UNITED STATES of America, Plaintiff-Appellee, v. Antonio RODRIGUEZ-PRECIADO, aka Tony Rodriguez-Preciado, Defendant-Appellant, 399 F.3d 1118

Opinion by Judge WALLACE; Partial Dissent by Judge BERZON. WALLACE, Senior Circuit Judge. Rodriguez-Preeiado appeals from his conviction for various narcotics-related offenses. He argues that the district court improperly denied his pre-trial motion to suppress evidence obtained from his person, his motel room, and his vehicle, as well as statements that he made in the motel room and during a subsequent two-day interrogation.

In support of these claims, he contends that the officers did not obtain a valid consent to enter and search the motel room, and that they began a custodial interrogation of him in the motel room without giving the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Furthermore, he argues he did not validly waive his right to remain silent after he was eventually given Miranda warnings, the warnings became “stale” and should have been re-administered at the outset of the second day of interrogation, and the officers’ failure to advise him of his right under

Article 36 of the Vienna Convention requires suppression. He also contends the officers did not obtain a valid consent to search his person and vehicle, and these searches exceeded the scope of any consent. In addition to these suppression arguments, he asserts that the district court violated the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), and that the prosecutor improperly commented on his failure to testify, in violation of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm. I. An ongoing narcotics investigation led law enforcement officers to an Oregon motel room in search of Rodriguez-Preeiado, who was suspected to be involved in drug trafficking. The officers had questioned Robert Glenn, another target of the investigation, and learned that Rodríguez-Pre-ciado could be found at the motel room and would have contraband in his car. Five officers arrived at the motel without a warrant.

At least three officers went to the motel room door dressed in plain clothes and carrying concealed weapons, including Officer Hascall and Deputy Lilley. They knocked on the door and a man, later identified as Alberto Silva, answered. While standing outside the door, Hascall displayed his badge, identified himself as a police officer, and' asked Silva whether he understood English. Silva replied that he did not. Hascall spoke some Spanish and stated in Spanish that he was a police officer and asked for permission to enter the room.

Silva said “Si,” backed away from the door, and motioned with his arms for the officers to enter the room. Hascall also asked Silva in Spanish whether the motel room was his; Silva replied that it was. Once inside the room, Hascall explained that the officers were there to investigate suspected narcotics sales activity. He asked Silva whether he sold narcotics, and Silva said he did not. Hascall then asked Silva for permission to search the room for drugs. Silva consented. Throughout this conversation, none of the officers had their hands on their weapons, and Silva was not handcuffed or otherwise detained.

At no point did the officers give Silva Miranda warnings, explain that he had the right not to consent to the search, or state that they could obtain a search warrant for the motel room. The officers found no drugs or weapons during the search, but they did find, among other things, a shipping label addressed to Glenn’s business and a fax from Glenn. Rodriguez-Preeiado entered the motel room while the officers were still there. Hascall displayed his badge, told Rodriguez-Preciado that he and the others were police officers, and asked Rodrí-guez-Preciado whether he understood English.

Rodriguez-Preeiado said that he did, so Hascall explained that the officers were there to investigate narcotics activity, that Silva had consented to a search of the room, and that the search had not produced “any weapons or drugs or anything.” During this conversation, the officers did not display or touch their weapons, and did not surround, pat down, or handcuff Rodríguez-Preciado. Rodrí-guez-Preciado expressed no objection to either the officers’ presence in the room or that Silva had consented to the search. Hascall then asked RodriguezpPreciado whether he had any drugs in his possession.

Rodríguez-Preciado said yes and produced a small paper bindle of cocaine from his shirt pocket. Hascall immediately advised RodriguezAPreciado of the required Miranda wárnings and asked whether Rodríguez-Preciado understood them. Rodríguez-Preciado said that he did. Hascall did not inform Rodríguez-Preciado of any right that he, as a Mexican national, -might have under the Vienna Convention. After Hascall requested permission to search Rodriguez-Preeiado’s person and his vehicle, .Rodríguez-Preciado consented and handed him the keys to the van he had been driving.

