Opinion
No. 12-CR-00077 JAM
12-19-2012
UNITED STATES, Plaintiff, v. BRANDON ALTON CONLEY, Defendant.
ORDER DENYING DEFENDANT'S
MOTIONS TO SUPPRESS
This matter comes before the Court on two Motions to Suppress (Doc. #56, 57) filed by Defendant Brandon Alton Conley ("Defendant") pursuant to Federal Rule of Criminal Procedure 12(b)(3)(c). The Government opposes both motions. (Doc. #67, 69). For the reasons set forth below, Defendant's Motions to Suppress are denied in their entirety.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of an alleged conspiracy to cultivate marijuana in a warehouse located at 705-709 South California Street in Stockton, California ("the warehouse" or "subject warehouse"). On February 14, 2012, a search warrant was issued for the subject warehouse and other private residences, based on the application and affidavit presented by Special Agent Rebecca Caceres. Approximately six weeks prior to her application, Caceres and other Narcotics officers received information from a confidential informant that there was a large marijuana grow occurring at the subject warehouse. In the following weeks and months, the officers conducted an investigation, and found a connection between an individual involved in another, previously investigated marijuana grow in Stockton, and the subject warehouse. The investigating agents used other methods to confirm the warehouse was being used to grow large quantities of marijuana, including a check of PG&E records. On February 8, 2012, after observing Defendant frequent the warehouse over a period of two days, police officers conducted a traffic stop of the Defendant. At that time, they observed the smell of "fresh cut marijuana," and several large soil buckets in the back of his car. Defendant was not taken into custody, nor was his car searched; however, officers did cite Defendant for unlawfully tinted windows.
The execution of the search warrant on February 14, 2012, confirmed the warehouse was the site of an illegal marijuana grow. Over 5,000 marijuana plants were found there. The next day, several law enforcement agents went to the Defendant's residence, to inform him about the search of the warehouse and ask him about any involvement he may have. Defendant agreed to discuss the warehouse with the agents, and their conversation occurred in Defendant's front yard.
Based on the above, on February 23, 2012, Defendant Conley and his co-Defendant, Ramon Gerardo Armenta, were indicted for violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1), the manufacture of marijuana and possession of a firearm in furtherance of drug trafficking crime, respectively. Doc. #5.
On May 22, 2012, Mr. Armenta entered a guilty plea to Count Two of the indictment, and judgment and sentence was accordingly entered on September 9, 2012. Doc. #32, 35, 54, 55.
On October 9, 2012, Defendant filed the pending Motions to Suppress, arguing that the search of the warehouse and his elicited statements were the result of unconstitutional measures used by the investigating officers. Doc. #56, 57. Defendant also requested an evidentiary hearing. Pursuant to a stipulation between the parties, the Court modified the briefing schedule on the motions and moved the hearing on the Motions to December 4, 2012. See Doc. #64.
On the same date, Defendant filed a Motion to Unseal the search warrant of the subject warehouse. At the December 4, 2012, hearing, this Motion was denied as moot, because the Government attached a copy of the search warrant to its Opposition (Doc. #67) to Defendant's Motion to Suppress property (Doc. #56).
Prior to the hearing, the Court asked counsel for the Defendant and the Government to be prepared to discuss the standing issue raised by the Government as to Defendant's ability to contest the warehouse search and a recent Ninth Circuit case, United States v. Silva, 247 F.3d 1051 (9th Cir. 2001). In response, Defendant submitted a supplemental brief, providing a more complete discussion of relevant case law. Doc. #73.
On December 4, 2012, after hearing from both parties, the Court found an evidentiary hearing was unnecessary in light of a stipulation between the parties. The Court apprised Defendant of its concern regarding Defendant's ability to meet his burden in demonstrating he had standing to contest the warehouse search, and authorized Defendant to file a supplemental declaration, to make a further attempt to establish standing, within ten days of the hearing. The Court then ordered the matter submitted on the briefs and the forthcoming declaration. On December 14, 2012, Defendant filed a supplemental declaration and exhibits. Doc. #76.
