Opinion
4:21-cr-00793-SHR-BGM-1
05-31-2023
United States of America, Plaintiff, v. Frederick John Stahmer, Defendant.
REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION TO SUPPRESS STATEMENTS ( MIRANDA AND VOLUNTARINESS) (DOC. 64)
Honorable Bruce G. Macdonald, United States Magistrate Judge
Pending before the Court is Defendant Frederick John Stahmer's Motion to Suppress Statements (Miranda and Voluntariness) (Doc. 64). The Government has filed its response and Defendant replied. See Govt.'s Response to Def's Mot. To Suppress Statements (“Response”) (Doc. 89), see also Def's Reply to Govt.'s Response to Def's Motion to Suppress Statements (Doc. 98). This matter came before the Court for a hearing and a report and recommendation as a result of a referral made on May 13, 2021, pursuant to LRCrim 5.1. (Doc. 5.) On May 11, 2023, and May 12, 2023, an evidentiary hearing was held by Magistrate Judge Macdonald and the matter taken under advisement. See ME 05/11/23; see also ME 05/12/23 (Docs. 102, 109.) The Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's Motion (Doc. 64).
Also pending before the Court are Defendant's Motion for Bill of Particulars (Doc. 65) and Defendant's Motion to Dismiss for Pre-Indictment Delay (Doc. 69) addressed under separate cover.
I. FINDINGS OF FACT
Special Agent Andre H. Beauford (“SA Beauford” or “AB”) of the Federal Bureau of Investigations (“FBI”) began the investigation of Defendant Frederick Stahmer (“Stahmer”) when he received a tip from an individual with a complaint regarding an investment scheme. (Doc. 118 at 10.)
In October 2016, the Government secured a search warrant for the residence located in Oro Valley, AZ, more specifically described as: 1 E. Desert Sky Road Unit 12, Oro Valley, Arizona (the “Premises”). (Doc. 118 at 10, 29, 60.) The Premises is a residential property in which all three family members, Bruce, Evelyn, and Frederick Stahmer reside.
On the morning of October 26, 2016, immediately prior to executing the Search Warrant, FBI agents in cooperation with agents of the Oro Valley Police Department (“OVPD”), held an operational briefing near the Premises at 7:00 a.m. (Doc. 118 at 26, 28.) The purpose of the Operational Briefing was to coordinate the two departments and review the Operation Plan designed to execute the Search Warrant. (Doc. 118 at 29-31, 68.)
At approximately 7:46 a.m. on October 26, 2016, agents arrived at the Premises and executed the Search Warrant. (Doc. 118 at 13, 28.) In addition to the surveillance team, approximately fourteen law enforcement arrived on the Premises to execute the Search Warrant, two agents from the FBI were unarmed, and the twelve remaining agents were armed. (Doc. 118 at 11, 13, 27-28.) The team performed the customary procedures for execution of search warrant to include, but not necessarily limited to the following: 1) approach the door and knock with the hope that the individuals inside would come to the door; 2) secure the individuals that are in the house, outside, and make sure they are safe; 3) take entry photographs; and 4) when a target is present, depending, attempt to interview - reach out if they would like to be interviewed while search is conducted. (Doc. 118 at 12-14.)
When agents knocked at the front door, SA Beauford, FBI, heard a commotion from the garage door opening, and Detective Zachary Young (Det. Young), OVPD, saw an individual coming out of the garage with something in his hand. (Doc. 118 at 14, 37-38, 61-62, 66.) Det. Young unholstered his firearm, and the individual complied with putting down the object in his hand. (Doc. 118 at 62, 67.) Upon further investigation, Det. Young determined that the gentleman in the garage was Stahmer's father, Bruce Stahmer. (Doc. 118 at 61.) Five officers were part of the entry team that performed a protective sweep to clear and secure the Premises. (Doc. 118 at 13, 15.) Clearing the residence customarily includes weapons up to make sure there are no threats in the house. (Doc. 118 at 13-16.) Present at the home were Stahmer, Stahmer's parents, and Stahmers' dog, and cat. Agents directed Stahmer and Stahmer's parents to the driveway of the Premises, with Stahmer's dog, and Stahmer's cat was secured in one of the bedrooms. (Doc. 118 at 78, Doc. 98-1 at 46.) Agents arrived at the Premises at approximately 7:46 a.m. began searching at approximately 8:20 a.m. (Doc. 118 at 13.) The agents, upon entry, and at the conclusion of the search, took photographs to show the condition of the Premises. (Doc. 118 at 13.)