Rodríguez-Preciado said the van .contained no weapons or drugs. Sergeant Romanaggi searched the van and discovered $3,360 hidden in a child safety seat in the van. Hascall also found $1,849 in cash in Rodriguez-Preeiado’s wallet. Based on this and other evidence, the officers decided to' interview Rodríguez-Preciado in more detail. He was handcuffed and taken ,to a Washington County Sheriffs Office substation. When he arrived at the interview room, his handcuffs were removed and Hascall and Lilley began questioning Rodríguez-Preciado, primarily about his relationship with Glenn.

During that conversation, Rodriguez-Pre-. ciado described several instances in which he had sold marijuana and methamphetamine to. Glenn, including a sale of one pound of methamphetamine that had occurred several days earlier. Rodríguez-Preciado also described a failed attempt to obtain the drug “ecstasy” for Glenn (the slang term for a drug known as MDMA or MDA), and a sale of • five kilograms of cocaine to another individual. According to Hascall, the officers’ conversations with Rodríguez-Preciado at the motel room and while he was being interrogated at the substation were conducted entirely in English.

Hascall testified the officers had “no difficulty” communicating with Rodríguez-Preciado, with the exception of some initial confusion about the meaning of the word “methamphetamine.” This confusion was dispelled after Rodrí-guez-Preciado later asked the officers whether they meant “crystal,” which is the slang term for methamphetamine. At one point in the interview, the officers asked Rodríguez-Preciado, “Where is the rest of the meth?” Rodríguez-Precia-do replied that a pound of methamphetamine was behind the rear speaker of the van.

The record is not clear whether Has-call specifically sought Rodriguez-Precia-do’s permission to search that area of the van. Hascall informed Romanaggi, who dismantled the rear speaker and found one pound of methamphetamine. Earlier searches of the van, including a canine search, had not uncovered the methamphetamine or any other contraband.

The officers then asked Rodríguez-Pre-ciado whether he would be “interested in helping, [them] with[their] investigation of narcotics trafficking and perhaps help himself at the same time.” Rodríguez-Precia-do said that he was interested, which led to a discussion of various ways in which he might be of service. When the officers ended their interview, they placed Rodrí-guez-Preciado in custody on state narcotics charges and moved him to the Washington County jail, where he spent the night. Lilley came to the jail the next day to resume the interview with Rodríguez-Pre-ciado.

Lilley was accompanied by Roman-aggi, who understood that Rodriguez-Pre-ciado wished to cooperate. The officers did not re-advise Rodriguez-Preciado of the Miranda warnings before initiating this interview, which began approximately sixteen hours after he was given Miranda warnings the previous day. Rodriguez-Preciado discussed various drug transactions in which he had engaged in the past, and gave the names of individuals he had worked with or who he understood to be involved in the drug trade. As before, the entire interrogation took place in English.

At some point in the questioning, Ro-managgi asked Rodriguez-Preciado whether “he remembered receiving his Miranda rights when he was interviewed the night before by Officer Hascall.” Rodriguez-Preciado responded that he “thought he had” been advised of his rights. Roman-aggi gave Rodriguezr-Preciado a card reciting Miranda warnings in both English and Spanish. Rodriguez-Preciado appeared to read the card, and then stated, in response to a question by Romanaggi, that “he understood his rights.” Romanaggi “then went over everything” he had previously asked Rodriguez-Preciado.

A grand jury charged Rodriguez-Precia-do with one count of conspiracy to possess with intent to distribute and conspiracy to distribute methamphetamine, cocaine, MDMA and MDA, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2; one count of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). After failing to appear at his arraignment, Rodriguez-Pre-ciado was re-captured over four years later.

The trial date was delayed several times due to continuances granted by the district court. Rodriguez-Preciado never filed a motion to dismiss the case pursuant to the Speedy Trial Act.

The district court held a pretrial hearing on Rodriguez-Preciado’s motion to suppress, in which he asserted constitutional and other violations and sought to exclude from trial the evidence found in the motel room, the cocaine he gave to Hascall in the motel room, the money found in the van and on his person, the methamphetamine found in the van, and all statements that he made in the motel room and during the two-day interrogation. The district court denied the motion. After a four-day trial, the jury found Rodriguez-Preciado guilty of all three counts. II.

