United States District Court, S.D. Florida
REPORT AND RECOMMENDATION
M. OTAZO-REYES, UNITED STATES MAGISTRATE JUDGE.
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
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. §
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].
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
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].
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).
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)).
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).
Routine Booking Questions
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.
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).
Testimonial and documentary evidence
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.
following document was admitted into evidence: Government
IRS identified an Internet Protocol ("IP") address
that was used to file over 100 tax returns that ...