United States v. Kemmerer
| Decision Date | 14 August 2020 |
| Docket Number | Case No.: 3:19-CR-02513-GPC |
| Court | U.S. District Court — Southern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. BRANDON KEMMERER, Defendant. |
ORDER DENYING MOTION TO SUPPRESS STATEMENTS.
Before the Court is Defendant's Motion to Suppress Statements for an unnecessary delay in presentment under Federal Rule of Criminal Procedure ("FRCP") 5 and 18 U.S.C. § 3501(c). As a threshold matter, the Court finds that § 3501(c) applies to Mr. Kemmerer's statements and that his valid Miranda waiver does not foreclose a challenge to the statements under § 3501(c). Then, applying the two-step framework for § 3501(c) outlined by the Supreme Court in Corley v. United States, 556 U.S. 315, 320 (2009), the Court concludes that Special Agent Hutchinson interviewed Mr. Kemmerer within the statute's six-hour safe harbor period and that Kemmerer's statement was voluntary.
Consequently, the Court DENIES Mr. Kemmerer's motion to suppress statements made to Agent Hutchinson during the June 7, 2019 interview.
/ / /
On November 13, 2019, Mr. Kemmerer filed a motion to suppress post-arrest statements made during his detention from Friday, June 7, 2019 to Monday, June 10, 2019. (ECF No. 22.) On December 13, 2019, the Government filed a response. (ECF No. 24.) On December 20, 2019, the Court then held its first hearing on the motion to suppress. (ECF No. 25.) The Court continued the hearing and granted Defendant leave to filed a reply. (Id.)
On January 12, 2020, Mr. Kemmerer filed a reply. (ECF No. 26.) Then, on January 15, 2020, the Court held a second hearing on Defendant's motion. (ECF No. 30.) Given the Parties' arguments, the Court again continued the matter and permitted the Parties to submit additional briefing. (Id.) On January 24, 2020, the Government filed supplemental briefing. (ECF No. 31.) On January 31, 2020, Mr. Kemmerer filed a response. (ECF No. 34.) The Court ordered Mr. Kemmerer to file a sur-response, which he then filed on February 20, 2020. (ECF No. 38.) The Court held a hearing the next day. (ECF No. 39.)
On May 6, 2020, the Court held a status conference and ordered an evidentiary hearing as to Mr. Kemmerer's motion to suppress. (ECF No. 60.) On June 2, 2020, the Government filed a supplemental brief. (ECF No. 64.) On June 4, 2020, Mr. Kemmerer filed two additional briefs. (ECF No. 65, 68.) Then, on June 12, 2020, the Government filed an additional brief. (ECF No. 71.) An evidentiary hearing was held on June 18 and 19, 2020, during which Special Agent Jonathan D. Hutchinson testified as to the motion to suppress on the first day. (ECF Nos. 82, 83.)
At approximately 9:30 a.m. on June 7, 2019 at the San Ysidro, California Port of Entry ("POE"), United States Customs and Border Protection ("CBP") Officer Orlando Perez's narcotics dog "alert[ed]" to the rear driver side door of a car driven by Defendant Brandon Kemmerer.
Officer Perez instructed Mr. Kemmerer to put the car in park, turn it off, and open the trunk. (Perez ROI.) Mr. Kemmerer complied. Officer Perez inspected the passenger side quarter panel of the car and discovered several packages. .) Officer Perez then instructed Mr. Kemmerer to stay in the car. (Perez ROI.) Defendant again complied, stating "Oh, OK thank you." (Id.) Officer Perez called over a second officer, CBP Officer Justine Burnett. (Hutchinson Decl. at ¶ 2.) Officer Burnett spoke with Officer Perez, inspected the car, and also saw the cellophane wrapped packages. (Hutchinson Decl. at ¶ 3; Perez ROI; ECF No. 22-1 at 4, Ex. B, Burnett Report of Investigation ("Burnett ROI").) The officers then ordered Defendant to get out of his car. (Hutchinson Decl. at ¶ 3.) Officer Burnett handcuffed Mr. Kemmerer and escorted him to the security office. (Id.; Kemmerer Decl. at ¶ 3.) There, Officer Burnett removed the handcuffs, patted Mr. Kemmerer down, and took his personal belongings. (Hutchinson Decl. at ¶ 3; Kemmerer Decl. at ¶¶ 6-7; Burnett ROI.)
