Ruling On Defendant's Motion To Suppress RE: Bahena Rivera

E-FILED 2019 DEC 23 3:59 PM POWESHIEK - CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT IN AND FOR POWESHIEK COUNTY
STATE OF IOWA,
CASE NO. FECR010822
Plaintiff,
vs.
RULING ON DEFENDANT’S
CRISTHIAN BAHENA RIVERA, MOTION TO SUPPRESS
Defendant.
I. STATEMENT OF THE CASE
Defendant is charged with the crime of Murder in the First Degree, a Class A
felony. On March 1, 2019, Defendant filed a Motion to Suppress. Defendant filed
a Supplemental Motion on August 8, 2019. The State of Iowa filed its Resistance
on May 31, 2019, and a Supplemental Resistance on October 7, 2019.
A two-day hearing on Defendant’s Motion to Suppress took place on
November 13, 2019, and November 14, 2019. The State of Iowa appeared by and
through Poweshiek County Attorney Bart Klaver and Assistant Attorney General
Scott Brown. The Defendant appeared in person for the entirety of the hearing, along
with his attorneys of record, Jennifer Frese and Chad Frese. Interpreters Steven
Rhodes and Ana Pottebaum were sworn in at the commencement of the hearing.
Evidence was presented and the matter was submitted.
FECR010822 - Page 1 of 38
II. ISSUES
1. Did the Defendant voluntarily give consent for law enforcement to
search his vehicles?
2. For purposes of Miranda, when was the Defendant in custody?
3. Were the first Miranda warnings given at approximately 11:30 p.m. on
August 20, 2018, adequate?
4. Were the Defendant’s statements made during the interrogation given
voluntarily?
5. Is the physical evidence admissible despite the Miranda violation?
6. Were the second Miranda warnings given the morning of August 21,
2018, adequate, and if so, did the Defendant waive his Miranda rights?
7. Did law enforcement make impermissible promises of leniency?
8. Did law enforcement violate Iowa Code section 804.20?
9. Did law enforcement violate the Defendant’s Article 36 rights under
the Vienna Convention on Consular Relations, and if so, is suppression required?
III. FINDINGS OF FACT
1. Mollie Tibbetts was last seen alive on July 18, 2018, jogging in
Brooklyn, Iowa. A wide-scale search began that included resources from local,
state, and federal law enforcement. With the assistance of volunteers, law
enforcement canvassed Brooklyn, as well as nearby agricultural farmland.
2. Law enforcement eventually came into possession of video footage
captured by a Brooklyn resident’s personal surveillance camera. The footage
showed a jogger on July 18th on a route known to be taken by Tibbetts, as well as
a black Chevy Malibu with certain distinctive features.
3. On August 16, 2018, Poweshiek County Deputy Steve Kivi saw the
Malibu, as he was familiar with the vehicle description from the footage. Deputy
Kivi followed the Malibu until it stopped outside a house. Deputy Kivi
approached the driver, and through the use of a neighbor to provide interpretation,
asked the driver for identification. The driver produced documentation that
identified himself as the Defendant, Cristhian Bahena Rivera. Bahena Rivera
denied any knowledge of Tibbetts’s disappearance.
4. On August 20, 2018, a group of law enforcement officers, including the
Iowa Department of Criminal Investigations (DCI) and U.S. Homeland Security
agents, went to Yarabee Farms, Bahena Rivera’s place of employment.
5. The purpose of this was two-fold. First, law enforcement wanted to
follow up with Bahena Rivera, and, second, they wanted to continue their
canvassing efforts.
6. While at Yarabee, DCI Special Agent Scott Green and U.S. Homeland
Security Special Agent Mike Fischels spoke with Bahena Rivera. Fischels
translated the conversation.
7. Bahena Rivera signed search consent forms to his vehicles and agreed
to go with law enforcement to answer further questions. Special Agent Green
transported Bahena Rivera to the Poweshiek County Sheriff’s Office.
8. Initially, Bahena Rivera sat in the public lobby with Special Agent
Green, until Green left. After some time, Bahena Rivera was taken to an interview
room and met with Officers Pamela Romero and Jeff Fink from the Iowa City
Police Department.
9. Officer Romero is a native Spanish speaker, and Officer Fink is
proficient in speaking Spanish.
10. Initially, the conversation primarily consisted of basic information
questions. Eventually, the officers asked Bahena Rivera about his vehicle being
in the camera footage. Bahena Rivera denied seeing Tibbetts nor knowing
anything about her disappearance.
11. During the interview, Defendant had access to his cell phone, was free
to leave, was given breaks, and was provided food and water. Not only did
Bahena Rivera have access to his cell phone, but he used the same on numerous
occasions. Bahena Rivera was alert and had no difficulty responding
appropriately to questions posed to him.
12. The interview continued for a few hours. At approximately 11:30 p.m.,
Bahena Rivera spoke on the phone with a federal agent, and an immigration
detainer was placed on him. As a result, Officer Romero attempted to inform
Bahena Rivera of his Miranda rights.
13. During the interview of Bahena Rivera, law enforcement made it clear
to him that they could not make any promises of leniency and that they were not
responsible for making the ultimate decision as to what would happen to him.
14. During the interview, Defendant understood and responded
appropriately with Officers Romero and Fink. No police coercion was used
during the interview. The Defendant had no mental abnormalities at the time of
the interview.
15. The interrogation lasted for many hours, during which Bahena Rivera
made incriminating statements. Ultimately, Bahena Rivera agreed to lead law
enforcement to the location of Tibbetts’s body. Upon arriving at the designated
cornfield, Bahena Rivera gave further instructions where to find her body.
16. Additional facts will be developed throughout the ruling as necessary.
IV. PRINCIPLES OF LAW
1. The Fourth Amendment to the United States Constitution guarantees a
right to privacy by prohibiting unreasonable searches and seizures, and requiring
that warrants be supported by probable cause. U.S. CONST. AMEND. IV.
2. Under the Fourth Amendment, a search occurs “any time the
government intrudes upon a person’s legitimate expectation of privacy.” State v.
Reinier, 628 N.W.2d 460, 466 (Iowa 2001).
3. A search must be conducted with a warrant unless a known exception
applies. One such exception is when consent has been given. Id. at 465 “A
warrantless search conducted by free and voluntary consent does not violate the
Fourth Amendment. Id.
4. The Fifth Amendment to the United States Constitution grants a
number of rights to those accused of a crime, including: the right to a grand jury,
the prohibition of putting the accused in double jeopardy for the same offense,
the privilege against self-incrimination, due process of law before deprivation of
life, liberty, or property, and just compensation for a governmental taking. U.S.
CONST. AMEND. V.
5. The Self-Incrimination Clause applies only to testimonial evidence, and
non-testimonial evidence does not trigger the protections of the Fifth
Amendment. State v. Washington, 832 N.W.2d 650 (Iowa 2013).
6. The privilege against self-incrimination applies in the context of
custodial interrogations, and only when procedural safeguards are shown may
statements of a defendant be used against the defendant. Miranda v. Arizona, 384
U.S. 436 (1966). These safeguards must include informing the defendant of their
“right to remain silent, that any statement he does make may be used as evidence
against him, and that he has the right to the presence of an attorney, either retained
or appointed.” Id. at 444.
7. The remedy to violations of the Fourth and Fifth Amendments is
application of the exclusionary rule. See Mapp v. Ohio, 367 U.S. 643 (1961);
Miranda, 384 U.S. 436 (1966).
8. A defendant may, after having been given their Miranda warnings,
knowingly and intelligently waive such rights. State v. Ortiz, 766 N.W.2d 244
(Iowa 2009).
9. When confronted with a Fifth Amendment challenge regarding
inculpatory statements, a two-part analysis is required. The first determination is
“whether Miranda warnings were required and, if so, whether they were properly
given. Second, we ascertain whether the statement is voluntary and satisfies due
process.” State v. Tyler, 867 N.W.2d 136, 171 (Iowa 2015) (quoting State v.
Countryman, 867 N.W.2d 553, 557 (Iowa 1997)).
10. Statements are voluntary if they were product of essentially free and
unconstrained choice, made by defendant whose will was not overborne or whose
capacity for self-determination was not critically impaired. State v. Payton, 481
N.W.2d 325, 328 (Iowa 1992).
11. A confession obtained subsequent to a promise of leniency must be
suppressed under the common law evidentiary test employed by Iowa courts.
State v. Polk, 812 N.W.2d 670 (Iowa 2012).
12. Iowa Code section 804.20 states:
Any peace officer or other person having custody of any person arrested or
restrained of the person's liberty for any reason whatever, shall permit that
person, without unnecessary delay after arrival at the place of detention, to
call, consult, and see a member of the person's family or an attorney of the
person's choice, or both. Such person shall be permitted to make a reasonable
number of telephone calls as may be required to secure an attorney. If a call
is made, it shall be made in the presence of the person having custody of the
one arrested or restrained. If such person is intoxicated, or a person under
eighteen years of age, the call may be made by the person having custody. An
attorney shall be permitted to see and consult confidentially with such person
alone and in private at the jail or other place of custody without unreasonable
delay. A violation of this section shall constitute a simple misdemeanor.
13. Article 36 of the Vienna Convention on Consular Relations dictates:
1. With a view to facilitating the exercise of consular functions relating to

