E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT IN THE IOWA SUPREME COURT IOWA DISTRICT COURT FOR POWESHIEK COUNTY STATE OF IOWA, Plaintiff, vs. CRISTHIAN BAHENA RIVERA, Defendant. Supreme Court No: 20-0107 No. FECR010822 APPLICATION FOR STAY OF PROCEEDINGS AND SUPPLEMENT TO APPLICATION FOR DISCRETIONARY REVIEW OF INTERLOCUTORY ORDER TRIAL TO COMMENCE FEBRUARY 4, 2020 APPEAL FROM THE DISTRICT COURT OF POWESHIEK COUNTY THE HONORABLE JOEL D. YATES, JUDGE COMES NOW Defendant, Cristhian Bahena Rivera (Bahena), and hereby applies to the Supreme Court or any Justice thereof to stay proceedings now pending in the Poweshiek County District Court until such time as the matters raised in the Application for Discretionary Review of Interlocutory Order are addressed. In support of this application, Bahena states as follows: 1. On September 14, 2018, Bahena was charged by trial information with the crime of Murder in the First Degree, a Class A felony. E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT 2. The charges filed against Bahena followed a month-long search for the victim, Mollie Tibbetts. The investigation involved law enforcement from local, state and federal authorities with agents assisting from across the United States. 3. Evidence obtained which led Bahena being charged came as a result of law enforcement interrogating Defendant for over 12 hours. 4. On March 1, 2019, Bahena filed a Motion to Suppress. Said motion was then supplemented. The Motion to Suppress, as supplemented, raised numerous issues of constitutional violations under both the United States and Iowa Constitutions. 5. On November 13, 2019, a two-day hearing on the Motion to Suppress was held. 6. On December 23, 2019, the Honorable Joel D. Yates issued his written ruling which granted suppression of testimonial evidence obtained from Bahena after an immigration detainer was placed on him approximately seven (7) hours into the interrogation, until Miranda warnings were again given prior to a second successive statement made over twelve (12) hours following the beginning of the interrogation at the sheriff’s office. E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT 7. Bahena has requested Discretionary Review of the Court’s Interlocutory Order. 8. Bahena’s substantial rights are affected by the District Court’s ruling as the Court found Bahena’s statements to be voluntary. As such, any physical evidence including the body that was found as a result of Bahena’s statement in violation of Miranda have been ruled admissible. Further, after the “second Miranda” law enforcement merely glossed through what Bahena had previously said during his suppressed statements. The District Courts does not take into account all of the unique factors that make Bahena’s statement involuntary. Further, the questioning was a two-step interrogation technique (“Question First, Miranda Later”) that has been prohibited by Missouri v. Siebert, 542 U.S. 600 (2004) 9. The ruling or order will materially affect the final decision. The strength of the state’s case hinges on whether Bahena’s interview is allowed at trial. Further, if Bahena’s statements are found to be involuntary then the body is suppressed. Determining this question prior to trial better serves the interest of justice as the evidence argued inadmissible in the Defendant’s Motion to Suppress is crucial to the State’s case. Further, as outlined below, the Defendant’s arguments contain several “hot button” E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT legal issues that the Supreme Court has heard and provided some guidance on. Providing more clarity to the District Courts is in the interest of justice. 10. The State of Iowa conceded that a Miranda violation had occurred following the attempted warning given by officers following placement of an immigration detainer on Defendant. 11. After hearing the District Court found a Miranda violation had occurred and suppressed all Defendant’s statements from the time of the advisement of the faulty Miranda advisory (seven (7) hours into the interrogation) until the second successive interrogation and what the Court found to be a curative Miranda warning. The District Court went on to find that Bahena was not in custody for purposes of Miranda for the first seven (7) hours of the interrogation. 12.Further, the District Court found that the Defendant’s statements made at any point during any interrogation were voluntary. Accordingly, the District Court found that while Defendant’s statements were suppressed, any nontestimonial evidence seized as a result therefrom was not fruit of the poisonous tree and admissible. 