DALE A. DROZD, District Judge.
Defendants Luis Flores, Armando Martinez-Tinoco, Juan Martinez-Tinoco, and Ivan Jimenez are each charged in the indictment returned in this case with: (1) conspiracy to manufacture, to distribute and/or to possess with the intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846; (2) manufacture of marijuana and aiding and abetting the same in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2; (3) possession with the intent to distribute marijuana and aiding and abetting the same in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2; and (4) depredation of public lands and resources and aiding and abetting the same in violation of 18 U.S.C §§ 1361 and 2. (Doc. No. 23.)
On February 1, 2016, counsel on behalf of defendant Flores filed a motion to suppress the alleged unlawful detention and arrest of his client on October 16, 2015 as well as the fruits thereof. (Doc. No. 35.)
On April 8, 2016, the court held a hearing on the motions and to determine whether an evidentiary hearing was necessary to their resolution. (Doc. No. 50.) Assistant U.S. Attorney Karen Escobar appeared at the hearing on behalf of the government. Attorney Gary Huss appeared on behalf of defendant Flores, attorney Peter Jones appeared on behalf of defendant Armando Martinez-Tinoco, attorney Daniel Harralson appeared on behalf of defendant Juan Martinez-Tinoco and Assistant Federal Defender Janet Bateman appeared on behalf of defendant Jimenez. (Id.) At the hearing, counsel for each of the parties agreed that no evidentiary hearing was necessary in order to resolve the pending motions.
Counsel for defendant Flores filed a declaration signed under penalty of perjury in support of the motion to suppress the fruits of the alleged unlawful detention and arrest of Flores and his two co-defendants. (Doc. No. 36.) That declaration included as exhibits the sworn affidavit of U.S. Forest Service Agent Brian Adams in support of the criminal complaint and arrest warrants for defendants Flores, Armando Martinez-Tinoco and Juan Martinez-Tinoco dated October 16, 2015 as well as reports prepared by the investigating officers. (Id.) Defendant Jimenez filed his own declaration. (Doc. No. 39-1.) In support of their opposition to the pending motions the government filed two declarations by Agent Adams. (Doc. Nos. 41-1 and 42-2.) In reply, defendants filed supplemental declarations by counsel for defendant Juan Martinez-Tinoco as well as his defense investigator. (Doc. Nos. 54 and 55.) Collectively, these declarations and the documents attached thereto as exhibits reflect the following.
On October 15, 2015, United States Forest Service ("USFS") Special Agents Brian Adams and B. Smith along with K. Shaw, a warden with the California Department of Fish and Wildlife, discovered a marijuana grow site in the Sequoia National Forest in Tulare County. (Doc. No. 36, at 6 and 17.) As the three walked through the grow site, Warden Smith yelled "Runners!" and Agent Adams saw subjects running up a steep hillside in the opposite direction. (Id.) Agent Adams ran after the suspects but stopped after seeing a large campsite with numerous tents and tarped areas in order to ensure there were no armed suspects in the camp. (Id.) After doing so, Agent Adams then continued after the nearest subject. (Id.) Warden Shaw was closer to that subject than Agent Adams and Adams could see Shaw running through the trees. (Id.) The three officers soon lost sight of the fleeing subjects and were also becoming separated from one another. (Id.) Accordingly, Agent Adams called off the search for the subjects. (Id.) The three officers returned to the campsite and collected evidence and destroyed the excess marijuana and camping equipment. (Id. at 7-8 and 17-18.) Neither Agent Adam's later affidavit in support of the complaint and arrest warrants nor the officers' investigative reports contained a description of the subjects who had fled the grow site.
On October 16, 2015, USFS Officer J. Norris reported that a citizen had contacted him to report suspicious activity. (Id. at 8 and 18.) Specifically, the citizen reported that:
(Id. at 8.)
Agent Adams responded to the Sierra Gateway Market and "was advised by the clerk that three subjects matching the citizen's description were dropped off at the store by a man who said he found them in the mountains. The store clerk said the subjects walked south from the store after purchasing the items and he lost sight of them. The clerk said they bought tourist-type clothing that said `Kern River' on the shirts." (Id. at 8 and 18.) Agent Adams began checking roads, restaurants, and motels in the area looking for the three subjects. (Id.) The desk clerk of the Pine Cone Inn advised him that three subjects matching the description set forth above had just checked into room two. (Id.) After calling for assistance, Agent Adams did not wait for that assistance but instead proceeded to knocked on the door of room two. (Id.)
Agent Adams reported that when he did so:
(Id. at 8-9.)