III. OPINION
A. Defendant's Motion to Suppress the Warehouse Search
Defendant argues the search of the warehouse must be suppressed on two grounds: 1) the executed search warrant was defective because it was not supported by probable cause; and 2) the traffic stop of Defendant was improper and the use of information obtained during the stop by officers in the search warrant renders the search warrant "fruit of the poisonous tree," and invalid. The Government responds by first arguing that Defendant lacks standing to challenge the warehouse search, then that the traffic stop was supported by reasonable suspicion. These arguments are discussed below in the order presented by the parties.
1. Standing to Contest Warehouse Search, Generally
In its Opposition, the Government argued that the Defendant does not have standing to contest the search of the warehouse because Defendant failed to present evidence establishing he had a reasonable expectation of privacy in the subject warehouse. Doc. #67. Defendant submitted a declaration with his Reply (Doc. #71), which merely stated that Defendant "maintained possession of a key to the [subject warehouse,] and was granted permission to enter the premises at-will . . . ." Doc. #71, Exhibit A. Defendant argued that these two facts, alone, established that he had standing to challenge the search. Doc. #71. Defendant's supplemental declaration, submitted on December 14, 2012, added the following facts: 1) Defendant was granted permission to access and enter the subject warehouse by Chris Rocha; 2) Chris Rocha provided Defendant with a key to the warehouse, and a copy of the lease for the warehouse; 3) Defendant granted co-Defendant Ramon Gerardo []Armenta "permission to stay overnight at the warehouse and provided him a spare key to the entrance door . . .;" 4) Defendant brought a refrigerator and microwave to the warehouse, and allowed co-Defendant Armenta to use them; 5) Defendant "also invited Richard Ramirez to enter the [subject warehouse];" and 6) a shotgun registered to the Defendant was found at the subject warehouse. Doc. #76. Defendant also submitted several documents with his declaration, which included a copy of the lease and several police reports, and filed a copy of Chris Rocha's grand jury testimony under seal. Id.; Doc. #77. The Court has considered all of these documents.
Defendant relies primarily on two cases from the Ninth Circuit, and one case from the Eleventh Circuit, to support his challenge to the warehouse search. However, as explained below, the cases cited by Defendant are readily distinguishable, and the Ninth Circuit case U.S. v. Silva, 247 F.3d 1051 (9th Cir. 2001), forecloses any argument by the Defendant that he had a reasonable expectation of privacy in the warehouse, sufficient to raise a Fourth Amendment challenge to its search.
The Supreme Court has made clear that in order to "claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable." Minnesota v. Carter, 525 U.S. 83, 88 (1998); see also United States v. Silva, 247 F.3d 1051 (9th Cir. 2001) ("Defendant[] ha[s] the burden of establishing that, under the totality of the circumstances, the search [] violated [his] legitimate expectation of privacy."). This "standing" inquiry is really subsumed within the substantive Fourth Amendment law, and the Court must look to the totality of the circumstances in evaluating a Fourth Amendment challenge. Id.
It is well-established "[p]roperty used for commercial purposes is treated differently for Fourth Amendment purposes from residential property." Carter, 525 U.S. at 90. "'An expectation of privacy in commercial premises [] is different from, and indeed less than, a similar expectation in an individual's home.'" Id. (quoting New York v. Burger, 482 U.S. 691, 700 (1987)).
