United States District Court, D. Arizona
JENNIFER G. ZIPPS, UNITED STATES DISTRICT JUDGE
before the Court is Magistrate Judge Eric J. Markovich's
Report (Doc. 80) recommending that the Court deny Defendant
Huynh's Motion to Suppress Statements. (Doc. 50.)
Magistrate Judge Markovich's recommendation is based on
his conclusion that ATF agents' interview with Defendant
Huynh was non-custodial. Defendant has filed an objection to
the Report and Recommendation (R&R), arguing: (1) the
magistrate judge erred in his factual finding that the agents
had not entered his enclosed yard; and (2) the magistrate
judge erred in his legal conclusion that the agents'
interview was non-custodial. (Doc. 84.). The Government has
filed a response to the Defendant's objection. (Doc. 87.)
Upon independent consideration of the record, the Court will
overrule the Objection, adopt the Report and Recommendation,
and deny the Motion to Suppress.
Court “may accept, reject, or modify, in whole or in
part, the findings of recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). “[T]he
district judge must review the magistrate judge's finding
and recommendations de novo if objection is
made, but not otherwise.” United States v.
Reyna-Tapia, 328 F.3d 1114, 11121 (9th Cir.
2003) (en banc) (emphasis in original). District courts are
not required to conduct “any review at all . . . of any
issue that is not the subject of an objection.”
Thomas v. Arn, 474 U.S. 140, 149 (1985). See
also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72;
Reyna-Tapia, 328 F.3d at 1121; Schmidt v.
Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003).
Credibility findings of a magistrate judge may be adopted
without conducting further evidentiary review. 28 U.S.C.
§ 636(b)(1). However, if a district 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).
Fifth Amendment bars the use of statements stemming from
custodial interrogation of the defendant unless the
government demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.
Miranda v. Arizona, 384 U.S. 436, 444 (1966). These
safeguards have come to be known as Miranda rights,
and require a suspect to be advised that (1) he has the right
to remain silent; (2) anything he says can be used against
him in a court of law; (3) he has the right to the presence
of an attorney before he is questioned; and (4) if he cannot
afford an attorney, one will be provided prior to questioning
if he so desires. Id. at 479. A defendant is
“in custody” for Miranda purposes if
“in light of ‘the objective circumstances of the
interrogation,' a ‘reasonable person [would] have
felt he or she was not at liberty to terminate the
interrogation and leave.'” Howes v.
Fields, 565 U.S. 499, 509 (2012) (citations omitted)
(alteration in original). Where the suspect has not formally
been taken into police custody, a suspect is nevertheless
considered “in custody” for purposes of
Miranda if the suspect has been “deprived of
his freedom of action in any significant way.”
United States v. Craighead, 539 F.3d 1073, 1082
(9th Cir. 2008).
must determine whether a reasonable person under the totality
of the circumstances surrounding the interrogation would have
felt he or she was not at liberty to terminate the
interrogation and leave. Howes, 565 U.S. at 509. In
making this determination, the court examine certain factors,
including: (1) the location of the questioning; (2) its
duration; (3) statements made during the interview; (4) the
presence or absence of physical restraints during the
questioning; and (5) the release of the interviewee at the
end of the questioning. Id. The court must focus on
the objective circumstances of the questioning rather than
the subjective views of the suspect or the officers.
Stansbury v. California, 511 U.S. 318, 323 (1994).
The Magistrate Judge did not clearly err in crediting the
objects to the Magistrate Judge's factual finding that
the ATF agents were outside Huynh's enclosed yard during
the questioning. He argues that evidence before the
Magistrate Judge demonstrates that the agents opened the gate
to his side yard, entered the yard, and began questioning him
as he stood in his doorway. (Doc. 84.)
Magistrate Judge found that the agents credibly testified
that the questioning occurred while they were outside of
Huynh's fence in a public area. Judge Markovich
thoroughly supported his credibility determination with
detailed evidentiary findings regarding the physical evidence
(photographs and the recording), the substance of the
participants' statements, and the motivations of the
parties, including Huynh's admitted untruthful statements
to the agents during the interview. (Doc. 16, pp. 15-18.)
Having reviewed the record of the evidentiary hearing, the
Court agrees with the Magistrate Judge's well-supported
conclusion that the agents credibly testified that the
questioning did not occur in Huynh's yard, and that
Huynh's testimony to the contrary was not credible.
The Magistrate Judge did not err in concluding the
interview was not custodial
argues that the interview was custodial because it occurred
at Huynh's house; the agents' questioning was
“fast-paced and aggressive”; and their dogged
questioning demonstrated that they would not go away without
him exiting the house and speaking to him. Huynh argues that
he had no reasonable option but to respond to the agents'
questioning and hope that they would eventually leave him
alone, which he asked them to do multiple times to no avail.
Court agrees with the Magistrate Judge that under the
objective circumstances, Huynh was not subjected to custodial
interrogation. As noted by the Magistrate Judge, there was no
actual arrest, the defendant was never physically restrained,
and was never physically prevented from entering his home and
ending the interview. (Doc. 80, p. 14.) The interview
occurred outside of the defendant's house and a fence
separated the defendant and the agents. Moreover, the
circumstances do not support a conclusion that psychological
restraints were employed. The entire interview lasted a
little over a minute, and the statement the defense seeks to
suppress was made at the outset of the interview, before the
defendant asked the agents to leave. The defendant refused to
answer subsequent questions posed by the agents, and most of
the “interview” consisted of the defendant asking
the agents to leave his property and get a warrant. As the
Magistrate Judge concluded, the interview would not have even
lasted a minute if the defendant had simply entered his house
after asking the agents to leave the first time, as he
eventually did. Furthermore, the defendant's claim that
he felt pressure not to retreat into his home sooner because
the agents continued to question him is belied by his refusal
to answer questions, as well as his repeated requests for
agents to leave or get a warrant. The Report and
. . . the defendant was not in custody for purposes of
Miranda during the interview at his home on January 31, 2018.
Again, the defendant was not arrested; he was not physically
restrained during the interview; the duration of the
interview was brief; the interview occurred while the agents
were in a public area; the statements made both by the agents
and the defendant during the interview are not indicative of
a custodial ...