15 NICS App. 35, SOUTHERN UTE v. HENRY (September 2017)

IN THE SOUTHERN UTE TRIBAL COURT OF APPEALS

SOUTHERN UTE INDIAN RESERVATION

IGNACIO, COLORADO

Southern Ute Tribe, Petitioner/Appellant,

v.

Isaiah Henry, Respondent/Appellee.

NO.    17-APP-0065 (September 8, 2017)

SYLLABUS^*

Tribe sought review of trial court’s order suppressing respondent’s self- incriminating statements made to police during a custodial interrogation. Trial court found that although respondent was notified of the right to obtain counsel, a proper advisement of rights under the code required the respondent be advised of his right to consult with counsel. The Court of Appeals affirmed the trial court’s order ruling that police did not adequately advise respondent of his right to remain silent as required by the code.

Before:	Eric Nielsen, Chief Judge; Richard A. Woodrow, Judge; John C. Sledd, Judge.
Appearances:	Benjamin Lammons, for Petitioner; Timothy A. Heydinger, for Respondent.

OPINION

Per curiam.:

This matter comes before the Southern Ute Tribal Court of Appeals pursuant to the Notice of Interlocutory Appeal filed by the Tribe on May 18, 2017. The Tribe seeks review of the trial court’s May 12, 2017 written order suppressing Isaiah Henry’s statements to tribal police. The Tribe’s notice is timely and reviewable. Southern Ute Tribal Code (S.U.T.C.) 3-1-102(4). We affirm.

15 NICS App. 35, SOUTHERN UTE v. HENRY (September 2017) p. 36

UNDISPUTED FACTS

On April 3, 2017, Isaiah Henry attempted to back out of a parking space in the south lot of the Sky Ute Casino Resort in a stolen Chrysler PT Cruiser. La Plata County Sheriff’s Deputies detained Henry, handcuffed him, and placed him in the back seat of a patrol car. Officer Dale Gurule of the Southern Ute Police Department arrived on the scene within a few minutes.

While Henry was restrained in the police car, Gurule contacted Henry and advised him of his right to remain silent from a pre-printed card issued by the Southern Ute Police Department. That card reads:

You have the right to remain silent. Any statements made by you may be used against you in court. You may obtain counsel at your own expense. Any questioning may cease until you have time to obtain counsel, or once questioning begins may stop at any time to obtain counsel. Do you understand each of these rights I have explained to you?¹

Officer Gurule asked Henry if he understood the rights that were read to him and Henry indicated that he did.² Henry was questioned by the officer and made incriminating statements.

Henry filed a motion in the trial court to suppress his statements to Officer Gurule. See S.U.T.C. 4-1-104(2)(c)(ii). Henry argued that the advisement of rights given to him prior to the custodial interrogation were legally insufficient.

On May 10, 2017, the trial court heard the motion to suppress. Officer Gurule was the only witness who testified at the hearing. On May 12, 2017, the trial court issued a written order with detailed and comprehensive findings of fact and conclusions of law. The court granted Henry’s motion and suppressed his statements.

In its order the court found that Henry was not adequately advised of his rights under S.U.T.C. 4-1-104(2)(c)(i)(c). The court reasoned that a proper advisement of rights under the code required that Henry be advised of his right to consult with an attorney, similar to the advisement given to Non-Natives. Order Concerning Motion to Suppress, pp. 3-4.

15 NICS App. 35, SOUTHERN UTE v. HENRY (September 2017) p. 37

DECISION

Under S.U.T.C. 3-1-112 this Court will not disturb the trial courts findings of fact unless the findings are clearly erroneous. This Court reviews the trial court’s conclusions of law de novo.³ The issue is whether the trial court erroneously suppressed Henry’s statement to officer Gurule. Because the facts are undisputed we review the issue de novo.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court formulated procedural safeguards to protect the rights of the accused, including the privilege against self-incrimination under the Fifth Amendment of the United States Constitution. U.S. Const. amend. V. In Miranda, the Supreme Court held that where a person is subjected to police interrogation while in custody the requisite procedural safeguards must be employed to protect the person’s privilege against self-incrimination. Miranda, 384 U.S. at 467. These safeguards include warnings that are commonly referred to “Miranda rights.” Police must inform the person that he “has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Id., at 479. If police fail to make this advisement prior to questioning, the court must exclude the defendant's statements from evidence in the prosecution's case. Id. (citations omitted).

The Court has subsequently ruled that although police do not necessarily need to use the precise Miranda language, the warnings used must reasonably convey the Miranda warnings. Florida v. Powell, 559 U.S, 50, 60, 130 S.Ct. 1195 (2010) (citations omitted). An individual held for questioning “must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.” Powell, 559 U.S at 60 (quoting, Miranda, 384 U.S. at 471).