At hearing, “Lieutenant” Zachary Young.
After the Premises was cleared, Stahmer agreed to speak with two agents, SA Beauford, FBI, and Detective M. Carr (“Det. Carr” or “MC”), OVPD. (Doc. 118 at 1617.) Without hand cuffs or restraints-SA Beauford and Det. Carr escorted Stahmer from the driveway through the garage to the den and then to the porch. (Doc. 118 at 88-90.) The exterior doors to the house, and the gate from the patio to the pool area, were closed. (Doc. 118 at 92, 100.) Seated at a table on the patio of the Premises, for the interview and questioning, were SA Beauford, FBI, Det. Carr, and Stahmer. (Doc. 118 at 91-92, Exh. 34.) The two agents wore “more plainclothes” a “uniform of sorts,” not a full uniform. (Doc. 118 at 92.)
Prior to the questioning, SA Beauford, in the presence of Det. Carr, informed Stahmer that he was not under arrest, that the nature of the interview was voluntary, that if he didn't want to talk at any point in time, he could just let them know, and he could get up and go. (Doc. 118 at 94, 104.) Without giving him any Miranda warnings, and without handcuffs, restraints, or threats, the agents interviewed Stahmer. (Doc. 118 at 98, 110-11.)
The interview began at 8:16 a.m. and ended at 10:16 a.m., lasting approximately two hours. (Doc. 118 at 18; Doc. 98-1 at 3, 137.) The tone of the interview was cordial and free from threats, restraints, and or promises. (Doc. 118 at 52, 94, 103-04, 110-11; Doc. 98-1 at 18; Exh. 7.) About halfway through the interview, the questioning ceased temporarily to allow Stahmer to take his heart medications with food and water. (Doc. 118 at 87, 111; Doc. 98-1 at 46-48.) During this short break, Stahmer's Mother, Evelyn Stahmer, Stahmer's dog, Maggie or “Mag,” and Agent Stacey Gutierrez joined Stahmer, SA Beauford, and Det. Carr on the patio. (Doc. 118 at 111-12; Doc. 98-1 at 56-58.) The interview of Stahmer was recorded, the recording transcribed (“Transcription”) (Doc. 98 1), and the transcript was formally admitted into evidence at the hearing. See ME 05/11/23 (Doc. 102).
Defendant's business, Frederick Entertainment, Inc., is a concert and music promotion production company for organizing live events with musicians and bands at various venues. (Doc. 98-1 at 8-19.) The live events are funded by investors solicited by Stahmer to finance the events with options for short term return, i.e., to invest in one event and receive back principle and potential dividends; and or long-term investments, i.e., investors may choose to “roll” their investment from one event into the next event and receive back principle and potential dividends. (Doc. 98-1 at 18-19.) The terms of each agreement between Stahmer and each investor, varied, and subject to change. (Doc. 98-1 at 14-16.) Stahmer's agreements with investors were sometimes based on written contracts while other agreements relied on a “handshake.” (Doc. 98-1 at 14-15.) The written contracts were sometimes signed in-person and sometimes signed electronically and via email. (Doc. 98-1 at 51-52.) Stahmer received investor's funds by wire transfer and or check. (Doc. 98-1 at 42.) To solicit investors, Stahmer sometimes told investors that his company made money, or was profitable, when the company may, or may not, in fact, be profitable at that time. (Doc. 98-1 at 20-21.) Stahmer did not use Quickbooks for his company's accounting purposes. (Doc. 98-1 at 21.) Stahmer used Excel spreadsheets or Google Sheets (online spreadsheets in real-time from any device) and his banks to track the financing. (Doc. 98-1 at 22.) Sometimes, Stahmer would generate pro formas for projections prior to the live events, and or P and L statements after the live events, that would show how much each event made. (Doc. 118 at 109-10; Doc. 98-1 at 23-24.)
II. INDICTMENT
On April 21, 2021, Stahmer was indicted on four counts of Wire Fraud under 18 U.S.C. § 1343, and forfeiture under 18 U.S.C. § 981-82, in pertinent part, “for having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises,” and for causing “to be transmitted by means of wire, radio or television communication in interstate or foreign commerce, any writing, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice[.]” (Doc. 1.)
