Opinion
CR17-01026-TUC-RCC(JR)
06-13-2019
United States of America, Plaintiff, v. Sergio Herran, Defendant.
REPORT AND RECOMMENDATION
On April 22, 2019, Defendant Sergio Herran filed a Motion to Suppress Statements (Doc. 59). The government filed a response on May 6, 2019 (Doc. 66). The matter was heard by Magistrate Judge Rateau on May 22, 2019 (Doc. 68). Herran was present and represented by counsel. The government presented three witnesses (Doc. 69). Fifteen exhibits were admitted at the hearing (Doc. 70). Having considered the matter, the Magistrate Judge submits the following Findings of Fact and Conclusions of Law and recommends that Herran's Motion to Suppress Statements be denied.
Trial is currently scheduled for August 20, 2019 and a plea deadline has been set for August 2, 2019 (Doc. 61). --------
I. FINDINGS OF FACT
Andrew Cooper, a Special Agent with Department of Homeland Security Investigations, obtained a federal warrant to search Defendant Sergio Herran's residence for evidence of child pornography. Tr. 6-7. Herran's residence is located in Tucson, Arizona and is a mobile home located on a large fenced lot in a rural neighborhood. Tr. 7, 46; Govt. Exs. 7 (photograph of residence); 8 (aerial photograph of residence). Between eight and eleven law enforcement officers were involved in the execution of the warrant including Agent Cooper, who was the case agent. Tr. 7, 30, 47. Agent Cooper recorded all the conversations between the agents and Herran. Tr. 23-24; Def. Ex. 1 (transcript of interview).
Agents executed the warrant beginning at about 8:15 a.m. on March 15, 2017. Tr. 7, 10. When the agents arrived at the residence, Agents Cooper and Bah, who were wearing civilian clothes and carrying concealed weapons, walked up to the front door and knocked. Tr. 10-11, 13. After nobody answered, and hearing sounds from inside, the agents tried knocking on the wall and a window of the trailer. Tr. 11; Govt. Ex. 10 (photograph of window). Eventually, a young girl, approximately 11-years-old, answered the door and told the agents that her mom was in the shower, and that her dad had been up all night and had just gone to sleep. Tr. 11-12, 25-26; Def. Ex. 1, p. 2. The agents told the girl that they need to come in and talk to her parents and they entered the front door and went down the hallway. Tr. 12.
The agents first contacted Herran, who was sleeping in bed and a little disoriented and surprised, and then the young girl stepped into the bathroom and her mom eventually came out. Tr. 12, 25. Then other children came out of their bedrooms. Tr. 12. The computer in Herran's bedroom was playing "really loud" and several dogs were barking. Tr. 13, 41; Def. Ex. 1, pp. 2-3. Herran's initial reaction to the agents' presence was confusion, and he recalled that that he was sick with a 105-degree fever at the time and had been up all night. Tr. 17, 54-56. Herran testified that he had taken two doses of a prescribed codeine cough syrup and was groggy and "just kind of out of it," but he was then able to answer Agents Cooper and Bah's questions. Tr. 17, 55, 67. The agents did not recall, and the transcript of their conversation does not reflect, that Herran told them about his fever or the medication. Tr. 96.
The agents asked Herran how to turn down the computer. Tr. 13, 57; Def. Ex. 1, pp. 3-4. Agent Cooper asked Herran if he wanted to smoke or wanted coffee and offered to get him shoes. Tr. 36. The agents then cleared the house and brought Herran outside where Agents Cooper and Bah proceeded to speak with him while Agents Quiri and Nichols interviewed Herran's wife. Tr. 14, 23, 28-29, 39. Normally, after a house is secured, the agents conduct interviews inside the house while sitting at a kitchen table or on a couch. Tr. 14. However, Herran's house was in disarray. Tr. 14-15, 29, 48; Govt. Ex. 11 (photograph of Herran's bedroom); Govt. Ex. 12 (photograph of living room); Govt. Ex. 13 (photograph of dining room table). Initially, the agents and Herran were just outside the house on the front porch near the front door. Tr. 16-17, 58; Govt. Ex. 9 (photograph of front porch).
While he was being questioned, Herran was trying to calm his barking dogs by calling their names and the situation became distracting. Tr. 18-19. After about 10 minutes on the porch, the agents and Herran moved to get away from the noise of Herran's barking dogs. Tr. 18, 29; Def. Ex. 1, p. 8. They moved 50 to 100 yards away from the trailer to Agent Cooper's Ford Explorer SUV which was parked near the mailboxes just outside the fence around the property. Tr. 18, 30; Govt. Ex. 7 (photograph of gate to the property). Agent Cooper opened the passenger door to the vehicle and Herran sat on the seat with the door open. Tr. 19. Agents Cooper and Bah stood outside the door of the vehicle. Tr. 30. Herran was better able to hear the agents after they moved to the vehicle. Tr. 59.
