U.S. v. Kim

• Decision Date: 06 June 2002
• Docket Number: No. 01-30166.,01-30166.
• Citation: 292 F.3d 969
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Insook KIM, aka In Sook Kim, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

292 F.3d 969

UNITED STATES of America, Plaintiff-Appellant, v. Insook KIM, aka In Sook Kim, Defendant-Appellee.

No. 01-30166.

United States Court of Appeals, Ninth Circuit.

Submitted March 7, 2002.^*

Filed June 6, 2002.

John C. Laing, United States Attorney, District of Oregon, Portland, OR, for the plaintiff-appellant.

Kenneth Ricardo Perry, Portland, Oregon, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding.

Before: B. FLETCHER, O'SCANNLAIN and BERZON, Circuit Judges.

BERZON, Circuit Judge.

The United States appeals the district court's order granting defendant-appellee Insook Kim's ("Kim") motion to suppress incriminating statements that she made during the execution of a search warrant at her store. The district court found that she was "in custody" for Miranda purposes, and therefore entitled to the familiar warnings before questioning began. The government appeals, contending that Kim was not in custody and therefore not entitled to the warnings. We affirm.

I.

Investigators obtained evidence that Kim's store, the "Lil' Brick Deli," was selling large quantities of pseudoephedrine, the main precursor chemical in the production of methamphetamine. A Drug Enforcement Agency (DEA) investigator and a Korean-speaking sheriff's deputy went to Kim's store in October 1999 to advise her about the connection between sales of large quantities pseudoephedrine and methamphetamine production.

Eight months later, an undercover officer purchased a case of pseudoephedrine at Kim's store from her employee Sang Kyun Kim. Soon thereafter, on August 3, 2000, police officers executed a search warrant at the Lil' Brick Deli, where they found Kim's 18-year-old son, Kevin, running the store. They read Kevin the search warrant, handcuffed him, and began to question him. Kevin's handcuffs were removed at some point during the search — before Kim entered the store — but the police continued to question him.

Kim and her husband, the store's co-owner, were at home the morning of the search. An officer came to their home looking for Sang Kyun Kim, who had previously been staying at their home. After the officer's visit, Kim tried to reach her son Kevin at the store. When no one answered the phone, Kim and her husband became alarmed and drove to the store to see if anything was wrong.

According to Kim, her husband, and her son, in consistent testimony credited by the district court, this is what happened next: When Kim and her husband arrived, they noticed many police cars in the parking lot and found the door locked. Kim knocked and shook the locked door. When an officer opened the door halfway, she explained that she and her husband were the owners of the store. The officer allowed Kim inside the store. When her husband tried to enter immediately behind her, the officer quickly shut the door in front of him and locked it from the inside. Kim's husband knocked on the door again, but no one answered, so he waited — for about three hours — in the parking lot outside the store.

Once inside, Kim called out in Korean for her son, asking if he was okay. The police, however, had told Kevin before his mother entered the store that he was not to communicate with her. One officer ordered Kim to speak English, not Korean, and another officer told her to "shut up." Kevin testified that while his mother was not crying or screaming when she entered the store, her face did look "really white." The officers directed her to an adjoining seating area, where she sat while the officers searched the store. Some time later they sat her at another table, and Detective James G.W. Lilley began to question her.¹

Kim told Detective Lilley that she did not speak English well but was taking lessons. Kevin too informed the officers that his mother did not speak English very well; he also advised them that she would be frightened because of all the police cars outside the store. The officers did not handcuff Kim at any point, but at least two officers sat and stood around her in such a way that, as she testified, she felt surrounded by them.

According to Kim, no one told Kim that she was free to leave. Kim estimated that she was questioned for about an hour before the interpreter arrived and for another 30 minutes once he did. Detective Lilley stated that he questioned Kim for 30 minutes before a Korean interpreter arrived, and that the interpreter questioned her for another 15 to 20 minutes; the district court based its findings on these shorter estimates. The government concedes that at no time did Kim receive Miranda warnings.

