United States District Court, D. Arizona
JENNIFER G. ZIPPS, District Judge.
On March 26, 2014, Magistrate Judge Leslie Bowman issued a Report and Recommendation (R&R) (Doc. 68) recommending that Defendants' joint Motion to Suppress Statements and Evidence for Miranda Violation and Involuntariness (docs. 22, 43, 53, and 55) and joint Motion to Suppress Statements and Evidence for Fourth Amendment Violations (docs. 23 and 43) be denied. In a July 10, 2014, Supplemental R&R, the magistrate made additional credibility determinations regarding conflicting witness testimony. (Doc. 119.) Defendants Sanchez-Avitia and Tapia-Moreno filed objections to the March 26, 2014 R&R (docs. 86 and 87), and Sanchez-Avitia objected to the Supplemental R&R. (Doc. 121.) Having found a conflict existed between the R&R and the Supplemental R&R, this Court held an evidentiary hearing on July 18, 2014 to resolve whether Sanchez-Avitia invoked her right to remain silent. (Doc. 123.) After considering the evidence presented at that hearing, as well as the entire record in this matter, including the objections raised by the Parties, the Court will adopt the R&R and will adopt the Supplemental R&R in part and deny it in part.
STANDARD OF REVIEW
The standard of review applied to a magistrate judge's R&R is dependent upon whether a party files objections, and the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instruction." Fed.R.Civ.P. 72(b)(3); see also 288 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.").
Defendants have not objected to the Magistrate Judge's summation of the evidence. Accordingly, the Court presumes any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979).
A. Defendants were detained for Miranda purposes upon being handcuffed and formally arrested.
Defendants object to the R&R's finding that they "were not in custody for Miranda purposes until they were handcuffed and formally arrested." (Doc. 68 at 10, lns. 20-21; Doc. 86 at 2-5; Doc. 87 at 5-12.) Defendants contend they were in custody for Miranda purposes when they were referred to the checkpoint's secondary inspection. (Doc. 86 at 2; Doc. 87 at 1.) Tapia-Moreno further argues that the magistrate judge failed to consider all the factors triggering his detention for Miranda purposes, such as the fact that he was (1) ordered to secondary inspection, (2) separated from his children and immigration documents, (3) interviewed multiple times, (4) not free to leave, (5) confronted with evidence of guilt, (6) surrounded by law enforcement at a heavily manned checkpoint, and (7) exposed to a "degree of pressure" consistent with detention. Finally, both Defendants maintain that federal agents employed an unlawful "two-step interrogation" tactic by deliberately delaying their formal arrest until incriminating statements were made. See Missouri v. Seibert, 542 U.S. 600 (2004); see also United States v. Barnes, 713 F.3d 1200 (9th Cir. 2013).
Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny govern the admissibility of statements made during custodial interrogation in both state and federal proceedings. Statements made while a defendant is in "custody or otherwise deprived of [his] freedom of action in any significant way" which are not preceded by Miranda warnings are inadmissible in evidence. Id. at 444. Of course, not all questioning by law enforcement officers triggers the warning requirement. "The sine qua non of Miranda is custody." Id. A defendant is considered to be "in custody" for purposes of Miranda if a reasonable person would believe that he or she was not free to leave. See United States v. Kim, 292 F.3d 969, 973-74 (9th Cir. 2002) (citing United States v. Beraun-Panez, 812 F.2d 578, 580 (9th Cir.1987)).
Generally, a brief detention at the border by immigration and customs officials of persons presenting themselves for admission to the United States is not custody, even though such persons are not free to leave or to refuse to be searched. United States v. Butler, 249 F.3d 1094 (9th Cir. 2001). In determining whether detention at a border patrol checkpoint rises to the level of "custody" within the meaning of Miranda, courts must examine the "objective circumstances of the interrogation." Id. (citing Stansbury v. California, 511 U.S. 318, 323 (1994)). Those circumstances include the language used by the officers, the physical characteristics of the place where the question occurs, the degree of pressure applied to detain the individual, the duration of the detention, and the extent to which the person was confronted with evidence of guilt. Id. (citing United States v. Hudgens, 798 F.2d 1234, 1236 (9th Cir. 1986)). "Although the existence or non-existence of probable cause might be one factor to consider in determining someone's custodial status in the twilight zone between detention and custody, what ultimately matters to the determination of whether Miranda is triggered is custody." Id.
