By Robert Phillips  
Deputy District Attorney (ret.) 

• Legal Concepts and Case Citation 
• Federal Rule of Criminal Procedure 4(c)(3)(A) 
• Application of the Exclusionary Rule as a last resort 
• The Fifth Amendment implied right to counsel 
• The Sixth Amendment right to counsel 
• 18 U.S.C. § 3501 and the McNabb-Mallory “Safe Harbor” Rule 

United States v. Rodriguez-Arvizu (9th Cir. Mar. 17, 2025) 130 F.4th 1125 

Rule: (1) A violation of Federal Rule of Criminal Procedure 4(c)(3)(A), by failing to inform an arrestee of an arrest warrant’s existence and of the offense charged, does not invoke the exclusionary rule. (2) Declining to sign a Miranda waiver form does not constitute an unambiguous invocation of the Fifth Amendment Miranda right to counsel. (3) A standard Miranda waiver of rights constitutes a defendant’s waiver of his Sixth Amendment right to counsel as well. (4) 18 U.S.C. § 3501 and the McNabb-Mallory “Safe Harbor” Rule requires that a federally charged the defendant be taken before a magistrate within six hours of arrest. That six hours, however, is measured from the time of arrest for the charges pending in an indictment, excluding any prior detention for unrelated charges. 

Facts: Now pay attention. This gets complicated: On Oct. 24, 2014, U.S. Border Patrol agents shot and killed an undocumented immigrant, Edgar Amaro-Lopez, who was a member of a five-person marijuana “rip crew,” a group of armed individuals that steals drugs from smugglers. Abelardo Rodriguez-Arvizu, the defendant in this case, was alleged to be a member of that same rip crew. A federal investigation following the killing of Amaro-Lopez led to the defendant being indicted on offenses committed by his rip crew, with a superseding indictment issued on September 7, 2016, charging the defendant accordingly. The defendant, however, was in the wind until he was arrested on Nov. 18, 2019, by Border Patrol agents in Sasabe, Arizona. When he was arrested, the agents were unaware of the earlier indictment, his arrest being for an immigration violation only.  

He was transported to Tucson and booked at 10 p.m. But because the Tucson facility was at capacity, the defendant was immediately transported to the Douglas Border Patrol Station. Upon being processed into the Douglas facility at 5:30 p.m. the next day, a criminal records check revealed an outstanding arrest warrant stemming from the incident three years earlier where Amaro-Lopez had been killed, and that had been entered into the system by FBI Special Agent Michelle Terwilliger following the issuance of the Sept. 7, 2016, superseding indictment referenced above.  

After discovering the warrant, a Border Patrol agent contacted Agent Terwilliger, who requested the defendant be returned to Tucson so she could pick him up the next day. Before being taken to Tucson, however, Border Patrol Agent Hector Verduzco, filled out three forms, listed as Forms I-213, I-214, and I-215. Both the I-214 Form (Advisement of Rights Form) and I-215 Form (Record of Sworn Statement in Affidavit Form) contained a notice of Miranda rights. The defendant signed the I-214 Form but left the specific “waiver” portion of the form unsigned. Agent Verduzco also marked “no” on the I-215 Form as defendant’s response when asked if he was willing to answer questions. As a result, the defendant was not questioned. He was also not told of the FBI’s outstanding warrant for his arrest.  

The defendant was then transported to Tucson, where he arrived at 1:30 a.m. on November 20. At 9:45 a.m., Agent Terwilliger (aided by FBI Agent Oscar Ramirez, who was fluent in Spanish) formally arrested and took custody of the defendant. Agent Terwilliger told the defendant, “that he was arrested, he was being arrested on a federal warrant, that we were FBI agents, and that we were going to take him for [processing] and an interview at the FBI office.” He was not told of the specific charges he faced.  

During the eight-to-10-minute ride to the FBI office, the defendant made several spontaneous statements in Spanish to Agent Ramirez. Agent Ramirez later testified that the defendant (1) asked about the charges, (2) asked for a telephone call, (3) asked if the arrest “had anything to do with Edgar” (the rip crew member whom Border Patrol had shot and killed in 2014), (4) stated that it was the Border Patrol that shot Edgar, (5) and asked whether he was going to get eight years, the same sentence that another member of the rip crew received.  