III. PARTIES' POSITIONS
Stahmer's Motion to Suppress Statements (Miranda and Voluntariness) (Doc. 64), seeks suppression of his statements made during the recorded interview on October 26, 2016, with SA Beauford, FBI, and Det. Carr, OVPD, allegedly conducted in violation of the Fifth and Sixth Amendments to the United States Constitution. Stahmer contends throughout the course of the interview, he was in a “police-dominated atmosphere,” he felt he was not free to leave, he was thus “in custody,” and therefore required Miranda warnings prior to the interview and his statements were the result of an involuntary confession, and should be suppressed.
The Government submits, prior to the interview, Stahmer was advised he was not under arrest, he was told if at any point he didn't want to talk he could get up and go, he was therefore not “in custody,” thus Miranda warnings were not required, and the nature of Stahmer's statements were voluntary, based on the totality of the circumstances.
IV. LAW
Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. CONST. amend. IV.
Detention Incident to Search Warrants
“Detentions incident to the execution of a search warrant are reasonable under the Fourth Amendment because the limited intrusion on personal liberty is outweighed by the special law enforcement interests at stake. Once an individual has left the immediate vicinity of a premises to be searched, however, detentions must be justified by some other rationale.” Bailey v. United States, 568 U.S. 186, 202, 133 S.Ct. 1031, 1042-43 (2013).
Fifth Amendment
The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. In Miranda v. Arizona, the Supreme Court held that a suspect must be advised of his Fifth Amendment rights before being subject to a custodial interrogation. 384 U.S. 436, 444-45, 86 S.Ct. 1602 (1966). When a 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.” 384 U.S. at 444.
Sixth Amendment
In pertinent part, the Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy [a] speedy [t]rial, by an impartial jury[,] be informed of the [c]ause of the accusation; [b]e confronted with the witnesses against him[;] and to have the Assistance of Counsel[.]U.S. CONST. amend. VI.
[O]nce the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all “critical” stages of the criminal proceedings. (citations omitted) Interrogation by the State is such a stage. (citations omitted) Our precedents also place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. (citations omitted) The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. (citations omitted). And when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment:Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 2085, 173 L.Ed.2d 955 (2009).
Custodial or Non-Custodial
In the Ninth Circuit, “A defendant is in custody when [ ] ‘a reasonable innocent person in such circumstances would conclude that after brief questioning he or she would not be free to leave.'” United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985). “While the Ninth Circuit has not explicitly addressed the issue relative to determinations of whether a defendant is in custody, generally, ‘the burden of production and persuasion rests on the person seeking to suppress evidence.'” United States v. Sciolino, No. 2:09-CR-0070 FCD, 2009 WL 2914570, at *3 (E.D. Cal. Sept. 9, 2009) citing United States v. Smith, 783 F.2d 648, 650 (6th Cir.1986); United States v. Arboleda, 633 F.2d 985, 989 (2d Cir.1980).
“Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.” United States Court of Appeals for the Ninth Circuit, CTA9 Rule 36-3.
In the Ninth Circuit case of Craighead, in pertinent part, found when:
[T]he 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.' 384 U.S. at 444, 86 S.Ct. 1602. To determine whether the suspect was in custody, we first examine the totality of the circumstances surrounding the interrogation. See Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457 (1995). We then ask whether a reasonable person in those circumstances would ‘have felt he or she was not at liberty to terminate the interrogation and leave.' Id.United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008).
Some areas of Fourth Amendment jurisprudence, of course, call for clear error review both of the district court's underlying factual determinations and of its final conclusion. See, e.g., United States v. Enslin, 327 F.3d 788, 792(9th Cir.2003) (“Whether consent to search is voluntary depends upon the totality of the circumstances and is a question of fact that we review for clear error.”). But the question whether a defendant was in custody during an interrogation is not one of them.
* * *
In contrast to the underlying factual determinations, we must decide the legal issue-whether Bassignani was in custody-de novo. That is the bifurcated analytical framework required by the Supreme Court and by our precedent. See Keohane, 516 U.S. at 112-13, Kim, 292 F.3d 969, 973 (9th Cir. 2002).United States v. Bassignani, 575 F.3d 879, 887 (9th Cir. 2009) (emphasis added).
Police Dominated Atmosphere During Questioning Outside of Police Station
The Ninth Circuit has elucidated, “[o]ur approach of using the ‘police-dominated atmosphere' as the benchmark for custodial interrogations in locations outside of the police station is consistent with the Supreme Court's adaptations of Miranda to these types of locations.” 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.'” Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008). The determination of whether an in-home interrogation was custodial “is necessarily fact intensive.” Id. at 1084 citing United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir.1993).