Agent Adams then separately read Flores, Juan Martinez-Tinoco, and Armando Martinez-Tinoco their Miranda rights. (Id. at 10-11 and 19.) Each of the three stated that they understood their rights, agreed to waive their rights, and individually made statements confirming their connection to the grow site. (Id.)
On October 17, 2015, Officer Norris received a call at approximately 1:00 p.m. from Tulare County Sherriff's Deputy B. Minor regarding a Hispanic male subject in his twenties or early thirties who had been given a ride from the Lower Durwood Lodge in Tulare County to the McNally Ranch in Lake Isabella. (Id. at 20.) Deputy Minor had received a call from the owner of the lodge reporting that a subject had been dropped off at the R Ranch in Johnsondale and then taken to the Lower Durwood Lodge. (Id.) The subject had reportedly been separated from his friends and lost in the woods with no water or food after raccoons had eaten his food. (Id.) The subject was also reportedly carrying a blue bag and what appeared to be a bedroll. (Id.) R Ranch is three miles from the location where defendants Flores, Juan Martinez-Tinoco, and Armando Martinez-Tinoco had been first contacted the day before. (Id.) Also on the day before, Officer Norris saw a subject matching this same description walking south along the Lloyd Meadow Road in the area of Lower Peppermint Campground, but did not stop because he was en route to eradicate the grow site. (Id.) Lower Peppermint Campground is approximately three miles from the grow site. (Id.)
On October 17, 2015, at approximately 1:12 p.m., Officer Norris called the McNally Ranch and spoke to a person identified as Brian. Brian said that a person had been dropped off at his ranch by Dee from the Lower Durwood Lodge. Brian said that this person told him he became separated from three of his friends while hiking. This person also said he was trying to get back to West Covina where he lived. Brian assisted the person by sending him to work with one of his plumbers so that he could make some money to get home. (Id.)
At approximately 1:34 p.m., Officer Norris advised Agent Adams that he had seen a subject matching the description given by Brian and Deputy Minor walking north on Navajo Drive. (Id. at 20-21.) Norris said that this was the same subject he had seen walking near Lower Peppermint Campground on the previous day. (Id. at 21.) The subject had a camouflage colored jacket. (Id.) Norris contacted the subject and detained him. (Id.) Agent Adams arrived at the intersection of Navajo Drive and Highway 178 approximately one minute after the subject had been detained by Officer Norris. (Id.) Agent Adams describes what took place thereafter as follows:
(Id. at 21.)
Once at the substation, Agent Adams read defendant Jimenez his Miranda rights. Jimenez stated he understood his rights, waived then, and gave an inculpatory recorded statement connecting himself to the grow site. (Id.)
Defendant Flores argues in summary fashion that the scope and duration of his detention by Agent Adams at the Pine Cone Inn was "unreasonable under the circumstances, and that the fruits of that unlawful detention" should therefore be suppressed. (Doc. No. 35 at 4.) Flores briefly contends that his detention was unjustified prolonged and turned into a de facto arrest when he was handcuffed outside his hotel room and then told to lay down on the bed inside his room while Agent Adams waited for other officers to arrive in response to his call for assistance. (Id. at 6-7.) Finally, defendant Flores asserts that there was no probable cause or even articulable facts to justify the initiation of his detention, its prolongation or his arrest and that as a result the fruits thereof should all be suppressed. (Id. at 7.) Defendants Juan Martinez-Tinoco and Armando Martinez-Tinoco have joined in the motion and the arguments made in support thereof. (Doc. Nos. 37 and 38.)
A police officer may initiate a brief investigatory detention based on a reasonable suspicion that the individual detained has committed or is in the process of committing a crime. Terry v. Ohio, 392 U.S. 1 (1968). However, "[t]he Fourth Amendment prohibits `unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons . . . that fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273 (2002). A seizure within the scope of the Fourth Amendment is not automatically found each time a police officer approaches an individual and asks questions. Florida v. Bostick, 501 U.S. 429, 434 (1991). No seizure under the Fourth Amendment takes place so long as a reasonable person would feel free "to disregard the police and go about his business." California v. Hodari, 499 U.S. 621, 628 (1991). See also United States v. Mendenhall, 446 U.S. 544, 554 (1980) ("[A] person has been `seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."); United States v. McClendon, 713 F.3d 1211, 1215 (9th Cir. 2013). However, once an encounter loses its consensual nature, the Fourth Amendment is triggered. Hodari, 499 U.S. at 628. To measure the consensual nature of an encounter, courts have found that "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Bostick, 501 U.S. at 434 (quoting Terry, 392 U.S. at 19 n. 16). See also Brendlin v. California, 551 U.S. 249, 254 (2007); McClendon, 713 F.3d at 1215.
