NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-30146
15-30036
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-00008-RRB-1 (JDR)
JAMES MICHAEL WELLS,
MEMORANDUM *
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted July 10, 2017
Seattle, Washington
Before: TASHIMA and NGUYEN, Circuit Judges, and WALTER,** District
Judge.
This memorandum disposition, filed concurrently with our opinion in this
case, is limited to addressing Defendant-Appellant James Michael Wells’
challenge to the denial of his motion to suppress statements made during
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald E. Walter, United States District Judge for the
Western District of Louisiana, sitting by designation.
investigative interviews on April 12 and 13, 2012. At trial, the Government
introduced two excerpts extracted from the first interview, conducted on April 12,
and five excerpts extracted from the fifth interview, conducted after Wells had
been Mirandized on April 13. We apply de novo review to Wells’ challenges under
the Fourth and Fifth Amendments and find no error. See United States v.
Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008); United States v. Bassignani, 575
F.3d 879, 883 (9th Cir. 2009). 1
1. “[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.
Mendenhall, 446 U.S. 544, 554 (1980). Mendenhall set forth “[e]xamples of
circumstances that might indicate a seizure, even where the person did not attempt
to leave[:]” (1) threatening presence of officers; (2) display of a weapon; (3)
physical touching; or (4) the use of language or tone of voice indicating
compliance with the officer’s request might be compelled. Id. at 554.
Wells argues that the following factors contributed to the unreasonableness
of his seizure on April 12, 2012: USCG command had directed Wells and other
COMMSTA employees to be available for interrogation; Wells was kept under
1
Because it was raised for the first time on appeal, we decline to address Wells’
argument that his statements were involuntary under Garrity v. New Jersey, 385
U.S. 493, 500 (1967).
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USCG command at T1, from approximately 8:23 a.m. until 9:30 p.m.; and the
USCG base was on lockdown, preventing Wells and others from leaving. To the
contrary, and using the Mendenhall factors as our guide, the record reflects that
Wells voluntarily reported to his workplace, which had, by then, been converted
into a crime scene and active investigation site. He was interviewed, in the same
manner as all other COMMSTA employees, by two agents in plain clothes, with
their weapons concealed. Wells was never touched, much less physically restrained
or handcuffed and, at least on April 12, the interviews were not aggressive or
accusatory.
As we have recognized, “[t]he application of the Fourth Amendment to the
employment context presents special issues.” Aguilera v. Baca, 510 F.3d 1161,
1167 (9th Cir. 2007). In a Coast Guard situation, much like that of the paramilitary
law enforcement agency in Aguilera, “we must glean from the circumstances
whether the subordinate’s decision to heed his superior’s order to remain at a
designated location stemmed from a fear, if he tried to leave, of physical detention,
or merely adverse employment consequences.” Aguilera, 510 F.3d at 1167–68. “A
seizure occurs when an individual submits to a show of lawful authority or an
application of physical force by a law enforcement agent.” Id. at 1167 (citing
California v. Hodari D., 499 U.S. 621, 626 (1991)). Here, any show of authority
derived from the military nature of Wells’ employment and the fact that USCG
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command had locked down the base and asked all employees to remain on site to
assist in the investigation. See United States v. Baird, 851 F.2d 376, 380–82 (D.C.
Cir. 1988) (finding no seizure when on-duty Coast Guard officer was ordered to
report for interview with intelligence officer). Furthermore, “[a]n encounter
between an officer and an individual ‘will not trigger Fourth Amendment scrutiny
unless it loses its consensual nature.’” Aguilera, 510 F.3d at 1167 (quoting Florida
v. Bostick, 501 U.S. 429, 434 (1991)). The record reflects that all COMMSTA
employees, including Wells, cooperated with the investigation and were
interviewed without complaint.
We conclude that Wells was not seized on April 12, 2012. However, even if
Wells was seized, “[t]he touchstone of the Fourth Amendment is reasonableness.
The Fourth Amendment does not proscribe all state-initiated searches and seizures;
it merely proscribes those which are unreasonable.” United States v. Hawkins, 249
F.3d 867, 872 (9th Cir. 2001) (quoting Florida v. Jimeno, 500 U.S. 248, 250
(1991)). Hawkins’ reasonableness analysis depends on a balancing of interests:
The reasonableness of seizures that are less intrusive than a traditional
arrest depends “on a balance between the public interest and the
individual’s right to personal security free from arbitrary interference
by law officers.” Consideration of the constitutionality of such
seizures involves a weighing of the gravity of the public concerns
served by the seizure, the degree to which the seizure advances the
public interest, and the severity of the interference with individual
liberty.