nationals of the sending State:
....
(b) if he so requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State if, within its
consular district, a national of that State is arrested or committed to prison or
custody pending trial or is detained in any matter. Any communication
addressed to the consular post by the person arrested, in prison, custody or
detention shall also be forwarded by the said authorities without delay. The
said authorities shall inform the person concerned without delay of his rights
under this sub-paragraph....
14. Additional Principles of Law will be developed throughout the ruling
as necessary.
V. ANALYSIS
The Defendant filed this Motion to Suppress seeking suppression of the
statements made to law enforcement and the fruits thereof, including the evidence
found in his vehicle and direction to law enforcement concerning the location of
Mollie Tibbetts’s body. Both the Defendant and State have briefed and argued the
issues extensively in the initial Motion and Resistance, respectively, as well as a
Supplemental Motion and Supplemental Resistance. For the purposes of this ruling,
the Court will address the issues chronologically:
Consent Search
The first issue is whether the Defendant voluntarily consented to the search of
his vehicles. This took place when law enforcement was present at Yarabee Farms.
Defendant argues his consent to search his vehicles was not voluntarily given, and,
thus, invalidating his consent. The State argues the consent was voluntary and the
evidence obtained from the search is admissible.
The parties disagree as to the standard to be applied concerning voluntariness
of consent. It is true that Schneckloth v. Bustamonte, 412 U.S. 218 (1973), has been
met with some resistance by the Iowa Supreme Court when confronted with Fourth
Amendment challenges. However, the Court has not applied a different standard
under the Iowa Constitution. Rather, the Court has endorsed state courts applying
the Schneckloth factors more stringently than the federal courts. State v. Ingram, 914
N.W.2d 794, 816 (Iowa 2018). Therefore, the Court applies the totality of the
circumstances analysis to determine whether consent was voluntary and uncoerced.
State v. Pettijohn, 899 N.W.2d 1 (Iowa 2017). It is the State’s burden to prove the
Defendant’s consent to the vehicle search was voluntary by a preponderance of the
evidence. Id.
When law enforcement went to Yarabee Farms on August 20, 2018, there
were two purposes. The first was to follow up with the Defendant after Deputy Kivi
spoke with him previously. The second purpose was to continue the canvassing
efforts and speak to the employees generally. Defendant was approached by law
enforcement, and they went to a separate room in one of the farm buildings. Special
Agent Mike Fischels from the Department of Homeland Security translated the
conversation. Special Agent Fischels testified that Bahena Rivera appeared relaxed
and calm during the interview. Special Agent Fischels also testified that the DCI
consent forms that were produced were in English and in Spanish, and that the
Defendant appeared to read the forms without difficulty. The conversation between
the Defendant and law enforcement was recorded, and a transcript of the
FECR010822 - Page 10 of 38
conversation has been produced by the State. The Court has reviewed both and finds
no indication of threat, force, or coercion by law enforcement. In fact, Defendant
appears to freely and readily provide information as well as his consent for the
vehicles to be searched. At no point did law enforcement make accusations or
otherwise indicate that it was in the Defendant’s best interests to comply with their
request.
Further, the consent form that was in Spanish informed the Defendant that he
had the right to refuse the search. Defendant’s argument that the setting was
inherently coercive is without merit. When the Defendant was asked for consent, he
was only with two members of law enforcement. Special Agent Fischels also
testified at hearing that his badge and gun were not on display, lessening any possible
intimidating effect. The Court finds the State has proven by a preponderance of the
evidence that the consent given to search the Defendant’s vehicles was given
voluntarily.
Custody for Purposes of Miranda
The next issue before the Court is the determination as to at what point
Defendant was in custody. Defendant argues that he was in custody beginning at
Yarabee Farms, which would necessitate the need for a valid Miranda warning. The
State asserts he was in custody only when federal agents placed an immigration
FECR010822 - Page 11 of 38
detainer on the Defendant at about 11:30 p.m. that night, and any statements made
prior to the detainer are not in violation of the Fifth Amendment.
A person is in custody when “there was a formal arrest or restraint on freedom
of movement of the degree associated with a formal arrest.” State v. Miranda, 672
N.W.2d 753, 759 (Iowa 2003) (quoting State v. Countryman, 572 N.W.2d 553, 557-
58 (Iowa 1997)). The applicable test is “whether a reasonable person in the
[defendant’s] position would understand himself to be in custody.” Id. The test is
objective meaning the Court does not look to the Defendant’s subjective experience.
In Iowa, the following four factors are used:
(1) The language used to summon the individual;
(2) The purpose, place, and manner of the interrogation;
(3) The extent to which the defendant is confronted with evidence of guilt; and
(4) Whether the defendant is free to leave the place of questioning.
Id. Again, the Court looks to the audio recording of the conversation between law
enforcement and the Defendant that occurred at Yarabee and the accompanying
transcription. Defendant was asked by Special Agent Fischels in Spanish, “Is it
possible that you could come with us to talk to them about some other questions? Is
it possible?” Then there is discussion in English about whether the Defendant would
ride with law enforcement to the Poweshiek County Sheriff’s Office. Fischels then
speaks again to the Defendant and says, “So, you can come with us, in our car and
FECR010822 - Page 12 of 38
then, uh…they will bring you back over here.” The Defendant responds with, “Oh,
okay…no problem.” Law enforcement gave the Defendant the choice to come with
them; they did not order or command further questioning. The Defendant was told
that he could ride with law enforcement, as his car was being searched, and he was
informed that law enforcement would bring him back to Yarabee. The language used
supports a finding Defendant was not in custody.
The next factor is the purpose, place, and manner of the interrogation. Case
law suggests the Court look to “the number of persons conducting the questioning,
the number of breaks taken during the questioning, the availability of restroom
breaks or other breaks, and the type of questioning in which those conducting the
interview engage.” State v. Tyler, 867 N.W.2d 136, 172-73 (Iowa 2015). The
interrogation occurred in an interview room at the Poweshiek County Sheriff’s
Office and started as an easy rapport-building conversation. The Defendant had his
cell phone and used it multiple times both when law enforcement was in the room
and when they were not. He was also informed numerous times that the door was
unlocked, with a demonstration, and that he could leave at any time. About an hour
and ten minutes after the interview started, law enforcement left the room. They
asked if the Defendant wanted anything to drink or if he needed to use the restroom.
Law enforcement said they would return, but that Defendant could make any calls
necessary. When law enforcement returned, which occurred about 20 minutes later,
FECR010822 - Page 13 of 38