In this case, defendant Flores was obviously not free to leave the room at the inn when Agent Adams handcuffed him and instructed him to lie on the bed. Likewise, defendants Juan Martinez-Tinoco and Armando Martinez-Tinoco were not free to leave the room when Agent Adams instructed them to be seated after he had placed Flores in handcuffs. A reasonable person would not have felt free to leave the hotel room under these circumstances. Moreover, Agent Adams demonstrated his authority by falsely asserting that he recognized Flores and Juan Martinez-Tinoco as having fled from the marijuana grow site the day before, directing Juan Martinez-Tinoco and Armando Martinez-Tinoco to be seated, and by placing handcuffs on Flores and directing him to lie on the bed.
There is no "bright line rule for determining when an investigatory stop crosses the line and becomes an arrest." Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir. 2002) (quoting United States v. Parr, 843 F.2d 1228, 1231 (9th Cir. 1988)). See also Green v. City and County of San Francisco, 751 F.3d 1039, 1047 (9th Cir. 2014). Rather, the determination is a fact intensive inquiry. Gallegos, 308 F.3d at 991 (citing Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996)). Making the determination of whether a seizure was an arrest "may in some instances create difficult line-drawing problems." United States v. Ricardo D., 912 F.2d 337, 339-40 (9th Cir. 1990). This sometimes difficult determination is "guided by the general Fourth Amendment requirement of reasonableness." Gallegos, 308 F.3d at 991. The Fourth Amendment requires the court to look at the totality of the circumstances and consider 1) the intrusiveness of the stop, which includes the aggressiveness of the police methods, and 2) the justification for the use of such tactics. Washington, 98 F.3d at 1185. The determination is essentially an evaluation of "not only how intrusive the stop was, but also whether the methods used were reasonable given the specific circumstances." Id.
An investigative detention must be "temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500 (1983). The methods used during the stop should be the "least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Id.
Although there is no bright line test for evaluating whether a stop has become an arrest, factors have been identified that courts may consider in making that determination. Washington, 98 F.3d at 1188-90 (listing several factors courts may consider and discussing how each factor affects the analysis); see also Green, 751 F.3d at 1047. For instance, whether a suspect is transported may be considered in determining whether a stop became an arrest. "[T]he police may move a suspect without exceeding the bounds of an investigative detention when it is a reasonable means of achieving the legitimate goals of the detention `given the specific circumstances of the case.'" United States v. Charley, 396 F.3d 1074 (9th Cir. 2005) (quoting Gallegos, 308 F.3d at 991. Reasons of safety or security may justify the transportation of a suspect during a stop, but absent these justifications the stop may ripen into an arrest where transportation of the suspect is involved. Royer, 460 U.S. at 504 (finding an arrest when the officers transported the suspect forty feet to a private room without any cause to believe the suspect posed a danger or flight risk); United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990) (fact that a suspect was removed from his car and made to lie down in the street was a factor in determining whether an arrest had occurred). The court may also look to the suspect's actions in evaluating the impact of the officer's actions in transporting him. Thus, where a suspect is complying with all orders and there is no reason to believe he is armed, transporting the suspect to another location may be deemed excessive and indicative of an arrest. Ricardo D., 912 F.2d at 340 (finding there was an arrest where the suspect did not try to run away and complied with all of the officers' orders but was nonetheless transported to the police patrol car and held inside the car).
The length or duration of a detention is another factor to consider in making this determination. Washington, 98 F.3d at 1189 n. 11. In Gallegos, ordering the suspect from his car at gunpoint, handcuffing him, transporting him back to the scene of the incident, and holding him for 45 minutes was found not to constitute an arrest. 308 F.3d at 991. Although the suspect was held for 45 minutes to an hour, the Ninth Circuit observed that the Supreme Court had placed "no rigid time limitation on Terry stops." Id. at 992 (quoting United States v. Sharpe, 470 U.S. 675, 685 (1985)). In that case, the police had stopped Gallegos because they thought he was an individual who had been attempting to enter someone's home by force. Id. The officers held him long enough to escort him to the scene of the crime to confirm an identification. Id. The length of the stop under those circumstances was found not unreasonable because the officers were diligently carrying out their investigation and "especially since he was neither handcuffed nor in the patrol car the whole time." Id.