We first address Rodriguez-Preciado’s motion to suppress. We review the district court’s denial of the motion to suppress de novo and the underlying factual findings for clear error. United States v. Bynum, 362 F.3d 574, 578 (9th Cir.2004). A. Rodriguez-Preciado’s first claim is that the officers unlawfully entered and searched the motel room. He contends the district court clearly erred in finding Silva validly consented to their entry and search. “We ... review the validity of the warrantless entry and warrantless search under the clearly erroneous standard,” United States v.

Rosi, 27 F.3d 409, 411 (9th Cir.1994), including the district court’s factual finding that Silva voluntarily and knowingly consented to the search. United States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir.2004). “It is the government’s burden to prove that the consent was freely and voluntarily given. On appeal, evidence regarding the question of consent must be viewed in the light most favorable to the fact-finder’s decision.” Id. (internal quotation marks and citations omitted).

The district court found that Silva knowingly consented to the entry and search: “Silva did invite Officer Háscall into the room and gave consent for the search,” notwithstanding Silva’s inability to speak English and Hascall’s limited Spanish. That finding was not clearly erroneous. . In addition, the district court found the consent was voluntary. Regarding the consent to the entry, the finding of voluntariness of consent was not clearly erroneous in light of evidence that Silva welcomed the officers into the room.

Regarding the consent to search, voluntariness “is ‘to be determined from the totality of all the circumstances,’ ” id., quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), although we can examine five nonexclusive issues assisting our inquiry: (1) whether the defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda, warnings were given; (4) whether the defendant was notified that she had a right not to consent; and (5) whether the defendant had been told a search warrant could be obtained. United States v.

Jones, 286 F.3d 1146, 1152 (9th Cir.2002), citing United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.1989).' “[TJhese factors are only guideposts, not a mechanized formula to resolve the voluntariness inquiry.” Patayan Soriano, 361 F.3d at 502. As Silva was not in custody, “Miranda warnings were inapposite.” Id. at 504. The officers did not draw their guns or threaten to obtain a search warrant if consent was refused. Furthermore, Hascall testified that after he asked Silva in Spanish whether the officers could enter the room, Silva said “si” and motioned for the officers to enter.

Although Silva was not advised he could withhold consent or told a search warrant could be obtained, “[i]t is not necessary to check off all five factors.” Id. at 502. Given these circumstances, the district court did not clearly err in finding that Silva knowingly and voluntarily consented to the search. See United States v. Cormier, 220 F.3d 1103, 1112-13 (9th Cir.2000) (affirming voluntariness finding in similar circumstances). The district court also found that Silva had authority to invite the officers into the room.

We will not review that determination because Rodriguez-Preciado did not “specifically and distinctly” challenge it in his opening brief. Int’l Union of Bricklayers & Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985). B. Next, Rodriguez-Preciado argues that the statements he made should have been suppressed because of alleged Miranda violations. He contends that the statements he made before being given warnings were taken in violation of Miranda because he was in “custody” for purposes of Miranda from the moment he entered the motel room.

Furthermore, he asserts he did not validly waive his Miranda rights after they were given to him because his difficulty with English precluded a knowing and intelligent waiver, and the “coercive effect of the officers’ presence in[his] motel room” rendered his waiver involuntary. Finally, he argues the Miranda warnings he was given at the motel room were “stale” by the beginning of the interrogation the next day, due to changed circumstances. We address each contention in turn. 1.

The district court determined that “when [Rodríguez-Preciado] arrived at the room, he was not in custody.” We review the custody determination de novo and the underlying factual findings for clear error. See United States v. Kim, 292 F.3d 969, 973 (9th Cir.2002). As we recently explained: An officer’s obligation to administer Miranda warnings attaches only where there has been such a restriction on a person’s freedom as to render him in custody. Whether a suspect is in custody turns on whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

This inquiry requires a court to examine the totality of the circumstances from the perspective of a reasonable person in the suspect’s position. United States v. Crawford, 372 F.3d 1048, 1059 (9th Cir.2004) (en banc) (internal quotation marks, citations, and alterations omitted). Judged by these standards, the district court did not err in concluding that Rodríguez-Preciado was not in custody when he entered the motel room.

The officers explicitly informed him that their search had turned up no incriminating evidence, none of them displayed or otherwise brought attention to their weapons, and there was no intimation that they would not permit him to leave if he so desired. Rodriguez-Preciado’s admission to possessing cocaine was not made during a custodial interrogation, and therefore the fact that he was not given Miranda warnings prior to this admission does not require suppression. 2.

