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Ninth Circuit Suppresses Gang Affiliation Evidence Obtained Without Miranda Warnings

by Mark Wilson

The United States Court of Appeals for the Ninth Circuit affirmed the suppression of evidence of gang affiliation obtained without Miranda warnings.

On July 4, 2012, Antonio Gilton was arrested for murder and invoked his right to counsel. He was taken to jail and locked in a holding cell. At about 2:30 a.m. on July 5, a guard removed Gilton from the holding cell and asked if he was affiliated with the Fillmore/Central Divisadero Playas (“CDP”) gang. He did not read Gilton his Miranda rights or tell him that he was free to return to his cell without answering.

“Yeah, I hang out there, put me where I’m from,” said Gilton. The guard entered his answer on two forms used to designate gang affiliation and determine where to house suspects. The guard classified Gilton on the basis of his response, his arrest record, and police intelligence.

Gilton was initially charged with murder and other state offenses. Those charges were subsequently dismissed, but a federal grand jury indicted Gilton on charges of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), murder in aid of racketeering, 18 U.S.C. §1959(a)(1), and federal firearms offenses. Gilton’s CDP gang membership was a required element of the RICO charge as membership in a RICO enterprise.

The district court suppressed Gilton’s statements acknowledging his gang affiliation, ruling that the “booking exception” to Miranda did not apply.

The Ninth Circuit affirmed, agreeing that Miranda’s “booking exception” did not apply because information about gang affiliation carries a significant risk of incriminating the defendant in ways that subject him to harsher treatment in both state and federal criminal proceedings. Whether the guard asked about Gilton’s gang affiliation for non-investigatory purposes was irrelevant.  “The test is an objective one, however, and thus the subjective intent of the police, while relevant, is not conclusive.” The Court explained the objective test is simple: “Under the circumstances, are questions about gang affiliation reasonably likely to produce an incriminating response.” In this case, the answer is yes because gang affiliation is an element of the RICO charge.

The Ninth Circuit also rejected the government’s attempt to invoke Miranda’s “narrow ‘public safety exception,”’ which requires “an objectively reasonable need to protect the police or the public from any immediate danger.”  The Court found “there was no such danger here.”

The Court believed it was important to underscore what it was not holding. “We do not hold that prison officials may not inquire into a prisoner’s gang membership in the interests of inmate safety,” the appellate court explained. “Nor do we hold that the responses to such questions cannot be used for purposes of inmate housing. Rather, we hold only that when a defendant charged with murder invokes his Miranda rights, the government may not in its case-in-chief admit evidence of the prisoner’s unadmonished responses to questions about his gang affiliation.” The Ninth Circuit affirmed the district court’s suppression order. See: United States v. Williams, 842 F.3d 1143 (9th Cir. 2016). 

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