Credibility
“Credibility determinations, as in the case of the alleged involuntariness of a confession, may sometimes contribute to the establishment of the historical facts and thus to identification of the ‘totality of the circumstances.'” Thompson, 516 U.S. at 113, citing Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450 (1994) (per curiam).
Totality of the Circumstances
“The ultimate ‘in custody' determination for Miranda purposes” directs the Court to first, analyze “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, 516 U.S. at 112. “Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve ‘the ultimate inquiry': ‘[was] there a ‘formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest.” Thompson, 516 U.S. at 112 citing California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520 (1983) (per curiam). “The first inquiry, all agree, is distinctly factual”; however, “[t]he second inquiry[,] calls for application of the controlling legal standard to the historical facts. This ultimate determination, we hold, presents a ‘mixed question of law and fact' qualifying for independent review.” Thompson, 516 U.S. at 112-13.
Although it has been a subject of some confusion in the past, it is now clear that a district court's ‘in custody' determination is a ‘mixed question of law and fact warranting de novo review.' Kim, 292 F.3d at 973. However, ‘[t]he factual findings underlying the district court's decision ... are reviewed for clear error.' Id. These factual findings include ‘scene and action-setting questions,' as well as ‘the circumstances surrounding the interrogation.' Thompson, 516 U.S. at 112.United States v. Bassignani, 575 F.3d 879, 883 (9th Cir. 2009).
Voluntariness of Statements
It is the government's burden to prove by a preponderance of the evidence that a criminal defendant's statement was voluntary. U.S. v. Bautista, 362 F.3d 584, 589 (9th Cir. 2004) citing U.S. v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981). The voluntariness of a defendant's statements depends on “whether the accused was deprived of his ‘free choice to admit, to deny, or to refuse to answer.'” Garrity v. New Jersey, 385 U.S. 493, 496, 87 S.Ct. 616, 17 L.Ed.2d 62 (1967). “In evaluating voluntariness, the test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne.” Bautista, 362 F.3d at 589.
U.S. v. Craighead
In the seminal case of United States v. Craighead, the Ninth Circuit found:
[A] reasonable person interrogated inside his own home may have a different understanding of whether he is truly free ‘to terminate the interrogation if his
home is crawling with law enforcement agents conducting a warrant-approved search. He may not feel that he can successfully terminate the interrogation if he knows that he cannot empty his home of his interrogators until they have completed their search.United States v. Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008). The court in Craighead further distinguished, “[w]hen applying Miranda to the task of sorting a non-custodial inhome 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.” 539 F.3d at 1083.
[W]e conclude that several factors are relevant to whether the circumstances of Craighead's interrogation effected 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. “Trickery, deceit, even impersonation do not render a confession inadmissible, certainly in noncustodial situations and usually in custodial ones as well, unless government agents make threats or promises.” Crawford, 372 F.3d at 1060-61.
V. ANALYSIS
Defendant's Motion to Suppress challenges the admissibility of his inculpatory statements to SA Beauford and Det. Carr on October 26, 2016, on three grounds. First, Defendant alleges OVPD officers and FBI agents created a “police dominated atmosphere” at the Premises before and during the interview. Second, Defendant alleges he felt he was not free to leave, and therefore, the agents failed to give him his required Miranda warning. And, third, based on the totality of the circumstances, Defendant's statements were involuntary.
On October 26, 2016, two events occurred simultaneously at the Premises: 1) execution of a Search Warrant; and 2) the questioning of Stahmer. Each event implicates separate constitutional protections with overlapping safety interests. The Court's consideration of the ‘totality of the circumstances,' must simultaneously analyze two issues: 1) “[w]hether an individual detained during the execution of a search warrant has been unreasonably seized for Fourth Amendment purposes”; and 2) “whether that individual is ‘in custody' for Miranda purposes[.]” Kim, 292 F.3d at 976. Accordingly, the Court sets forth the probable cause standard for obtaining a search warrant before analyzing whether the Government has established, by a preponderance of the evidence that Stahmer's statements were voluntary-or-whether sufficient factual circumstances surround the interview to find a “police-dominated” atmosphere, i.e., Stahmer was deprived of his free choice to admit, deny, or to refuse to answer questions, by physical or psychological coercion or improper inducement, based on the totality of the circumstances.