they again informed the Defendant that the door was unlocked and he could stop
talking to them whenever he so desired. After this point, the tone of questioning
shifted. Law enforcement produced video stills that showed the Defendant’s car in
the location Mollie Tibbetts was last known to be jogging on the night she went
missing. Now the interview is more confrontational in nature as law enforcement
believed the Defendant was not being honest. Despite the shift in tone, Defendant
continued to have access to his cell phone, was not blocked from leaving, and breaks
were taken, including providing the Defendant with food and water. Before the
immigration detainer is placed on the Defendant, the only law enforcement officers
who participated in any significant amount were Officers Romero and Fink. The two
officers largely took turns with one asking questions while the other sat listening.
The Court determines that the second factor supports a finding Defendant was
not in custody when questioned at Yarabee or initially at the Poweshiek County
Sherriff’s Office. However, the Court acknowledges this support is dimmed
somewhat by the overshadowing knowledge of the Defendant’s immigration status.
While not the focus on the questioning, a reasonable person in this situation would
understand immigration issues could arise at any time.
Factor three concerns the degree to which the Defendant was confronted with
evidence of his guilt. At Yarabee, there is no indication that law enforcement
considered the Defendant a suspect apart from wanting to search his vehicles. They
FECR010822 - Page 14 of 38
did not accuse the Defendant of anything and simply asked if he could answer their
questions. Then at the sheriff’s office, it was not until about two hours into the
questioning that law enforcement began to ask the Defendant about whether he did
something to Tibbetts. The majority of such questioning focused on how there was
photographic evidence of the Defendant being in the same area as Tibbetts, but not
knowing what had happened. The Court finds that the third factor goes against the
Defendant being in custody at this point in time.
Factor four is whether the Defendant was free to leave the place of
questioning. Law enforcement informed the Defendant multiple times that the
interview room door was unlocked and he was free to leave. It is true that Defendant
did not have his own vehicle to leave the sherriff’s office, but the Defendant had his
cell phone and had the ability to call for a ride. During the interview, after asking for
a DNA sample, there is an exchange between the Defendant and Officer Romero in
which Romero says the “door is open you can leave when you want.” To which, the
Defendant replies, “Mm-hmm. Since I got here you told me.” Romero then says she
will repeat it again as she wanted to make sure Defendant understood what she was
saying. Again, the Court must acknowledge that the Defendant’s known immigration
status plays a role in this analysis. Law enforcement specifically informs the
Defendant that they do not care about his immigration status about a half-hour into
the interview; however, this facet of the situation does give the Court pause to
FECR010822 - Page 15 of 38
wonder whether the Defendant truly was free to leave. While Defendant’s
immigration status may not have been the motivating reason Defendant was
questioned, it certainly remained as an influencing factor. The Court determines that
factor four supports the contentions of both parties. While law enforcement took care
to inform the Defendant numerous times that he could leave if he desired, the Court
remains skeptical that law enforcement would not have used his immigration status
as justification to hold the Defendant while they continued their investigation.
Viewing the totality of the circumstances, including the foregoing factors, the
Court determines that the Defendant was not in custody at Yarabee Farms. The
language used, the fact the Defendant was unrestrained and sat in the front seat of
Agent Green’s vehicle, and lack of accusations clearly support this determination.
The issue of law enforcement transporting the Defendant for questioning appears to
be of practical consideration as law enforcement were to begin their search of his
vehicles, not an attempt to coerce the Defendant. The facts also show that Defendant,
when first brought to the sheriff’s office, sat in the public lobby for some time alone,
further supporting a finding that the Defendant was not in custody.
The Court further concludes that the Defendant was not in custody at the
sheriff’s office until the time the immigration detainer was placed by federal agents.
Law enforcement asked difficult questions of the Defendant and pressed him for
honesty, but this only happened after a significant amount of time had passed. The
FECR010822 - Page 16 of 38
facts also show that the Defendant retained his cell phone during this questioning
and did, in fact, use the phone on numerous occasions without interference by law
enforcement. Defendant was also offered and given drinks, and there were breaks in
the questioning. Law enforcement’s knowledge of Defendant’s immigration status
does impact the custody analysis, but the record is clear that law enforcement did
not make any attempts to use that information to restrict the Defendant’s freedom.
The Court concludes the immigration detainer put on the Defendant by federal
agents does render him in custody. An immigration detainer restricts a person’s
freedom of movement and is akin to a formal arrest.
First Miranda Warning
Defendant argues that the Miranda warnings given by Officer Romero after
the immigration detainer was placed were inadequate, requiring suppression. In the
State’s Supplemental Resistance, the State concedes that the warnings were indeed
insufficient as Officer Romero neglected to mention any statements the Defendant
made to law enforcement could be used against him in court. As such, the State
agrees with Defendant that suppression is necessary. However, the State asserts that
Officer Romero’s second attempt at Mirandizing the Defendant, which occurred the
next morning, was sufficient. The Court finds that law enforcement did not properly
advise the Defendant of his Miranda rights compelling suppression.
FECR010822 - Page 17 of 38
Voluntariness
The voluntariness of the Defendant’s statements is related, but a separate
analysis to Miranda warnings. Only statements that are voluntarily made satisfy the
Due Process Clause of the Fifth Amendment. State v. Countryman, 572 N.W.2d 553
(Iowa 1997). The burden is on the State to prove voluntariness by a preponderance
of the evidence. Id. The Court views the totality of the circumstances and asks
whether the statements “were the product of an essentially free and unconstrained
choice, made by the defendant whose will was not overborne or whose capacity for
self-determination was not critically impaired.” Id. at 558 (quoting State v. Payton,
481 N.W.2d 325, 328 (Iowa 1992)). The following factors from Payton are to be
considered regarding voluntariness:
1. Age;
2. Education and work experience;
3. Prior experience with the criminal justice system;
4. Whether the Defendant was intoxicated or under the influence;
5. Whether Miranda warnings were given;
6. Whether the Defendant was mentally subnormal;
7. Whether deception was used;
8. Whether the Defendant showed an ability to understand the questions and
respond;
9. The length of the time the Defendant was detained and interrogated;
10.The Defendant’s physical and emotional reaction to interrogation;
11.Whether physical punishment, including deprivation of food and sleep, was
used.
1. Age.
The Defendant was 24 years old at the time of interrogation.