Agent Ramirez testified that he did not initiate any part of this conversation and that whenever the defendant would make a statement, he generally advised him that he (the agent) “could not talk to him there inside the vehicle” and that the agents “would have an opportunity to talk to him at the FBI office.” At the FBI office, Agent Ramirez read the defendant his Miranda rights and confirmed that he understood those rights. The defendant was then told that he was “in control of everything” and that he could tell them “when to stop.” He was also told that, “(b)efore speaking, before being able to tell you about things that we know, we need your permission.”  

Agent Ramirez asked the defendant if he understood all his rights, to which he responded: “Of course.” During this, the defendant repeatedly asked if he needed an attorney. To this, Agent Ramirez clarified that he had the right to an attorney and could have one if he wished. The defendant then stated, “Go ahead and get it over with.” At various other points in the interview, the defendant mentioned an attorney, and each time Agent Ramirez clarified that he could end the interview and retain counsel if he wished.  

When Agent Ramirez asked the defendant if he wanted “to continue talking” after his reference to an attorney, the defendant responded, “Well, yes, yes, yes.” And when asked if he gave Agent Ramirez “permission to continue speaking with [him] without an attorney,” the defendant said “Sure.” During the resulting interview, the defendant incriminated himself with a detailed admission of his presence at and knowledge of the Oct. 24, 2014, Border Patrol killing of Edgar Amaro-Lopez.  

Finally, at around 2 p.m. on Nov. 20, the defendant had his initial appearance before a federal magistrate judge on the charges in the superseding indictment. Prior to trial, the defendant moved to suppress the statements he made in the car while being transported to the FBI office, as well as his later statements at the FBI office. Although a federal magistrate recommended his motion be granted, the trial court judge disagreed and denied his motion. (In federal court, a “magistrate” hears the evidence in a suppression motion and makes recommendations to the district court judge, who makes the final decision.) 

At the subsequent bench trial, the district court judge found the defendant guilty of three of the four counts listed in the superseding indictment (one of the charges was dismissed before trial). The defendant was sentenced to nine years and nine months in prison, followed by three years of supervised release. He appealed, arguing that his motion to suppress should have been granted. 

Held: The Ninth Circuit Court of Appeals affirmed. On appeal, as it was in the trial court, four alleged statutory and constitutional violations were discussed, the defendant arguing that his statements should have been suppressed as a result, based on (1) a violation of Federal Rule of Criminal Procedure 4(c)(3)(A), by failing to inform the defendant of the warrant’s existence and of the offense charged; (2) the Fifth Amendment, allegedly violated when the FBI agents questioned him after he had allegedly invoked his Miranda rights while in Border Patrol custody; (3) the Sixth Amendment right to counsel, allegedly violated because he did not voluntarily, knowingly, and intelligently waive this right; and (4) 18 U.S.C. § 3501(c) and an alleged violation of the McNabb-Mallory rule, by his case not being promptly presented to a magistrate judge following his arrest by the Border Patrol. 