The Fifth Amendment to the U.S. Constitution does not apply to actions of Indian Tribes. Talton v. Mayes, 163 U.S. 376 (1896); see also Cherokee Nation v. Georgia, 30 U.S. 1 (1831). As a result, Congress enacted the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. § 1301 et seq., which was closely modeled on the Bill of Rights of the U.S. Constitution. The ICRA provides: “No Indian tribe, in the exercise of self-government, shall … compel any person in any

15 NICS App. 35, SOUTHERN UTE v. HENRY (September 2017) p. 38

criminal case to be a witness against himself.” 25 U.S.C. 1302 (a)(4). This provision is almost identical to the Fifth Amendment, which reads in relevant part: “No person shall … be compelled in any criminal case to be a witness against himself….”

c. Tribal Law

We provide the above brief survey of the law because it provides a backdrop to the Tribe’s code provisions that address the issue of proper warnings where a person is subjected to a custodial interrogation.

The Tribe enacted S.U.T.C. 4-1-104(2)(c)(i). That provision reads: “Before any person who is in custody is questioned or in any manner interrogated concerning any possible criminal activity committed by that person, he shall be advised of the following rights:

A. He has the right to remain silent and anything he says can and may be used against him;

B. He has the right to counsel at his own expense;

C. That questioning will cease until he has time to consult with counsel; and

D. He may end questioning at any time.

(emphasis added).

The code also provides: “Any evidence which is obtained either directly or indirectly as a result of any custodial interrogation which is not preceded by the advisement of rights set forth above in Section 4-1-104(2)(a)(1)⁴ above shall be suppressed by the Court upon filing of a motion to suppress said evidence.” S.U.T.C. 4-1-104(2)(c)(ii).

The parties have not provided us with any legislative history related to the enactment of S.U.T.C. 4-1-104(2)(c). Given its plain language and when it was enacted (1981), it is logical to infer that its intent was to adopt procedural safeguards similar to the Miranda warnings to protect the rights of tribal members and others, under 25 U.S.C. 1302 (a)(4), not to incriminate themselves.

The advisement at issue that was given to Henry was “Any questioning may cease until you have time to obtain counsel, or once questioning begins may stop at any time to obtain counsel.” (emphasis added). The trial court found the advisement did not comply with S.U.T.C. 4-1-104(2)(c)(i) because it failed to inform Henry that he had the right to consult with counsel before and during questioning. Order Concerning Motion to Suppress, p 4.

The Tribe argues “It is obvious the right to obtain counsel includes the right to speak with or consult counsel.” Tribe’s Opening Brief, p 7. In its reply brief the Tribe asserts, “As a practical matter there is little difference between the right to counsel, the right to obtain counsel, and the right to consult with counsel.” Tribe’s Reply Brief at 6. We reject the Tribe’s

15 NICS App. 35, SOUTHERN UTE v. HENRY (September 2017) p. 39

contentions. What is “obvious” to the Tribe would not be “obvious” to a reasonable person or the drafters of the code.     

Contrary to the Tribe’s contention, advising a person of the right to obtain counsel does not mean the same thing as advising a person of the right to consult counsel. “Obtain” means “to gain or attain possession”. Webster’s Third International Dictionary 1559 (1993). “Consult” or “Consultation” is defined as “the act of asking the advice or opinion of someone (such as a lawyer).” Black’s Law Dictionary, Seventh Edition 311 (1999).

Under the common meaning of the phrase “consult with counsel” it contemplates receiving advice or an opinion in order to facilitate making an informed judgment or decision. In the context of an interrogation that decision is whether to waive the right to silence and speak with police. A person who is only informed of the right to obtain or secure counsel would not necessarily believe that means counsel will give advice on the critical decision of whether to waive the right to silence. That is particularly true where, as here, the advisement only told Henry that questioning will cease “until” he has time to obtain counsel. That implies that once he obtained counsel questioning would resume. We find a reasonable person would not believe that the advisement given to Henry, that questioning will cease “until” he has time to obtain counsel, means the same thing as advising a person of the right to consult counsel before or at anytime during questioning.

Furthermore, the Tribe’s legislative body used words ‘consult” in S.U.T.C. 4-1-104(2)(c)(i), and not “obtain.” It did so because it intended that a person be informed of the right to seek advice of counsel before or during an interrogation, and not just the right to obtain counsel.

