning even though they did not explicitly inform
him of that right. This right was reasonably to be inferred.
We reverse the district court’s order suppressing Loucious’s
statements.
REVERSED.