Detective Lilley's testimony differed from that of Kim and Kevin in two respects: Lilley stated that he sat Kim in such a way that she would have been able to exit without having to get around a police officer, and that he told Kim that she was not under arrest and could leave at any time.

During the course of the interview, Kim identified the sources of her pseudoephedrine supply. She explained how she sold the cases of pseudoephedrine and the markup she used for cases from the various suppliers. She also told police that the money stored in the store's safe came exclusively from sales of pseudoephedrine. When the officers completed their search and interrogation, they left the store without arresting either Kim or her son.

Kim was later indicted and arrested for possession and distribution of pseudoephedrine with knowledge and reasonable cause to believe that it would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(d)(2). The indictment also included one count of forfeiture to the government of any and all property derived from the proceeds of pseudoephedrine sales.

Kim filed a pre-trial motion to suppress the incriminating statements she made while being questioned during the search, arguing that they were taken in violation of her Fifth Amendment rights. The district court granted the motion, basing its conclusion on the following factual findings:

[W]hen defendant arrived at her store, she discovered a number of police cars and official-looking vehicles in the lot. She was denied access to the store initially, despite the presence of her son inside the store. When she was admitted inside by an officer, the door was immediately locked behind her, and she was separated from her husband, who had also arrived at the store. Once inside, her communication to her son was limited or denied, and she was directed to another area of the store, where at least two officers sat with her.

The district court also found that:

[T]he officers knew defendant was Korean and may have difficulty in comprehending English (as evidenced by the facts that the police included a Korean-speaking official during the visit to defendant in October, 1999, and that defendant's son advised the police that his mother would likely be very confused or frightened by the circumstances). Accordingly, the police were aware that defendant could have significant difficulty understanding what was being said to her or comprehending what was happening at the store.

The district court specifically rejected the testimony that the officers told Kim that she was free to leave.

"After reviewing all pertinent facts and evaluating the testimony presented at the hearings," the district court found "that the circumstances during the questioning of defendant warranted advising defendant of her rights." "[A] reasonable person, after being separated from a spouse, precluded from speaking to a son, and having the store entry locked behind her," the court concluded, "would not believe she was free to leave." The court noted that its conclusion was "further bolstered by" the fact that the officers knew that Kim may have difficulty understanding English and that Kevin had "advised the police that his mother would likely be confused and frightened by the circumstances." The district court therefore granted the motion to suppress Kim's statements on the grounds that she indeed was in custody at the time of the interrogation and so should have been advised of her Miranda rights.

II.

A. Standard of Review

The parties dispute the proper standard of review of the district court's determination that Kim was in custody for Miranda purposes. Although some recent Ninth Circuit cases, it is true, have characterized the "in custody" determination for Miranda purposes as essentially a question of fact reviewed for clear error, see, e.g., United States v. Butler, 249 F.3d 1094, 1098 (9th Cir.2001), we recently recognized that the clear error standard of review for "in custody" determinations adopted by People of the Territory of Guam v. Palomo, 35 F.3d 368, 375 (9th Cir.1994), was rejected by the Supreme Court in Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). United States v. Galindo-Gallegos, 255 F.3d 1154 (9th Cir.2001), modifying 244 F.3d 728 (9th Cir.). Now, "[w]hether a person is `in custody' for purposes of Miranda is a mixed question of law and fact warranting de novo review." Id.; see also United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir.2001). The factual findings underlying the district court's decision, however, are reviewed for clear error. Keohane, 516 U.S. at 112, 116 S.Ct. 457; United States v. Andaverde, 64 F.3d 1305, 1313 (9th Cir.1995).

B. Whether Kim Was "In Custody"

An officer's obligation to give a suspect Miranda warnings before interrogation extends only to those instances where the individual is "in custody." Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (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." Stansbury v. California, 511 U.S. 318, 322...