CHARLES R. SIMPSON, III, Senior District Judge.
This case is before the Court on Defendant Tsung Min Yu's motion to suppress (DN 17), the report and recommendation of Magistrate Judge Colin H. Lindsay on that motion (the "Report") (DN 38), and objections filed thereto (DN 39). Yu objects to the magistrate's decision not to suppress evidence of a gun found under Yu's pillow. In doing so, he argues that the officers were without authority to make the arrest and that the statements leading the officers to the gun were made involuntarily. The first argument was not reached by the magistrate because he found it to be untimely. The Court disagrees with that conclusion but, on the merits, agrees that the gun should not be suppressed, since the United States has represented that a valid warrant existed. As to the second argument, the Court finds the statements voluntarily made and insufficient to warrant suppression. Therefore, the Court will accept and adopt the Report as supplemented by this opinion, overrule the objections in part, and sustain the objections in part. As a result, the Court will grant the motion to suppress in part and deny the motion to suppress in part.
Yu makes no objections to the factual findings of the magistrate. Therefore, the Court adopts and repeats the factual findings of the magistrate in whole:
DN 38 at 1-4.
Yu filed his motion to suppress on November 20, 2018. DN 17. The United States, with an extension of time from the Court (DN 22), responded on May 10, 2018. DN 21. Yu replied on May 16, 2018. DN 23. The motion to suppress was referred to the magistrate on May 22, 2018. DN 24. The magistrate conducted an evidentiary hearing on August 10, 2018 and permitted the parties to file post-hearing briefs. Both Yu and the United States submitted briefs. DNs 32, 33. The United States also submitted a response to Yu's brief. DN 34. The magistrate issued his Report on November 20, 2018. DN 38. Yu filed objections December 4, 2018. DN 39.
The Court makes a de novo determination of the proposed findings or recommendations of the magistrate to which the parties have objected. 28 U.S.C. § 636(b)(1)(C); FED. R. CRIM. P. 59(b)(3). To the extent that no objection is filed, the arguments are waived. Thomas v. Arn, 728 F.2d 813, 815 (6th Cir. 1984), aff'd, 474 U.S. 140, 147-48 (1985).
The magistrate recommended that the motion to suppress be granted in part and denied in part. DN 38. Specifically, he recommended that Yu's motion be: denied as moot as to any statements made by Yu after he was handcuffed, the ammunition, and the second gun found in Yu's bedroom, with leave to refile the motion if the United States seeks to introduce the evidence
In his objections, Yu offers two grounds for excluding the gun. First, Yu urges that the officers lacked statutory authority to arrest Yu and that the gun should be excluded as fruit of the poisonous tree. Second, Yu argues that the statement regarding the location of the gun was given involuntarily and that, as a result, the physical evidence obtained as a result must also be excluded.
The Attorney General is permitted to arrest aliens pending deportation proceedings with an administrative warrant. 8 U.S.C. § 1226. See also Abel v. United States, 362 U.S. 217, 232-34 (1960) (discussing the history of administrative warrants in immigration). ICE agents may also effectuate an arrest without a warrant, as relevant to this case, when (1) they encounter an alien who is present in the United States illegally and is likely to escape before a warrant can be issued for his arrest, 8 U.S.C. § 1357(a)(2), or (2) the agents witness a person committing another crime in their presence, 8 U.S.C. § 1357(a)(5)(A).
Yu's argument is that he was arrested without a warrant prior to the questioning regarding the guns. DN 39 at 1. Therefore, he argues, his arrest must be based on § 1357(a)(2), rather than § 1357(a)(5)(A), because the officers were not aware of the presence of the guns. Id. As to § 1357(a)(2), he further argues that the officers would not be able to demonstrate that Yu was "likely to escape before a warrant can be obtained for his arrest" as required by the statute. Id. As a result, he concludes that his arrest was undertaken outside of the agents' statutory authority.
The magistrate declined to consider the argument because, in his view, it was not raised in the initial motion to suppress or the reply. DN 38 at 6. Yu argues that is a mischaracterization because he brought up the confusion regarding his arrest in his motion to suppress. See DN 17 at 1 ("some documents claim that Mr. Yu was under arrest before being asked about weapons, and others state that he was arrested after being asked about weapons"). It was not until the hearing, he argues, that the officers all testified that Yu was under arrest prior to being asked about the weapons.
Yu appears to be correct on the threshold issue. Yu originally raised the issue in his motion to suppress, though not couched in the same terms as presented in his post-hearing brief. The confusion regarding the timing and reasoning for his arrest was unclear at the discovery stage and necessitated a factual hearing by the magistrate. It was only at the hearing that the events surrounding the arrest became clearer. For those reasons, the magistrate erred in declining to consider the argument. Regardless, the Court may consider arguments untimely made if the party so requesting shows good cause. FED. R. CRIM. P. 12(c)(3). The factual issues referenced above that necessitated the hearing provide this good cause. Further, the United States had the opportunity to respond (DN 34) and would not be prejudiced by the Court considering the argument.
The argument in the motions and post-hearing briefs revolved around what statute would apply to the warrantless search of Yu.
