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United States v. Azua-Rinconada

United States District Court, E.D. North Carolina, Southern Division

March 2, 2017

UNITED STATES OF AMERICA,
v.
ISMAEL AZUA-RICONADA, Defendant.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court on defendant's motions to suppress (DE 22, 23). Pursuant to 28 U.S.C. § 636(b)(1), United States Magistrate Judge Robert B. Jones, Jr., issued memorandum and recommendation (“M&R”), wherein it is recommended that the court deny defendant's motions. (DE 35). Defendant timely filed objections to the M&R, and the government did not respond. In this posture, the issues raised are ripe for ruling.[1] For the reasons that follow, the court adopts the recommendation of the magistrate judge as its own, and denies defendant's motions.

         BACKGROUND

         Criminal complaint filed January 8, 2016, charged defendant with being an alien present in the United States after previously been removed, in violation of 8 U.S.C. § 1326(a). Indictment filed February 2, 2016, charges the same offense. Defendant filed the instant motions on March 11, 2016, seeking to suppress evidence seized on January 6, 2016, from defendant's residence at 21 New Mexico Drive, Red Springs, North Carolina (“the residence”), including results of fingerprint identification and custodial statements. Evidentiary hearing was held before magistrate judge on April 26, 2016, at which defendant testified along with his then-fiancée, Ama Rylin Ama Anba Powell (“Powell”), who was present at the residence on January 6, 2016, and gave permission for officers to enter the home. The government presented testimony of special agent Bryan Moultis (“Moultis”) and sheriff officer Jose Hernandez (“Hernandez”). The government submitted documents as exhibits at the suppression hearing, in addition to video camera footage of the entry into the residence and questioning of defendant, which footage was taken from a body camera on officer Hernandez.

         In his motions to suppress, defendant argues that the warrantless search of his residence was conducted without valid consent or probable cause, and that defendant was detained and questioned without being informed of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).[2] The government argues that Powell voluntarily consented to officers entering the residence and defendant was not in custody. In the alternative, the government contends officers had authority to question defendant and obtain his fingerprints pursuant to immigration law.

         STATEMENT OF FACTS

         The court incorporates herein by reference the statement of facts in the M&R (see DE 35 at 2-9), where such statement accurately reflects the evidence of record.

         COURT'S DISCUSSION

         A. Standard of Review The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for “clear error, ” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). B. Analysis In his objections, defendant argues that the M&R incorrectly considered facts bearing on Powell's consent to enter, as well as facts bearing upon whether defendant was detained and questioned in custody after officers entered the residence. Upon careful review of the M&R and the record in this case, the court adopts the analysis and conclusions of the M&R as its own. The M&R thoroughly and cogently reviews the evidence in this case bearing on both issues raised by defendant, accurately reflecting the video evidence of the officers' approach, entry, search, and questioning within the residence.

         1. Consent

         Powell gave “knowing and voluntary” consent for officers to enter the residence, in light of the totality of the circumstances. United States v. Buckner, 473 F.3d 551, 554 (4th Cir. 2007). Officers approached the door of the residence in mid-morning, without drawn weapons, and knocked repeatedly without yelling or violent pounding on the door; defendant directed Powell to answer the door after recognizing the visitors as officers; Powell was an adult fully capable of communicating consent; once Powell opened the door, officers did not use hostile, accusatory, or threatening language, and in conversational tone asked for permission to enter to speak further because it was cold outside; and Powell freely and casually allowed officers to enter. These factors provide significant evidence supporting a determination of voluntariness. See United States v. Boone 245 F.3d 352, 361 (4th Cir. 2001).

         Defendant points to other factors as demonstrating lack of consent, such as Hernandez' statements upon knocking that he was with “Publishers' Clearinghouse” and “open the door or we are going to knock it down.” When these statements are viewed in context, however, in light of the officers' actions and tone of delivery as seen on the video recording, they do not show that Powell's consent was “coerced by threats or force, or granted only in submission to a claim of lawful authority.” Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973). Nor does the court find determinative Powell's pregnancy or her averred lack of knowledge of the identity of officers before answering the door. The statements made and physical demeanor of the officers and Powell, both before and after Powell answered the door, stand in stark contrast to circumstances in those cases where consent has been found involuntary. See, e.g., Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (consent involuntarily given after officers asserted falsely they had a warrant); Gregg v. Ham, 678 F.3d 333, 337, 342 (4th Cir. 2012) (consent involuntarily given by woman alone in home after bondsman and officer violently shook door).

         In sum, the government has met its burden by a preponderance of the evidence that Powell gave knowing and voluntary consent for officers to enter the home.

         2. Lack of Custody Similarly based on a totality of the circumstances, defendant was not in custody at any point prior to his arrest on January 6, 2016, for purposes of Miranda. Multiple factors demonstrate that defendant's “freedom of action” was not “curtailed to a degree associated with formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 440 (1984). Defendant was questioned on his couch in his living room in mid-morning, next to Powell, with Lopez-Estefes also in the same room interacting with officers; officers introduced themselves in conversational tone, without raising their voices, pulling weapons, or using force on any person; officers asked everyone to come to the living room without conducting a security check; officers asked permission before bringing in a canine officer for a search; officers did not isolate defendant, and defendant went to his room alone to put on warmer clothes before he followed agent Moultis outside; and officers did not use threats or deception to obtain statements from defendant, but rather ...


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