Rodríguez-Preciado also challenges the determination that he validly waived his Miranda rights by responding to the officers’ questions after receiving the required warning. Waivers of Miranda rights need not be explicit; a suspect may impliedly waive the rights by answering an officer’s questions after receiving Miranda warnings. Terrovona v. Kincheloe, 912 F.2d 1176, 1179-80 (9th Cir.1990). “For a waiver of rights to be valid it must be voluntarily, knowingly, and intelligently given.

Whether there has been a valid waiver depends on the totality of the circumstances, including the background, experience, and conduct of defendant.” United States v. Doe, 155 F.3d 1070, 1074 (9th Cir.1998) (en banc) (internal quotation marks and citations omitted). “We review a district court’s ruling on a Miranda waiver under two standards: Whether the waiver was knowing and intelligent is a question of fact that we review for clear error. Whether the waiver was voluntary is a mixed question of fact and law, which we review de novo.” United States v. Amano, 229 F.3d 801, 803 (9th Cir.2000).

The district court’s finding that Rodriguez-Preciado’s alleged difficulty with English did not prevent him from knowingly and intelligently waiving his Miranda rights was not clearly erroneous. “A waiver is knowing and intelligent if, under the totality of the circumstances, it is made with a ‘full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’” Doe, 155 F.3d at 1074, quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

Rodriguez-Preciado “indicated that he understood his rights after they were explained to him,” United States v. Bautista-Avila, 6 F.3d 1360, 1366 (9th Cir.1993), and the district court found that, except for some confusion regarding the word “methamphetamine,” there was “no indication by any of the officers that Mr.

Rodriguez had difficulty understanding English nor that the officers had trouble understanding his English.” Thus, “[d]espite [any] language difficulties encountered by appellant, the evidence seems to indicate that he understood his rights and ... knowingly, and intelligently waived them.” United States v. Bernard S., 795 F.2d 749, 752 (9th Cir.1986).

The district court also concluded that Rodriguez-Preciado’s choice to waive his Miranda warnings was voluntary. “A waiver is voluntary if, under the totality of the circumstances, the confession was the product of a free and deliberate choice rather than coercion or improper inducement.” Doe, 155 F.3d at 1074. Rodríguez-Preciado points to no facts, other than the mere presence of officers in his motel room, suggesting that his waiver of Miranda warnings was involuntary. Indeed, we have upheld the validity of a waiver of Miranda warnings in circumstances much more coercive than those involved in this case.

See Terrovona, 912 F.2d at 1179-80 (not specifically addressing issue of voluntariness, but holding that suspect validly waived his, Miranda rights by speaking to officers, despite fact that questioning occurred in suspect’s apartment after he had been handcuffed and arrested without a warrant and while officers were conducting, what he “considered to be a warrantless search of his apartment”).

Here, we have a milder situation: the officers told Rodríguez-Preciado that their search of the room had not produced any weapons or drugs. - The mere fact that he was questioned in the motel room “was not ‘sufficiently compelling to overbear [Rodriguez-Preciado’s] will in light of all attendant circumstances.’” United States v. Okafor, 285 F.3d 842, 847 (9th Cir.2002), quoting United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir.1988). Nor is there any evidence of coercion or improper inducement at either the first or second custodial interview.

In these circumstances, the conclusion that Rodriguez-Preciado’s waiver of Miranda rights was voluntary was not erroneous. 3. We now address the admissibility of statements made on the second day of the interrogation. Rodríguez-Preciado contends that the officers were required to re-advise him of Miranda warnings before beginning the second day of questioning.

But he does not cite a Supreme Court or Ninth Circuit decision — and we are aware of none — holding that statements made after Miranda warnings are administered are nonetheless inadmissible if the warnings become “stale.” The Supreme Court has eschewed per se rules mandating that a suspect be re-advised of his rights in certain fixed situations in favor of a more flexible approach focusing on the totality of the circumstances. See Wyrick v.