The first case relied on by Defendant is United States v. Broadhurst, 805 F.2d 849 (9th Cir. 1986). Defendant argues Broadhurst establishes that when there is evidence of a formalized agreement between defendants, indicating control and supervision of the place searched, it is sufficient to invoke the protection of the Fourth Amendment. Doc. #73 at pg. 2-3 (citing Broadhurst, 805 F.2d 849 (9th Cir. 1986)). However, in that case, the greenhouse that was the subject of the search was located on a residential property owned by some of the defendants. 805 F.2d at 851. One of the defendants did not play a role in the purchase of the property, or have an ownership interest in the property, but she was tasked with cleaning and processing the marijuana. Id. at 852. She also "made notations in a diary regarding marijuana cultivation." Id. This operation had been ongoing for at least 8 months, as this was the time between the DEA's initial observation of the greenhouse in January 1982, and the execution of the search warrant in August. Id. at 850-852. These facts, coupled with the fact that several of the defendants share the same last names, indicated there was "a formalized arrangement among the defendants, indicating joint control and supervision of the place searched . . . ." Id. None of these facts are present in this case - Defendant has not proffered evidence to demonstrate there was a "formalized arrangement" to substantiate a claim of "joint control and supervision of the place search," and therefore, Broadhurst is distinguishable and does not help the Defendant. Cf. Doc. #71, 76. Indeed, a copy of a lease to the subject warehouse tells this Court nothing about Defendant's role in the marijuana grow or any joint control he may have of the premises. Cf. Broadhurst, 805 F.2d 849. Although Defendant maintained a key to the premises, other cases discussed below demonstrate that that fact alone is not enough. In Broadhurst, there were an identifiable number of individuals involved in the illegal marijuana operation, who were all involved for a finite period of time. Id. Again, there is no such evidence before this Court to demonstrate there was a formalized agreement and joint control over the subject warehouse that would give Defendant a reasonable expectation of privacy in the premises. Finally, Broadhurst is further distinguishable from the case at bar because the greenhouse was part of a residential property owned by some of the defendants, unlike the commercial warehouse here.
United States v. Davis, 932 F.2d 752 (9th Cir. 1991), is cited by the Defendant for the proposition that it establishes he had a reasonable expectation of privacy in the subject warehouse. However, Davis involved the search of a safe, located within a residence, and is immediately distinguishable on that ground. 932 F.2d at 755-57. Unlike this case, the defendant in Davis also claimed ownership of the safe, and the heroin that was found inside of it. Id. In light of the significant differences from the case at bar, the Davis case is not persuasive and has no bearing on Defendant's ability to establish standing.
The case relied on most heavily by Defendant is United States v. Chavez, 169 F.3d 687, 691 (11th Cir. 1999). In Chavez, the Court found the defendant had standing to contest the search of a warehouse based on two important reasons: 1) the defendant had the only key to the warehouse; and 2) defendant kept "personal and business papers at the warehouse." 169 F.3d at 691. While Defendant did have a key to the subject warehouse, there is no evidence that it was the only key, making this case distinguishable on that basis alone. Chavez is further distinguishable, however, because that defendant used the warehouse to keep personal effects that he seemingly meant to keep private. Id. While Defendant did bring a refrigerator and microwave to the subject warehouse, these are hardly akin to personal and business papers. The fact that Defendant had property at the warehouse does not bring this case within Chavez, because there is no evidence that Defendant had a subjective, or objective, expectation of privacy in the warehouse and the property he kept there. As discussed above, there is no evidence regarding the number of people with access to the warehouse, which appears to be the most important factor in Chavez. Accordingly, the Court finds that Chavez does not aid Defendant in establishing standing in this case.
Silva is the most analogous case, and it provides ample ground for denying Defendant's Motion to Suppress for lack of standing. In Silva, officers were attempting to execute a warrant in a rural area on a residence where the manufacture of methamphetamine was suspected, and were having difficulty locating the property that was the subject of the warrant. 247 F.3d 1051, 1053. As they were driving away, they noticed "a cloud of gas emanating from a shed 32 feet from the residence . . ." a few doors down from the residence that was the subject of the warrant. Id. Because the shed door was ajar, the officers observed what appeared to be the manufacture of methamphetamine. Id. They detained three individuals, the defendants, that were there, and obtained a warrant to search the shed. Id. Although the defendants argued the search of the shed violated the Fourth Amendment, the Ninth Circuit held that the defendants did not have standing to challenge the search. Id. at 1054, 1056.
