Opinion
No. CR 10-1592-TUC-CKJ.
August 8, 2011
ORDER
Magistrate Judge Glenda E. Edmonds issued a Report and Recommendation (Doc. 40) on June 10, 2011, in which she recommends that the Court deny the Defendant's Motion to Suppress Evidence Obtained Following an Illegal Search (Doc. 26). The magistrate judge also recommends that the Defendant's Motion to Suppress Statements in Violation of Miranda and Involuntary Statements (Doc. 27) be denied. Defendant has filed an Appeal from Magistrate's Report and Recommendation Denying Defendant's Motion to Suppress (Doc. 41) and the government has filed a response (Doc. 43). After review of the evidentiary and procedural record, this Court adopts the recommendation of the magistrate judge, and DENIES the Defendant's motions to suppress evidence and statements.
See Miranda v. Arizona, 384 U.S. 436, 436, 86 S.Ct. 1602, 1602, 16 L.Ed.2d 694 (1966).
I. Procedural History
On July 7, 2010, Victoriano Crisosto-Vera ("Crisosto-Vera") was indicted for possession of a firearm by an illegal alien; possession of a firearm by a convicted felon; and illegal re-entry after deportation.
On February 25, 2011, Mr. Crisosto-Vera filed the Motion to Suppress Evidence Obtained Following an Illegal Search (Doc. 26), and the Motion to Suppress Statement in Violation of Miranda and Involuntary Statements (Doc. 27). On March 4, 2011, the Government filed a Response to the Motion to Suppress Evidence (Doc. 28) and, on March 9, 2011, the Government filed a Response to the Motion to Suppress Statement in Violation of Miranda (Doc. 29). On March 22, 2011, there was a hearing on the pending motions before Magistrate Judge Edmonds.
The magistrate judge issued her Report and Recommendation (Doc. 40) on June 10, 2011.
On June 22, 2011, Crisosto-Vera filed the Appeal from the Magistrate's Report and Recommendation. The Government has filed a Response.
II. Standard of Review
III. Defense Objections
Thomas v. Arn,474 U.S. 140150 106 S. Ct. 466472-7388 L.Ed.2d 43572see also Miranda
A. Entry Into the Home
B. Statements Made Before Miranda Rights Were Given
Washington v. Chrisman,455 U.S. 17102 S.Ct. 812 70 L.Ed.2d 778see also United States v. Rosi, 27 F.3d 409 footnote omitted. Miranda New York v. Quarles,467 U.S. 649104 S.Ct. 2626 81 L.Ed.2d 550Miranda Quarles,467 U.S. at 659104 S.Ct. 2626Allen v Roe, 305 F. 3d 10461050Miranda See United States v. Brady, 819 F.2d 884888See Id. Miranda
Moreover, the Court finds, considering the totality of the circumstances, Crisosto-Vera voluntarily consented to the agents entering the residence with him. United States v. Reid, 226 F.3d 1020, 1026 (9th Cir. 2000) (the totality of the circumstances should be reviewed to determine whether consent to search was "freely and intelligently given"); United States v. Basher, 629 F.3d 1161 (9th Cir. 2011) (citing United States v. Patayan-Soriano, 361 F.3d 494, 502 (9th Cir. 2004)). In this case, although Crisosto-Vera was under arrest and had not been read his Miranda rights, the agents did not have their guns drawn and Crisosto-Vera was not handcuffed at the time. Moreover, the request to enter the home was only in response to Crisosto-Vera's request to obtain clothing — in other words, although Crisosto-Vera was not advised that he had a right not to consent, it was clear the request to enter was in response to Crisosto-Vera's request. Further, in this instance, the Court does not find that whether Crisosto-Vera was told a search warrant could be obtained is a relevant factor — the agents were not seeking to search the residence, only accompany Crisosto-Vera.
C. Voluntariness of Crisosto-Vera's Statements
"In Quarles, the Supreme Court held that if considerations of public safety override the failure of the police to comply with Miranda, otherwise voluntary statements of a defendant are admissible." United States v. Miller, 382 F.Supp.2d 350 (N.D.N.Y. 2005) (citing Quarles, 467 U.S. at 654-55 n. 5. An involuntary confession is never admissible. Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Pollared v. Galaza, 290 F.3d 1030, 1033 (9th Cir. 2002). "A confession is involuntary if coerced either by physical intimidation or psychological pressure." United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003) (citation omitted). "In determining whether a defendant's confession was voluntary, 'the question is "whether the defendant's will was overborne at the time he confessed."'" United States v. Crawford, 372 F.3d 1048, 1060 (9th Cir. 2004) (en banc) (citations omitted); United States v. Harrison, 34 F.3d 886, 890 (9th Cir. 1994) (quoting United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (The test for voluntariness is whether, viewing the totality of circumstances, "'the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne.'"). "Whether a confession is voluntary is determined under the totality of the circumstances, which include 'the crucial element of police coercion; the length of the interrogation; its location; its continuity; the defendant's maturity; education; physical condition; and mental health.'" Taylor v. Maddox, 366 F.3d 992, 1015-16 (9th Cir. 2004), quoting Withrow v. Williams, 507 U.S. 680, 693, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993); see also Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (coercive police conduct is a "necessary predicate" for a finding of involuntariness).