FECR010822 - Page 18 of 38
2. Education and work experience.
The parties agree the Defendant has received some formal education. At
hearing, the Defendant’s aunt, Alejandra Cervantes Valle, testified that he went to
school for nine grades in Mexico before moving to the United States at the age of
17. The Defendant told Officer Romero he also went to the high school in Brooklyn,
Iowa, for a short time.
3. Prior experience with the criminal justice system.
The record shows no criminal history belonging to the Defendant in the U.S.
or in Mexico. A few days prior the Defendant had limited interaction with Deputy
Kivi. Given how short this interaction was, the Court does not consider it to be any
type of meaningful interaction with the criminal justice system.
4. Intoxication or under the influence.
There is no showing that the Defendant was under the influence of alcohol.
5. Whether Miranda warnings were given.
As explained above, there was an attempt made at providing Miranda
warnings that were deficient. While the Defendant was made aware of some of his
rights, he was not fully advised as to his rights.
6. Whether the Defendant was “mentally subnormal.”
There is no dispute the Defendant is mentally normal.
7. Whether deception was used.
FECR010822 - Page 19 of 38
There is a factual dispute as to the evidence that law enforcement confronted
the Defendant with during the interrogation. The Defendant argues that law
enforcement knowingly told him incorrect information, such as there being
witnesses who saw another person in his car, for the purpose of influencing him. The
State argues law enforcement just confronted the Defendant with hypothetical
questions about evidence that could be found. The record before the Court is
incomplete as to whether law enforcement did, in fact, receive a report that another
person was in the Defendant’s vehicle or whether they believed the hair found
belonged to Tibbetts.
8. Whether the Defendant showed an ability to understand the questions and
respond.
The parties agree that the Defendant was able to understand the Spanish
spoken and respond appropriately.
9. The length of time the Defendant was detained and interrogated.
The parties dispute this factor, as the Defendant asserts, as discussed above,
that he was in custody the entirety of the time he was the at the Poweshiek County
Sheriff’s Office. The Court has already found that Defendant was not in custody
until the immigration detainer was placed, which shortens the length of
interrogation.
10. The Defendant’s physical and emotional reaction to the interrogation.
FECR010822 - Page 20 of 38
The Defendant can be seen getting upset with the questioning at times,
displaying signs of disbelief and frustration. Throughout the interrogation, the
Defendant sniffles and rubs his eyes regardless of being questioned or sitting alone.
11. Whether physical punishment, including deprivation of food and sleep, was
used.
Law enforcement clearly provided food and drink to the Defendant during the
interrogation, including giving him time alone in which to eat. Multiple times offers
were made to bring the Defendant something to drink, and he declined. There is no
evidence of physical punishment being used against the Defendant. It is true the
interrogation lasted through the night, but there is a lack of evidence that this was a
deliberate scheme to deprive the Defendant of sleep. If there was an attempt to
deprive the Defendant of sleep, it is highly unlikely law enforcement would have
allowed the Defendant to take anything but short breaks or would have woken him
up when it appeared he was trying to sleep.
The factor that weighs most heavily in Defendant’s favor is the fact that the
interrogation was of a significant length and occurred at the end of day of work.
When with law enforcement at the cornfield on the morning of August 21st,
Defendant told Officer Romero that he had woken up at 4:30 a.m. on the 20th before
working. This means the Defendant had been awake a significant amount of time
even when the interrogation began at 11:30 p.m. on August 20th. By the Court’s
FECR010822 - Page 21 of 38
estimation, at the beginning of the interrogation the Defendant had been awake for
about 19 hours. Then the interrogation lasted for many hours, ending when law
enforcement and the Defendant left the cornfield at approximately 6:35 a.m. on
August 21st. At that point, the Defendant had been awake for about 26 hours. At the
hearing, Dr. Kimberly Fenn, Ph.D., testified concerning her expertise in how sleep
and sleep deprivation affect cognitive functions. Dr. Fenn testified concerning a
number of studies that have demonstrated sleep deprivation negatively affecting
cognitive functions such as memory. Dr. Fenn also testified as to the role circadian
rhythm plays in cognitive functioning. Dr. Fenn reviewed still images produced from
Defendant’s interrogation video and expressed there were numerous times the
Defendant was tired, which may have impacted his ability to accurately answer
questions. Defendant also provided the testimony of Brian Leslie as an expert in
coercive interrogations. Mr. Leslie uses the term “coercion” to mean the application
of pressure upon a person’s weaknesses. According to Mr. Leslie, his definition does
not automatically imply police misconduct. Mr. Leslie wrote a report in which he
identifies examples of numerous examples of minimizations, maximization, and
narrative integration. It is the opinion of Mr. Leslie that the Defendant was
susceptible to coercive techniques due to his vulnerabilities, including lack of sleep.
The State points out that federal and state law require coercive police activity
as a prerequisite to the finding that a statement was not voluntarily made. See State
FECR010822 - Page 22 of 38
v. Vincik, 398 N.W.2d 788 (Iowa 1987). Our courts have acknowledged that any
custodial interrogation by a law officer inherently possesses a coercive aura, but that
this is insufficient as coercive police conduct. State v. Bowers, 661 N.W.2d 536
(Iowa 2003). Defendant has cited to State v. Ellenbecker, 885 N.W.2d 220, 2016
WL 3272168 (Iowa 2016), an unpublished opinion from the Iowa Court of Appeals,
as analogous here. The Court disagrees. In Ellenbecker, the Court found statements
were not voluntarily made based upon the defendant being under the influence of
opioid pain medicine, the length of the interrogation, the fact that law enforcement
had shot the defendant before his confession, and the continuous presence of law
enforcement while the defendant was in the hospital. The Court explicitly states,
“The length of the police interrogation alone would be insufficient for our finding.”
Id. at *4. Apart from the length of the interrogation, the Defendant’s situation is not
like Ellenbecker. Defendant is a young person who has no intellectual or mental
difficulties and not under the influence of any intoxicating substances. The Court
understands the interrogation lasted for many hours when the Defendant was
undoubtedly tired. However, that fact is somewhat diluted by the fact that Officers
Romero and Fink both testified that the Defendant appeared engaged and attentive
to their questions, and this is confirmed by the video of the interrogation. Having
reviewed the video and audio from the interrogation, the Court sees the Defendant
FECR010822 - Page 23 of 38
responding with law enforcement and having no difficulty communicating with
them.
Viewing the totality of the circumstances, the Court finds that the State has
carried its burden and that Defendant’s statements were voluntarily made. There is
no evidence that Defendant lacks some sense of capacity that renders him unable to
self-determine. Even with the lack of sleep and the length of interrogation, there is
not a showing of police coercion necessary for a finding of involuntariness. There is
no evidence police knowingly or intentionally sought the Defendant for interrogation
after work in order to for him to be tired and susceptible. The facts here do not show
that the Defendant’s will was overborne by police conduct and his statements were
the product of free and unconstrained choice.
Physical Evidence
The State asserts that physical evidence obtained is admissible despite the
Miranda violation. It bases this proposition upon United States v. Patane, 542 U.S.
630 (2004), in which the U.S. Supreme Court held that the Self-Incrimination Clause
of the Fifth Amendment “cannot be violated by the introduction of nontestimonial
evidence obtained as a result of voluntary statements.” 542 U.S. at 637. The
Defendant resists on grounds that statements made were not voluntary and all
derivative fruits are tainted and must be suppressed. The Court, having found
FECR010822 - Page 24 of 38
Defendant’s statements were voluntarily made, finds that nontestimonial physical
fruits may be admissible at trial.
Second Miranda Warning
The next issue regarding Miranda warnings is whether Officer Romero’s
second attempt at Mirandizing the Defendant was adequate. Iowa and federal courts
have held that no specific language is necessary for proper Miranda warnings. The
language used must only “reasonably relay to an accused his rights as required by