The defendants "claimed they had a legitimate expectation of privacy in the shed as a 'commercial' area and that they expected to be left alone as they manufactured methamphetamine." Id. at 1054-1055. One of the defendants had a key to the shed's lock, and all the defendants submitted declarations saying they had stayed in the shed overnight, the night before the police arrived. Id. at 1055.
The Ninth Circuit discussed several cases that involved similar circumstances, before holding that the "[d]efendants had no legitimate expectation of privacy in the shed, either as overnight guests or as renters of commercial property." Id. at 1056. Importantly, the court emphasized: "The only hard evidence that [d]efendants cite is the key that was found on [one of the defendant's] person. But the presence of the key tends to show only that he was permitted to enter the shed; it proves nothing about the duration of that permission or his expectation of privacy therein." Id. The court went on to state that there was no evidence that the defendants paid rent on the shed, were there for a significant period of time, or were "there for any activity other than the purely commercial activity of manufacturing drugs." Id.
In cases where courts found there was a legitimate expectation of privacy in a commercial property, there was concrete evidence of control of the property in the form of having the only key, or paying rent, or claiming ownership in the seized property. See id. at 1055-56. None of these additional facts are present here. Indeed, there is no evidence before this Court regarding how many people had access to the warehouse, or any indication that the Defendant had control of, or an ownership interest in, the seized marijuana. Silva forecloses Defendant's claim that he had a legitimate expectation of privacy in the warehouse that would allow him to properly assert a Fourth Amendment challenge to the search.
Defendant's attempt to distinguish Silva is unpersuasive. Defendant argues that Silva is distinct from this case on two grounds. Doc. #73 at 3-4. First, Defendant avers that unlike the Silva defendants, he was "observed on numerous occasions" at the subject warehouse. Id. Next, Defendant argues the lack of an identifiable host was significant to the Silva court in finding those defendants lacked standing. Id. Defendant's arguments fail for several reasons. First, there was less than a week between the first time the officers observed Defendant, on February 7, and the time he was arrested, and Defendant has presented no argument or evidence relating to the amount of time he spent at the warehouse. In addition, Defendant's argument regarding the lack of an identifiable owner was only mentioned in passing by the Ninth Circuit, as it was part of the district court's factual findings, which are only disturbed if made in clear error. Indeed, the Silva court focused on the fact that the only evidence was the key that one of the defendants had. This is the exact argument Defendant made in this case, in an attempt to establish he had standing, and it too must fail.
For all of these reasons, the Court finds Defendant has failed to meet his burden in producing evidence to establish standing to contest the warehouse search. Accordingly, Defendant's Motion to Suppress evidence collected from the February 14, 2012, search of the subject warehouse is denied.
2. Validity of Warehouse Search Warrant
Both parties focus on the validity of the search warrant in their briefs. See Doc. #56, 67. Assuming, arguendo, that Defendant had standing to challenge the lawfulness of the search of the warehouse, see United States v. McPhearson, 977 F.2d 593 (9th Cir. 1992), the Court finds there was a substantial basis for concluding that the search warrant at issue in this case was supported by probable cause. Indeed, Magistrate Judge Newman's "finding of probable cause is entitled to great deference . . . ." United States v. Crews, 502 F.3d 1130, 1135 (9th Cir. 2007), As outlined in the Government's brief and described above, the information provided by the confidential informant, which was bolstered by further investigation, including the PG&E records check, provided a substantial basis for Magistrate Judge Newman's conclusion that probable cause existed. Cf., e.g., United States v. Rios, 434 Fed.Appx. 648 (9th Cir. 2011). Accordingly, the Court finds that even though the Defendant lacks standing to challenge the warehouse search, the search warrant at issue was otherwise valid. See McPhearson, 977 F.2d 593.