13.The findings of the District Court, are of great importance to the trial of this Defendant as they include the admissibility of the discovery of the victim’s body and the evidence seized at the body’s location. E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT 14.The District Court failed to address many issues which are of great relevance to the constitutional issues raised, for example: • Bahena initially agreed to accompany law enforcement to the Poweshiek Police Department but wanted his supervisor’s blessing. Bahena’s supervisor gave approval but stated he would likely call the farm attorney as he wanted Bahena to have legal supervision. Law enforcement then turned back to Bahena and in Spanish advised that the supervisor had agreed and said that the supervisor would be contacting the farm’s attorney. Special Agent Mike Fischels (Agent Fischels) affirmatively told Bahena in Spanish “he will call the attorney of…of your company, for you as well. You don’t need it but… for him, he wants to.” (emphasis added) 1 The issue of a law enforcement officer affirmatively telling Bahena he wasn’t going to need an attorney is never addressed or even mentioned in the 39 page ruling handed down by the District Court. • The District Court also failed to mention that the very same agent same agent told Bahena he would be “brought back here” when the interview was over. Said conversations not only relate to Bahena right to counsel under the Unites and Iowa Constitution but also to the voluntariness Bahena’s interview. 12. Additionally, the District Court did no mention anywhere in its ruling concerning violations, or lack thereof, under the Iowa Constitution. The statement that Bahena was not going to need a lawyer violated his right to counsel under the United States and Iowa Constitution. Even more, said statement was a flat out lie. Any competent counsel sought would have advised Bahena to decline to make any further statement. This was not the only lie law enforcement told at the beginning of the investigation. Law enforcement also lied when they said they weren’t from immigration. The Department of Homeland Security ran Bahena’s information through an immigration database immediately upon their arrival at the Poweshiek County Sheriff’s Office. Later that evening law enforcement put an immigration detainer on Bahena. This was a coercive law enforcement tactic. 1 E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT 13. The District Court seemed to do a voluntariness analysis in a “bubble” and ignored other suppression issues that directly relate to the voluntariness of Bahena’s interview of the case. The District Court ignored several other issues brought before the Court when making a voluntariness analysis, for example: • The District Court did not apply the Schneckloth factors as stringently as they were applied in State v. Pals, 805 N.W.2d 767 (Iowa 2018), and the District Court’s opinion aligns more closely to the Federal Schneckloth interpretation. This Court in Pals found the setting of a traffic stop on a public road to be inherently Coercive. This District Court failed see the similarities between a traffic stop and the raid of Yarabee Farms where 15 federal and state agents entered Bahena’s place of work to “canvass” and followed up with Bahena individually in a separate room at his place of employment. 805 N.W.2d at 783. • The Court in Pals found that not being advised Defendant’s freedom to leave, or that he could voluntarily refuse consent without any retaliation by police is, “at a minimum, a strong factor cutting against the voluntariness of the search.” Id. The District Court found that the consent form given to Defendant while at his place of employment included the right to refuse the search and such an inclusion in a form is sufficient to warn Bahena Dist. Ct. Ruling p. 11. The interview transcript makes it appear that Bahena did not even read the form and that he merely cooperated with law enforcement and signed the form. Such a warning should not be sufficient while in a setting that is so coercive. • Officers isolated Bahena for about twelve hours. He was placed alone in a small interrogation room alone for the duration of this time. He was not informed his family was present. He was not allowed to move around outside of this room. During this time, he was confronted by as many as six different law enforcement officers. The confrontational nature of the interrogation continued with a slow crescendo from all officers until it made it apparent to E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT Bahena that the only course of action to take was to offer incriminating statements on himself despite repeatedly denying involvement. The officers’ utilization of this technique is known as the Reid Technique and the officers in this matter are trained and