In this case, there was no police coercion. Rather, an inquiry occurred because the agents agreed to Crisosto-Vera's request to obtain clothing. The length of the inquiry was short and was within the residence (i.e., this was not a lengthy interrogation in a room at a police station). Further, there is no evidence before the Court that Crisosto-Vera's maturity, education, physical condition, or mental health limited his ability to voluntarily speak to the agents. Moreover, the Court considers that, while the testimony was convoluted, Agent Saul Pumarejo was clear that Crisosto-Vera was not handcuffed until he had admitted to having the gun. R.T., p. 40. The Court finds Crisosto-Vera's will was not overborne and that his statement was voluntarily given.
D. Search for/Retrieval of the Gun
Although warrantless searches are per se unreasonable, "(a) search conducted pursuant to a valid consent is constitutionally permissible." Schneckloth v. Bustamonte, 412 U.S. 218, 22 (1973). Consent to a search may be express or implied. Morgan v. United States, 323 F.3d 776, 781 (9th Cir. 2003).
A court may infer consent "from the cooperative attitude of a defendant." Rosi, 27 F.3d at 412. The totality of the circumstances should be reviewed to determine whether consent to search was "freely and intelligently given." United States v. Reid, 226 F.3d 1020, 1026 (9th Cir. 2000). The Ninth Circuit has cited five factors that are considered in determining the voluntariness of a consent to a search: (1) whether the defendant was in custody; (2) whether police had weapons drawn; (3) whether Miranda warnings were given; (4) whether the defendant was notified that he had a right not to consent; and (5) whether the defendant was told a search warrant could be obtained. United States v. Basher, 629 F.3d 1161 (9th Cir. 2011) (citing United States v. Patayan-Soriano, 361 F.3d 494, 502 (9th Cir. 2004)). However, the Ninth Circuit has stated that "[i]t is not necessary to check off all five factors, but many of this court's decisions upholding consent as voluntary are supported by at least several factors." Patayan Soriano, 361 F.3d at 502, internal quotation marks and citation omitted.
While most of the delineated factors do not weigh in favor of finding a voluntary consent to search, the Court must consider the totality of the circumstances. Indeed, although Crisosto-Vera originally did not respond to the agents' questions regarding the gun, when confronted with the agents' knowledge that the gun had been seen within the past two weeks, Crisosto-Vera showed the agents where the gun was. In other words, Crisosto-Vera was cooperative with the agents. Moreover, the officers were not making demands for compliance with guns drawn or by using threats against Crisosto-Vera, and it is has already been determined that Crisosto-Vera's statements were voluntarily made for purposes of evaluating his Fifth Amendment rights (as distinct from but related to the question of voluntariness of Crisosto-Vera's consent to search, which involved his statements and the action of showing the officers the area where the gun was located). The Court also considers that no evidence was presented that any person affirmatively declined to consent to a search. Additionally, the "search" was limited in that it was specifically designed to retrieve the gun for officer safety. The Court finds Crisosto-Vera voluntarily consented to the search.
IV. Conclusion
Crisosto-Vera makes numerous assertions put forward under a theory that his Fourth, Fifth, and Sixth Amendment Rights, and his rights pursuant to Miranda, have been violated. However, the Court finds that the ICE agents who initially took Mr. Crisosto-Vera into custody and questioned him about a firearm did have an objective officer and public safety concern. Further, the Court finds that Crisosto-Vera's statements were given voluntarily and Cristoso-Vera's consent to the search was voluntary.
Accordingly, IT IS ORDERED:
1. The Report and Recommendation (Doc. 40) is ADOPTED.
2. Defendant's Motion to Suppress Evidence Obtained Following an Illegal Search (Doc. 26) is DENIED.
3. Defendant's Motion to Suppress Statements in Violation of Miranda and Involuntary Statements (Doc. 27) is DENIED.
DATED this 5th day of August, 2011.