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United States v. Choute

United States District Court, S.D. Florida

October 26, 2017




         THIS CAUSE came before the Court upon Defendant Nick Rickey Choute's ("Defendant" or "Choute") Motion to Suppress Custodial Statements (hereafter, "Motion to Suppress") [D.E. 16]. This matter was referred to the undersigned by the Honorable Jose E. Martinez, United States District Judge, pursuant to Title 28, United States Code, Section 636 [D.E. 17]. The undersigned held an evidentiary hearing on this matter on October 13, 2017 [D.E. 26]. For the reasons stated below, the undersigned respectfully recommends that Choute's Motion to Suppress be DENIED.


         On June 1, 2017, Choute was charged in a five count indictment with the following offenses:

Count 1: Use of One or More Unauthorized Access Devices from January 16, 2015 through July 13, 2015 in violation of 18 U.S.C. § 1029(a)(2).
Count 2: Possession of Fifteen or More Unauthorized Access Devices on March 15, 2016 in violation of 18 U.S.C. § 1029(a)(3).
Counts 3-5: Aggravated Identity Theft on March 15, 2016 in violation of 18 U.S.C. § 1028A(a)(1).

See Indictment [D.E. 1].

         On March 15, 2016, federal agents executed a search warrant at Choute's residence, 565 N.E. 158th Street, Miami, Florida. At the time of the search, Choute was asked a number of questions regarding him and the other occupants of the residence (hereafter, "the Interview"). Choute's responses to these questions were memorialized in a Memorandum of Interview. See Memorandum of Interview [D.E. 16-1 at 2-3]. Choute does not seek to suppress his answers to ten of the fourteen questions he was asked. However, he seeks to suppress the following statements from the Interview, on the grounds that law enforcement obtained them without giving him Miranda warnings:

10. Choute's room is located on the right side of the house on the left.
11. Kerby Choute's room is located on the right side of the house on the right.
12. Kervens Choute's room is located in the back of the house and is locked.
13. Choute's parents' room is located on the left side of the house.

See Memorandum of Interview [D.E. 16-1 at 2].[1]

         The government counters that Choute's non-Mirandized statements are not subject to suppression because: (1) he was not in custody at the time; and (2) the questions were routine booking questions. See Government's Opposition to Defendant Choute's Motion to Suppress Statements [D.E. 19].


         The Fifth Amendment provides: "No person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const, amend. V, cl. 2. In Miranda v. Arizona, the United States Supreme Court held that "if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent." 384 U.S. 436, 467-68 (1966). "Once warnings have been given . . . [i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Id. at 473-74. The Miranda Court "conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained." Missouri v. Seibert, 542 U.S. 600, 608 (2004).

         1. Custody

         A person is in custody for Miranda purposes only "when there has been a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." United States v. Street, 472 F.3d 1298, 1310 (11th Cir. 2006). See also United States v. McDowell, 250 F.3d 1354, 1362 (11th Cir. 2001) (holding that whether a suspect is in custody "depends on whether under the totality of the circumstances, a reasonable man in his position would feel a restraint on his freedom of movement to such extent that he would not feel free to leave"). The test is objective, and the actual, subjective beliefs of the defendant and the interviewing officer on whether the defendant was free to leave are irrelevant. United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996) (citing Berkemer v. McCarty, 468 U.S. 420, 442 (1984)).

         The Court must consider several factors in determining the existence of custody, "including whether the officers brandished weapons, touched the suspect, or used language or a tone that indicated that compliance with the officers could be compelled." United States v. Barry, 479 Fed.Appx. 297, 299 (11th Cir. 2012) (citations omitted). Moreover, courts are much less likely to find a custodial encounter when the questioning is brief and occurs "in familiar or at least neutral surroundings, such as the suspect's home." United States v. Luna-Encinas, 603 F.3d 876, 882 (11th Cir. 2010) (citations omitted) (holding that a five-minute encounter in the defendant's front yard during a search of his residence was not custody for Miranda purposes).

         2. Routine Booking Questions

         The special procedural safeguards outlined in Miranda are required when a suspect in custody is subjected to interrogation. Rhode Island v. Innis, 446 U.S. 291, 300 (1980). An act of interrogation encompasses "any words or actions" on the part of law enforcement agents that are "reasonably likely to elicit an incriminating response." Id. at 301.

         The Supreme Court recognized a narrow "routine booking question" exception to the requirement that Miranda warnings be given before subjecting an individual to custodial interrogation. Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990). To qualify as a routine booking question, the question must be "reasonably related to the police's administrative concerns, " and the Court must conclude that the question was not intended to elicit an incriminating response. United States v. Brotemarkle, 449 Fed.Appx. 893, 896 (11th Cir. 2011). However, law enforcement may not use routine biographical questioning as a guise for obtaining incriminating information. United States v. Glen-Archila, 677 F.2d 809, 816 n.18 (11th Cir. 1982). See also United States v. Ramirez, 991 F.Supp.2d 1258, 1266 (S.D. Fla. 2014) (holding that the response to a question about how long the defendant had lived at the residence being searched was inadmissible); United States v. Peterson, 506 F.Supp.2d 21, 25 (D.D.C. 2007) (suppressing the response to a question pertaining to which bedroom belonged to the defendant during the execution of a search warrant because it went beyond the booking question exception).


         I. Testimonial and documentary evidence

         1. The following witnesses testified at the October 13, 2017 evidentiary hearing: IRS Special Agent Stacy Perez ("Agent Perez"), IRS Supervisory Special Agent Wazerah Allen ("Agent Allen") and Choute. The undersigned finds the testimony of Agent Perez and Agent Allen credible. The undersigned finds the testimony of Choute not to have been entirely credible.

         2. The following document was admitted into evidence: Government Exhibit 1.

         II. Facts

         A. Agent Perez

         3. The IRS identified an Internet Protocol ("IP") address that was used to file over 100 tax returns that ...

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