(1) Federal Rule of Criminal Procedure 4(c)(3)(A): Pursuant to Fed. R. Crim. Proc. 4(c)(3)(A), an arresting officer who arrests a person on a warrant, but does not possess a copy of the arrest warrant, “must inform the defendant of the warrant’s existence and of the offense charged.” The government did not contest the district court’s finding that the FBI agents, upon arresting the defendant when the Border Patrol agents turned him over, did not inform the defendant of the charges as listed in the warrant. The government argued instead that any failure to do so does not warrant application of the exclusionary rule. The defendant, in response, alleged that FBI Agent Ramirez “intentional[ly]” violated the rule for the purpose of circumventing his rights. More specifically, the defendant argued that “that (FBI) Agent Ramirez ‘disingenuously’ stated that he did not know what charges Rodriguez-Arvizu faced when he picked up Rodriguez-Arvizu (at) the Border Patrol station and that Agent Ramirez ‘manipulated’ Rodriguez-Arvizu by stating that he could not tell Rodriguez-Arvizu about the charges until after Rodriguez-Arvizu waived his Miranda rights.” Arguing that “[m]ore than mere negligence is involved,” the defendant “request(ed) application of the exclusionary rule to deter future violations of this rule and to ‘avoid its use as a tactic to obtain Miranda waivers from defendants.’” The court declined defendant’s request, noting Supreme Court precedent dictating that “suppression (of evidence) is a ‘last resort.’” (Hudson v. Michigan (2006) 547 U.S. 586, 591.) Per the Supreme Court: “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” (Herring v. United States (2009) 555 U.S. 135, 144.) “The exclusionary rule does not apply ‘when law enforcement officers have acted in objective good faith or their transgressions have been minor.’” (United States v. Henderson (9th Cir. 2018) 906 F.3rd 1109, 1118; quoting United States v. Leon (1984) 468 U.S. 897, 908.) In this case, the court held that FBI Agents Terwilliger’s and Ramirez’s failure to inform the defendant of the precise charges against him does not meet the high bar required for suppression. The court reached this conclusion by noting that the defendant knew he was under arrest on federal charges, even if he did not know the specific charges. Further, his comments in the car did not stem from any questioning by the agents. “In this context, it is illogical to conclude that the failure to tell him the precise charges therefore prompted the incriminating statements he made in the car.” Despite the government’s admitted violation of Rule 4(c)(3)(A), “the defendant still possessed enough contextual information that he should have been aware of the risk of making the kinds of statements (asking if the arrest ‘had anything to do with Edgar’) that he made on the way to the FBI office.” Lastly, even assuming that Rule 4(c)(3)(A) is intended to protect one’s self-incrimination rights, defendant’s Fifth Amendment rights in this case were not implicated until he was later questioned at the FBI office after a full admonishment and waiver. The court ruled then, that the defendant’s motion to suppress his resulting statements, therefore, was properly denied by the trial court.    

(2) The Fifth Amendment Right to Counsel: The defendant argued that the district court erred in failing to suppress his statements based on an alleged violation of his Fifth Amendment implied right to counsel. The rule, on its face, is simple enough: “Once an accused person has ‘expressed his desire to deal with the police only through counsel,’ that person ‘is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.’” (Edwards v. Arizona (1981) 451 U.S. 477, 484-485.) However, it is a rule that to trigger this protection, “the accused person ‘must unambiguously request counsel.’” (Davis v. United States (1994) 512 U.S. 452, 459.) The defendant argued that he invoked his right to counsel when, on Nov. 19 and while in the custody of the Border Patrol, he declined to sign the waiver portion of the I-214 Form. The district (trial) court held that refusing to sign the I-214 Form was insufficient to constitute an “unambiguous” invocation of the Fifth Amendment Miranda right to counsel. The Ninth Circuit agreed. The rule is clear: Silence alone is insufficient to invoke one’s Fifth Amendment right to counsel. “[I]nvoking the right to counsel cannot be accomplished by silence or pantomime, but requires the suspect to articulate specifically that she wants counsel.” (Jones v. Harrington (9th Cir. 2016) 829 F.3rd 1128, 1138.) Also, even if it could be argued that the defendant had invoked his right to counsel while in the custody of the Border Patrol, his unsolicited spontaneous statements made during the ride to the FBI office had the effect of reinitiating the questioning. Subsequently, the defendant knowingly and intelligently waived his Fifth Amendment right to counsel at the FBI office following this reinitiation. As such, the court ruled that the defendant’s motion to suppress his later incriminating statements to the FBI agents was properly denied.  

(3) The Sixth Amendment Right to Counsel: The Sixth Amendment expressly provides for the constitutional right to the assistance of counsel: “(T)he accused shall enjoy the right...to have the assistance of counsel for his defense.” This right attaches “when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment, or preliminary hearing.” (United States v. Gouveia (1984) 467 U.S. 180, 185.) In simpler terms, one’s Sixth Amendment (as opposed to Fifth Amendment) right to counsel kicks in once he is formally charged in court whether or not he is present. It was undisputed in this case that the defendant had been formally indicted and a warrant for his arrest was issued as far back as Sept. 7, 2016.  

As such, having been indicted, the burden was on the government to prove that the defendant voluntarily, knowingly, and intelligently waived his Sixth Amendment right to counsel as a condition of allowing his incriminating statements to be used against him. (Patterson v. Illinois (1988) 487 U.S. 285, 292.) The defendant argued that neither his statements made during the car ride to the FBI Office, nor his statements made later when interrogated by the FBI, were admissible against him in that he never waived his Sixth Amendment right to counsel. He also submitted that because the FBI agents violated Rule 4(c)(3)(A), this necessarily meant that he never understood why he was indicted nor the purpose of the warrant. The court disagreed.  