The use of handcuffs or other restraints is another factor to be considered in whether an arrest has taken place. Thus, it has been observed that use of restraints "substantially aggravates the intrusiveness of an otherwise routine investigatory detention and is not part of a typical Terry stop." Washington, 98 F.3d at 1188 (quoting United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982)). Under ordinary circumstances, when the law enforcement officers have only reasonable suspicion to make an investigatory stop, drawing weapons and employing handcuffs and other restraints has been found to violate the Fourth Amendment. Washington, 98 F.3d at 1187; Del Vizo, 918 F.2d at 825; Delgadillo-Velasquez, 856 F.2d at 1295. The degree of restraint imposed on a suspect must be justified; reasonable suspicion of a crime without suspicion of danger or more is insufficient to justify use of significant restraints. Del Vizo, 918 F.2d at 825 (where the police had suspicion to believe the suspect was involved in a drug transaction, it nonetheless did not justify the degree of restraint employed). In fact, even markedly less intrusive police action then that employed here has been held to constitute an arrest when the inherent danger of the situation did not justify the intrusive action taken. See e.g., Ricardo D., 912 F.2d at 340-42 (finding an arrest occurred where police held suspect in patrol car for twenty minutes without drawing weapons or handcuffing him); United States v. Robertson, 833 F.2d 777, 781 (9th Cir. 1987) (arrest found where officers drew guns and detained suspect, neither handcuffed nor in a police car, for five to fifteen minutes); id. at 787 (Noonan, J., dissenting) (acknowledging that if the police had ordered suspect to "prone out" it probably would have constituted an arrest even if the police did not handcuff or touch the suspect); Kraus v. County of Pierce, 793 F.2d 1105, 1109 (9th Cir. 1986) (holding that arrest occurred where police used guns and searchlights but neither handcuffed suspects nor restrained them in a police car). Of course, despite these holdings, legitimate safety and security reasons can justify the use of handcuffs under some circumstances and still not transform the encounter into an arrest. See United States v. Nava, 363 F.3d 942, 943 (9th Cir. 2004); see also United States v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir. 1982).
An additional factor courts have considered in analyzing the reasonableness of the use of aggressive law enforcement tactics as part of a Terry stop is the number of officers present. For example, it has been found that where a police officer approaches suspects with his gun drawn, "it was prudent" for him to do so because he was alone and outnumbered. United States v. Serna-Barreto, 842 F.2d 965, 968 (7th Cir. 1988) (distinguishing United States v. Ceballos, 654 F.2d 177 (2d Cir. 1981) where numerous policemen approached and surrounded a single suspect with guns drawn); see also United States v. Jacobs, 715 F.2d 1343, 1346 (9th Cir. 1983) (holding that it was reasonable shortly after a bank robbery for a single officer to order two suspects out of the car at gunpoint and to "prone out"). Finally, courts have considered the specificity of the information leading officers to suspect that the individuals they intend to question are the actual suspects being sought. See Alexander v. Cty. of Los Angeles, 64 F.3d 1315, 1322 (9th Cir. 1995).
In this case, defendant Flores did nothing immediately prior to or during his encounter with Agent Adams to justify the use of handcuffs as part of a Terry stop. No weapons were reported to have been found at the grow site, neither Flores, Juan Martinez-Tinoco, or Armando Martinez-Tinoco were suspected of committing a violent crime, Agent Adams saw no camping gear in the room and had been previously advised by the reporting citizen that the three men had no gear or backpacks with them, and no one had reported that any of the three suspects had been seen with a weapon. The three men cooperated in every way with Agent Adams when he came to their door. Agent Adams transported Flores from outside the hotel room, where he handcuffed him, back inside the room and onto the bed. Despite Agent Adam's statement to the three occupants that they were not under arrest, the absolute curtailment of defendant Flores' liberty by handcuffing him and directing him to lie on the bed and in instructing defendants Juan Martinez-Tinoco and Armando Martinez-Tinoco to stay seated would clearly have lead a reasonable person to believe that they were not free to leave. Cf. United States v. Strickler, 490 F.2d 378, 380 (9th Cir. 1974) ("No significant, new restraint was added when [an officer] . . . handcuffed Strickler and formally pronounced him `under arrest.'").
In these respects, this case most closely resembles that confronted by the court in Del Vizo, where the Ninth Circuit held that in light of the defendant's complete cooperation at the scene and lack of evidence that he was dangerous, an arrest had occurred on the basis of aggressive police actions, including handcuffing the defendant and drawing weapons. 918 F.2d at 825 (distinguishing United States v. Taylor, 716 F.2d 701 (9th Cir. 1983), where the suspect was not cooperative and police had been warned he was dangerous).
Accordingly, the undersigned concludes that from the point Agent Adams handcuffed defendant Flores and ordered defendants Juan Martinez-Tinoco and Armando Martinez-Tinoco to remain seated, the detention was not justified under Terry and in fact constituted an arrest.