Shortly after they had moved to Agent Cooper's vehicle, and while Herran was sitting in the car, Agent Bah informed Herran:
So just to let you know, you're not under arrest, ok. So if you . . . you're free to go if you want. If you want to go get something to eat, you can let us know, get something to drink. Um, you're free to smoke but unfortunately you can't do it inside the car. Um, so we, we just have a couple of questions, trying to figure out what's, what's going on.Def. Ex. 1, p. 9; see also Tr. 21, 31. During questioning, Herran told the agents that his "mind is really screwed up first thing . . . in the morning." Def. Ex. 1, pp. 10, 28. However, Agent Cooper told him to take his time and described Herran as cooperative, coherent and appropriately responding to questions. Tr. 20; Def. Ex. 1, p. 10, 28. He was able to discuss technical matters with the agents such as the functioning of peer-to-peer and computer file deletion software. Tr. 20, 68-69; Def. Ex. 1, p. 21, 33. He was also able to provide names of people who had visited his house. Tr. 69; Def. Ex. 1, pp. 9-10.
Herran was only inside Agent Cooper's vehicle for a few minutes before agents asked if he wanted a cigarette or coffee. Tr. 64, Def. Ex. 1, p. 28. While he was standing outside the vehicle smoking, Herran's dogs attacked and bit Agents Quiri and Biringer. Tr. 21-22, 42, 51-52, 64; Def. Ex. 1, pp. 33-34. Herran recalls seeing one of the agents kicking at the dogs. Tr. 63. Herran responded to the attack by yelling at the dogs and running to secure them. Tr. 21-22. Along with Agent Cooper, Herran was able to secure the dogs in a pen behind Herran's trailer. Tr. 22. After securing the dogs, the agents and Herran continued their conversation at a third location in front of the trailer under a tree. Tr. 23; Def. Ex. 1, p. 35.
II. CONCLUSIONS OF LAW
A. Miranda
Before a person is questioned by law enforcement officers after being "taken into custody or otherwise deprived of his freedom of action in any significant way," he must first be warned that he has the right to remain silent, that any statements he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed. Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). Herran claims that he was "in custody" when he made his statements to the agents at his home. Determining whether a suspect is "in custody" for purposes of Miranda must be based on the totality of the circumstances and requires application of an objective test; it depends on the objective circumstances of the interrogation and not on the subjective views of either interrogating officers or the person being questioned. See J.D.B. v. North Carolina, 564 U.S. 261, 271 (2011); Yarborough v. Alvarado, 541 U.S. 652, 662-63 (2004). Under this test, two inquiries are made: (1) what were the overall circumstances surrounding the interrogation; and (2) given those circumstances, would a reasonable person in the suspect's situation have felt free to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112 (1995).
In the present case, it is undisputed that no Miranda warnings were given to Herran. In United States v. Craighead, 539 F.3d 1073 (9th Cir. 2008), a case upon which Herran heavily relies, the Ninth Circuit addressed the question of when the interrogation by law enforcement officers in a suspect's home becomes custodial and requires Miranda warnings. Id. at 1083. To guide the evaluation of whether an interrogation was custodial, the Craighead court identified several factors that are "not interpreted as an exhaustive pronouncement," but are relevant to whether the circumstances of an interrogation created a police-dominated atmosphere. Id. at 1084. The factors are: "(1) the number of law enforcement personnel and whether they were armed; (2) whether the suspect was at any point restrained, either by physical force or by threats; (3) whether the suspect was isolated from others; and (4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made." United States v. Craighead, 539 F.3d 1073, 1084 (9th Cir. 2008). In other custodial interrogation cases, the Ninth Circuit identified several additional factors: "'(1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual.'" United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002) (quoting United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001)).
In Craighead, five FBI agents, a detective from the sheriff's department, and two members from Air Force Special Investigations entered Craighead's house on a military base pursuant to a search warrant. Id. at 1078. The FBI agents were wearing flak jackets or "raid vests" and all the officers were armed, and some unholstered their firearms in the Craighead's presence. Id. at 1085. Craighead was escorted into an unfurnished storage room with a single door. And, although Craighead was told he was not under arrest and was free to leave, the door was closed and the defendant was questioned by an FBI agent while an armed detective stood with his back against the door and six more officers were searching the house. Id. at 1086, 1089. At the suppression hearing, Craighead testified that he felt he was not free to leave because he "would have either had to have moved [the armed detective near the door] or asked him to move." Id. at 1079. He was also concerned that the various agencies involved in the execution of the search warrant had not coordinated and thus might not be aware that he had been told that he was free to leave. Id. Based on these circumstances, the Ninth Circuit found the totality of the circumstances were such that the defendant reasonably could have believed he was not free to leave or decline to be interviewed. As such the court concluded Miranda warnings should have been administered before he was questioned.
