Case: 11-50094 Document: 00511730607 Page: 1 Date Filed: 01/19/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 19, 2012
No. 11-50094 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellant
v.
MICHAEL ANGELO CAVAZOS,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
Before BENAVIDES and PRADO, Circuit Judges, and ALVAREZ, District
Judge*
BENAVIDES, Circuit Judge:
This interlocutory appeal is brought by Plaintiff-Appellant the United
States of America (the “Government”) to reverse the district court’s order
suppressing certain incriminating statements made by Defendant-Appellee
Michael Angelo Cavazos (“Cavazos”). We AFFIRM.
*
District Judge of the Southern District of Texas, sitting by designation.
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FACTUAL AND PROCEDURAL BACKGROUND
On September 1, 2010, between 5:30 a.m. and 6:00 a.m., Cavazos woke to
banging on his door and the shining of flashlights through his window. U.S.
Immigration and Custom Enforcement (“ICE”) Agents, assisted by U.S.
Marshals, Texas Department of Public Safety personnel, and Crane Sheriff’s
Department personnel, were executing a search warrant on Cavazos’s home.
The warrant was issued on the belief that Cavazos had been texting sexually
explicit material to a minor female. After Cavazos’s wife answered the door,
approximately fourteen law enforcement personnel entered Cavazos’s residence.
Immediately upon entering, government agents ran into Cavazos’s
bedroom, identified him, and handcuffed him as he was stepping out of bed.
Agents then let Cavazos put on pants before taking him to his kitchen.
Cavazos’s wife and children were taken to the living room. Cavazos remained
handcuffed in the kitchen, away from his family, while the entry team cleared
and secured the home. ICE Agents Le Andrew Mitchell and Eric Tarango then
uncuffed Cavazos and sat with him in the kitchen for approximately five
minutes while other officers secured the home.
Once the house was secured, agent Tarango asked Cavazos if there was a
private room in which they could speak. Cavazos suggested his son’s bedroom.
In the bedroom, Cavazos sat on the bed while the two agents sat in two chairs
facing him. The agents asked Cavazos if he wanted the door open, but Cavazos
said to keep the door closed. Agents Mitchell and Tarango informed Cavazos
that this was a “non-custodial interview,” that he was free to get something to
eat or drink during it, and that he was free to use the bathroom. The agents
then began questioning Cavazos without reading him his Miranda rights.
About five minutes into the initial interrogation, Cavazos asked to use the
restroom. Agents then searched the restroom for sharp objects and inculpatory
evidence. Once cleared, they allowed Cavazos to use the bathroom, but one
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agent remained outside the door, which was left slightly open so the agent could
observe Cavazos. Once finished, Cavazos, followed by an agent, went to the
kitchen to wash his hands, as the restroom’s sink was broken. Cavazos then
returned to his son’s bedroom, and the interrogation resumed.
After Cavazos returned to the bedroom, officers interrupted the
interrogation several times to obtain clothing to dress Cavazos’s children. The
officer would ask Cavazos for an article of clothing, which Cavazos would
retrieve from the drawers and hand to the officer. Agents Mitchell and Tarango
would then continue the questioning.
At some point during the interrogation, Cavazos asked to speak with his
brother, who was his supervisor at work. The agents brought Cavazos a phone
and allowed him to make the call, instructing Cavazos to hold the phone so that
the agents could hear the conversation. Cavazos told his brother that he would
be late for work.
Finally, the agents asked Cavazos if he had been “sexting” the victim.
Cavazos allegedly admitted that he had, and also described communications
with other minor females. After the interrogation was over, Cavazos agreed to
write a statement for the agents in his kitchen. While Cavazos began writing
the statement, an agent stood in the doorway and watched him.
Cavazos wrote his statement for approximately five minutes before agents
Mitchell and Tarango interrupted him. At that point the agents formally
arrested Cavazos and read him his Miranda rights. From beginning to end, the
interrogation of Cavazos lasted for more than one hour, and the agents’ conduct
was always amiable and non-threatening. Subsequently, Cavazos was indicted
for coercion and enticement of a child, and for transferring obscene material to
a minor.
On November 2, 2010, Cavazos moved to suppress the statements he made
before he was read his Miranda rights. On January 14, 2011, a suppression
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hearing was held. On January 19, 2011, Judge Robert A. Junell granted
Cavazos’s motion, and, on January 26, 2011, issued a memorandum stating the
reasons for his order. Thereafter, pursuant to 18 U.S.C. § 3731, the Government
filed this interlocutory appeal of the district court’s order.