the Miranda decision.” State v. Ortiz, 766 N.W.2d 244, 257 (Iowa 2009) (quoting
State v. Schwartz, 467 N.W.2d 240, 246 (Iowa 1991)). Our courts have also adopted
federal holdings when it comes to the Miranda rights being translated. “The
translation of suspect’s Miranda rights need not be a perfect one, so long as the
defendant understands that he does not need to speak to police and that any statement
he makes may be used against him.” Ortiz, 766 N.W.2d at 257 (quoting United States
v Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990). Therefore, the Court reviews
the transcript of the audio of Officer Romero Mirandizing the Defendant in a
Poweshiek County Sheriff’s Officer’s vehicle to determine whether the language
used reasonably relay the Miranda rights. Officer Romero first stated, “You have
the right to remain silence.” While grammatically incorrect, the sentence conveys
the right to remain silent. Romero clarifies by going on to say that the Defendant
does not have to speak with her if he does not want to. The next sentence states,
FECR010822 - Page 25 of 38
“You have the right to have an attorney present, if you can’t pay one, one will be
assign to you without charge.” Again, this reasonably relays to the Defendant that
he has the right to an attorney and that one will be appointed to him if he cannot pay
for one himself. The final right is stated as, “You also have the right to, uh … want
to talk to me, anything that you say could be use against you.” This recitation is a
deviation from the standard telling of the right that statements made could be used
against the defendant in a court of law. Nevertheless, the Court finds it does
reasonably relay to the Defendant that if he chooses to speak, his statements could
be used against him. Officer Romero then askes the Defendant if he has understood
her, to which he replies in the affirmative. Therefore, the Court finds that Officer
Romero did properly give Defendant his Miranda warnings at this time.
The effect of this Miranda warning to the Defendant is contested between the
parties. The parties agree that Oregon v. Elstad, 470 U.S. 298 (1985) is the
controlling case on this issue. In Elstad, the U.S. Supreme Court held that a
secondary incriminating statement made by a defendant may be admissible if made
after the Miranda warnings even if the defendant made a first statement
incriminating himself before the warnings, so long as waiver was properly
effectuated. The Court reasoned that Miranda warnings are to protect defendants
from police coercion, so where no coercion has been found, there is no purpose
served by “imputing ‘taint’ to subsequent statements obtained pursuant to a
FECR010822 - Page 26 of 38
voluntary and knowing waiver.” Id. at 318. The Court here has found that
Defendant’s statements were voluntary and that Officer Romero’s second Miranda
warnings were adequate.
Defendant argues law enforcement’s conduct here amounts to the
impermissible two-step interrogation technique under Missouri v. Siebert, 542 U.S.
600 (2004). The parties agree that Justice Kennedy’s concurring opinion in Siebert
is controlling. The opinion states, “If the deliberate two-step strategy has been used,
post warning statements that are related to the substance of the pre-warning
statements must be excluded unless curative measures are taken before the
postwarning statement is made.” Id. at 622 (Kennedy, J.). Here, there is no evidence
that Officer Romero deliberately misstated the Miranda warnings after the
immigration detainer in an attempt to do a two-step interrogation. Officer Romero
testified at hearing that her omission in the Miranda warnings was a mistake. Officer
Romero further testified that she performed the second Miranda warning as there
had been a significant break in the questioning.
Necessary to the analysis under Elstad is the determination of whether the
Defendant voluntarily waived his Miranda rights. Waiver must be proven by a
preponderance of the evidence by reviewing the totality of the circumstances
surrounding the interrogation. State v. Ortiz, 766 N.W.2d 244 (Iowa 2009). Waiver
must be made “knowingly, intelligently, and voluntarily.” Id. at 251. Here, the
FECR010822 - Page 27 of 38
parties did not directly argue the issue of waiver to the Court in briefing or at hearing.
However, the record is more than sufficient for the Court to make a determination
of whether the Defendant waived his Miranda rights.
The State must prove two elements to show the Defendant waived his rights.
First, the State must show the Defendant had “a full awareness of the both the nature
of the right being abandoned and the consequences of the decision to abandon it.”
State v. Palmer, 791 N.W.2d 840, 845 (Iowa 2010) (quoting Ortiz, 766 N.W.2d at
251). The second element is that the State must prove that “the relinquishment of the
right was the product of a free and deliberate choice rather than intimidation,
coercion, or deception.” Palmer, 791 N.W.2d at 845 (quoting Moran v. Burbine, 475
U.S. 412, 421 (1986)) (internal quotation marks omitted). The following factors are
used to aid courts in the analysis of whether wavier was made voluntarily:
1. Defendant’s age;
2. Experience;
3. Prior record;
4. Level of education and intelligence;
5. Length of time the defendant is detained or interrogated;
6. Whether physical punishment was used, including deprivation of food or
sleep;
7. Defendant’s ability to understand the questions;
8. Defendant’s physical and emotional condition and his reaction to the
interrogation;
9. Whether any deceit or improper promises were used in gaining the
admissions;
10.Any mental weakness the defendant may possess.
FECR010822 - Page 28 of 38
State v. Hajtic, 724 N.W.2d 449, 454 (Iowa 2006). Courts are also to consider the
defendant’s “alienage and unfamiliarity with the American legal system.” Id.
The first element is the full awareness of the right being abandoned and the
consequences that would follow. Officer Romero told Defendant that he did not have
to speak with her, but if he did, that anything he said could be used against him.
Undoubtedly, the purpose of Miranda warnings is to provide defendants notice of
their rights and inform them of possible consequences. Following the Miranda
warnings, Officer Romero then asked if Defendant understood what she had said
twice. Both times the Defendant answered in the affirmative. Defendant was also
informed that he had the right to have an attorney present regardless of his financial
status. Based upon this interaction, the Court finds the State has proved by a
preponderance of the evidence that Defendant was made aware of his rights and that
any statement could be used against him and then confirmed that he understood.
The second element is that the Defendant’s choice be free and deliberate rather
than a product of intimidation, coercion, or deception. It is this element that the
voluntariness of the waiver comes into question. As stated earlier, the Defendant was
24 years old at the time of the interrogation with some formal education and no
known criminal record. While the interrogation lasted for many hours, breaks were
taken in which the Defendant was provided with food and drink. As the interrogation
was either conducted in Spanish or translated into Spanish, no language barrier could
FECR010822 - Page 29 of 38
have prevented the Defendant from understanding the questions of law enforcement.
In fact, the Defendant appeared alert and engaged with law enforcement throughout
the interrogation. Further, no physical punishment or improper promises were made.
It is well established that Defendant lacks familiarity with the United States legal
system, having moved to the U.S. when he was 17. The Court’s analysis here mirrors
many aspects of the voluntariness analysis under the Due Process Clause above. An
interrogation conducted by law enforcement does inherently have some intimidating
aspects and Defendant’s interrogation lasted for a long time; however, a “Miranda
waiver is involuntary only when it is shown to be the product of police misconduct
or overreaching.” State v. Countryman, 572 N.W.2d 553, 559 (Iowa 1997). Such a
showing is absent here. The Court finds, in viewing the totality of the circumstances
of the interrogation, that the State has proven by a preponderance of the evidence
that Defendant knowingly, intelligently, and voluntarily waived his Miranda rights.
Promises of Leniency
Defendant argues that impermissible promises of leniency were made by law
enforcement. Iowa courts utilize an evidentiary test, which is “whether the language
used amounts to an inducement which is likely to cause the subject to make a false
confession.” State v. Howard, 825 N.W.2d 32, 40 (Iowa 2012). Defendant’s main
argument regarding this issue concerns law enforcement’s use of the word “help”
when speaking with him. Officers Romero and Fink use the word “help” numerous
FECR010822 - Page 30 of 38
times when speaking with the Defendant in two contexts. In the first way, “help” is
used as an imploration for the Defendant to help them in their investigation or to
help them understand. For example, about 2 hours and 45 minutes into the
questioning, Officer Romero says, “…something that, that can’t help me understand
