UNITED STATES of America, Plaintiff-Appellant, v. Devaughn DORSEY, also known as Buster, Defendant-Appellee, 364 F. App'x 367

MEMORANDUM The United States appeals the district court’s order suppressing Devaughn Dorsey’s incriminating statements made during an interrogation on May 22, 2008. The district court conducted an evidentiary hearing, including review of the videotaped interview, before ruling. It determined that Dorsey was arrested on the morning of May 22, 2008, and the arresting officers read him his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

That afternoon, he was taken to the Seattle Police Department and escorted to an interview room, where he was again read his Miranda rights. At that time, Dorsey signed the acknowledgment of rights form. During the subsequent interrogation, the Government concedes that Dorsey unequivocally invoked his right to counsel. Rather than immediately ending the interview, the detectives attempted to clarify whether Dorsey had invoked his right to counsel.

When they were satisfied that he was willing to speak without counsel they continued the interrogation for a few minutes before one of the officers asked to speak to the other outside the room. The detectives told Dorsey that they had to make a phone call and that they would be right back. A half hour later, Dorsey asked to use the restroom and upon his return asked a detective unconnected to the interrogation, “They tell you they cornin’ back in? ... I mean, they said they was cornin’ back.

I mean, what they gonna do?” After another half hour, one of the interrogating detectives returned and asked, “What do you need, Dorsey?” After some discussion back and forth about whether Dorsey had asked to speak with the detective, Dorsey said, “I been told ya’ll that. Ya’ll left. I didn’t tell you guys to leave. Ya’ll left.” Wben the detective asked again, “Well do you wanna talk to us then?” Dorsey replied, “I signed the paper to talk to you, didn’t I?” At that time, the detectives all returned to the room and read Dorsey his Miranda warnings for a third time.

Dorsey indicated that he understood his rights and signed the acknowledgment and waiver of rights form. During the subsequent interrogation Dorsey made several incriminating statements. The district court suppressed these statements, holding that as a matter of fact, the first interrogation did not end when the detectives left the room and told Dorsey that they would be right back, and as a matter of law that all subsequent incriminating statements were products of a violation of Miranda and Edwards v.

Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). “Whether the exclusionary rule applies to a given case is reviewed de novo, while the underlying factual findings are reviewed for clear error.” United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir.2004) (en banc) (citing United States v. Hammett, 236 F.3d 1054, 1057 (9th Cir.2001)). Whether or not the detectives ended the interview when they left the room is a very close question.

Although we might have decided the issue differently had we been the decision maker, we cannot hold that the determination that the interrogation did not end was illogical, implausible, or without support in the record. Because the district court found the interrogation did not end immediately after Dorsey asked for his lawyer or even after the detectives left the interview room, all incriminating statements made thereafter were obtained in violation of Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880, and were properly excluded. AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.