The Ninth Circuit Court in the case of United States v. Kim, explained, “[i]n Summers, the Supreme Court found that the defendant ‘was not free to leave the premises while the officers were searching his home,' and that his detention constituted a seizure, albeit a reasonable one under the Fourth Amendment.” 292 F.3d at 976 citing Michigan v. Summers, 452 U.S. 692, 701-02, 101 S.Ct. 2587 (1981). In executing the search warrant, “[i]f [the government] had asked questions going beyond a brief Terry-type inquiry[,] Summers would [ ] have been entitled to Miranda warnings.” Kim, 292 F.3d at 976.
This distinction is further explained by the U.S. Supreme Court, in Bailey:
A spatial constraint defined by the immediate vicinity of the premises to be searched is therefore required for detentions incident to the execution of a search warrant. The police action permitted here-the search of a residence-has a spatial dimension, and so a spatial or geographical boundary can be used to determine the area within which both the search and detention incident to that search may occur. Limiting the rule in Summers to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification. Once an occupant is beyond the immediate vicinity of the premises to be searched, the search-related law enforcement interests are diminished and the intrusiveness of the detention is more severe.Bailey v. United States, 568 U.S. 186, 201, 133 S.Ct. 1031, 1042 (2013).
Here, as the Ninth Circuit found in Kim-not allowing a suspect to leave the home, or the patio, during execution of a search warrant-may be found to be a reasonable seizure, for purposes of securing the scene, under the Fourth Amendment; if, in doing so, any questioning is limited to a brief Terry detention. Kim, Summers, and Bailey, supra, instructs us that Stahmer's detention on the patio to secure the residence while a search warrant is being executed is a “spatially” reasonable seizure, as long as, any questioning is limited to a brief Terry detention.
The Ninth Circuit in Kim further opined, “[w]hile the reasonable and necessary steps that the officers took to secure [the scene] during the search may preclude a conclusion that [the defendant] was unconstitutionally seized, the locked doors and restriction of [ ] movement are still relevant to whether [the defendant] was entitled to Miranda warnings before the police questioned [the defendant].” Kim, 292 F.3d at 976-77. For purposes of being Mirandized-implicating the Fifth Amendment protections against compelling a person to be a witness against himself-locked doors and restriction of movement become relevant salient facts.
According to Stahmer's own admissions, he was interviewed without Miranda warnings, and without handcuffs, restraints, or threats.
The inquiry focuses on the objective circumstances of the interrogation, not the subjective views of the officers or the individual being questioned. Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526 (1994). For a finding of ‘in custody' we must determine whether “the officers established a setting from which a reasonable person would believe that he or she was not free to leave.” United States v. Beraun-Panez, 812 F.2d 578, 580 (9th Cir.), modified by 830 F.2d 127 (9th Cir.1987); see also United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir.2001).
An interrogation conducted within the suspect's home is not per se custodial[.] On the contrary, courts have generally been much less likely to find that an interrogation in the suspect's home was custodial in nature. United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir.1994); 2 WAYNE R. LAFAVE, CRIMINAL PROCEDURE § 6.6(e) (3d ed.2007).Craighead, 539 F.3d at 1083. The Craighead factors to determine whether questioning outside of a precinct was performed in a “police-dominated” atmosphere, include but are not limited to:
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.Craighead, 539 F.3d at 1084.
The Court's analysis of the Craighead factors for the case at bar follow:
(1) the number of law enforcement personnel and whether they were armed;
According to SA Beauford's testimony, in addition to the surveillance team, approximately fourteen law enforcement arrived on the Premises to execute the Search Warrant; two agents from the FBI were unarmed, and the twelve remaining agents were armed.
In Craighead, the court opined, “[w]hen a large number of law enforcement personnel enter a suspect's home, they may fill the home such that there are no police-free rooms or spaces to which the suspect may retreat should he wish to terminate the interrogation.” Craighead, 539 F.3d at 1084.
Here, the facts are distinguishable from Craighead because the questioning took place on the patio while execution of the search warrant occurred inside the residence. And although Stahmer testified to other officers walking around the patio area at times, no officers were stationed at doorways blocking ingress or egress. Furthermore, Stahmer's physical detention on the patio while the search warrant was being executed inside is generally considered a reasonable detention incident to a search as long as the scope of the detention is confined to the underlying justification for the Search Warrant. Bailey, supra.