this.” She later states, “So then you have to help me, so that I can understand.” The
second way “help” was used, and what the Defendant argues constitutes a promise
of leniency, is when law enforcement stated that they were going to help the
Defendant. For example, on page 46 of State’s Transcript 18 46 05 370, Officer
Romero tells the Defendant, “I want to tell you again, okay. We’re here to try to help
you.” Much later in the interrogation Defendant asks to speak with Officer Romero
alone. At that point, Bahena Rivera asks her how telling her information could help
him. She informs the Defendant that he could be presented as a person who made a
mistake, that he did not act out of malice, and he is one who wants to move forward.
The Defendant then asks, “What’s going to happen to me?” Officer Romero
responds, “I can’t tell you what going to happen to you, Cristhian.”
The first use of “help” are unlikely to induce a confession. Law enforcement
asking for help with information or help with understanding is not the kind of
language that would pressure an individual to make incriminating statements. The
comments about helping the Defendant are a narrower call. Case law demonstrates
that telling a defendant that it is better to tell the truth is permissible. State v. Polk,
FECR010822 - Page 31 of 38
812 N.W.2d 670 (Iowa 2012). Similarly, it is not improper for law enforcement to
tell a defendant they will inform a prosecutor of the defendant’s cooperation absent
any further assurances. Id. Law enforcement’s offers to “help” the Defendant are
certainly implying a benefit could be received by the Defendant to make statements;
however, law enforcement also tells the Defendant that they cannot make promises
to him. See State’s Transcript 01 32 03 960, Page 8; State’s Transcript 03 13 33 730,
Page 17. Officers Romero and Fink also inform the Defendant numerous times that
they are not the decision-makers in this case. See State’s Transcript 22 09 04 680,
Page 32; State Transcript 22 09 04 680, Page 34. It is the Court’s opinion that while
law enforcement’s use of “help” suggests the Defendant may receive a benefit, law
enforcement also provided abundant clarity that they could not make any promises
and were not responsible for making decisions about what could happen. This point
is most saliently illustrated when the Defendant requested to speak with Officer
Romero privately and the two talked about what “help” could be gained. Officer
Romero, highlighting an earlier statement about the importance of language used,
tells the Defendant that the way he is presented or viewed could be one of someone
who made a mistake and not acting out of malice. She further states that she cannot
tell the Defendant what is going to happen to him.
Law enforcement does reference the Defendant’s daughter during
questioning. Ostensibly this was to motivate Bahena Rivera. One of the clearest
FECR010822 - Page 32 of 38
uses comes at page 8 of State’s Transcript 01 32 03 960. Officer Romero tells the
Defendant to “Think about your daughter that will need you. Right now, don’t you
see that little face of that little girl.” The Iowa Supreme Court has stated that the
implication that a parent may not see their children unless they cooperate with law
enforcement constitutes a promise of leniency. State v. Polk, 812 N.W.2d 670 (Iowa
2012). This case is distinguishable from Polk on a factual basis. In Polk, the
interrogating police officer directly stated Polk would not see his children “because
you didn’t want to talk about what’s going on.” Id. at 672. At no time did Officer
Romero link the Defendant’s cooperation or lack thereof with the ability to see his
daughter. Romero simply told the Defendant to think of his daughter. Further, in
Polk, the officer, after making the above statement, then follows up by stating that
if Polk wanted a plea deal, the best thing he could do was cooperate. The Polk Court
held, “We conclude Monroe crossed the line by combining statements that county
attorneys ‘are much more likely to work with an individual that is cooperating’ with
suggestions Polk would not see his kids ‘for a long time’ unless he confessed.” Id.
at 676. Officer Romero simply told the Defendant to think about his daughter
without any implications that a confession would ensure that he would see his
daughter sooner. Therefore, the Court finds law enforcement did not use language
likely to induce a false confession from Bahena Rivera.
FECR010822 - Page 33 of 38
Iowa Code section 804.20
Iowa Code section 804.20 grants arrested or restrained individuals in police
custody the allowance to call, consult, and see a member of the person’s family or
an attorney. The restrained individual may also make a reasonable number of
telephone calls to secure an attorney without unnecessary delay. A threshold matter
before the Court regarding this issue is the factual dispute as to what the Defendant
said after law enforcement took custody when the immigration detainer was placed.
The transcript admitted into evidence by the State was prepared by U.S. Immigration
and Customs Enforcement. It interprets the relevant portions as follows:
BAHENA RIVERA: Oh, when am I going to be able, able to talk to somebody
to let them know.
JEFF: [Unintelligible] to somebody [unintelligible]
The portion of transcript prepared by Defendant’s expert cited in the Defendant’s
Supplemental Motion differs significantly. It states:
CBR: Oh when will I be able to talk to a relative to let them know that
UM2: Uh, needs to speak with uh somebody [unintelligible] – family
member or-
Neither side which produced the translated transcription were questioned at hearing,
nor are their credentials available for the Court to access their credibility and
FECR010822 - Page 34 of 38
background. Regardless of which translation is more correct, the Court finds the
outcome the same. Section 804.20 is liberally interpreted to mean that any statement
that can be reasonably construed as a request to communicate with family members
or attorney is sufficient for invocation of the statutory right. The sufficiency of a
request is an objective review of the “statements and conduct of the arrestee and
peace officer, as well as the surrounding circumstances.” State v. Moorehead, 699
N.W.2d 667, 672 (Iowa 2005). In both translations here, the Defendant asks when
he will be able to speak with either someone or a relative. “When” is a question as
to the timing of speaking with someone, and not a question of whether he could
speak with someone. This question came after the immigration detainer was put in
place and law enforcement told the Defendant that someone would be in to transport
him. Immediately preceding the question, law enforcement were conducting routine
arrest procedures, such as confiscating the Defendant’s phone, checking his pockets,
and asking whether there were any weapons or illegal items in his vehicles. The
Court finds that Defendant’s question was not an invocation of section 804.20 but
rather a question of at what time he would be allowed to make such calls.
Consular Rights
Defendant cites the Vienna Convention on Consular Relations (VCCR)
arguing his rights afforded to him under the treaty were violated. This argument first
appears in Defendant’s Supplemental Motion to Suppress in which he acknowledges
FECR010822 - Page 35 of 38
that the U.S. Supreme Court has held that such a violation does not require
suppression. However, in the Defendant’s Reply he asserts that the violation does
require suppression. The Iowa Supreme Court held that “the exclusionary rule
simply does not apply to evidence obtained in violation of Article 36” of the VCCR.
State v. Buenaventura, 660 N.W.2d 38, 45 (Iowa 2003). Therefore, the Court need
not determine whether a consular right violation has occurred as suppression is not
applicable.
At hearing, Defendant did attempt to introduce into evidence an affidavit of
the Defendant which concerned his consular rights. The State objected on grounds
that a sworn affidavit is testimonial and no hearsay exception was applicable as the
affiant was unavailable. The State requested the Court reject the affidavit or be
allowed to cross-examine the Defendant. The Court ruled that if the affidavit was to
be admitted, the Defendant would be subject to cross-examination. Defense counsel
chose to keep the exhibit offered, but on the condition the Defendant not be cross-
examined. Therefore, the Court denied admission of Defendant’s Exhibit BB. The
Court affirms its ruling. Defendant’s affidavit was a written statement made outside
the motion to suppress hearing to prove that his point that the VCCR violation
affected his decision to speak with police and, thus, hearsay under Iowa Rule of
Evidence 5.802. “The exercise of a witness’ fifth amendment privilege also makes
that witness ‘unavailable’ for purposes of our evidence rule 804(b)(1).” State v.
FECR010822 - Page 36 of 38
Kellogg, 385 N.W.2d 558, 560 (Iowa 1986). The Court further finds no exception
under Rule 5.804 applicable, meaning the Defendant could have chosen to waive his
privilege, but doing so would subject him to cross-examination.
VI. CONCLUSIONS OF LAW

