914 F.3d 319 (4th Cir. 2019), 17-4344, United States v. Azua-Rinconada

Docket Nº:17-4344
Citation:914 F.3d 319
Opinion Judge:NIEMEYER, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ismael AZUA-RINCONADA, Defendant-Appellant.
Attorney:Anne Margaret Hayes, Cary, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Robert J. Higdon, Jr., United States Attorney, Jennifer, P. May-Parker, Acting First Assistant United States Attorney, Phillip A. Rubin, Assist...
Judge Panel:Before NIEMEYER and KEENAN, Circuit Judges, and Norman K. MOON, United States District Judge for the Western District of Virginia, sitting by designation. BARBARA MILANO KEENAN, Circuit Judge, concurring:
Case Date:January 28, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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914 F.3d 319 (4th Cir. 2019)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ismael AZUA-RINCONADA, Defendant-Appellant.

No. 17-4344

United States Court of Appeals, Fourth Circuit

January 28, 2019

Argued: September 28, 2018

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:16-cr-00005-FL-1)

ARGUED:

Anne Margaret Hayes, Cary, North Carolina, for Appellant.

Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

ON BRIEF:

Robert J. Higdon, Jr., United States Attorney, Jennifer, P. May-Parker, Acting First Assistant United States Attorney, Phillip A. Rubin, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before NIEMEYER and KEENAN, Circuit Judges, and Norman K. MOON, United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Keenan and Judge Moon joined. Judge Keenan wrote a separate opinion, concurring.

OPINION

NIEMEYER, Circuit Judge:

After Ismael Azua-Rinconada ("Azua") was indicted for illegally entering the United States in violation of 8 U.S.C. § 1326(a), he filed two motions to suppress all statements and all other evidence obtained by law enforcement officers during their encounter with him prior to his arrest. He alleged that the officers, acting without a warrant, gained access to his residence through coercion, in violation of the Fourth Amendment, and that they then subjected him to custodial interrogation without providing him with Miranda warnings, in violation of the Fifth Amendment. Following a hearing, the district court denied the motions, concluding that the officers received voluntary consent to enter Azua’s residence and that Azua was not in custody when he voluntarily gave answers to the officers’ questions. A jury then found Azua guilty of violating § 1326(a), and the court sentenced him to time served and committed him to the custody of the Department of Homeland Security for deportation.

On appeal, Azua contends that the district court erred in denying his suppression motions because (1) the law enforcement officers did not have valid consent to enter his residence and thus needed a warrant, and (2) the officers’ interrogation of him was custodial and thus violated his Fifth Amendment rights because no Miranda warnings had been given. For the reasons that follow, we affirm.

I

On the morning of January 6, 2016, a team of six law enforcement officers working with Homeland Security Investigations ("HSI") set out on a "knock and talk" operation in a mobile home park in Robeson County, North Carolina. The team was led by HSI Special Agent Bryan Moultis and included Corporal José Hernandez, a detective in the Hoke County Sheriff’s Office who spoke Spanish. At approximately 9:30 a.m., Agent Moultis and Corporal Hernandez approached the trailer that was Azua’s residence to conduct a "knock and

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talk." At the time, Moultis was wearing a shirt with "police" written across the chest, was carrying a holstered firearm, and had his badge around his neck. Hernandez was also carrying a holstered firearm and was wearing a body cam that recorded the interaction that followed.

As Agent Moultis and Corporal Hernandez stood on either side of the front door of the trailer, Hernandez knocked on the door. After receiving no response, he continued to knock, saying "open the door" in Spanish. Hernandez then said, in English, "Publisher’s Clearinghouse," and Moultis remarked that he could hear voices from inside the residence. Hernandez then knocked more forcefully and said in Spanish, "Open the door or we’re going to knock it down," followed, in English, by "Police, open the door."

When Azua and his fiancée, Amaryllis Powell, who was pregnant with Azua’s child, heard the officers’ knocks and the threat to knock down the door, they became scared. But when Azua realized that it was police who were at the door, he instructed Powell to open it because, as he testified, "I knew nothing was going to happen to her." He also testified that he did not "believe that they were going to take the door down." Powell testified that when she opened the door following Azua’s instruction, she did so "with consent" and found the officers to be "professional."

After Powell opened the door, Corporal Hernandez greeted her and asked if she was the only person home. She responded that she was. But when Agent Moultis commented that he and Corporal Hernandez had "heard a whole lot more footsteps than [hers]," Powell acknowledged that she was not alone. Moultis then asked Powell if she would "mind if we came in and talked to you" and remarked, "we’d like to talk to you ... but it’s awfully cold out here." Powell responded, "okay, you can come in" and gestured with her hand for the officers to come inside. As she opened the door wider, she again said, "okay, you can come in." Corporal Hernandez said that he "appreciate[d] it" and shook Powell’s hand.

Agent Moultis, Corporal Hernandez, and one other officer then entered the trailer. The officers did not perform a security sweep, but they did request that Powell ask everyone in the trailer to come to the living room "just for safety reasons." At that point, Oscar Lopez, Azua’s brother-in-law, who also lived at the residence, walked into the living room while Powell took a seat on the couch. As Agent Moultis began to explain why the officers were there, indicating that they had received information regarding illegal activity in the area, Azua walked into the room and took a seat on the couch next to Powell. Moultis greeted Azua by saying, "Hey man, how are you?" Moultis then asked Azua, Powell, and Lopez if there were any firearms in the trailer. Lopez responded that he was renting the trailer and owned some firearms. Moultis requested that Lopez complete a consent form authorizing the police to search the premises, and he also asked Lopez if a canine unit could come into the house to assist in the search. Lopez agreed.

While Lopez was filling out the consent-to-search form, Agent Moultis asked Azua and Powell where they were from originally. Powell responded that she was from North Carolina, and Azua responded that he was from Mexico, providing Moultis with his Mexican voter registration card as identification. Agent Moultis then gave Azua a questionnaire designed to determine a person’s immigration status. He requested that Azua fill out the questionnaire, using phrases such as "I want you to start filling this out" and explaining that he wanted Azua "to answer every question."

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While Azua was filling out the questionnaire, Agent Moultis told Lopez to come with him to the kitchen table, where Moultis asked Lopez questions regarding his firearms and reports of illegal activity in the area. While Agent Moultis spoke with Lopez, Azua and Powell sat on the couch alone as Azua completed the questionnaire.

When...

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