A court’s primary duty in interpreting any provision of the Tribal Code is to discern and implement the intent of the Tribe’s legislative body. Skokomish Indian Tribe v. Cultee, 8 NICS App. 68, 69 (2008); Ferris v. Hoopa Valley Tribe, 8 NICS App. 1, 5-6 (2007); United Blood Servs. v. Quintana, 827 P.2d 509, 522 (Colo.1992); Gallegos v. Phipps, 779 P.2d 856, 861 (Colo.1989). The language of the code provision itself provides the most reliable evidence of the intent of the Tribal Council. Ferris 8 NICS App. at 6 (citing United States v. Turreted, 452 U.S. 576, 593, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)); see People v. Warner, 801 P.2d 1187, 1190 (Colo.1990) (to determine legislative intent the court first looks at the words used).

Unlike the Miranda warnings, which were judicially created, S.U.T.C. 4-1-104(2)(c)(i) was adopted by the Tribe’s legislative body and plainly states a person “shall” be advised of the four rights that are listed. The generally accepted and familiar meaning of “shall” indicates that this term is mandatory. People v. District Court, 713 P.2d 918, 921 (Colo.1986); United States v. Myers, 106 F.3d 936, 941 (10th Cir.1997). Thus, the plain language of the code evidences the intent of the tribe’s legislative body that a person who is subjected to a custodial interrogation must be advised by police of the right to stop any interrogation to consult with counsel. We hold a person subjected to custodial interrogation must be advised of the right to consult counsel in the same or substantially the same language that is found in S.U.T.C. 4-1-104(2)(c)(i).

15 NICS App. 35, SOUTHERN UTE v. HENRY (September 2017) p. 40

The Tribe also argues that advisement given to Henry, which was the language on the pre-printed card used by tribal police, tracks the language in S.U.T.C. 4-1-104(1). It contends the language in S.U.T.C. 4-1-104(1) and not S.U.T.C. 4-1-104(2)(c)(i) is the proper advisement.

The two code sections, S.U.T.C. 4-1-104(1) and S.U.T.C. 4-1-104(2)(c)(i), have different language. S.U.T.C. 4-1-104(1) states, that “Upon arrest, the suspect may be advised” of the rights in that provision. By use of the word “may” the tribe’s legislative body gave an officer the discretion to give those advisements to a person who is arrested, whether or not the arrest is followed by a custodial interrogation. On the other hand, S.U.T.C. 4-1-104(2)(c)(i) is mandatory in the circumstance where, like in this case, there is a custodial interrogation. The different language in the two provisions is confusing and something the tribe’s legislative body should probably address. However, it is plain that the mandatory language of S.U.T.C. 4-1-104(2)(c)(i) applies when police in fact seek to conduct a custodial interrogation.

Henry was only advised he had the right to stop any interrogation to “obtain” counsel. That advisement was not the advisement the Tribe’s legislative body intended, nor would a reasonable person believe the right to obtain counsel is the same as the right to consult counsel. We hold Henry was not adequately advised of his right to remain silent as required under S.U.T.C. 4-1-104(2)(c)(i). The trial court properly suppressed Henry’s statements to police. S.U.T.C. 4-1-104(2)(c)(ii). ⁵

CONCLUSION AND ORDER

The respondent was not adequately advised of rights as required under S.U.T.C. 4-1-104(2)(c)(i) prior to the custodial interrogation.

The trial court’s ruling suppressing his statements to the officer is affirmed.

---

The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

Plaintiff’s Exhibit 1.

Officer Gurule testified that Non-Native Americans are given a different advisement of rights. That advisement of rights states in pertinent part that: “You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to consult with a lawyer before questioning and to have a lawyer present during questioning.” Plaintiff’s Exhibit 2.

S.U.T.C. 3-1-112. Standard of Review.

In deciding an appeal, the Court of Appeals will apply the following standards:

(1) Factual findings

(a) Jury decisions will be sustained, unless no evidence in the record supports them.

(b) A finding of fact will be sustained unless clearly erroneous.

(2) A conclusion of law will be reviewed without deference to the Tribal Court’s determination;

(3) A matter within the discretion of the Tribal Court will be sustained if the record reflects that the Tribal Court exercised its discretionary authority, applied the appropriate legal standard to the facts, and did not abuse its discretion, even if an alternative decision could have been reached.

This citation to the code is an obvious scrivener’s error. There is no Section 4-1-104(2)(a)(1). We find that the code intended to refer to Section 4-1-104(2)(c)(i), because that section specifically addresses the advisement of rights and immediately proceeds Section 4-1-104(2)(c)(ii).

Henry also argued at the suppression hearing that the advisement he was given failed to inform him that he had the right to appointed counsel if he could not afford counsel. The trial court did not address that argument. Like the trial court we do not need to resolve that issue because it is not necessary to our decision.