1. The Defendant voluntarily gave consent for law enforcement to search
his vehicles.
2. For the purposes of Miranda, the Defendant was in custody when the
immigration detainer was placed on him by federal agents.
3. The first set of Miranda warnings given at approximately 11:30 p.m.
on August 20, 2018, were inadequate.
4. The Defendant’s statements made during the interrogation were given
voluntarily.
5. As Defendant’s statements during interrogation were voluntarily made,
the physical evidence gathered from those statements are admissible, despite the
Miranda violation.
6. The second set of Miranda warnings given the morning of August 21,
2018, were adequate. Defendant waived his Miranda rights, so Defendant’s
statements that followed are admissible under Oregon v. Elstad, 470 U.S. 298
(1985).
7. Law enforcement did not make impermissible promises of leniency.
FECR010822 - Page 37 of 38
8. Law enforcement did not violate Iowa Code section 804.20.
9. The remedy for a violation of the Vienna Convention on Consular
Relations is not the application of the exclusionary rule under Iowa or federal
law; therefore, the Court makes no determination of whether any such rights have
been violated.
VII. ORDER
IT IS THEREFORE ORDERD that the Defendant’s Motion to Suppress is
hereby granted, in part, as follows:
1. Testimonial evidence obtained from the Defendant after the
immigration detainer was placed on him at approximately 11:30 p.m. on August 20,
2018, to when the Miranda warnings were adequately given to the Defendant at
approximately 5:50 a.m. on August 21, 2018, are hereby suppressed, and the State
of Iowa is barred from using such testimonial evidence in its case-in-chief.
IT IS FURTHER ORDERED that for all of the above-stated reasons, all other
particulars of the Defendant’s Motion to Suppress are hereby denied.
IT IS FURTHER ORDERED that trial is confirmed for February 4, 2020, in
Sioux City, Woodbury County, Iowa.
FECR010822 - Page 38 of 38
State of Iowa Courts
Type: OTHER ORDER
Case Number Case Title

