U.S. v. Hernandez-Hernandez

• Decision Date: 21 April 2003
• Docket Number: No. 02-3246.,02-3246.
• Citation: 327 F.3d 703
• Parties: UNITED STATES of America, Appellee, v. Pedro HERNANDEZ-HERNANDEZ, also known as David Chavez, also known as Jose Pacheco, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

327 F.3d 703

UNITED STATES of America, Appellee, v. Pedro HERNANDEZ-HERNANDEZ, also known as David Chavez, also known as Jose Pacheco, Appellant.

No. 02-3246.

United States Court of Appeals, Eighth Circuit.

Submitted: April 15, 2003.

Filed: April 21, 2003.

Anita Lee Burns, argued, Federal Public Defender, Kansas City, Missouri, for appellant.

Linda Parker Marshall, argued, Asst. U.S. Attorney, Kansas City, Missouri, for appellee.

Before WOLLMAN, FAGG, and RILEY, Circuit Judges.

FAGG, Circuit Judge.

The Government charged Pedro Hernandez-Hernandez with illegally reentering the United States after deportation following a felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court^* held an evidentiary hearing, then denied Hernandez-Hernandez's motion to suppress. Hernandez-Hernandez conditionally pleaded guilty, and now appeals the denial of his suppression motion. We affirm.

On October 3, 2001, a Drug Enforcement Administration (DEA) taskforce received information from two independent sources that a Hispanic male was distributing drugs and had firearms at his home in Kansas City, Missouri. One source, who was in custody on drug charges, had conducted drug business with the Hispanic male there earlier the same day. Both sources stated they had been in the residence and personally observed the drugs and guns that day, the Hispanic male was in the front yard most of the time, and he had a goatee and was wearing a "FUBU" logo shirt. One source said the man usually had a gun in the small of his back. Agents drove by the same day and saw a Hispanic male with a goatee and FUBU shirt outside in front of the residence. Later that day, a team of nine officers, including DEA agents, Immigration and Naturalization Service (INS) agents, and police officers, went to the home. When they arrived, three adult males were in the front yard, including one matching the description given by the sources and later identified as Hernandez-Hernandez. DEA agents patted down the three men for weapons and, finding none, told them to take a seat, but did not handcuff or otherwise physically restrain them.

After Hernandez-Hernandez's wife consented, officers searched the residence and found several firearms, about five pounds of marijuana, over $4000 in cash, drug scales, and wrappings. During the search, an INS agent approached Hernandez-Hernandez, who was seated on the front porch. The agent identified himself in Spanish as an INS officer, showed his credentials, and asked Hernandez-Hernandez of what country he was a citizen, who he was, and whether he had any identification. Hernandez-Hernandez stated he was David Chavez from Chihuahua, Mexico, and pulled an Indiana identification card in that name from his wallet. The agent asked Hernandez-Hernandez whether he had any papers to be legally in the United States, and Hernandez-Hernandez stated he had none. The agent then asked Hernandez-Hernandez whether he had entered the United States legally or illegally, and Hernandez-Hernandez admitted he had entered illegally. The agent told Hernandez-Hernandez he was being arrested for violating the immigration laws and handcuffed him. Hernandez-Hernandez was correctly identified after his arrest and booking when his fingerprints were sent to the Federal Bureau of Investigation for identification. INS records also showed his identity and that he was a previously deported alien, after a Kansas conviction for voluntary manslaughter.

On appeal, Hernandez-Hernandez argues he was handcuffed immediately after the frisk and thus arrested without probable cause, so his later statements to the agent about his citizenship and immigration status before any Miranda warning was given must be suppressed.

An officer's obligation to give a suspect Miranda warnings before questioning extends only to those instances where the individual is "in custody." Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam). To determine whether an individual is in custody, a court must examine all the circumstances surrounding an interrogation and decide whether there was "a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." Id. (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam)). Although the agents briefly detained Hernandez-Hernandez at his home while conducting the consensual search, the facts do not show they restrained him to a degree associated with formal arrest. See Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (holding search warrant implicitly includes authority to detain occupants of premises during search on less than probable cause for an arrest); United States v. Enslin, 315 F.3d 1205, 1213 n. 31 (9th Cir.2003) (applying Summers rule to consensual search). The district court found Hernandez was not handcuffed or arrested until after he made the statements to the INS agent, and the court's findings are not...