NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 19-3008

UNITED STATES OF AMERICA

v.

FERNANDINO RODRIGUEZ-COLON, Appellant

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 1-18-cr-00190) District Judge: Hon. Sylvia H. Rambo

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 10, 2020

Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges.

(Filed: September 16, 2020)

OPINION *

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge.

Fernandino Rodriguez-Colon appeals the denial of his motions to suppress his

statements to police and evidence found pursuant to a search warrant. Finding no error, we

will affirm.

I. BACKGROUND

A search at a residence (“Residence”) found narcotics, firearms, drug paraphernalia,

and money. The warrant permitting the search relied, in part, on law enforcement dealings

with two confidential informants (“CS1” and “CS2”). CS1 participated in two controlled

drug purchases with Rodriguez-Colon, and during one of these purchases, Rodriguez-

Colon was observed leaving the Residence before selling drugs to CS1. On another

occasion, CS2 conducted two controlled drug purchases at the Residence. Rodriguez-

Colon, who was present at the Residence at the time police officers executed the search

warrant, was placed into custody and given his Miranda warnings. Although he did not

initially assert his right to remain silent or to counsel, he asserted both rights upon arrival

at the police station. Rodriguez-Colon then complained of health issues and officers took

him to a medical center for a check-up where, while awaiting a doctor, he spoke with the

officers.

Following criminal charges, Rodriguez-Colon moved to suppress all evidence

obtained as a result of the search warrant, claiming the warrant affidavit was invalid. He

also moved to suppress evidence of statements made at the medical center, claiming a

Miranda violation. The District Court denied both motions. Rodriguez-Colon then entered

conditional guilty pleas to drug distribution and possession of a firearm in violation of 21

(a)(1) and (b)(1)(C) and

(c)(1)(A). The District Court

sentenced him to 262 months’ imprisonment. Rodriguez-Colon now appeals, claiming that

the District Court erred in denying his motions to suppress. 1

II. ANALYSIS

A. Rodriguez-Colon’s Motion to Suppress the Seized Evidence

Rodriguez-Colon argues the District Court erred in denying the motion to suppress

evidence obtained as a result of the search warrant because the affidavit supporting the

search warrant contained material omissions critical to determining probable cause.

“[W]hen the Fourth Amendment demands a factual showing sufficient to comprise

‘probable cause,’ the obvious assumption is that there will be a truthful showing.” Franks

v. Delaware,

, 164–65 (1978) (alteration and emphasis in original) (quoting

another source). To “overcome the general presumption that an affidavit of probable cause

supporting a search warrant is valid,” a defendant must first “make a ‘substantial

preliminary showing’ that the affidavit contained a false statement, which was made

knowingly or with reckless disregard for the truth, which is material to the finding of

probable cause.” United States v. Yusuf,

(3d Cir. 2006) (quoting Franks,

). “[T]o make this preliminary showing, the defendant cannot rest on mere

conclusory allegations or a ‘mere desire to cross-examine,’ but rather must present an offer

of proof contradicting the affidavit.”

at 383 n.8 (quoting Franks,

).

1 The District Court had jurisdiction under

, and we have jurisdiction under

. We review findings of fact for clear error, while exercising plenary review over legal determinations. United States v. Lewis,

, 236–37 (3d Cir. 2012); United States v. Benton,

(3d Cir. 1993). 3 Rodriguez-Colon does not meet this requirement. His challenge contains no offer of

proof and merely questions the general reliability of confidential sources. For instance, he

argued to the District Court that if granted a hearing, “[i]t is anticipated that the informants

will tell the defense that they did not buy controlled substances from Mr. Colon from within

his residence.” (App. at 40.) Neither Rodriguez-Colon’s speculation, nor his desire to

cross-examine the informants, suffices for a Franks hearing or suppression. 2 So the District

Court properly denied Rodriguez-Colon’s motion without a hearing.

B. Rodriguez-Colon’s Motion to Suppress His Statements

Rodriguez-Colon next contends that inculpatory statements he sought to suppress

were obtained in violation of Miranda. After invoking the Fifth Amendment right to silence

or the right to counsel, any statements by the defendant obtained through express

questioning or the “functional equivalent” of a custodial interrogation must be suppressed.

Rhode Island v. Innis,

, 300–01 (1980) (citing Miranda v. Arizona,

(1966)).

The “functional equivalent” of an interrogation includes “any words or actions on

the part of the police . . . that the police should know are reasonably likely to elicit an

incriminating response.” Id. at 301. We consider whether officers “intentionally created

circumstances likely to elicit a statement” from a defendant, United States v. Benton, 996

2 The failure to clear the lower hurdle of a substantial preliminary showing means that Rodriguez-Colon cannot meet the higher “preponderance of the evidence” standard for suppression. See Franks,

(the defendant must prove the Franks elements by a preponderance of the evidence to merit suppression); Yusuf,

(“In the end, the defendant must prove by a preponderance of the evidence that probable cause does not exist [when the falsehood or omission is corrected].”).

(3d Cir. 1993), whether the defendant appeared emotionally distressed or

overwrought, Innis, 446 U.S. at 302–03, and whether he “would have felt compelled to

respond to the arresting officer’s statement,” Benton,

.

These circumstances do not exist here as to Rodriguez-Colon’s statements initiating

conversation with the officers. Although Rodriguez-Colon invoked his right to remain

silent and to counsel, he later engaged officers in conversation about his case and in

response to subsequent questioning by the officers made incriminating statements about

fentanyl. (App. at 65–66.) Before initiating this conversation about his case, there was no

coercion by the officers, so it was not the “functional equivalent” of an interrogation. Innis,

. Indeed, there is no indication in the record that “in the context of [their]

conversation, the officers should have known that the respondent would suddenly be

moved to make a self-incriminating response.”

; see also Miranda, 384 US. at

478 (“The fundamental import of the privilege . . . is not whether [a suspect] is allowed to

talk to the police without the benefit of warnings and counsel, but whether he can be

interrogated.”).

At the time when Rodriguez-Colon asked officers about his case, he made a

knowing and voluntarily waiver of his Miranda rights. His waiver is shown by his initial

decision not to assert those rights at the Residence, his subsequent decision to assert them

at the police station, and his later decision to initiate the discussion about his case at the

medical center. See United States v. Velasquez,

(3d Cir. 1989)

(after invoking Miranda rights, under Oregon v. Bradshaw,

, 1045–46

(1983), an individual must knowingly and voluntarily waive their right to counsel and to

5 silence before any interrogation, and a decision to initially assert those rights and later

discuss the case shows knowing waiver while initiating discussion shows waiver is

voluntary). Thus, his incriminating statements made at the medical center, including the

statements about fentanyl, were not the product of any Miranda violation.

CONCLUSION

For these reasons, the District Court’s denials of Rodriguez-Colon’s motions to

suppress were not erroneous and we will affirm the judgment.

6