FECR010822 STATE OF IOWA VS RIVERA, CRISTHIAN BAHENA
So Ordered
Electronically signed on 2019-12-23 15:59:50 page 39 of 39

Ruling On Defendant's Motion To Suppress RE: Bahena Rivera

Uploaded by

Copyright:

Available Formats

Ruling On Defendant's Motion To Suppress RE: Bahena Rivera

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Ruling On Defendant's Motion To Suppress RE: Bahena Rivera

Uploaded by

Copyright:

Available Formats

E-FILED 2019 DEC 23 3:59 PM POWESHIEK - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT IN AND FOR POWESHIEK COUNTY

I. STATEMENT OF THE CASE

felony. On March 1, 2019, Defendant filed a Motion to Suppress. Defendant filed

on May 31, 2019, and a Supplemental Resistance on October 7, 2019.

A two-day hearing on Defendant’s Motion to Suppress took place on

Evidence was presented and the matter was submitted.

1. Did the Defendant voluntarily give consent for law enforcement to

search his vehicles?

2. For purposes of Miranda, when was the Defendant in custody?

3. Were the first Miranda warnings given at approximately 11:30 p.m. on

August 20, 2018, adequate?

4. Were the Defendant’s statements made during the interrogation given

5. Is the physical evidence admissible despite the Miranda violation?

7. Did law enforcement make impermissible promises of leniency?

8. Did law enforcement violate Iowa Code section 804.20?

9. Did law enforcement violate the Defendant’s Article 36 rights under

the Vienna Convention on Consular Relations, and if so, is suppression required?

III. FINDINGS OF FACT

enforcement canvassed Brooklyn, as well as nearby agricultural farmland.

2. Law enforcement eventually came into possession of video footage

captured by a Brooklyn resident’s personal surveillance camera. The footage

showed a jogger on July 18th on a route known to be taken by Tibbetts, as well as

a black Chevy Malibu with certain distinctive features.

identified himself as the Defendant, Cristhian Bahena Rivera. Bahena Rivera

denied any knowledge of Tibbetts’s disappearance.

4. On August 20, 2018, a group of law enforcement officers, including the

Iowa Department of Criminal Investigations (DCI) and U.S. Homeland Security

agents, went to Yarabee Farms, Bahena Rivera’s place of employment.

5. The purpose of this was two-fold. First, law enforcement wanted to

translated the conversation.

to go with law enforcement to answer further questions. Special Agent Green

transported Bahena Rivera to the Poweshiek County Sheriff’s Office.

9. Officer Romero is a native Spanish speaker, and Officer Fink is

proficient in speaking Spanish.

10. Initially, the conversation primarily consisted of basic information

anything about her disappearance.

occasions. Bahena Rivera was alert and had no difficulty responding

appropriately to questions posed to him.

detainer was placed on him. As a result, Officer Romero attempted to inform

Bahena Rivera of his Miranda rights.

14. During the interview, Defendant understood and responded

made incriminating statements. Ultimately, Bahena Rivera agreed to lead law

enforcement to the location of Tibbetts’s body. Upon arriving at the designated

16. Additional facts will be developed throughout the ruling as necessary.

IV. PRINCIPLES OF LAW

1. The Fourth Amendment to the United States Constitution guarantees a

right to privacy by prohibiting unreasonable searches and seizures, and requiring

that warrants be supported by probable cause. U.S. CONST. AMEND. IV.

2. Under the Fourth Amendment, a search occurs “any time the

government intrudes upon a person’s legitimate expectation of privacy.” State v.

Reinier, 628 N.W.2d 460, 466 (Iowa 2001).

3. A search must be conducted with a warrant unless a known exception

Fourth Amendment. Id.

4. The Fifth Amendment to the United States Constitution grants a

the privilege against self-incrimination, due process of law before deprivation of

5. The Self-Incrimination Clause applies only to testimonial evidence, and

non-testimonial evidence does not trigger the protections of the Fifth