The court first noted that there is no categorial rule to the effect that a defendant must be notified of the specific charges in an indictment before he can validly waive his Sixth Amendment rights. In this case, Agent Ramirez did not say anything to the defendant during the car ride to the FBI office that could reasonably be construed as an attempt to prompt or otherwise trick him into revealing incriminating information before he waived his Sixth Amendment right to counsel. To the contrary, the defendant was specifically told when he attempted to seek responses from Agent Ramirez that, “We’ll discuss that later,” telling the defendant that the conversation was not to continue until they got to their destination. Once at the FBI office, the defendant expressly waived his Miranda rights. The court held that, at least under the totality of the circumstances, the defendant did not need to be told that he had been indicted to validly waive his Sixth Amendment right to counsel, that his Miranda waiver accomplished this.  

While noting that the Supreme Court has left open the question, the weight of lower court authority indicates that (1) an accused need not be told that he has been indicted before waiving his Sixth Amendment right to counsel, and (2) a later Miranda waiver obtained at the FBI office before he was questioned serves also as a waiver of his Sixth Amendment right to counsel. As authority for these rules, the court cited a number of cases from other circuits: United States v. Charria (2nd Cir. 1990) 919 F.2nd 842, 848; a knowing and intelligent Miranda waiver also waives Sixth Amendment right to counsel even where the defendant is not specifically informed of the indictment); United States v. Muca (4th Cir. 1991) 945 F.2nd 88, 91 (same); Riddick v. Edmiston (3rd Cir. 1990) 894 F.2nd 586, 590-591 (a defendant’s waiver was valid because he knew of the murder charge and knew that New Jersey had sought extradition, plus he had been read his Miranda rights); Quadrini v. Clusen (7th Cir. 1989) 864 F.2nd 577, 585-587 (the defendant’s waiver was valid because he knew he had been arrested for murder and chose to speak freely to the police after the Miranda warnings were given); United States v. Chadwick (8th Cir. 1993) 999 F.2nd 1282, 1285-1286 (the accused need not be informed of his indictment before waiving his Sixth Amendment right to counsel).  

Under the circumstances of this case, it was held that the defendant validly waived both his Fifth and Sixth Amendment right to counsel after being advised of his Miranda rights, noting that he was informed of those rights twice within 24 hours, both times in Spanish. While reviewing these rights at the FBI office, Agent Ramirez consistently asked the defendant if he understood his rights. Each time, the defendant indicated, either verbally or nonverbally that he did. It was also noted that the defendant’s spontaneous statements indicated that he understood both the criminal liability that he faced and the gravity of his situation. For instance, the defendant indicated that he knew his charges were related to his participation in the rip crew and the circumstances leading up to the Border Patrol shooting Amaro-Lopez, as well as the fact that he was facing eight years in prison, which was the sentence another member of the crew had received. The court concluded, therefore, that under the context-specific analysis articulated here, the district court did not err in determining that the government met its burden of proving the defendant, upon waiving his Miranda rights, voluntarily, knowingly, and intelligently waived his Sixth Amendment right to counsel as well. 

(4) 18 U.S.C. § 3501 and the McNabb-Mallory “Safe Harbor” Rule: The district court ruled that the defendant’s confession did not violate what is known as the “safe harbor period” of 18 U.S.C. § 3501(c), also known as the McNabb-Mallory rule. Pursuant to Rule 5(a)(1)(A) of the Federal Rules of Criminal Procedure, “[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge.” Under this rule, if this requirement is violated, an arrested person’s resulting confession is presumptively inadmissible. (McNabb v. United States (1943) 318 U.S. 332; Mallory v. United States (1957) 354 U.S. 449.) The rule was modified by the legislature’s enactment of 18 U.S.C. § 3501(c), which created a supposed “safe harbor” by stating that a confession is admissible so long as the confession was given “within six hours immediately following [the defendant’s] arrest or other detention.” The gist of all this is that “[w]hen a criminal the defendant brings a suppression motion based on McNabb-Mallory, the district court looks to see whether the confession was obtained within six hours of arrest. If so, McNabb-Mallory does not bar its admission.” (United States v. Gowadia (9th Cir. 2014) 760 F.3rd 989, 993.) If, however, the confession occurred after six hours, the court must “decide whether delaying that long was unreasonable or unnecessary.” (Corley v. United States (2009) 556 U.S. 303, 322.)  