experienced in this technique. • Bahena was sleep deprived during his interrogation. Sleep deprivation techniques used by the officers caused Bahena’s statement to be involuntary. • Law Enforcement (1) didn’t Mirandize Bahena2, (2) told Bahena he didn’t need an attorney, (3) didn’t read Bahena his consular rights, (4) didn’t read Bahena his 804.20 rights, (5) did not tell Bahena about his family waiting outside 3, (6) chose to interview Bahena throughout the night after he worked all day, (7) improperly told Bahena confessing would “help” him multiple times 4, and (8) screamed at Bahena saying, “You are fucking up right now. You are Fucking up. Big Time. Stop Fucking Up.” Transcript 03 13 33 730 pages 28-31. Law enforcement chose to do this knowing Bahena was a foreign national with no prior criminal history. • In this matter, Bahena was obviously sleep-deprived and open to suggestion. Statements made by him were as a result of coercive Law enforcement chose not to Mirandize Bahena in the beginning of the interview. Officer Romero conceded there are written forms and Miranda cards. She did not use either when the deficient Miranda was provided. 2 Bahena had two family members waiting in the lobby of the Poweshiek County Sheriff’s Office. Bahena was not told that he had family waiting outside to speak to him. Officer Romero spoke with Bahena’s family in the lobby but did not ever inform Bahena his family was in the waiting room. 3 A detailed analysis of the use of the word help is laid out in the promissory leniency section of the Application for Distretionary Review. Reference was made to Bahena’s daughter. There is absolutely NO way that law enforcement could have helped or would of helped Bahena if he told them what they want. The end outcome would be charging Bahena with Murder 1st Degree. This was a coercive tactic to elicit a confession. The point was to make Bahena believe there was some benefit in telling law enforcement what they wanted to hear. This is a classic case of promissory leniency that our Supreme Court has already found involuntary. The Court should grant interrogatory review to clarify that law enforcement used promissory leniency. This has historically been a subject that the supreme court has spent resources on. Whether promissory leniency was used directly impacts this case. 4 E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT and suggestive questioning leading to false and misleading statements based on unduly suggestive questioning techniques rendering the statements involuntary. • Bahena raised the issue of his being a Mexican National as discussed above and how it has been discussed throughout the country and in legal treatises. Iowa has not squarely dealt with this specific issue yet and this alone provides a basis for interlocutory review. Bahena pointed out the following. The issues surrounding Mexican nationals and the difficulties they face during interrogations have been discussed in legal treatises. See Eugene Briere, “Limited English Speakers and the Miranda Rights”, TESOL Quarterly 12: 235-245 (1978); see also Flo Messier, “Alien Defendants in Criminal Proceedings: Justice Shrugs,” 36 American Criminal Law Review 1395 (1999) (“the meaning of Miranda warnings can be unfathomable to an accused even when read in his native language.”). This is because all too often, Mexican nationals are unable to understand their legal rights when facing interrogation. Bahena was a foreghn nation with no prior criminal history. Evidence was introduced that in Mexico police will often hurt you or retaliate against you if you don’t cooperate. 14. The Defendant maintains the assertion that his statements were not voluntary and therefore the physical evidence is not admissible. United States v. Patane, 542 U.S. 630 (2004). 15. Law enforcement also used an impermissible two-step interrogation technique (“Question first, Miranda later”) that has been found unconstitutional in Missouri v. Siebert, 542 U.S. 600 (2004). 5 The 5 The Court in Siebert said, “the contrast between Elstad and this case reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT Court failed to apply the appropriate precedent and guidance provided in Seibert. It ignored the deliberate and coercive tactics that law enforcement used: a. 15 officers arrived at Yarabee farms and began questioning Hispanics including Bahena. b. Bahena was transported to the Poweshiek County Sheriff and had no way home except law enforcement. c. Law enforcement chose not to Mirandize Bahena in the beginning of the interview. No attempt to Mirandize Bahena was made until an immigration detainer was placed on Bahena. d. When law enforcement did attempt Miranda at his immigration detainer law enforcement chose not to