FINAL REPORT AND RECOMMENDATION REGARDING THIRD MOTION TO SUPPRESS1 Docket No. 39].

KEVIN F. McCOY, Magistrate Judge.

I. MOTION PRESENTED

Before the Court is Jafari Lewis-Daniel's motion to suppress evidence of statements he gave to the FBI on February 9, 2016.2 The government opposes.3 No party asked for an evidentiary hearing or for argument, and this Court concludes that neither is required. Upon careful consideration of all the circumstances surrounding the FBI questioning of Jafari4 on February 9, 2016, this Court recommends that the District Court, upon independent review, deny the motion to suppress at Docket No. 39.

II. BACKGROUND

A. The Indictment

Jafari Lewis-Daniel and Jarron Ezekiah Lewis-Daniel jointly are charged with armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) (Count 1).5 The Indictment alleges that on December 23, 2015, they stole $230,050 belonging to the Wells Fargo Bank by force, violence, and intimidation with a firearm.6 The Indictment also seeks forfeiture of $97,888, a 55 inch big screen television, 99 percent pure gold foiled playing cards, a 2010 Honda motorcycle, a 2003 Dodge truck, and 2005 Audi A4 automobile if either is convicted of the armed bank robbery.7

B. Jafari Lewis-Daniel's Motion to Suppress and the Government's Response

Jafari asks for an order suppressing statements he gave to law enforcement on February 9, 2016.8 Jafari contends that his statements must be suppressed because they were obtained in violation of the Fifth and Sixth Amendments.9 In particular, Jafari asserts that he invoked his right to counsel during an interview with Special Agent Wendy Terry, and that all statements to law enforcement following his invocation must be suppressed under Edwards v. Arizona.10 Jafari's motion is supported by the sworn declaration from his counsel attesting to the truthfulness of the factual representations contained in his suppression request.11

The government opposes.12 It contends that the Edwards rule was not violated because Jafari was never in Miranda custody when he voluntarily responded to FBI questions.13 The government's opposition is supported by the sworn declaration of Special Agent Wendy Terry, which attests to the circumstances surrounding the February 9, 2016, FBI questioning of Jafari.14 The government's opposition is supplemented with a conventionally filed CD which contains recordings of Jafari's February 9, 2016 interviews with law enforcement.15

C. Jafari's Response to the Order from Chambers

In response to this Court's minute order,16 Jafari clarified his suppression request.17 In particular, Jafari indicated he: (1) does not contend that he was in custody during his February 9, 2016 interviews with Special Agent Terry; (2) does not contest the veracity of Special Agent Terry's sworn declaration; and (3) was not requesting an evidentiary hearing on whether he was in Miranda custody during the February 9, 2016 interview with Special Agent Terry.18

D. The Facts

On December 23, 2015, an Axiom armored car was robbed outside a Wells Fargo Bank in Anchorage, Alaska.19 The robbers made off with $230,050, money which belonged to the bank.20 On February 9, 2016, at approximately 6:40 a.m., eleven law enforcement agents executed a robbery investigation-related search warrant on Jafari's apartment.21 The officers knocked on Jafari's door and announced their presence.22 When no one responded after a minute, the officers used a battering ram to break down the door.23 The officers then ordered Jafari, his girlfriend, and another female resident out of the apartment.24 The three were held briefly in a hallway immediately outside the apartment while the officers cleared it to ensure that no one was hiding or destroying evidence.25

Once the apartment was cleared, Jafari and the two women returned to the apartment.26 Jafari sat on a couch.27 FBI Special Agent Wendy Terry introduced herself, described the warrant authorizing the search, and asked if Jafari wanted to speak with her.28 Terry told Jafari that if he agreed to speak with her the conversation could occur in the apartment, in a car outside the apartment, or at the FBI office.29 She specifically informed Jafari that he need not submit to an interview and that he could leave at any time.30

Jafari said he would speak with Terry in the car.31 After February-appropriate clothing was located, Jafari accompanied Terry and Special Agent Daryl Allison to a nearby government sport utility vehicle.32 Jafari was not handcuffed.33 Terry sat in the rear driver's side seat across from Jafari.34 Jafari sat in the rear passenger-side seat across from Terry.35 Allison sat in the front in the driver's seat.36 A ninety-minute recorded interview followed.37 Fourteen minutes into the interview the following colloquy occurred:

During the interview, Jafari made incriminating statements. He denied involvement in the robbery, but admitted loaning his car to the robbers and receiving $40,000, apparently in return for the loan of the car.39

The first interview ended when Terry left the sport utility vehicle to check on the status of the search and to get a copy of the search warrant.40 When she returned, Jafari still was sitting in the vehicle with Allison.41 Terry again activated her recording device and told Jafari that the search was still underway, that copies of the warrant were in his apartment, that he was not under arrest, and that he was free to leave.42 Terry provided Jafari with a business card so he could contact her if he wanted to provide any additional information about the case.43 This conversation lasted about three minutes.44

Jafari got out of the sport utility vehicle and returned to his apartment.45 Terry and Allison accompanied Jafari to the apartment and obtained a chair for him to sit on in the outside hallway while the search continued inside.46 As he waited, the searching officers discovered a handgun and a bag containing $18,400 on the ground outside Jafari's third floor apartment window.47 When Terry asked about the handgun, Jafari said he found it at a party and that he tossed it out the window when he heard the FBI knock.48 This recorded conversation lasted about six minutes.49 Again, Terry advised Jafari that he could not return to his apartment until the search was completed, but that he was not under arrest and was free to leave at any time.50 Jafari remained seated in the hallway near his apartment. After this conversation, Terry left to interview Jarron Lewis-Daniel at a different location.51

After Terry left, Special Agent Ormberg and Task Force Officer Clark interviewed Jafari.52 This interview occurred in a vehicle and was recorded on a video recorder.53 At the outset, Ormberg advised Jafari that he was free to leave, but gave him a Miranda warning "based on some of the stuff we found in the house."54 Jafari acknowledged his rights and expressly agreed to speak with Ormberg and Troy.55 During this interview, Ormberg and Troy used incriminating statements Jafari earlier gave to Terry to formulate their own questions.56 Jafari's responses continued to be incriminating.57 When this questioning ended an hour or so later, these officers arrested Jafari and charged him with armed bank robbery.