This notwithstanding, the first Craighead factor weighs in favor of Stahmer. The number of law enforcement officers outnumbered Stahmer. See Craighead, supra; see also e.g., United States v. Mittel-Carey, 493 F.3d 36, 40 (1st Cir.2007); United States v. Akpan, No. 2:05-CR-00304RCJRJJ, 2009 WL 418599, at *14 (D. Nev. Feb. 17, 2009).
(2) whether the suspect was restrained, either by physical force or threats;
According to the transcript of the recorded interview, the interview began at approximately 8:16 a.m. and, including any breaks, ended at approximately 10:16 a.m., lasting approximately two (2) hours. (Doc. 98-1 at 3, 137.) The tone of the interview was cordial and free from restraints, threats, and or promises.
Regarding coercion, the Ninth Circuit Court in the Harwood case, elucidated:
Even if we assume that the interrogation lasted all day, which is the outside inference that the record supports, coercion typically involves far more outrageous conduct. See, e.g., Mincey v. Arizona, 437 U.S. 385, 398-99, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (finding that a statement could not have been voluntary when obtained from a defendant who was in the hospital, in near coma condition, and in great pain, while fastened to tubes, needles, and a breathing apparatus); Haynes v. Washington, 373 U.S. 503, 510-12, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) (invalidating a confession where the authorities held the suspect for more than five days and never advised him of his rights); Ashcraft v. Tennessee, 322 U.S. 143, 149-54, 64 S.Ct. 921, 88 L.Ed. 1192 (1944) (invalidating a confession because police officers questioned a suspect in relays for thirty-six hours straight, allowing him only a single five-minute respite).United States v. Haswood, 350 F.3d 1024, 1028 (9th Cir. 2003). The Ninth Circuit provides the following regarding the factual inquiry for coercion:
It is the government's burden to prove by a preponderance of the evidence that a criminal defendant's statement was voluntary. Bautista, 362 F.3d at 589 (citing United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir.1981)). The factual inquiry focuses on (1) the conduct of law enforcement officials in creating pressure, and (2) the defendant's ability to resist that pressure. Mincey v. Arizona, 437 U.S. 385, 399-401, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Coercion by the authorities is a necessary element of this test. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).United States v. Perelman, 737 F.Supp.2d 1221, 1227 (D. Nev. 2010), affd, 695 F.3d 866 (9th Cir. 2012).
At hearing, when asked whether he was restrained, Stahmer testified “no”; and when asked if he was threatened, Stahmer also testified “no”; however, thereafter he qualified his responses and indicated the guns being drawn was threatening in manner and taking into account I was told I wasn't being allowed to leave the Premises.
Like the defendant in Craighead, Stahmer was not physically restrained or handcuffed, during the interview. Unlike the defendant in Craighead, Stahmer was not in a closed-off room where the only exit was blocked by an armed officer. Instead, Stahmer sat outside on a covered patio. Stahmer sat at a table across from two agents. Although Stahmer's family may have been limited in their movement while in the confines of their home during the search.
[L]aw enforcement can still restrain a suspect and put them in custody, triggering Miranda, even though they do not physically restrain or threaten the suspects. Where the facts reflect an obvious effort on law enforcement's part to indirectly or implicitly restrict the suspect's freedom, such that a reasonable suspect would “have felt he or she was not at liberty to terminate the interrogation and leave,” custody is properly found. Craighead, 539 F.3d at 1088.United States v. Akpan, No. 2:05-CR-00304RCJRJJ, 2009 WL 418599, at *16 (D. Nev. Feb. 17, 2009). As in Apkan, the Government expressly explained to Stahmer at the outset of the interview that he was free to get up and go. Stahmer complains about the constraints upon him and his family in the home. However, some restrictions and supervision were required to protect the integrity of the search. United States v. Akpan, No. 2:05-CR-00304RCJRJJ, 2009 WL 418599, at *16 (D. Nev. Feb. 17, 2009) citing United States v. Axsom, 289 F.3d 496, 503 (8th Cir. 2002) (deciding that a reasonable person in the suspect's “shoes should have realized the agents escorted him not to restrict his movement, but to protect themselves and the integrity of the search.”)
Here, there was no agent blocking Stahmer's ingress or egress, should he have decided to get up and go. When Stahmer agreed to take his heart medications, Agent Stacey Gutierrez, escorted Stahmer's mother, Evelyn Stahmer, along with the dog, onto the patio. The questioning ceased while Stahmer consumed food, water, and took his heart medication.