3. Traffic Stop
On February 8, 2012, Defendant was stopped by police around 6 p.m. and cited for having tinted windows in violation of California Vehicle Code § 26708. Narcotics officers had observed Defendant, and his vehicle, at the subject warehouse the day before and the day of the stop, and instructed other police officers to conduct the traffic stop of Defendant on February 8 as a part of their ongoing investigation of the marijuana grow at the warehouse.
In its Opposition brief, the Government presents two independent justifications for the traffic stop; first, that Defendant's windows were tinted in an unlawful manner, and second, under the "collective knowledge doctrine," the investigating officer's reasonable suspicion supported the stop. Doc. #67. At the December 4 hearing, Defendant argued that there was a disputed issue regarding the tinted windows that required an evidentiary hearing. Specifically, Defendant's attorney represented to the Court that the Defendant could present evidence, through his own testimony, that his car windows were rolled down at the time the traffic stop was conducted, and therefore, the officers could not have stopped him for one of the reasons presented by the Government. Though the Government disputed this assertion, it agreed to forego the tinted window justification for the traffic stop, and rely solely on the collective knowledge doctrine to justify the traffic stop, eliminating the need for an evidentiary hearing on this issue. In light of this stipulation by the Government, the Court agreed to evaluate the legitimacy of the traffic stop by looking only to the evidence regarding Defendant's alleged involvement in ongoing criminal activity through the collective knowledge doctrine. Accordingly, the Court will not discuss the tinted window issue presented in the parties' briefs.
"Under the Fourth Amendment, government officials may conduct an investigatory stop of a vehicle only if they possess 'reasonable suspicion: a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" United States v. Twilley, 222 F.3d 1092 (9th Cir. 2000). In the Ninth Circuit, the collective knowledge doctrine allows a court to determine whether an investigative stop "complie[s] with the Fourth Amendment by 'looking to the collective knowledge of all the officers involved in the criminal investigation although all of the information known to the law enforcement officers involved . . . is not communicated to the officer who actually . . ." affects the stop. United States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007) (quoting United States v. Sutton, 794 F.2d 1415, 1426 (9th Cir. 1986)).
Defendant argues that United States v. Thomas, 211 F.3d 1186 (9th Cir. 2000), provides a basis for granting Defendant's Motion regarding the traffic stop because in that case, the traffic stop was based on a "mere hunch," and not reasonable suspicion. In Thomas, the Government argued three factors created reasonable suspicion: 1) information that "narcotics might possibly be located" at a house under surveillance; 2) the stopping officer's observation of several people coming and going from said house; and 3) "three or four thumps from the interior of the garage, which [the officer] stated . . . were the sounds of packages of marijuana." 211 F.3d at 1189. In this case, the Government presents much more evidence of reasonable suspicion to justify the traffic stop. Cf. id. First, a confidential informant observed a marijuana grow in the subject warehouse, and he reported this to the investigating Narcotics officers. The officers confirmed the location of the warehouse, and found the vehicle of another suspect, involved in another recent marijuana grow that the officers had investigated, at the subject warehouse. This provided further support for the officer's suspicion that there was an illegal marijuana grow occurring in the warehouse. In addition, law enforcement officers observed Defendant coming and going from the warehouse for two days. These facts, taken together, provide much more support for the traffic stop than the officers in Thomas had. See Thomas, 211 F.3d at 1189-92. Finally, the officers that stopped Defendant were directed to do so by Narcotics detectives, and under the collective knowledge doctrine, all of the circumstances surrounding the warehouse are considered by the Court. In light of the above, the Court finds the traffic stop of Defendant was supported by reasonable, articulable suspicion that the Defendant was engaged in criminal activity, and therefore, Defendant's Motion to Suppress the warehouse search because of the traffic stop, or any evidence obtained during the traffic stop, is denied.