STANDARD OF REVIEW
In an appeal from a district court’s ruling on a motion to suppress, this
Court reviews factual findings in support of the ruling under the clearly
erroneous standard and legal conclusions de novo. United States v. Seals, 987
F.2d 1102, 1106 (5th Cir. 1993). The evidence is viewed in the light most
favorable to the party who prevailed in the district court. United States v.
Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993).
ANALYSIS
The Government appeals the district court’s finding that Cavazos was
subjected to a custodial interrogation when he was interrogated by Agents
Mitchell and Tarango. Except for some minor issues addressed below, the
Government does not challenge the district court’s factual findings. Rather, the
Government argues that the district court improperly weighed the evidence in
finding that Cavazos was subjected to a custodial-interrogation.
“Miranda warnings must be administered prior to ‘custodial
interrogation.’” United States v. Bengivenga, 845 F.2d 593, 595 (5th Cir. 1988)
(quoting Miranda v. Arizona, 384 U.S. 436, 479 (1966)). “A suspect is . . . ‘in
custody’ for Miranda purposes when placed under formal arrest or when a
reasonable person in the suspect’s position would have understood the situation
to constitute a restraint on freedom of movement of the degree which the law
associates with formal arrest.” Id. at 596. “Two discrete inquires are essential
to the determination: first, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a reasonable person
have felt he or she was at liberty to terminate the interrogation and leave.”
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J.D.B. v. N. Carolina, 131 S. Ct. 2394, 2402 (2011). “The reasonable person
through whom we view the situation must be neutral to the environment and to
the purposes of the investigation—that is, neither guilty of criminal conduct and
thus overly apprehensive nor insensitive to the seriousness of the
circumstances.” Bengivenga, 845 F.2d at 596.
Custody for Miranda purposes requires a greater restraint on freedom
than seizure under the Fourth Amendment. Bengivenga, 845 F.2d at 598 (noting
“a Fourth Amendment seizure does not necessarily render a person in custody
for purposes of Miranda”); see also Berkemer v. McCarty, 468 U.S. 420, 437–38
(1984) (holding Miranda warnings not required during traffic stop; finding
brevity, spontaneity, and public-nature of stop, and small number of officers
involved, rendered atmosphere insufficiently “police dominated” to be coercive).
A determination of whether a defendant is “in custody” for Miranda purposes
depends on the “totality of circumstances.” California v. Beheler, 463 U.S. 1121,
1125 (1983). “[T]he subjective views harbored by either the interrogating officers
or the person being questioned are irrelevant.” J.D.B., 131 S. Ct. at 2402
(internal quotation marks omitted).
Here, the totality of circumstances, drawn from the record as seen in the
light most favorable to Cavazos, indicates Cavazos was in custody at the time he
made his incriminating statements. Just after 5:30 a.m., Cavazos was awakened
from his bed, identified and handcuffed, while more than a dozen officers entered
and searched his home; he was separated from his family and interrogated by
two federal agents for at least an hour1; he was informed he was free to use the
bathroom or get a snack, but followed and monitored when he sought to do so;
1
“[A] detention of approximately an hour raises considerable suspicion” that an
individual has been subjected to a custodial interrogation. United States v. Harrell, 894 F.2d
120, 124 n.1 (5th Cir. 1990). The Government identifies no evidence in the record to support
their contention that Cavazos’s incriminating statements were made early in the
interrogation.
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and he was allowed to make a phone call, but only when holding the phone so
that the agents could overhear the conversation.2 An interrogation under such
circumstances, and those others discussed above, would lead a reasonable person
to believe that he was not “at liberty to terminate the interrogation and leave,”
J.D.B., 131 S. Ct. at 2402, notwithstanding the fact that the interrogation
occurred in his home and he was informed the interrogation was “non-custodial.”
In arguing Miranda warnings were not necessary, the Government relies
on the fact that Cavazos was interrogated in his own home, a fact which, taken
alone, lessens the likelihood of coercion. See United States v. Fike, 82 F.3d 1315,
1325 (5th Cir. 1996), overruled on other grounds by United States v. Brown, 161
F.3d 256 (5th Cir. 1998). Miranda, however, does not allow for a simple in-home
vs. out-of-home dichotomic analysis. Here, significant facts weigh against the
presumption that an in-home interrogation is non-coercive: a large number of
officers3 entered Cavazos’s home, without his consent, early in the morning, and
Cavazos’s subsequent movement about the home was continually monitored. See
United States v. Craighead, 539 F.3d 1073, 1085 (9th Cir. 2008) (suppressing
statements made during in-home interrogation where home was “a police-
dominated atmosphere”); United States v. Mittel-Carey, 493 F.3d 36, 40 (1st Cir.