Investigatory stops are justifiable under the Fourth Amendment if the officer has reasonable suspicion that a person has committed or is about to commit a crime. Royer, 460 U.S. at 498. Further, the stop must be "reasonably related in scope to the justification for [its] initiation." Terry, 392 U.S. at 29. Here, Agent Adams had a reasonable suspicion that the three individuals who had checked into the hotel room had fled the grow site the day before. This reasonable suspicion was based on the information provided by the reporting citizen, the clerk at the Sierra Gateway Market and the desk clerk of the Pine Cone Inn.
Agent Adams' investigatory action in knocking on the hotel room door was certainly permissible. See United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000) (police may do what any other citizen could do and may approach a hotel room door and knock on it with the hope that someone will speak to them and without any reasonable suspicion). Agent Adams was investigating. However, when he placed handcuffs on Flores and ordered Juan Martinez-Tinoco and Armando Martinez-Tinoco to remain seated in the room the investigation turned into an arrest requiring probable cause.
When Agent Adams arrested defendants Flores, Juan Martinez-Tinoco, and Armando Martinez-Tinoco, he did not have probable cause to believe that the three had fled from the grow site the day before. There is no evidence before the court that Agent Adams himself had identified any of the three as being seen at the grow site.
Thus, the information provided by the reporting citizen, the clerk at the Sierra Gateway Market, and the desk clerk of the Pine Cone Inn justified Agent Adams' investigation, but did not provide him with probable cause to arrest.
Defendants have merely argued that because Agent Adams lacked probable cause, their "detention, and . . . arrest and the fruits thereof should be suppressed," without identifying what the defendants consider to be the fruits of the unlawful arrests. (Doc. No. 35 at 7.) The government has not addressed this issue at all, arguing only that the detention and arrest of the defendants was lawful. (Doc. Nos. 41, 49.)
The Supreme Court has held that evidence is to be suppressed as the fruit of an unlawful arrest,
United States v. Crews, 445 U.S. 463, 470 (1980). Thus, it is clearly established that confessions obtained following an unlawful arrest are to be suppressed "unless the confession was `an act of free will [sufficient] to purge the primary taint of the unlawful invasion.'" Kaupp v. Texas, 538 U.S. 626, 632-33 (2003) (quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963)). Therefore, even where Miranda warnings are given following an unlawful arrest, the prosecution bears the burden of establishing that sufficient time elapsed or "intervening circumstances" took place sufficient to remove the taint of the unlawful arrest such that a defendant's confession can be said to have constituted an act of free will. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975). In short, Miranda warnings do not act as a "cure-all," rendering voluntary all confessions obtained after illegal arrests, because such a rule would reduce "the constitutional guarantee against unlawful searches and seizures . . . to a form of words." Brown, 422 U.S. at 602-03. See also United States v. Nora, 765 F.3d 1049, 1057 (9th Cir. 2014) (defendant's incriminating statements made immediately upon the heels of the unlawful search of his person suppressed as the fruit of the poisonous tree because the government did not meet its burden of showing intervening circumstances or dissipation of the taint); United States v. Patzer, 277 F.3d 1080, 1085 (9th Cir. 2002); United States v. Sanuda-Perez, 564 F.2d 1288, 1291 (9th Cir. 1977); United States v. Cruz-Roman, 312 F.Supp.2d 1355, 1366 (W.D. Wash. 2004) ("The defendant's post-warning statements and evidence seized in searches made after "consent to search" was given by Mr. Cruz-Roman must also be suppressed as tainted fruits of an unlawful search and arrest.")
In this case, immediately following Warden Shaw's arrival and identification of defendant Juan Martinez-Tinoco, all three defendants were Mirandized and made statements. (Doc. No. 36 at 9-11.) In addition, defendants Armando Martinez-Tinoco and Flores gave Agent Adams consent to search their cell phones and defendant Flores gave Agent Adams consent to search the hotel room. (Id. at 11.) Thus, it is clear that Warden Shaw's identification of defendant Juan Martinez-Tinoco, the statements made by all three defendants at the scene of their detention and arrest, the searches of their cell phones and the hotel room all followed immediately on the heels of their unlawful arrests which were unsupported by probable cause. Accordingly, all of that evidence is properly suppressed as the poisonous fruit of the unlawful arrests.
Defendant Jimenez has moved to suppress his inculpatory statements made to Agent Adams and Officer Norris on the roadside, arguing that without a Miranda warning, his statements were made in "direct responses to . . . interrogation techniques" and occurred while he "reasonably understood that he was in custody and was not free to leave." (Doc. No. 39, at 5.) Defendant Jimenez also contends that Agent Adams' actions constituted questioning which was a pre-Miranda custodial interrogation tainting his later Mirandized interrogation at the police substation. (Id.) According to defendant Jimenez, employment of this tactic violated the holding of the Supreme Court in Missouri v. Seibert, 542 U.S. 600 (2004). (Id.) Based on these arguments defendant Jimenez seeks to suppress all of his statements made to law enforcement officers. (Id. at 6.)