B. Defendant's Motion to Suppress Statements He Made to the Police
Defendant moves to suppress statements he made to law enforcement on February 15, 2012, outside of his residence in Stockton, California. Doc. #57. Defendant argues he was subject to custodial interrogation without first being given a Miranda warning and that law enforcement disregarded his invocation of his right to counsel. Id. For these reasons, he argues, his statements were obtained in violation of the Fifth Amendment, and therefore, must be deemed inadmissible. Id. The Government challenges Defendant's characterization of the February 15 encounter, arguing it is clear that at no point was the Defendant subject to a custodial interrogation. Doc. #69. In addition, even if Defendant unequivocally invoked his right to counsel, it is the Government's position that he waived it by subsequently reinitiating a conversation with law enforcement, and therefore, Defendant's Motion to Suppress must be denied. Id.
The day after the search warrant was executed on the subject warehouse, several law enforcement agents went to the Defendant's residence. Special Agent Caceres, United States Deputy Marshal Todd Guendert, and Metro agents Mike Corral and Jimmy Fritts found Defendant outside of his house, in the front yard, and Caceres informed Defendant about the search of the warehouse. The Defendant agreed to speak to the agents, and told them that he was aware of the marijuana grow at the warehouse but that he had been informed by an attorney that it was legal. Defendant then informed the agents that he had the attorney's business card in his truck and asked the agents if he could retrieve it to show it to them.
In the Motion to Suppress, Defendant argues this initial request to get his attorney's card was an invocation of his right to counsel, which should have caused the law enforcement agents to promptly stop the encounter. The Supreme Court has made clear that a right to counsel only attaches during a "custodial interrogation," as part of the prophylactic "procedural safeguards" which insure a defendant's Fifth Amendment rights are protected. See Davis v. U.S., 512 U.S. 452, 456-57 (1994) (citing Miranda v. Arizona, 384 U.S. 436, 469-473 (1966)). Since Defendant does not argue in his Motion to Suppress that he was "in custody" at this point, he apparently concedes that his right to counsel could not have been properly invoked. Even assuming, arguendo, that Defendant was in custody at this point, it is well-established that the invocation of one's right to counsel must be clear and unambiguous. See Davis, 512 U.S. at 459. As the Government correctly argues, Defendant's request to retrieve and present law enforcement with an attorney's card is far from a clear request to speak to an attorney. See id. (law enforcement are not required to stop questioning a suspect who "might want a lawyer"). Accordingly, the Court finds that Defendant's request to find his attorney's card was not an invocation of his right to counsel, and the law enforcement agents were under no obligation to terminate the conversation with Defendant at that time. See id. at 459-462.
Defendant then attempted to get the attorney's card from his truck, but the truck was locked. He informed the agents that he needed to get the keys from inside the house, which prompted Fritts to ask Defendant if he had any registered weapons inside the house. Defendant informed the agents that he had a pistol located near the front door, and he allowed agents to enter his house and empty the gun of ammunition. Guendert retained the ammunition and the magazine from Defendant's Glock, which Defendant argues constituted a de facto arrest. From this point forward, it is Defendant's position that he was in custody. See Doc. #57. Defendant and the agents then returned to the front yard, Guednert placed Defendant's gun in the bed of his truck, and they all continued to talk about Defendant's involvement with the marijuana grow at the subject warehouse. After Caceres asked Defendant if he knew anything about a marijuana grow on Vicki Lane, he stated that he "wanted to have a chance to speak with the attorney . . ." whose card he had been looking for. The agents stopped asking about Defendant's knowledge and involvement with the subject warehouse, and other marijuana grows, and Fritts asked Defendant if his roommate, Richard Ramirez, was home. Defendant denied Ramirez was home, and when asked for his phone number, Defendant provided agents with the wrong number. The agents asked Defendant to wait in the front yard, while they knocked on the door to Defendant's house. Ramirez was at home, and the agents proceeded to talk to him. After speaking with Ramirez, Caceres re-approached the Defendant to let him know they were done. Defendant then initiated a conversation with Caceres, stating that he had time to think about the Vickie Lane warehouse and continuing to discuss the subject warehouse.