2007) (finding in-home interrogation custodial where, inter alia, search
conducted early in the morning by eight officers, and officers exercised physical
control over defendant); cf. United States v. Hargove, 625 F.3d 170, 181 (4th Cir.
2010) (finding in-home interrogation non-custodial; noting “[the defendant] was
permitted to move about his house”). Similarly, although Cavazos was allowed
2
The legality of such detention pending the execution of the search warrant, which
Cavazos does not dispute here, does not change the Court’s inquiry with respect to Miranda.
3
While only two officers interrogated Cavazos, the presence of other officers at the
location is also relevant to the Court’s inquiry. See Fike, 82 F.3d at 1325 (5th Cir. 1996)
(weighing presence of officers in home during search against fact only two officers interviewed
defendant).
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to speak to his brother on the phone, the agents had him position the phone in
such a way that they could listen, indicating that they had sufficient control of
Cavazos to require him to do so, and implying Cavazos enjoyed no privacy at
that time. Also, Cavazos was immediately located and handcuffed at the start
of the search, demonstrating that the agents sought out Cavazos and had
physical dominion over him. See Bengivenga, 845 F.2d at 597 n.16 (“The
awareness of the person being questioned by an officer that he has become the
‘focal point’ of the investigation, or that the police have ample cause to arrest
him, may well lead him to conclude, as a reasonable person, that he is not free
to leave, and that he has been significantly deprived of his freedom . . . .”
(emphasis in original) (citation omitted)). While the handcuffs were removed
prior to interrogation, the experience of being singled out and handcuffed would
color a reasonable person’s perception of the situation and create a reasonable
fear that the handcuffs could be reapplied at any time. Cf. Hargrove, 625 F.3d
at 179 (noting the defendant was “never placed in handcuffs”).
The Government places significant emphasis on the fact that the agents
informed Cavazos that the interview was “non-custodial.” Such statements,
while clearly relevant to a Miranda analysis, are not a “talismanic factor.” See
Hargrove, 625 F.3d at 180 (quoting Davis v. Allsbrooks, 778 F.2d 168, 171-72
(4th Cir. 1985)). They must be analyzed for their effect on a reasonable person’s
perception, and weighed against opposing facts. Here, several facts act to
weaken the agents’ statement such that it does not tip the scales of the analysis.
First, to a reasonable lay person, the statement that an interview is “non-
custodial” is not the equivalent of an assurance that he could “terminate the
interrogation and leave.” See J.D.B., 131 S. Ct. at 2402; cf. United States v.
Perrin, 659 F.3d 718, 721 (8th Cir. 2011) (noting defendant informed he “did not
have to answer questions”); Hargrove, 625 F.3d at 180 (noting defendant
informed he was “free to leave”). Second, uttered in Cavazos’s home, the
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statement would not have the same comforting effect as if the agents had offered
to “leave at any time upon request.” See Harrell, 894 F.2d at 125 (finding
defendant was not in custody during in-home interrogation when, inter alia, he
was informed police would leave on his request); see also, Craighead, 539 F.3d
at 1082-83, 1088 (finding assurance defendant was “free to leave” had lessened
effect when interrogation occurred in defendant’s home).4 This is not to say that
a statement by police to a defendant that an interrogation is “non-custodial” does
not inform our decision as to the necessity of a Miranda warning when an
interrogation is conducted inside the home. Instead, we recognize the “totality
of circumstances” Miranda commands, and we note that statements made in
different circumstances will have different meanings and differently affect the
coercive element against which Miranda seeks to protect.
In engaging in the inquiry required by Miranda, the Court is mindful that
no single circumstance is determinative, and we make no categorical
determinations. Reviewing, in totality, the unique circumstances presented in
the record here, in the light most favorable to Cavazos, the party prevailing
below, we find a reasonable person in Cavazos’s position would not feel “he or
she was at liberty to terminate the interrogation and leave.” See J.D.B., 131 S.
Ct. at 2402.
CONCLUSION
For the reasons stated above, the order of the district court is AFFIRMED.
4
Although the Government asserts Cavazos was informed that “he was free to go,” the
record provides no clear support for such proposition. Rather, the district court found that the
agents’ only statement was that the interview was “non-custodial,” and the Government fails
to demonstrate clear error in such determination.
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