Fields, 459 U.S. 42, 48-49, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982) (per curiam) (rejecting per se rule requiring police to re-advise suspect of his rights before questioning him about results of polygraph examination). Consistent with Wyrick's admonition against “unjustifiable restriction^] on reasonable police questioning,” id. at 49, 103 S.Ct. 394, “[t]he courts have generally rejected a per se rule as to when a suspect must be readvised of his rights after the passage of time or a change in questioners.” United States v. Andaverde, 64 F.3d 1305, 1312 (9th Cir.1995).

Indeed, in a decision upholding the admissibility of statements made nearly fifteen hours after Miranda warnings were administered, see Guam v. Dela Pena, 72 F.3d 767, 770 (9th Cir.1995), we cited with approval earlier decisions involving intervals of two days, id., citing Puplampu v. United States, 422 F.2d 870 (9th Cir.1970) (per curiam), and three days, id.,citing Maguire v. United States, 396 F.2d 327, 331 (9th Cir.1968).

Here, the district court found that Rodriguez-Preciado’s second day statements were “close in time to the original advice of rights,” despite the interval of approximately sixteen hours, and that he “understood those rights as given to him in English.” In light of our precedents approving delays of similar and greater length, it properly concluded that it was “not [necessary] that he be advised of his rights” again. See, e.g., Andaverde, 64 F.3d at 1313 (statements made one day after Miranda warning).

Nor has Rodriguez-Preciado pointed to any other circumstances which “suggest the effectiveness of the earlier Miranda warnings was diminished” on the second day of the interrogation. Dela Pena, 72 F.3d at 770. “A rewarning is not required simply because there is a break in questioning.” Id. at 769. Although Romanaggi took Hascall’s place at the second interrogation, Lilley was present at both custodial interrogations and the questioning in the motel room.

See Andaverde, 64 F.3d at 1312-13 (presence of one officer throughout two interrogations supported conclusion that failure to re-administer warnings did not require suppression, notwithstanding presence of new interrogator at second round of questioning). Nor is it determinative that there was a change of one interrogator in conjunction with the change of location (from the motel to the substation to the jail). See id. at 1313 (repeat of warnings not required even though suspect “had been moved into a different room and faced a new interrogator”).

It is also significant that Rodriguez-Preciado was in custody continually from the time warnings were first administered through the second day interview. Cf. Dela Pena, 72 F.3d at 769 (Miranda warnings given before suspect in custody need not be re-administered before custodial interrogation). Thus, there were no intervening events which might have given Rodriguez-Preciado the impression that his rights had changed in a material way. See id.

Indeed, Rodriguez-Preciado’s own statements indicate that he still understood his rights on the second day of questioning: when Romanaggi asked him whether he remembered being advised of his Miranda rights the night before, Rodriguez-Precia-do replied that he “thought he had.” Contrary to the dissent’s suggestion, we do not hold that the “central issue” is “what [Rodriguez-Preciado] remembered concerning the earlier warnings.” Post at 1142 n. 14.

We agree that “the issue is whether .Rodriguez-Preciado could have reasonably believed that the Miranda rights ... of which he was apprised the night before [were still effective], in light of the changed circumstances.” Post at 1134. That Rodriguez-Preciado appeared to remember having received warnings the night before indicates that he did, in fact, understand that his rights had not materially changed notwithstanding the change in circumstances. At oral argument before us, counsel for Rodriguez-Preciado asserted for the first time that Missouri v.

Seibert, — U.S. -, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (plurality opinion), should affect our analysis of this issue. We need not decide whether we are bound to follow the plurality opinion in Seibert or only that opinion as limited by Justice Kennedy, because Seibert did not address the issue raised in this case.

Seibert dealt with the admissibility of statements made after the police give “midstream” warnings, that is, when police begin a custodial interrogation without advising the suspect of his Miranda rights, obtain incriminating statements, and then continue questioning after administering warnings in order to re-elicit the incriminating statements. See id. at 2605.

The plurality opinion acknowledged that “giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility” at trial for statements made by a defendant, id. at 2608, but held that “when interrogators question first and warn later,” the threshold issue is “whether it would be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda requires.” Id. at 2610. In Seibert, it was undisputed that the officers had not given the suspect Miranda warnings at the outset of the interrogation. Id. at 2606.