III. ISSUE PRESENTED

Did the FBI obtain Jafari's statements in violation of the Fifth and Sixth Amendments as explicated in Edwards v. Arizona?

IV. ANALYSIS

Upon a careful and through examination of FBI questioning of Jafari on February 9, 2016, this Court respectfully recommends that the District Court, upon independent review, deny the motion to suppress at Docket No. 39. This result is compelled because Jafari's statements were entirely free and voluntary, and because he was never in Miranda custody during his conversations with Special Agent Terry. The result also is compelled because the Sixth Amendment right to counsel had not attached; the formal charging process had not yet been initiated.

A. The Fifth Amendment and the Edwards Rule

In Miranda v. Arizona,58 the Supreme Court has determined that custodial interrogation is inherently coercive.59 To protect the individual subjected to custodial interrogation, the Court has directed law enforcement to advise the individual of his or her rights to silence and to counsel before questioning can begin.60 In Edwards v. Arizona,61 the Supreme Court ruled that all custodial questioning must cease whenever the person unequivocally asserts his or her Fifth Amendment right to counsel.62 Indeed, questioning may continue only after counsel has been provided or the person, having received the Miranda advisement, initiates further communication with law enforcement.63 The right to counsel during custodial interrogation is grounded in the Constitution64 and is implicated whenever the person is said to be in Miranda custody.65 Conversely, the Edwards rule does not apply when the person is not in Miranda custody.66 Thus, un-coerced, free, and voluntarily responses to police questioning do not violate the Edwards rule, even after a desire for counsel is expressed, when the person is not in Miranda custody.

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 [or her] freedom of action in any significant way."67 The Miranda test for custody is objective.68 Evaluation of a Miranda custody claim requires: (1) an inquiry into the circumstances surrounding the interrogation; and (2) a determination of whether a reasonable person in those circumstances would have felt free to terminate the interrogation and leave.69 The ultimate inquiry "is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest."70 Courts must weigh all of the circumstances surrounding the interrogation and decide how a reasonable person in the defendant's position would perceive his or her circumstances.71 The subjective views of the interrogating officer or the person being questioned do not control.72 Factors to be considered include the location of the questioning,73 the duration of the questioning,74 statements made during the interview,75 the presence or absence of physical restraints during the questioning,76 and the release of the interviewee at the end of the interview.77

In the present case, Jafari submitted to three audio recorded non-Mirandized interviews with Terry and Allison and one video recorded Mirandized interview with Ormberg and Clark.78 The Court has listened to the recordings in their entirety and nothing occurred during the various interviews that would cause a reasonable person in Jafari's position to conclude that he could not terminate the interview and leave.

At the outset of each interview, including the final Mirandized interview, the officers expressly told Jafari that he was free to leave at any time and that he was under no obligation to answer any questions. Each interview was conversational in tone and, while the interviewing officers were sometimes skeptical of Jafari's answers, their demeanor and questioning throughout was respectful and polite. Jafari was never restrained at any time during the interviews. Indeed, the only limitation placed on him was the prohibition that he not return to the apartment during the search. Even then, the officers secured a chair for him to sit in while he waited in the hallway for the search to be completed. All of these facts mitigate against a Miranda custody determination. The interviews were not lengthy and, in any event, Jafari elected to remain at the scene for the duration of the search.

The only factor that weighs in favor of a Miranda custody determination is the fact that Jafari was arrested at the conclusion of the interview with Ormberg and Clark. But there is nothing about that fact to suggest that Jafari was in Miranda custody at any time during his conversations with Terry and Allison. Under these circumstances, this Court readily concludes that Jafari was not in Miranda custody and, for that reason, the Edwards rule does not apply.

B. The Sixth Amendment Right to Counsel has No Application

Jafari, without briefing or citation to authority, also grounds his right to counsel suppression claim in the Sixth Amendment.79 But Edwards is not a Sixth Amendment case.80 More importantly, the Sixth Amendment right to counsel does not attach until "at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."81 Thus, in this case there is no basis for Sixth Amendment claim because, at the time of the interviews, formal charges had not been initiated against Jafari. Accordingly, the Sixth Amendment does not provide a basis for barring admission of Jafari's statements.82

V. CONCLUSION

Based on the foregoing analysis, this Court respectfully recommends that the District Court, upon independent review, deny the motion to suppress at Docket No. 39.

Pursuant to Fed. R. Crim. P. 59(b)(2) and D. Alaska Loc. Mag. R. 6(a), a party seeking to object to this final finding and recommendation shall file written objections with the Clerk of Court no later than the CLOSE OF BUSINESS on July 28, 2016. Pursuant to Fed. R. Crim. P. 59(b)(3), objections will be considered first by the District Court Judge, who will then accept, reject, or modify the recommendation, or resubmit the matter to the Magistrate Judge for additional consideration. Failure to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. Miranda v. Anchondo, et al., 684 F.3d 844 (9th Cir. 2012). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation. United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before the CLOSE OF BUSINESS on August 4, 2016. The parties shall otherwise comply with provisions of D. Alaska Loc. Mag. R. 6(a).

Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).