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United States v. Hernandez-Florez

United States District Court, D. Arizona

January 17, 2017

United States of America, Plaintiff,
v.
Bertin Hernandez-Florez, Defendant.

          ORDER RE MOTION TO SUPPRESS

          JENNIFER G. ZIPPS, UNITED STATES DISTRICT JUDGE

         On January 5, 2017, Magistrate Judge Bruce G. Macdonald issued a Report and Recommendation (“R&R”) in which he recommended that Defendant Bertin Hernandez-Florez' Motion to Suppress Statements as Involuntary (Doc. 39) be denied. (Doc. 41.) Defendant filed an Objection to the R&R. (Doc. 74.) For the reasons stated herein, the Court will adopt the R&R and deny Defendant's Motion to Suppress.

         STANDARD OF REVIEW

         The Court reviews de novo the objected-to portions of the R&R. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the unobjected-to portions of the R&R. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998). If the Court rejects the credibility findings of the magistrate judge, a de novo hearing is required. United States v. Ridgway, 300 F.3d 1153, 1157 (9th Cir. 2002).

         FACTUAL BACKGROUND

         The factual background contained in Magistrate Macdonald's R&R (Doc. 71) is adopted as supplemented by the additional facts in this Order.

         DISCUSSION

         The Defendant objects to the Magistrate Judge's finding that Defendant's statements to United States Border Patrol Agent Robert Reynaga were voluntary and not the result of coercion by agents. The Court concludes that Defendant voluntarily waived his Miranda rights and that his statements were not coerced. Accordingly, the Court will deny Defendant's Motion to Suppress.

         A defendant's constitutional rights are violated if his confession is obtained in violation of his Miranda rights or if interrogation tactics render the confession involuntary. See Dickerson v. United States, 530 U.S. 428, 432 (2000). 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. For incriminating statements obtained during a custodial interrogation to be admissible, any waiver of Miranda rights must be voluntary, knowing, and intelligent. See Id. at 479. A waiver of Miranda rights “is knowing and intelligent if, under the totality of the circumstances, it is made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir. 2005) (citations and quotations omitted). There is a presumption against waiver, and the Government bears the burden of proving a valid waiver by a preponderance of the evidence. See Colorado v. Connelly, 479 U.S. 157, 168 (1986); United States v. Bernard S., 795 F.2d 749, 751 (9th Cir. 1986).

         In considering the totality of the circumstances, factors to consider include the presence of any police coercion, the length of the interrogation, its location and its continuity, whether the police advised the suspect of his rights, and whether there were any direct or implied promises of a benefit. Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003). To be knowing and intelligent, “the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986). “In short the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort.” Haynes v. State of Washington, 373 U.S. 503, 513-14 (1963). An officer who attempts to pressure a defendant into changing his mind about remaining silent, and into talking without counsel to his interrogators, violates that defendant's Fifth Amendment rights. See Collazo v. Estelle, 940 F.2d 411, 419-20 (9th Cir. 1991).

         Even when the procedural safeguards of Miranda have been satisfied, a defendant is deprived of due process if his conviction is founded upon an involuntary confession. See Dickerson, 530 U.S. at 432. To ensure due process, the test for determining the voluntariness of a suspect's confession is whether, considering all the circumstances, the government obtained the statement by physical or psychological coercion or by inducement so that the suspect's will was overcome. See United States v. Coutchavlis, 260 F.3d 1149, 1158 (9th Cir. 2001) (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)).

         Here, Defendant acknowledges that he was twice given his Miranda rights and signed a waiver form waiving his Miranda rights, but Defendant claims that the inculpatory statements made during his interview were the product of coercive interrogation. Specifically, Defendant alleges that his confession was not voluntary because in order to coerce Defendant into making inculpatory statements, Agent Reynaga: (1) manipulated Defendant's religious beliefs; (2) promised Defendant leniency; (3) referred to Defendant as a victim; and (4) suggested that Defendant could lose his immigration status if he did not cooperate. After review of the record, including the transcript of the interview, and considering the totality of the circumstances, the Court rejects Defendant's claim that his statement was the product of coercion.[1]

         1. Agent Reynaga's references to Defendant's religion were not coercive

         Defendant argues that Agent Reynaga coerced Defendant into making a statement by repeatedly referring to God and the Virgin Mary during the interview. Having reviewed the transcript of Agent Reynaga's interview of Defendant, the Court concludes that Defendant's will was not “overcome” by Agent Reynaga's references to Defendant's religion. Agent Reynaga testified that Defendant referred to God at the beginning of the interview, and therefore Agent Reynaga referred to God and the Virgin Mary during questioning in order to build rapport with Defendant. (TR 12/7/16, pg. 12, line 10 - pg. 13, line 10.) Agent Reynaga's references to Defendant's religion were not extensive, nor were they coercive. See Berghuis v. Thompkins, 560 U.S. 370, 387 (2010) (agent who questioned defendant's religious beliefs ...


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