For these reasons, the second factor weighs in favor of the Government.
(3) whether the suspect was isolated from others; and
Defendant submits, “[u]nlike Craighead, Mr. Stahmer had no support from anyone. His mother and father could have no contact with him during the entire period officers searched the home and interrogated him.” (Doc. 64 at 10.) However, the Transcription reflects, about halfway through the interview, Stacey Gutierrez (“SG”) interjected, “Excuse me? Um, your parents mentioned that you probably need to eat something and-‘cause you need to take your heart medication.” (Doc. 98-1 at 44.) Although Stahmer initially declined, eventually, with encouragement from SG, i.e., “[t]his can wait, you know? It's better for you to, you know, be comfortable, and don't do anything you normally wouldn't do-You-if you would have had your medicine and your food, let's, you know, make sure you're comfortable.” (Doc. 98-1 at 45.) Det. Carr commented as follows, “Can- they're-they're workin' in there. Can she grab it for you? Would that be okay?” (Doc. 98-1 at 46.) Shortly thereafter, the Court notes, here, the following exchange with Stacy Gutierrez [SG]; Evelyn Stahmer [ES] (Stahmer's Mother); and Maggie or Mag [the Dog]:
SG: Let me know if you're missing anything. Here's all the ones we found [UI]
AB: Thank you.
FS: [UI] don't have to take ‘em all in the morning-
MC: Thank you.
FS: --but I figured it would be a lot-
MC: --easier than trying to-
ES: [OV] alrighty. Let's see. Maggie [PH], where did you go?
FS: [OV] -describe ‘em to you. Hey, there, girl.
MC: She's over here.
AB: She's right here.
FS: Oh, okay. Come on.
SG: Your mom's gonna get you some cereal.
MC: Hi, baby.
FS: No, no, no. This is okay.
MC: Go back inside.
SG: You sure? [UI]
FS: This is fine. This is fine for now.
ES: You want cereal?
FS: No. Not right now, thank you.
ES: Okay. You want two granola bars?
FS: This is fine-
ES: Okay.
FS: --for what I have to take now.
ES: Where is she? Come here, Mag.
SG: Hi, cutie.
ES: come on, sweetie. Come in. You can't be out here.
AB: I'll let you go ahead and take that.
FS: This'll only take a second.
MC: And these are all heart-related?(Doc. 98-1 at 56-57).
ES-Evelyn Stahmer; SC-Stacey Gutierrez; AB-SA Beauford; FS-Frederick Stahmer; MC-Det. Carr; “Mag” or “Maggie”- dog.
At hearing, on direct exam, when SA Beauford was asked if he selected the patio to isolate Stahmer from his parents, SA Beauford responded “no.” When questioned whether Stahmer's parents had asked to join the interview, SA Beauford responded “no”; and when asked if Stahmer's parents would have asked to join, would they have been allowed, SA Beauford answered affirmatively, and offered that he had allowed others to do so in the past under similar circumstances, e.g., a husband and wife.
According to the transcript of the interview, and the testimony at the hearing, when Stahmer's Mother, Evelyn Stahmer, inquired of Agent Stacey Gutierrez about Stahmer's medications, the information was relayed to those individuals participating in the interview. Ultimately, the participants of the interview took a short break about halfway through the interview, and Stahmer's Mother, and the dog, Maggie, came out onto the patio while Stahmer sorted through his medications and consumed food, water, and took his medications-contrary to Stahmer's allegation in the Motion. (Doc. 64 at 10.) (Doc. 98-1 at 56-57).
The third factor weighs in favor of the government.
(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.
Initially, SA Beauford began the interview with the following:
So, Andre Beauford here with the FBI. I have Megan Carr with Oro Valley Police Department and Frederick Stahmer. It is Wednesday, October 26th, approximately, 8:16 A.M. Um, so just to let you know: you're not under arrest or anything. We just wanna have a conversation with you. Um, if you don't wanna talk to us at any point in time, you can just let us know.
You can get up and go. That's-well, can't go in the house, obviously, but you can sit somewhere secure. So, um, obviously all of this is volunteered. We just kind wanna have a conversation with you. Um, I think you may have a little bit of an idea why we're here.(Doc. 98-1 at 3) (emphasis added).
