United States District Court, D. Arizona
ORDER RE MOTION TO SUPPRESS
JENNIFER G. ZIPPS, UNITED STATES DISTRICT JUDGE
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
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 contained in Magistrate Macdonald's
R&R (Doc. 71) is adopted as supplemented by the
additional facts in this Order.
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.
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).
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).
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)).
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.
Agent Reynaga's references to Defendant's religion
were not coercive
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