The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]" U.S. Const. amend. V. The Supreme Court has "recognized that custodial interrogations, by their very nature, generate `compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.'" Moran v. Burbine, 475 U.S. 412, 420 (1986) (quoting Miranda, 384 U.S. at 467). "To combat this inherent compulsion, and thereby protect the Fifth Amendment privilege against self-incrimination, Miranda imposed on the police an obligation to follow certain procedures in their dealings with the accused." Moran, 475 U.S. at 420. See also Dickerson v. United States, 530 U.S. 428, 435 (2000); United States v. IMM, 747 F.3d 754, 764 (9th Cir. 2014). Specifically, the Supreme Court has held the Constitution requires
Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Miranda, 384 U.S. at 444). See also IMM, 747 F.3d at 764. "An officer's obligation to administer Miranda warnings attaches . . . `only where there has been such a restriction on a person's freedom as to render him "in custody."'" Stansbury, 511 U.S. at 322 (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).
The Supreme Court has defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444 (1966). This definition has been refined to recognize that "`interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). See also Kemp v. Ryan, 638 F.3d 1245, 1255 (9th Cir. 2011).
"Two discrete inquiries are essential to the [`in custody'] determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." Thompson v. Keohane, 516 U.S. 99, 112 (1995). See also IMM, 747 F.3d at 765. The Ninth Circuit has further delineated that "[t]o determine whether an individual was in custody, a court must, after examining all of the circumstances surrounding the interrogation, decide `whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.'" United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002) (quoting Stansbury, 511 U.S. at 322). See also IMM, 747 F.3d at 765. The non-exhaustive list of factors to be considered in making the determination of whether the individual was in custody included: "(1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the duration of the detention; and (5) the degree of pressure applied to detain the individual." Kim, 292 F.3d at 974 (citations omitted). See also United States v. Cazares, 788 F.3d 956, 981 (9th Cir. 2015); United States v. Wright, 625 F.3d 583, 602 (9th Cir. 2010).
The Ninth Circuit has considered a "police-dominated atmosphere" as the benchmark for custodial interrogations in locations outside of the police station. United States v. Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008) ("[W]hen applying Miranda to the task of sorting a non-custodial in-home interrogation from a custodial one, our analysis considers the extent to which the circumstances of the interrogation turned the otherwise comfortable and familiar surroundings of the home into a `police-dominated atmosphere.'"). Several factors are relevant in determining whether the circumstances of an interrogation created a "police-dominated atmosphere;" "(1) the number of law enforcement personnel and whether they were armed; (2) whether the suspect was at any point restrained, either by physical force or by threats; (3) whether the suspect was isolated from others; and (4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made." Id. at 1084. "[T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury, 511 U.S. at 323. See also Kim, 292 F.3d at 973.
Here, it is undisputed that no Miranda warnings were given during defendant Jimenez's initial encounter with Agent Adams and Officer Norris on the side of the road. Agent Adams' reports indicate that Officer Norris contacted Jimenez, "detained him," and that Agent Adams arrived approximately one minute thereafter. (Doc. No. 36, at 21.) According to Agent Adams, upon his arrival:
(Id.)
This initial encounter between law enforcement and defendant Jimenez occurred on a public road and not at the police station. Thus, the court must consider whether the encounter nonetheless took place in a "police-dominated atmosphere" and in doing so must weigh the factors set forth above. Craighead, 539 F.3d at 1083.
First, the court considers the number of law enforcement personnel and whether they were armed. Here, two law enforcement officers arrived at the scene separately. While this is not the case where "the number of law enforcement personnel far outnumber[ed] the suspect," the number of officers did outnumber Jimenez two to one and the fact that the officers arrived separately suggests that it was not a routine stop. Id. at 1084-85. However, there is no evidence before the court as to whether or not Agent Adams and Officer Norris were armed. Accordingly, this factor does not heavily support or detract from the finding of a "police-dominated atmosphere."
Second, the court considers whether the suspect was at any point restrained, either by physical force or by threats. There is no evidence that defendant Jimenez was physically restrained during the encounter. However, Officer Norris did initially "detain" him and upon Agent Adams' arrival, he too explicitly told Jimenez that he was being detained. Agent Adams also falsely told defendant Jimenez that Adams "recognized him as one of the men [he] chased in the marijuana grow site." An objective person would not believe that his detention would be temporary and brief and that he would then be allowed to continue on his way when a law enforcement officer accuses that person of participating in a marijuana grow and evading police. See Beckwith v. United States, 425 U.S. 341, 346-347 (1976) ("`It was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the Court to impose the Miranda requirements with regard to custodial questioning'") (quoting United States v. Caiello, 420 F.2d 471, 473 (2nd Cir. 1969)). Accordingly, this factor supports a finding of a "police-dominated atmosphere."