Examining the "objective circumstances" of the interrogation, the Court finds that Tapia-Moreno and Sanchez-Avitia were not in custody for Miranda purposes until they were handcuffed and formally arrested. The Court concurs with the Magistrate Judge's factual analysis and finds Tapia-Moreno's additional objections unpersuasive. Tapia-Moreno's referral to secondary inspection and the fact that he was not free to leave do not trigger Miranda: "The case books are full of scenarios in which a person is detained by law enforcement officers, is not free to go, but is not in custody' for Miranda purposes." Butler, 249 F.3d at 1098 (referred to secondary at port of entry); see also United States v. RRA-A, 229 F.3d 737, 743 (9th Cir. 2000) (juvenile referred to secondary and then detained in inspector's office was not detained for Miranda purposes until handcuffed); United States v. Doe, 219 F.3d 1009, 1014 (9th Cir. 2000) (border crossing case in which detention for Miranda triggered only when defendant placed in a locked cell). The checkpoint's physical surroundings, such as its canopy, generator, law enforcement vehicles, or the fact that it was allegedly "heavily manned, " do not trigger "custody" as these facts do not distinguish this case from other factually similar cases in which Miranda was not triggered until a showing of restraint on a defendant's freedom of movement occurred. See Butler, 249 F.3d at 1097 (port of entry facility with multiple agents and drug dog); United States v. RRA-A, 229 F.3d at 741 (port of entry); United States v. Doe, 219 F.3d at 1012 (port of entry). Moreover, Agents Seed and Merriman's questioning of Tapia-Moreno on "multiple occasions" does not sway the Court's analysis as this questioning was very short, lasting approximately two-to-five minutes each time. (Doc. 68 at 2-4; RT 2/20/14 at 19-20.) The extent to which Tapia-Moreno was "confronted with evidence of guilt" was minimal as he "immediately" began to confess once Agent Merriman told him that his son stated that the three other children were not part of the family. (RT 2/20/14 at 73.) Similarly, Tapia-Moreno's separation from his children did not constitute an undue "degree of pressure." Tapia-Moreno was taken only 15-20 feet away from the vehicle containing his children, and Sanchez-Avitia was either in the vehicle or sitting on a bench next to the vehicle throughout the pre- Miranda questioning. (RT 2/20/14 at 68: 17-19; 102: 15-19.) Finally, the agents' possession of Tapia-Moreno and the children's immigration documents did not "deprive [him] of [his] freedom of action in any significant way." Miranda, 384 U.S. at 444. Accordingly, the Court concludes that Defendants were not placed in "custody" for purposes of Miranda until they were arrested and handcuffed, and their objections are overruled.
The Court rejects Defendants' unlawful "two-step interrogation" argument as misplaced. See Seibert, 542 U.S. at 600. An unlawful "two-step interrogation" occurs "when a law enforcement officer interrogates a suspect in custody but does not warn the suspect of his Miranda rights until after he has made an inculpatory statement...." United States v. Barnes, 713 F.3d 1200, 1205 (9th Cir. 2013); see also United States v. Williams, 435 F.3d 1148, 1159-60 (9th Cir. 2006) (a two-step interrogation refers to a situation where an officer deliberately questions a suspect without Miranda warnings, obtains a confession or inculpatory admission, offers Miranda warnings mid-stream - after the suspect has admitted involvement or guilt, and then has the suspect repeat his confession or elaborate on his earlier statements). In the present case, the Court has concluded that Defendants were not in custody until the time of their arrest. Therefore, the Court also concludes that an impermissible "two-step interrogation" did not occur. See Seibert, 542 U.S. at 600 (finding "two-step interrogation" where defendant was arrested and interrogated at police station for 30-40 minutes, given a break, and then advised of her Miranda ...