An arrest pursuant to a valid administrative warrant permits the officer to conduct a search incident to arrest akin to that following execution of a judicially-issued arrest warrant. Abel, 362 U.S. at 235-37. The officer is then permitted to search for weapons or evidence "on the accused's person or under his immediate control." Chimel v. California, 395 U.S. 752, 764 (1969). This would include underneath the pillow on the bed where Yu was sitting, particularly once the officers had knowledge of the presence of firearms. On this point, Abel is factually similar. There, agents conducted a search for weapons and documents in Abel's hotel room following his arrest. Abel, 326 U.S. at 223-24. In the course of that search, the agents discovered various items later used as evidence in Abel's prosecution for espionage. Id. at 219-20. The Court held that this evidence was admissible in that trial, notwithstanding that the seized articles were unrelated to the immigration offense for which the administrative warrant was issued. Id. at 228-30.
Without a Fourth Amendment violation, there is no poisonous tree. See Wong Sun v. United States, 371 U.S. 471 (1963). However, to any extent that the officer's conduct could have yielded a Fourth Amendment violation, the violation would be sufficiently attenuated by the valid arrest warrant such that exclusion is not required. Utah v. Strieff, 136 S.Ct. 2056, 2061-62 (2016) ("a valid arrest warrant was a sufficient intervening event to break the causal chain" between an unlawful seizure and the discovery of evidence of wrongdoing). To ensure that such a warrant existed, the Court will order the United States to file the administrative warrant used to arrest Yu within fourteen days of entry of this order. If the United States is unable to do so or the warrant proves invalid, Yu would be entitled to reinstate his motion to suppress on this issue and an evidentiary hearing would be required for the United States to attempt to demonstrate that Yu was "likely to escape before a warrant can be obtained for his arrest."
The Fifth Amendment's Self-Incrimination Clause does not protect against nontestimonial evidence obtained as a result of voluntary statements. United States v. Patane, 542 U.S. 630, 637 (2004). Therefore, failure to give the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), does not make subsequent physical evidence automatically excludable. Patane, 542 U.S. at 644. However, "the physical fruit of actually coerced statements" are excluded. Id.
When considering voluntariness of statements, the Court considers the "totality of the circumstances" to determine whether a statement was the "product of an essentially free and unconstrained choice by its maker." Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). In such a scenario, "the government bears the burden of proving by a preponderance of the evidence that the [statement] was in fact voluntary[ily made]." United States v. Johnson, 351 F.3d 254, 260 (6th Cir. 2003). In determining whether a statement is involuntarily made, the Sixth Circuit has established three requirements that must be met: "(i) the police activity was objectively coercive; (ii) the coercion in question was sufficient to overbear the defendant's will; and (iii) the alleged police misconduct was the crucial motivating factor in the defendant's decision to offer the statement." United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999) (citation omitted).
Yu argues he was coerced "by the presence of armed ICE agents in his bedroom while he was in handcuffs and faced a threat of deportation, without having been informed that he had a right to remain silent and a right to consult with an attorney." DN 39 at 2. In making the argument, Yu relies on LaDuke v. Nelson, 762 F.2d 1318, 1326 (9th Cir. 1985). There, the Immigration and Naturalization Service ("INS"), the predecessor to ICE, was conducting farmhouse raids without a warrant, probable cause, or articulable suspicion. Id. at 1321. The armed INS agents would periodically cordon off migrant housing during early morning or late evening hours, surround the residences in emergency vehicles with flashing lights, approach the homes with flashlights, and station officers at all doors and windows to prevent egress before conducting house-to-house searches. Id. at 1321. This "show of official force" was exacerbated by the relationship between the government and the "vulnerable . . . migrant workforce":
Id. As a result, the government could not demonstrate that any consent given was voluntary. Id. at 1329.
As the Ninth Circuit correctly noted, courts have examined similar factors for voluntariness. See e.g. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 248 (1973) (considering "minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights," "the youth of the accused," "the length of detention," "the repeated and prolonged nature of the questioning," and "the use of physical punishment such as the deprivation of food or sleep"); United States v. Rodriguez, 525 F.2d 1313, 1316 (10th Cir. 1975) (lack of fluency in English); United States v. Marshall, 488 F.2d 1169, 1187-89 (9th Cir. 1973) ("overwhelming display of authority under the compulsion of the badge and the guns"); Harless v. Turner, 456 F.2d 1337, 1338 (10th Cir. 1972) (defendant awakened by four officers at 1:45 AM).
Certainly, Yu was under some pressure as the target of an arrest warrant. That is also exacerbated by his immigration status and the Miranda violations occurring during the conversation. However, as the magistrate correctly noted, this case is a far cry from LaDuke and other cases finding involuntary statements. Rather than being awakened at 1:45 AM surrounded by flashing emergency vehicles and many officers with their guns drawn, Klimczak and Yu met two officers, without weapons drawn, who remained behind a storm door, at 7:00 AM. DN 38 at 2. Further, the officers testified that Yu was able to speak and understand English and did not hesitate to follow their requests. Id. at 8. The remainder of the encounter appeared to be equally calm. As a result, the encounter was not objectively coercive as required by Mahan and, under the totality of the circumstances, the government has proved by a preponderance that the statement was made voluntarily.
The arrest was made pursuant to an administrative warrant. Further, any statements made were made voluntarily. Therefore, without constitutional violation, suppression is not warranted for the first gun. Without objection to the magistrate's ruling on the other pieces of evidence, the Court will adopt those rulings. Therefore, the Court will: deny the motion as to any statements made by Yu after he was handcuffed, the ammunition, and the second gun found in Yu's bedroom, with leave to refile the motion if the United States seeks to introduce the evidence; grant the motion as to Yu's statement regarding the gun under his pillow made after he was arrested; and deny the motion as to the first gun found under Yu's pillow, conditioned on the United States producing a valid administrative arrest warrant within fourteen days of entry of this opinion and order.