Third, the court considers whether the suspect was isolated from others. Here, Jimenez was by himself with the two officers. He was also on a public road in a small residential community where passersby could witness the interaction, although there is no indication that any did. This is not the case of a motorist being detained pursuant to a routine roadside traffic stop. See Berkemer v. McCarty, 468 U.S. 420, 440 (1984). However, its public location also supports the notion that this was not a "police-dominated atmosphere." See id. at 438 (public nature of traffic stop offsets any aura of police authority).
Fourth, the court must consider whether the suspect was informed that questioning was voluntary and that he was free to leave or terminate the interview. If a law enforcement officer informs the suspect that he is not under arrest, that any statement is voluntary, and that he is free to leave at any time, such a communication greatly reduces the chance that a suspect will reasonably believe he is in custody. Craighead, 539 F.3d at 1087. Here, Agent Adams told defendant Jimenez that he was not under arrest. However, he did not tell Jimenez that any statements he made would be voluntary and that he was free to leave at any time. Indeed, Agent Adams specifically told Jimenez that he was being detained. Likewise, there is no evidence as to what Officer Norris told Jimenez upon making contact with him. All that is known is that Norris communicated to Agent Adams that Jimenez had been detained before Adams' arrival. Most importantly, Agent Adams falsely told Jimenez that he "recognized him as one of the men [he] chased in the marijuana grow site." (Doc. No. 36, at 21.) This statement by a law enforcement officer strongly suggested that Jimenez was not free to leave or terminate the encounter. Thus, consideration of this factor strongly supports the conclusion of a "police-dominated atmosphere."
Accordingly, in this close case at least two of the four Craighead factors support the conclusion that a "police-dominated atmosphere" existed when defendant Jimenez was first encountered by Agent Adams and Officer Norris. The court is convinced that a reasonable person in Jimenez's position would have felt deprived of his freedom of action in a significant way, such that he would not have felt free to leave. Accordingly, the court concludes the totality of the circumstances here indicates that defendant Jimenez was "in custody" for purposes of Miranda. Next, the court must consider whether Agent Adams or Officer Norris interrogated Jimenez.
"The standard for determining whether an officer's comments or actions constitute the `functional equivalent' of interrogation is quite high . . . ." United States v. Morgan, 738 F.3d 1002, 1005-06 (9th Cir. 2013) (quoting United States v. Foster, 227 F.3d 1096, 1103 (9th Cir. 2000)). Subjecting a suspect to "subtle compulsion," without more, is not the functional equivalent of an interrogation. Morgan, 738 F.3d at 1006 (quoting Innis, 446 U.S. at 303.) Rather, a defendant must show that his statement "was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response." Id.; See, e.g., Innis, 446 U.S. at 301 (holding that a dialogue between two officers in the defendant's presence regarding the possibility that a handicapped child would find the gun the defendant had used in committing a murder did not constitute interrogation in violation of Miranda); United States v. Moreno-Flores, 33 F.3d 1164, 1169-70 (9th Cir. 1994) (holding that an agent's statements to the defendant that approximately 600 pounds of cocaine had been seized and that the suspect was in trouble, were not the functional equivalent of interrogation because they did not invite a response from the suspect); United States v. Thierman, 678 F.2d 1331, 1336 (9th Cir. 1982) ("[T]he conversations were brief and concerned the likely course of the police investigation and the possible consequences of the suspect's failure to cooperate with the police. . . . There is nothing in the record to compel a finding that the police conversation was more evocative than the one at issue in Innis."); but see United States v. Orso, 266 F.3d 1030 (9th Cir. 2001) (where officer "engaged Orso in several minutes of detailed discussion regarding the evidence against her" and "even went so far as to make up some of the evidence," this was equivalent of interrogation, because even though the officer "admonished her not to speak, . . . it was reasonably likely his comments would cause her to respond").