The totality of the circumstances surrounding Herran's questioning are distinguishable from those in Craighead and, although it is a close call, do not support the conclusion that the agents created such a law enforcement dominated atmosphere that rendered Herran "in custody" at the time of Agent Cooper's interrogation. Although a large search team arrived at Herran's home that morning, only Agents Cooper and Bah made the initial entry. The two agents were armed, but they were wearing civilian clothes and did not draw their weapons. The Ninth Circuit noted in Craighead that "the presence of a large number of visibly armed law enforcement officers goes a long way towards making the suspect's home a police-dominated atmosphere," and cited cases involving eight, seven, and five officers. See 539 F.3d at 1085. While the total number of officers ultimately involved in the search of Herran's home was large, Herran's contact with most of them was quite limited. He almost exclusively interacted with Agents Cooper and Bah, both of whom were in civilian clothes and were not openly displaying their weapons. Thus, the number of officers in this case did not contribute to a police-dominated atmosphere as it did in Craighead.
Herran was never restrained by physical force or intimidation during the questioning. He was never handcuffed or threatened. In fact, he testified that the agents treated him respectfully and Agent Cooper testified that there was no physical contact between the agents and Herran. And, unlike Craighead, Herran was not isolated from others and was not prevented from speaking with his wife. See United States v. Beraun-Panez, 830 F.2d 127 (1987) (custodial nature of interrogation supported by fact that officers interrogated the defendant at the side of the road in familiar surroundings but intercepted one of the defendant's co-workers who tried to approach him). Although he was twice moved for questioning, both moves were precipitated by the barking of his dogs and were not attempts to isolate or enclose him from others and he was always in an open area.
Although "[t]he mere recitation of the statement that the suspect is free to leave or terminate the interview . . . does not render an interrogation noncustodial per se," Craighead, 539 F.3d at 1088, it is significant here that when the agents and Herran went to Agent Cooper's vehicle, Herran was specifically told he was free to leave. As evidenced by his interaction with his dogs after they bit other agents, Herran was aware that he could freely move about and in fact did so in an effort to contain the dogs. As the court stated in Craighead, the making of such statements greatly reduces the likelihood that a suspect will reasonably believe he is in custody. This consideration also ameliorates the Court's biggest concern—the length of the interrogation. The agents commenced execution of the search warrant at 8:15 a.m. and Herran's interrogation concluded at 10:27 a.m. Def. Ex. 1. Thus, the questioning of Herran spanned approximately two hours. As the Ninth Circuit has noted, this was a "full-fledged interrogation, not a brief inquiry." See United States v. Kim, 292 F.3d 969, 977 (9th Cir. 2002). However, considering Herran's knowledge that he was free to walk away at any time, as illustrated by his interactions with his dogs, the Court finds that the extended duration of questioning does not establish that Herran was in custody for purposes of Miranda.
Considering the totality of the circumstances and the factors identified by the Ninth Circuit, the Court concludes that Herran's interrogation was not custodial. A reasonable person in Herran's position would have felt free to leave or terminate the questioning.
B. Voluntariness
Herran argues that his statements should be suppressed because they were not voluntary. "In evaluating voluntariness, the test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." United States v. Male Juvenile, 280 F.3d 1008, 1022 (9th Cir. 2002) (citation and internal quotation marks omitted); see also Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003). The totality of the circumstances includes: the crucial element of police coercion; the length of the interrogation; its location; its continuity; Herran's maturity; education; physical condition; and mental health. Taylor v. Maddox, 366 F.3d 992, 1016 (9th Cir. 2004). Examples of involuntary statements include those obtained when the defendant was subject to lengthy questioning, denied food or sleep, physically threatened, or subject to psychological persuasion. Kim, 105 F.3d at 565.
Here, there is no indication that Herran's statement were not the product of rational intellect and free will. Although the interrogation was not brief, it also was not of such length that it overcame Herran's free will. Herran does not allege that the agents were aggressive or made threats. Each time Herran indicated he was groggy, Agent Cooper told him to take his time. The agents also allowed Herran to smoke and drink coffee and Agent Cooper spoke in non-threatening, conversational tones throughout the interview. See United States v. Heller, 551 F.3d 1108, 1112 (9th Cir. 2009) (upholding district court's determination that the defendant's confession was voluntary in part because the interrogation environment was "friendly and cordial"). There also is no evidence that Herran is particularly susceptible to coercion because of his age. See United States v. Male Juvenile, 280 F.3d 1108, 1022-23 (9th Cir. 2002) (courts may consider suspect's age in determining voluntariness). Taking all surrounding circumstances into account, the Court concludes that defendant made his statements voluntarily
III. RECOMMENDATION FOR DISPOSITION BY THE DISTRICT JUDGE
Based on the foregoing, the Magistrate Judge recommends that the District Court, after an independent review of the record, DENY Herran's Motion to Suppress Statements (Doc. 59).
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No replies are permitted without leave of court. If any objections are filed, this action should be designated case number: CR 17-01026-TUC-RCC. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Dated this 13th day of June, 2019.
/s/_________
Honorable Jacqueline M. Rateau
United States Magistrate Judge