At hearing, Defense counsel emphasized SA Beauford's statement, “That's-well, can't go in the house, obviously, but you can sit somewhere secure”; inferring from this statement that, in fact, Stahmer was not free to leave, despite statements to the contrary. However, as discussed, herein, when a search warrant is being executed, an individual on the premises may be reasonably detained, however, limited to “[a] spatial constraint defined by the immediate vicinity of the premises to be searched” which thus “ensures that the scope of the detention incident to a search is confined to its underlying justification.” Baily, supra. Accordingly, SA Beauford's statement regarding not going in the house, and sitting somewhere secure-would be considered a reasonable detention incident to a search warrant while the search warrant is being executed, as long as any questioning was limited to a brief Terry detention.
In addition, both agents were present during the interview when Stahmer was told if he didn't want to talk he could just let them know and he could get up and go-even if limited to somewhere secure while the Search Warrant was executed-distinguishing the facts from Craighead.
Thus, the fourth factor weighs in favor of the Government.
When considering the totality of the circumstances, in addition to the Craighead factors above, the Court, here, draws attention to the significance of a KVOA News 4 Article, dated March 20, 2017 (“Article”), admitted into evidence at hearing. See Exh. 7.
In pertinent part, the Article states, Stahmer declined an interview with KVOA, but “[h]e later emailed a statement to the News 4 Tucson Investigators, saying in part”:
I'm extremely sorry for what has transpired with Frederick Entertainment. I'm also extremely sorry to those who I have disappointed, let down and those who have been hurt. I have completely cooperated with authorities to this point and will do so in the future, if/when called upon. It's important to point out that there was never a premeditated plan or scheme to
hurt anyone, no malicious intent whatsoever. There has was no personal financial gain, no accumulation of any assets or cash. I never took out any dividends and never even paid myself a salary. All that being said, there still is a lot to be sorted out and I only hope that I can right as many wrongs as possible moving forward [. . . .]See Exh. 7 (emphasis added). “Where testimony is taken, we give special deference to the district court's credibility determinations.” Craighead, 539 F.3d at 1082 citing United States v. Nelson, 137 F.3d 1094, 1110 (9th Cir.1998).
At hearing, Stahmer conceded he had sent an email to KVOA News 4, although he no longer possessed the email, and agreed “in substance” that the email stated he had cooperated with investigators and would do so in the future, if not, in the exact words as reflected in the article. (Doc. 118 at 113-15.) In addition to conceding Stahmer sent an email to KVOA regarding his cooperation, Defendant's Motion to Suppress also concedes, that after waiting approximately 45 minutes in the driveway, SA Beauford told Stahmer “let's go in and find a place to sit and chat” and SA Beauford and Det. Carr escorted Stahmer to a porch on the east side of the house. (Doc. 64 at 3.) Stahmer's Motion further submits, “[l]ike Craighead, officers did not physically retrain [ sic ] Mr. Stahmer[.]” (Doc. 64 at 9.) Defendant further concedes, “[n]o officer blocked the door to the inside of the house,” however, “other agents searched the home during the interrogation” and Mr. Stahmer, “could see them” from where officers escorted him for the interview. (Doc. 64 at 9.)
In summary, Defendant's testimony regarding the Article, his additional concessions set forth in the Motion to Suppress, combined with the fact that Stahmer was not arrested the day of the interview, all provide the Court with objective evidence regarding the totality of the circumstances surrounding the interview.
Viewing the totality of the circumstances, the Court holds that the Government did not turn Stahmer's residence into a “police-dominated atmosphere.” The respectful and comfortable manner in which the interview was conducted combined with the fact that there are no allegations that any of the questions or comments by the interviewing agents were aggressive or overbearing supports this result. Although there were over ten agents involved in the search, only two of those agents sat down with Stahmer and talked with him.
For these reasons, the Court holds that Stahmer was never in custody and his Fifth Amendment right against self-incrimination was not violated.
VI. CONCLUSION
Based on the totality of the circumstances, the Court concludes the evidence adduced during the suppression hearing demonstrated that Stahmer's confession was voluntary.
VII. RECOMMENDATION
For the reasons stated above, the Court recommends that the District Court deny the Defendant's Motion to Suppress Statements (Miranda and Voluntariness) (Doc. 64).
Pursuant to 28 U.S.C. §636(b) and Federal Rules of Criminal Procedure, Rule 59(b)(2), any party may serve and file written objections within fourteen (14) days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. If any objections are filed, the parties should use the following case number: CR-21-00793-SHR.
Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See Fed. R. Crim. P., Rule 59.