Instructive in considering the issue posed in the present case is the decision in Shedelbower v. Estelle, 885 F.2d 570, 573 (9th Cir. 1989). There, a law enforcement officer truthfully told the suspect that his accomplice was in custody but also falsely informed the suspect that the rape/attempted murder victim had identified his photograph as one of the men who raped her. 885 F.2d at 572. The suspect then told the officers that he "had to tell" them and that he wanted to talk about the case and did not need an attorney. Id. On appeal from the denial of federal habeas relief, the Ninth Circuit held that the officer's statements to the suspect were not in the form of question and thus did "not constitute an interrogation in the normal sense of the word." Id. at 573. Moreover, the court concluded that the statements, including the falsehood regarding the victim's identification of him, "were not the functional equivalent of questioning" and were "not the type of comments that would encourage [the suspect] to make some spontaneous incriminating remark." Id. See also Johnson v. Whitely, 959 F.2d 240, 1992 WL 64755, at *2 (9th Cir. 1992) (referring to the holding in Shedelbower and observing that "[t]elling Johnson the police would have asked him why he did it is a little closer to the line, but still nowhere near as evocative as the statements in the other cases that have been held not to constitute the functional equivalent of interrogation."). Of course, this court is bound by the Ninth Circuit's decision in Shedelbower. But see Weeks v. Angelone, 4 Supp. 2d 497, 531 (E.D. Va. 1998) (Acknowledging the holding in Shedelbower but noting that "while it may be true" that a "false statement is not necessarily equivalent to interrogation, "a false statement is also certainly not evidence that there was not an interrogation.").
In this case, Agent Adams reported that he merely identified himself, falsely stated that he "recognized [Jimenez] as one of the men [he] had chase in the marijuana grow site," and explained the reason for the contact, before Jimenez stated that he and other subjects ran from the grow site because they were afraid. (Doc. No. 36, at 21.)
Based upon the authorities discussed above, the undersigned concludes that Agent Adams' statement to Jimenez during their initial encounter on the road was not an interrogation or the functional equivalent thereof. Accordingly, Agent Adams was not required to Mirandize Jimenez before speaking to him.
Defendant Jimenez also argues that Agent Adams engaged in impermissible piecemeal questioning before giving him the required Miranda warnings. (Doc. No. 48, at 2.) The Ninth Circuit has summarized the approach taken by the Supreme Court in addressing the admissibility of a confessions obtained after Miranda warnings have been given but preceded by an earlier, unwarned confession, as follows:
United States v. Reyes-Bosque, 596 F.3d 1017, 1031 (9th Cir. 2010).
The Ninth Circuit has interpreted Seibert to stand for the proposition "that where law enforcement officers deliberately employ a two-step interrogation to obtain a confession and where separations of time and circumstance and additional curative warnings are absent or fail to apprise a reasonable person in the suspect's shoes of his rights, the trial court should suppress the confession." United States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006). See also Reyes-Bosque, 596 F.3d at 1031.
However, defendant Jimenez's argument fails in this regard because, as discussed above, Agent Adams' statement to him during their initial encounter did not constitute an interrogation or the functional equivalent thereof under binding Ninth Circuit precedent. See Oregon v. Elstad, 470 U.S. 298, 318 (1985); United States v. Badalamenti, No. 03:11-CR-0269-HZ, 2012 WL 5830393, at *5 (D. Or. Nov.16, 2012) ("Despite what Defendant may have perceived, there was no two-step interrogation strategy because Findley did not interrogate Defendant . . . . If there is no deliberate two-step interrogation, then under Elstad, Defendant is capable of waiving his Miranda rights if the prewarning statements were the result of uncoercive questioning.); United States v. King, No. C 10-0455 WHA, 2010 WL 4226728, at *7 (N.D. Cal. Oct.21, 2010) (suppression not required under Seibert and Williams where no two-step interrogation occurred).
Here, the parties do not dispute that Jimenez was later properly Mirandized before giving his statement at the substation. (Doc. No.48, at 1-2.) Accordingly, because the first encounter did not involve any questioning, interrogation or equivalent thereof, there was no impermissible piecemeal interrogation in violation of Seibert.
As noted at the outset, defendant Jimenez has joined in the motion to suppress filed by his co-defendants in which they argue that they were arrested without probable cause. However, defendant Jimenez has failed to establish his standing to challenge the unlawful arrest of co-defendants. In order for a defendant to have standing in such circumstances it is not sufficient that he "claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else"; rather, he "must have been a victim of a search or seizure." Jones v. United States, 362 U.S. 257, 261(1960), abrogated on other grounds by United States v. Salvucci, 448 U.S. 83 (1980). See also Lyall v. City of Los Angeles, 807 F.3d 1178, 1186 (9th Cir. 2015) ("In order to qualify as a `person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.") (quoting Alderman v. United States, 394 U.S. 165, 173 (1969)).
Here, Jimenez was not present at, and was no way involved in, the unlawful arrest of Flores, Juan Martinez-Tinoco, and Armando Martinez-Tinoco at the Pine Cove Inn. Because he has no standing to challenge the allegedly unlawful arrest of his co-defendants, Jimenez's request to join in defendant Flores' motion to suppress is denied.
For all of the reasons set forth above,
IT IS SO ORDERED.