The Court therefore had no occasion to address the question presented here: whether Miranda warnings, once given, need to be re-administered due to changed circumstances. Here, Hascall gave Miranda warnings in advance of the custodial interrogations, which Rodríguez-Preciado understood and which provided adequate notice given the totality of circumstances. See, e.g., Dela Pena, 72 F.3d at 770.

The plurality opinion in Seibert, which does not cite Wyrick, casts no doubt on Wyrick’s totality of the circumstances test, or otherwise indicate that our own previous cases have considered or emphasized the wrong factors in applying that test. Thus, Seibert is inapposite. We hold that the failure to re-administer warnings on the second day does not automatically render any of the statements made that day inadmissible.

We reaffirm the Wyrick and our own precedents totality of the circumstances approach, and further emphasize that a district court’s factual findings regarding the continued effectiveness of Miranda warnings will not be set aside absent clear error. There was none here. We therefore need not decide whether the second day statements taken after Rodríguez-Preciado was re-advised of his Miranda warnings are also admissible on the basis of those warnings. C. The next issue concerns

Article 36 of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, which requires law enforcement officials to notify arrested foreign nationals of their right to contact their consulates. Rodriguez-Preciado asks us to hold that the officers’ violation of that provision requires exclusion of his statements. However, we have already squarely rejected this argument. See United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir.2000) (en banc) (“[Assuming that some judicial remedies are available for the violation of

Article 36, the exclusion in a criminal prosecution of evidence obtained as the result of post-arrest interrogation is not among them”). We are bound by that decision. See Montana v. Johnson, 738 F.2d 1074, 1077 (9th Cir.1984). D. We next address whether any of the evidence seized from Rodriguez-Preciado’s person or the van should have been suppressed. We hold that the district court’s conclusion that “the production of the cocaine from [Rodriguez-Preciado’s] shirt pocket was voluntary” was not error.

We also conclude that the district court’s finding that Rodríguez-Preciado validly consented to the searches of both his person and the van was not clearly erroneous. The district court found that Rodríguez-Preciado had “no inability to communicate,” despite his alleged language difficulties. At the time he consented, the officers’ guns were not in hand, he had already been informed of his Miranda warnings, and no threat had been made that a search warrant could be obtained if he refused consent.

The district court’s determination that Rodriguez-Preciado knowingly and voluntarily consented to the searches cannot be overturned. The central issue, then, is whether the searches were within the scope of his consent, an issue that we review for clear error. See United States v. Huffhines, 967 F.2d 314, 319 (9th Cir.1992).

Rodrigues Preciado does not argue that the search of his wallet was outside the scope of his consent, but does make such a claim with respect to the searches of the van. “ ‘The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?’ ” United States v. Cannon, 29 F.3d 472, 477 (9th Cir.1994), quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).

The first search of the van, in which $3,360 was discovered in a child seat, was valid. Because Rodriguez-Preciado “placed no explicit limit on the scope of that search,” and the child seat “reasonably could contain contraband,” the officers’ search of the seat was not outside the scope of consent. United States v. Gutierrez-Mederos, 965 F.2d 800, 803-04 (9th Cir.1992). Likewise, the district court properly refused to suppress the methamphetamine found behind the van’s speaker.

Although Rodriguez-Preeiado did not explicitly give consent to search that particular area, he informed the officers that drugs could be found there and cannot seriously contend that it would have been unreasonable to expect the officers to act on that information, especially in light of his previous unqualified and unrestricted consent to search the van. When an individual gives general consent to search a vehicle, and thereafter volunteers that evidence may be found in a specific area inside it, he thereby indicates that a search for that evidence would be within the scope of the original consent. Cf.

Cannon, 29 F.3d at 477 (“Failure to object to the continuation of a vehicle search after giving general consent to search is properly considered as an indication that the search was within the scope of the initial consent” (internal quotation marks omitted)); United States v. Mines, 883 F.2d 801, 804-05 (9th Cir.1989) (“Mines might have withdrawn or limited his consent, even during the search. His failure to do so indicates he consented to the entire search and everything it revealed”).

Moreover, under the circumstances, Rodriguez-Preciado’s statement that drugs would be found behind the speaker itself constituted implied consent to search that area. Cf. Rosi, 27 F.3d at 413-14 (where individual, after impliedly consenting to agents’ request to enter condo, “volunteered to an agent that pertinent evidence might be found in a lamp” with the “full expectation that the agents would search it” and “did not object when they proceeded to do so,” district court did not clearly err in finding that individual “invited” agents to look in the lamp).

