and Submitted October 18, 2016 San Francisco, California
from the United States District Court No. 5:10-cv-05027-EJD
for the Northern District of California Edward J. Davila,
District Judge, Presiding
J. Zilversmit (argued), San Francisco, California, for
M. Thayer (argued), Deputy Attorney General; Peggy S. Ruffra,
Supervising Deputy Attorney General; Jeffrey M. Laurence,
Senior Assistant Attorney General; Office of the Attorney
General, San Francisco, California; for
Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea and
Sandra S. Ikuta, Circuit Judges.
panel affirmed the district court's denial of Wade
Robertson's habeas corpus petition challenging his
California state conviction for driving under the influence
of alcohol and possession of a billy club.
contends that he was under arrest at the time a police
officer asked him to take a chemical test, that he was
therefore in custody at the time he unambiguously invoked his
right to counsel, and that the state court's failure to
suppress his statements regarding the billy club during
subsequent questioning violated his Fifth Amendment rights
under Miranda v. Arizona, 384 U.S. 436 (1966), and
Edwards v. Arizona, 451 U.S. 477 (1981).
panel held that because the Supreme Court has not addressed
whether a defendant's request for counsel in response to
a request to submit to a chemical test constitutes an
invocation of his Miranda rights for purposes of any
future custodial interrogations, the state court's ruling
that the admission of Robertson's statements did not
violate Miranda and Edwards is not
Judge Thomas concurred. He agreed that the district court
should be affirmed given the AEDPA standard of review, but
wrote that if the appeal were on direct review, one might
reach a different conclusion.
Robertson was found guilty by a California state jury of
driving under the influence of alcohol and possession of a
billy club and was sentenced to 12 days in jail and three
years on probation. Robertson appeals the district
court's denial of his petition for a writ of habeas
corpus. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and we affirm.
evening of April 27, 2006, Wade Robertson, was celebrating
with four others at Nola's Restaurant in Palo Alto,
California. The group ordered 24 shots of liquor and six
mixed drinks over the course of four hours. In addition,
Robertson paid for a separate round of drinks with a $100
bill, and according to the waitress, told her to keep the
after midnight, Robertson complained to the manager on duty,
Shiraz Qadri, that the waitress had failed to return the
change for the $100 bill. In order to avoid problems, Qadri
reduced Robertson's credit card bill by $90. Qadri
testified that throughout this interaction, Robertson
appeared intoxicated, with "dilated eyes, red face, red
eyes" and with alcohol on his breath. Qadri offered to
call Robertson's group a cab. Robertson declined.
Robertson left the restaurant, Qadri saw him walk over to a
white pickup truck. Agent Dan Ryan, a Palo Alto police
officer on patrol that evening, also saw Robertson standing
outside a parked pickup truck on the street near the
restaurant. As Robertson prepared to take off in the truck,
Qadri flagged down Agent Ryan and told him, "Hey, those
guys told me they were going to take a cab and they have been
drinking pretty heavily."
long afterward, Agent Ryan saw the white truck make an
illegal left turn a few blocks away from the restaurant,
cutting off another vehicle. Agent Ryan followed the truck,
caught up to it when the driver pulled into a gas station,
and initiated a traffic stop. Robertson quickly exited the
truck and began walking towards the patrol vehicle. Once
Robertson got out of the truck, Agent Ryan recognized him
from the prior encounter. Agent Ryan recalled that Robertson
"had an odor of an alcoholic beverage on his
breath." According to Agent Ryan, Robertson loudly and
aggressively asked him why he had been stopped, and denied
that he had been drinking. When Agent Ryan pointed out the
smell of alcohol on his breath, Robertson called him a liar.
point two additional officers, David Guy and Cole
Ghilarducci, arrived at the scene, and observed Agent Ryan
administering a series of field sobriety tests. Robertson
performed poorly: the nystagmus gaze test indicated the
presence of blood alcohol, and he displayed poor coordination
and balance. Based on the field sobriety tests and
Robertson's demeanor, Agent Ryan concluded that Robertson
had been driving under the influence of alcohol. Officer Guy
testified that he reached the same conclusion, and that it
was not a close call. When Officer Guy looked into the white
truck, he saw a billy club lying between the driver and
passenger seats. He collected the billy club for evidence.