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249 F.3d at 872–73 (quoting Brown v. Texas, 443 U.S. 47, 50–51 (1979)). Here,
there were strong interests on behalf of USCG in controlling its base and law
enforcement in securing and controlling the crime scene. Any seizure was
minimally intrusive, supported by a substantial governmental interest, and
reasonable.
2. As principally argued in the district court, Wells also challenges his
statements under the Fifth Amendment, contending that all statements given prior
to the April 13, 2012, issuance of Miranda warnings should have been suppressed.
Miranda’s holding explicitly does not affect “[g]eneral on-the-scene
questioning as to facts surrounding a crime or other general questioning of citizens
in the fact-finding process.” Miranda v. Arizona, 384 U.S. 436, 477 (1966). “An
officer’s obligation to give a suspect Miranda warnings before interrogation
extends only to those instances where the individual is ‘in custody.’” United States
v. Kim, 292 F.3d 969, 973 (9th Cir. 2002) (quoting Oregon v. Mathiason, 429 U.S.
492, 495 (1977) (per curiam)). “To 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.” Id. (internal quotation
marks omitted) (alteration in original). “The custody determination is objective and
is not based upon ‘the subjective views of the officers or the individual being
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questioned.’” Bassignani, 575 F.3d at 883 (quoting Kim, 292 F.3d at 973).
Specifically, custody requires that a “reasonable person [would] have felt he or she
was not at liberty to terminate the interrogation and leave.” Thompson, 516 U.S. at
112.
This Court has previously “identified five factors relevant to the custody
determination: ‘(1) the language used to summon the individual; (2) the extent to
which the defendant is confronted with evidence of guilt; (3) the physical
surroundings of the interrogation; (4) the duration of the detention; and (5) the
degree of pressure applied to detain the individual.’” Bassignani, 575 F.3d at 883
(quoting Kim, 292 F.3d at 974). “These considerations are not exhaustive; ‘[o]ther
factors may also be pertinent to, and even dispositive of, the ultimate determination
whether a reasonable person would have believed he could freely walk away from
the interrogators.’” Id. at 883–84 (quoting Kim, 292 F.3d at 974).
Our review of the evidence, tracking the Bassignani analysis and applying
the Kim factors, supports the district court’s finding that Wells was not in custody,
and therefore no Miranda warnings were required, on April 12, 2012.
All COMMSTA employees were ordered to be available for interrogation;
however, no employee expressed any concern about being interviewed, the agents
remained cordial throughout the April 12 interviews, and Wells was never singled
out or made to feel like a target of the investigation. Thus, Wells “agreed to
6 14-30146
accompany” officers to an interrogation room. See United States v. Crawford, 372
F.3d 1048, 1059 (9th Cir. 2004) (en banc).
Wells was never confronted with his guilt nor was he pressured to confess to
anything, until after being Mirandized. Instead, throughout April 12, the agents
were engaged in fact-finding only, and the questioning was non-accusatory. Thus,
interrogators did not “adopt[] an aggressive, coercive, and deceptive tone” or
“‘attempt to challenge [his] statements with other ‘known facts’ suggesting his
guilt, they merely asked [him] about the allegations.’” Bassignani, 575 F.3d at 884
(quoting United States v. Norris, 428 F.3d 907, 913 (9th Cir. 2005)).
Wells and his co-workers were gathered together in a T1 conference room,
“plainly a familiar environment[;]” not “prevented from contacting others[;]”
allowed to talk to each other between interviews; and questioned in an unlocked
office at their workplace. See Bassignani, 575 F.3d at 885.
In the immediate aftermath of horrific murders at his workplace, with agents
acting quickly to gather as much fresh information as possible, Wells was
intermittently interviewed for less than one hour. This is akin to the two-and-a-half
hour interrogation in Bassignani, which the court found to be “at the high end” but
not a “marathon session designed to force a confession,” and therefore not
unreasonable overall. 575 F.3d at 886 (internal quotation marks omitted).
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Though the agents “never explicitly said that [Wells] was free to leave,” he
was never physically restrained. See Bassignani, 575 F.3d at 886. Upon conclusion
of the interviews, Wells was allowed to leave the base on his own at the end of the
day. Cf. United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981).
In contrast to the custodial interrogation in Kim, Wells was neither restrained
nor threatened; he was interviewed at his workplace and allowed to talk to other
COMMSTA employees between interviews; he was not deprived of restroom
facilities, food or water; there was no display of weapons from either of the two,
plain-clothes agents conducting the interviews; and, as found by the district court,
the interviews on April 12 were “essentially amicable.” Wells was not in custody.
AFFIRMED.
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