In addition, the search of the van with a drug-sniffing dog was within the scope of Rodriguez-Preciado’s consent. See United States v. Perez, 37 F.3d 510, 515-16 (9th Cir.1994). In any event, nothing was found during that search. For the foregoing reasons, Rodriguez-Preciado’s motion to suppress was properly denied. We now turn to his remaining claims. III. Rodriguez-Preciado argues that one of the continuances granted by the trial court violated

section 3161(c)(1) of the Speedy Trial Act. See 18 U.S.C. § 3161(c)(1). Rodriguez-Preciado waived his Speedy Trial Act claim by failing to move for dismissal before trial. See 18 U.S.C. § 3162(a)(2) (“Failure of the defendant to move for dismissal prior to trial ... shall constitute a waiver of the right to dismissal”); United States v. Brickey, 289 F.3d 1144, 1150 (9th Cir.2002).

Although Rodriguez-Preciado contends that his lawyer’s failure to file a motion to dismiss should not be attributed to him, he does not assert that his lawyer provided constitutionally ineffective assistance or offer any other reason why he should be excused from the statutory consequences of his lawyer’s decision. His Speedy Trial Act claim was therefore waived. IV.

Finally, we address Rodriguez-Preciado’s claim that the prosecutor improperly commented on his decision not to testify. “Claims that a prosecutor committed misconduct during summation are reviewed for plain error, when as here, trial counsel did not object.” United States v. Tam, 240 F.3d 797, 804 (9th Cir.2001).

In his closing argument, defense counsel stated: Now, an example of how they hold back information and don’t want you to really know what’s going on is when Sara Abbott testifies about the fact that, well, she wouldn’t socialize with [Rodriguez-Preciado], but yet I believe she is the one who testified that, well, yeah, I would go get a tattoo, that sort of thing. Then, in the government’s rebuttal argument, the prosecutor quoted defense counsel’s argument and stated: So when counsel says, “What’s going on here,” the Government agrees with him. But the defendant has not addressed what’s really going on here.

He never did give you an explanation for what’s really going on here in the trip receipts. Rodriguez-Preciado seizes on the reference to “the defendant,” and argues that the prosecutor’s statement violated the rule prohibiting prosecutorial commentary on a defendant’s failure to testify. See Griffin, 380 U.S. at 615, 85 S.Ct. 1229. “A prosecutor’s comment is impermissible if it is ‘manifestly intended to call attention to the defendant’s failure to testify or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify.’ ” Beardslee v.

Woodford, 358 F.3d 560, 586 (9th Cir.2004), quoting United States v. Tarazon, 989 F.2d 1045, 1051-52 (9th Cir.1993). However, “we have held that a ‘comment on the failure of the defense as opposed to the defendant to counter or explain the testimony presented or evidence introduced is not an infringement of the defendant’s Fifth Amendment privilege.’ ” United States v. Mares, 940 F.2d 455, 461 (9th Cir.1991), quoting Castillo, 866 F.2d at 1083.

See also Tam, 240 F.3d at 805 (“[W]hen the government refers to defendant’s arguments’ but obviously is addressing the arguments made by defense counsel, there is no Griffin violation”). Taking the prosecutor’s remarks in context, they were a response to defense counsel’s closing argument, not a comment that was “manifestly intended to call attention to [Rodriguez-Preciado’s] failure to testify.” Beardslee, 358 F.3d at 586.

Instead, the prosecutor’s statements emphasized that the defense had never rebutted the inference raised by the trip receipts introduced by the prosecution to demonstrate that Rodriguez-Preciado had previously traveled to the area to meet with his co-conspirators. Indeed, Rodriguez-Precia-do’s brief explains that the prosecutor was “[rjesponding to [defense] counsel’s rhetorical questions about what the evidence meant.” “This argument was directed at the defense, and did not constitute an infringement on [Rodriguez-Preciado’s] Fifth Amendment rights.” United States v. Wasserteil, 641 F.2d 704, 710 (9th Cir.1981).

There was no plain error. AFFIRMED.