Ryan arrested Robertson and took him to the police
department's booking area. When Agent Ryan asked
Robertson to take a breath test, he refused. He also refused
to take a blood test. At that point, Agent Ryan gave
Robertson a form issued by the California Department of Motor
Vehicles, which provided the following information, among
1.You are required by state law to submit to a chemical test
to determine the alcohol and/or drug content of your blood.
2. a. Because I believe you are under the influence of
alcohol, you have a choice of taking a breath or blood test.
. . .
4.Refusal or failure to complete a test may be used against
you in court. Refusal or failure to complete a test will also
result in a fine and imprisonment if this arrest results in a
conviction of driving under the influence.
5. You do not have the right to talk to an attorney or have
an attorney present before stating whether you will submit to
a test, before deciding which test to take, or during the
test. . . .
Robertson read the form, he told Agent Ryan that he wanted to
speak with his attorney before submitting to any chemical
test. Pointing to section 5 of the form (which actually
stated he did not have the right to an attorney),
Robertson said "See, I have the right to an attorney
right here, and I want my attorney." Agent Ryan tried to
correct this misreading of section 5, but when Agent Ryan
asked Robertson again to take a breath test, Robertson
replied, "Absolutely not, " and in response to the
request to take a blood test, Robertson replied, "No, I
will not take a blood test."
point during the booking process, Agent Ryan gave Robertson
Miranda warnings. After reading Robertson his
rights, Agent Ryan asked Robertson if the billy club that
Officer Guy found in Robertson's truck belonged to him.
Robertson said, "[Y]es, it belonged in the truck."
He then asked "if it was a misdemeanor to possess that
in California?" Agent Ryan told him it "could be
charged either as a misdemeanor or a felony, " and gave
Robertson a copy of the California Penal Code so he could
read the law for himself. Agent Ryan also administered a
second series of field sobriety tests in the booking area.
These tests, which were recorded on videotape, showed that
Robertson again performed poorly.
was subsequently charged with two criminal counts. First, he
was charged with misdemeanor driving under the influence of
alcohol in violation of section 23152(a) of the California
Vehicle Code,  along with an enhancement for refusing to
submit to a chemical test as provided under section 23577 of
the Vehicle Code (referred to here as a "refusal
enhancement"). Second, he was charged with misdemeanor
possession of a billy club in violation of section
12020(a)(1) of the California Penal Code.
filed a pretrial motion to suppress evidence obtained during
the traffic stop. Robertson argued that Agent Ryan had not
been directly behind Robertson's truck. From this fact,
Robertson argued, it could be inferred that Agent Ryan had
not observed the illegal left turn and therefore, the traffic
stop was unlawful. To support this theory, two expert
witnesses testified that bank surveillance photographs of the
intersection where Robertson made the illegal left turn
showed that Agent Ryan's police car was not immediately
behind Robertson's truck. Robertson also called two
eyewitnesses to testify that Agent Ryan's police car was
not behind his truck. The trial court denied the motion to
suppress. It stated that it did not credit the testimony of
the eyewitnesses, but did credit Agent Ryan's testimony
that he personally observed Robertson's illegal left
subsequently filed a motion in limine to admit into evidence
the bank surveillance photographs and related expert
testimony at trial. The trial court denied the motion,
stating that the legality of the traffic stop had already
been fully litigated, but that it would allow Robertson to
renew his motion at trial to use the evidence to challenge
Agent Ryan's credibility.
trial, Agent Ryan testified regarding the traffic stop, the
field sobriety tests conducted at the scene, and the events
in the booking area in the police department. He also
testified that the billy club was similar to batons used by
the Palo Alto police department. Robertson's trial
counsel did not object to the admission of these statements.
defense, Robertson's counsel introduced eyewitness
testimony that Robertson had not been drinking the night of
April 27 and that he was not drunk when he left the
restaurant. A field sobriety expert testified that Agent Ryan
had improperly administered several of the field sobriety
tests. Robertson contended that the smell of his breath was
attributable to hypoglycemia. A licensed private investigator
testified that the billy club had nonviolent uses such as
checking tire pressure and serving as a handle for a tire
jack. Robertson attempted again to introduce the bank
surveillance photos to impeach Agent ...