use a written form. e. Law enforcement also chose not to tell Bahena his family was outside waiting for him. Law enforcement lied to Bahena’s family and told them he would be out soon. f. Law enforcement chose not to tell Bahena he had consular rights. g. Law enforcement chose not to read Bahena his 804.20 rights. the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first. In Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspect’s shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission. At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings. The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid.” E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT h. Finding the second Miranda “fixed” the problem ignores the deliberate tactics that law enforcement used to not inform Bahena of any of his rights at the outset. 16.The dissents authored by Justices Hecht and Appel in State v. Tyler, 867 N.W.2d 136(Iowa 2015), discussed Seibert but the majority opinion did not apply Seibert. Seibert has not been applied by Iowa courts. This case presents the perfect set of facts for the Court to analyze Seibert. The tactics used by law enforcement are clear “Question first, Miranda later” found unconstitutional in Seibert. The application of Seibert would require any statements made after the immigration detainer to be suppressed regardless of the custody finding. Although this case is easily disposed on a federal Seibert analysis, Bahena respectfully argues that the Iowa Constitution provides better protections for Bahena. Further coupled with State v. Pals, 805 N.W.2d 767 (Iowa 2011), the Court should consider any whether law enforcement had a duty to advise Bahena that he has the right to decline to cooperate. Bahena directs the Court specifically to those dissents in Tyler as follows: a. Justice Hecht, in his dissent, in Tyler specifically stated that “Our Court has not yet had the opportunity to apply Seibert. Thus, this case provides the first opportunity to consider the problem of midstream Miranda warnings in successive interrogations.” He went on to note E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT “Seibert was a split 4-1-4 decision, so courts applying it must determine whether the plurality opinion or Justice Kennedy’s concurring provides the controlling rule.” He noted “The Seibert plurality would review all twostep interrogations under a multi-factor test . . . . Justice Kennedy’s opinion would apply a form of heightened scrutiny only to those two-step cases in which law enforcement officers deliberately employed a two-step procedure designed 66 to weaken Miranda’s protections.” b. Justice Hecht went on to discuss his custodial analysis and voluntariness analysis as applied to the facts in Tyler using the Seibert standard guided by the “question first, then give warnings” tactic used by officers in Seibert. Justice Hecht opined that Tyler’s statements, in his opinion, were involuntary and violative of Seibert. c. Justices Wiggins and Appel also addressed these same issues in their joint dissent authored by Justice Appel in Tyler. Justice Appel begins his dissent by stating: By a 4–3 margin, a majority of this court has concluded Tyler was not in custody during the ride to the police station and during her interview at the police station. For the reasons expressed by Justice Hecht, three justices, including myself, reach a different conclusion. A slight variation in the facts could well have led to a different result. Whether a person is in custody will turn on the facts of a particular case, E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT but I trust it clear this court will not tolerate a two-step confession process in which law enforcement seeks to evade the requirements of Miranda.” d. Justice Appel broadened his analysis however to include the Iowa Constitution and the “fruit of the poisonous tree” doctrine. He said: “In light of its conclusion Tyler was not in custody, the majority does not reach the question of proper remedy in the event of unlawful successive interviews. While I agree with Justice Hecht’s application of Seibert under federal law, I write separately to emphasize that in my view, when law enforcement improperly engages in a two-step interrogation to defeat Miranda, the Iowa Constitution requires any improperly obtained inculpatory statements be suppressed unless the state meets the “fruit of the poisonous tree” test of Wong Sun v. United States, 371 U.S. 471, 485– 86, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963).” e. Justice Appel, in his dissent, supported the dissent in Oregon v. Elstad, he found that the dissents in that case more persuasive. Moreover, he agreed with the trends in other states where “fruit of the poisonous tree” doctrine has been applied under the state constitutions. Justice Appel pointed out that at least four other states have found so. E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT 17. Further coupled with State v. Pals, 805 N.W.2d 767 (Iowa 2011), the Court should consider any whether law enforcement had a duty to advise Bahena that he has the right to decline to cooperate. 