The defendant here made two related arguments. First, he argued that the delay between his arrest by Border Patrol agents on Nov. 18 and his initial appearance before a federal magistrate judge on Nov. 20 was unreasonable and unnecessary because his indictment was three years old, he had been transported more than 300 miles during that period, and the government did not locate his arrest warrant for several hours. Second, he argued that the “other detention” language in 18 U.S.C. § 3501(c) means that the safe harbor clock started when he was arrested by Border Patrol agents, not the FBI, and so his confession occurred well after the safe harbor clock had expired.  

The district court rejected both arguments, finding that the relevant safe-harbor period did not begin until the FBI took custody of the defendant from the Border Patrol. It was acknowledged that the defendant was taken before a magistrate within the required six hours after the FBI took him into custody. No Supreme Court or Ninth Circuit case, however, has ever dealt with the issue of whether the six-hour safe harbor period begins upon his initial arrest (by the Border Patrol in this case), or the subsequent transfer of custody (to the FBI).  

The federal Second Circuit Court of Appeals, however, has dealt with a closely related issue. In United States v. Gonzalez (2nd 2014) 764 F.3rd 159, the Second Circuit held that where the defendant was incarcerated on a federal immigration offense and subsequently questioned while still in custody about unrelated federal charges for which he was not yet formally arrested, the statutory safe harbor period as to the later charges only begun once he was questioned about those charges.  

Also, the court noted that the statutory scheme strongly indicates that the six-hour clock is “offense-specific.” Notably, Federal Rule of Criminal Procedure 5(d) and 5(e) dictate that if a defendant is charged with a felony or misdemeanor, the judge must inform the defendant of certain information related to the offenses, including the complaint or charges filed. (See also Fed R. Crim. Proc. § 58(b)(2)). These instructions “would make no sense” without specific pending criminal charges because “the magistrate [judge] would have nothing to tell a person not yet accused or arrested.” (United States v. Gowadia, supra, at p. 994.) Following this theory, the court here agreed with the lower trial court when it held that the six-hour safe-harbor period did not start until arrested by the FBI. In that the defendant was taken before a magistrate within the necessary six-hour time limit, no violation occurred. Following this theory, the Court here agreed with the lower trial court when it held that the six-hour safe-harbor period did not start until arrested by the FBI.  In that defendant was taken before a magistrate within the necessary six-hour time limit, no violation occurred.  

Conclusion: The Ninth Circuit Court of Appeals affirmed the district court’s denial of the defendant’s motion to suppress. 

Note: This case is obviously of more interest to federal law enforcement and prosecutors than those at the state level. Even so, suspects arrested on state charges are entitled to similar rights.  

For instance, P.C. § 841. The person making the arrest must inform the person being arrested of the following: The intention to arrest him, the cause of the arrest (the charges), the authority to make it, and if the suspect asks, the offense for which he is being arrested. Arrestees are also entitled to access to an attorney (P.C. § 825(b)), access to a physician or psychiatrist (P.C. § 825.5), and the right to as many as three telephone calls (P.C. § 851.5(a)). State statutes also protect a defendant’s “speedy trial” rights (See P.C. § 1382), along with the Sixth Amendment of the U.S. Constitution. (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”  

Also note, the differences between the Fifth Amendment verses the Sixth Amendment “right to an attorney” protections. The Sixth Amendment is the only one of the two that specifically provides for this protection and applies (generally) from that point in time “when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment, or preliminary hearing.” (United States v. Gouveia (1984) 467 U.S. 180, 185.) One’s implied right to the assistance of counsel stems from the Miranda decision itself, where the Supreme Court felt it necessary to protect the rights of an in-custody suspect when he is being questioned in the “police-dominated atmosphere” of a law enforcement interrogation. (Miranda v. Arizona (1966) 384 U.S. 436, 445; People v. Ray (1996) 13 Cal.4th 313, 336.) This often happens before a defendant is charged in court, which would trigger the Sixth Amendment right-to-an-attorney protections.  

What I found interesting in this case is the court’s determination that a waiver of one’s Miranda rights also serves to waive that person’s Sixth Amendment right to counsel, although the court hinted that there may be exceptions (“given the totality of the circumstances.”) I have no idea what those exceptions, if they do exist, might be.