A Discussion of Right to Counsel and the Complicated Application of the Exclusionary Rule

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 ....