18. A stay is both necessary and appropriate at this time to squarely address the custodial and voluntariness issues discussed in Tyler and the applicability of Pals. This case presents issues of constitutional importance under both the Iowa and United States Constitution. The Iowa Constitution argument was ignored by the District Court. The District Court also incorrectly noted that the parties agreed that Justice Kennedy’s concurrence in Seibert was the controlling law. 19.The District Court also quickly dispensed of Defendant’s argument concerning the applicability of Article 36 of the Vienna Convention and Defendant’s consular rights to the analysis of voluntariness and custody. The District Court simply cited the Iowa Supreme Court case of State v. Buenaventura, 660 N.W.2d 38, 45 (Iowa 2003). 20. However, the District Court failed to even analyze or apply subsequent United States Supreme Court ruling which changes the landscape regarding Article 36 of the Vienna Convention. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). 21. This Court has not had the opportunity to apply the Sanchez- E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT Llamas standard to the voluntariness or custodial analysis yet. Under the totality of the facts presented, this Court should do so at this time. A number of courts across this country have applied Article 36 to the voluntariness issue under Miranda in light of Sanchez-Llamas. Those authorities have been cited in the Application for Discretionary Review. Iowa, at this time, should join in those jurisdictions who have taken a realistic view of how the demographics of our society have changed and the immigration status and nationality of people in this country is a relevant factor to consider. 22. The District Court almost completely ignored and cultural or historical differences between Defendant, a Mexican national, and any other person when applying a wholly objective standard. This is error. Law enforcement used Defendant’s immigration status as a sword to keep him in custody when they needed to, yet Defendant’s experience with law enforcement in Mexico, his ignorance of the American legal system, issues with communication, etc. went ignored by the District Court who treated him “objectively” as if he were someone who was born, raised and educated in Iowa. This court should accept this invitation to instruct lower courts that the objective test of a “reasonable person in defendant’s shoes” includes factors that may be subjective to each particular defendant. A E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT wholly objective standard as applied by the District Court was wrong and misapplied. 23. Defendant incorporates all arguments in his Application for Discretionary Review as further bases to issue a stay of proceedings. 24. As stated in the Application for Discretionary Review, the issues presented herein should be heard on discretionary review. Such issues are constitutional in nature and affect substantial rights of Mr. Bahena, a Mexican National. Said issues present themselves for the first time or are an invitation to revisit prior precedent to fit the factual reality of today. Specifically, this Court should take this opportunity at this time to address the issues left undetermined in State v. Tyler and apply appropriately the holding of Sanchez-Llamas to the issue of voluntariness and custody. It is clear, the ruling of the District Court failed in many respects to take into account many of these factors and this ruling must be examined at this time as it greatly affects the admissibility of evidence and the presentation of both parties’ cases at trial herein. WHEREFORE, the Bahena requests the Court enter a stay of all District Court proceedings. E-FILED 2020 JAN 22 1:49 PM POWESHIEK - CLERK OF DISTRICT COURT CRISTHIAN BAHENA RIVERA, Defendant Frese_____________ BY: ____/s/ Chad R. Chad R. Frese AT0002704 KAPLAN & FRESE, LLP 111 East Church Street Marshalltown, Iowa 50158 Phone: (641) 753-5549 Fax: (641) 753-0962 Email: chad@kaplanfrese.com Frese_____________ Copy to: Scott Brown, Esq. Bart Klaver, Esq. ___/s/ Jennifer J. Jennifer J. Frese AT0008137 KAPLAN & FRESE, LLP 111 East Church Street Marshalltown, Iowa 50158 Phone: (641) 753-5549 Fax: (641) 753-0962 Email: jennifer@kaplanfrese.com ATTORNEYS FOR DEFENDANT.