Defendant first argues that the agents should have administered a Miranda warning when they retained the ammunition and magazine from Defendant's Glock, because this act constituted a de facto arrest triggering the Fifth Amendment protections. The Ninth Circuit aptly summarized the appropriate inquiry regarding whether a suspect is in custody, triggering the applicability of Miranda, in United States v. Kim:
An officer's obligation to give a suspect Miranda warnings [] extends only to those instances where the individual is in custody. To determine whether an individual is in custody, a court must, after examining all of the circumstances surrounding the interrogation, decide whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. The inquiry focuses on the objective circumstances of the interrogation . . . [, t]hat is, [a court] must determine whether the officers established a setting from which a reasonable person would believe he or she was not free to leave. [Relevant factors] to deciding292 F.3d 969, 973-74 (9th Cir. 2002) (internal quotations and citations omitted).
that question [include]: (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.
The circumstances surrounding the questioning of the Defendant in his front yard indicate that at no point was the Defendant in custody. The interaction between the agents and Defendant was causal - it was in the Defendant's front yard, the agents asked general questions about Defendant's knowledge of the subject warehouse, and when Defendant indicated he wanted to speak with an attorney, the officers immediately ended their questions related to Defendant's involvement. The fact that Guendert retained Defendant's ammunition and magazine does not transform the exchange into "a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." At no point did Defendant ask for the ammunition or magazine back. Defendant freely agreed to speak to the law enforcement agents, and the fact that he conversed with them before and after the retention of the contents of his Glock indicates that the Defendant did not believe he was not free to terminate the encounter. Under all of these circumstances, the Court finds that because "a reasonable person would [not] believe he or she was not free to leave," Defendant was not in custody and not entitled to a Miranda warning.
Moreover, an examination of each of the relevant factors further supports a finding that Defendant was not in custody. First, when the agents approached Defendant in his front yard, the Defendant was immediately informed he was not under arrest and the agents discussed the purpose of their visit. However, the agents did not accuse the Defendant of anything, nor did they "confront him with evidence of guilt." Since the interaction occurred in Defendant's front yard, out in the open, the physical surroundings indicate the setting was not coercive. Finally, the length of the interaction was short, and there was little, if any, pressure applied to Defendant to participate in the questioning. For these reasons, and the reasons discussed above, the Court finds that the Defendant was not in custody at any point during his interaction with the agents, and the agents had no obligation to mirandize the Defendant. Cf. United States v. Kim, 292 F.3d 969 (9th Cir. 2006).
Defendant also argues that the agent's continued questioning, after Defendant reinitiated the conversation with them, was improper and in violation of the Fifth Amendment. Even though the Court found that the Defendant was not in custody, and therefore, his right to counsel did not apply, the Court will address Defendant's arguments regarding the continued conversation. It is well-established that a suspect can waive his right to counsel by initiating further conversation with law enforcement. See Oregon v. Bradshaw, 462 U.S. 1039 (1983). Here, Defendant "unilaterally [reinitiated] the conversation . . ." with the agents in this case, and thus, it is clear that he waived any right to counsel he may have had, and the agents "were not prohibited from further questioning." Anderson v. Terhune, 467 F.3d 1208, 1213 (9th Cir. 2006) (citing Bradshaw, 462 U.S. at 1045-46)). It is clear that there was no Fifth Amendment violation when the agents continued to speak to Defendant after Defendant reinitiated their conversation outside the Defendant's home, and therefore, Defendant's Motion to Suppress on this ground must be denied. See Bradshaw, 462 U.S. 1039.
IV. ORDER
After carefully considering the papers submitted in this matter, and the oral arguments of counsel for both parties on the issues raised in those briefs, it is hereby ordered that Defendant's Motions to Suppress (Doc. #56, 57) are DENIED.
IT IS SO ORDERED.
______________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JODGE