By 9:41 a.m., Officer Burnett secured Mr. Kemmerer to a bench in the security office with a leg shackle. (Kemmerer Decl. at ¶ 8; Hutchinson Decl. at ¶ 3.) It is "standard CBP pattern and practice . . . to detain individuals on a bench in the main Security Office area with one leg secured to the bench using an ankle chain." (Hutchinson Decl. at ¶ 4.) Officer Burnett did not tell Mr. Kemmerer that he was under arrest. (Hutchinson Decl. at ¶ 3; Kemmerer Decl. at ¶ 5.) Officer Burnett also "never told [Mr. Kemmerer] . . . that he was detain[ed] for officer safety." (Kemmerer Decl. at ¶ 5.) Officer Burnett "had no further contact with [Mr. Kemmerer]." (Burnett ROI.)
Defendant remained "shackled to the bench for what seemed like hours." (Kemmerer Decl. at ¶ 9.) "While shackled to the bench, [Defendant] could not freely usethe restroom and did not have access to drinking water."1 (Id. at ¶ 10.) While Defendant was in custody, CBP Officer Abram Lopez examined images of Defendant's car on the Z-portal x-ray machine and noticed several anomalies. (Hutchinson Decl. at ¶ 5.)
At approximately 10:15 a.m., CBP Officer David Davis inspected the vehicle itself. (Hutchinson Decl. at ¶ 6.) Ten minutes later, Davis went to the security office and "obtained Kemmerer's biographical information." (Id.) Davis then returned to the lot and drove the car to the processing area. (Id.) There, Davis removed one package from the rear passenger side quarter panel and another officer tested its contents. (Id. at ¶ 7.) The contents tested positive for methamphetamine. (Id.) At about 10:40 a.m., Davis contacted "Apple Enterprises to potentially remove the fuel tank" from the car. (Id.)
Officer Davis then returned to the security office and "formally placed Kemmerer under arrest." (Id. at ¶ 8.) Davis could not remember "at exactly what time" he did so. (Id.) According to the "CBP computer system, officials with CBP entered an arrest time for Kemmerer of approximately 11:12 a.m. on June 7, 2019." (Id. at ¶ 9.) Once under arrest, an officer "moved [Defendant] to a detention cell." (ECF No. 31 at 12.) Defendant's shackles were thus removed no later than 11:12 a.m.2
At approximately 11:47 a.m., Agent Hutchinson was notified that a narcotics load was found concealed in a vehicle at the San Ysidro POE. (ECF No. 82, Transcript of June 19, 2020 Evidentiary Hearing ("Tr. 1") at 16:1.) Agent Hutchinson was one of three3 duty agents "on call to accept new drug-smuggling cases or other cases . . . at the ports of entry" in San Ysidro, Otay Mesa, and Tecate at that time. (Tr. 1 at 14:23-25, 15:1-3.) Agent Hutchinson understood the time of arrest to be 11:12 a.m. (Id. at 18:14-15.)
At the time, Agent Hutchinson was conducting an interview at the Otay Mesa Port of Entry. (Tr. 1 at 18:19-21.) The interview finished at 12:05 p.m. (Id. at 19:4-5.) Agent Hutchinson then processed the case, which typically requires completing the U.S. Attorney's Office intake form, the defendant locator intake form, the prisoner remand form, the subject's rap sheet, and the criminal complaint. (Id. at 19:9-25, 20:1-11.) Agent Hutchinson estimates that he finished processing the Otay Mesa case by 2:28 p.m. because, at that time, he texted another Agent that he was "on [his] way to San Ysidro." (Id. at 21:16-25, 22:7-12.)
Agent Hutchinson arrived at San Ysidro POE by 2:48 p.m. (Tr. 1 at 18:24-25.) Upon arriving for a duty call, it is Agent Hutchinson's "practice" to conduct a one to two-hour preliminary investigation "prior to starting the interview" of the subject in custody. (Id. at 27:5-14.) Agent Hutchinson testified that this investigation includes conducting "initial records checks" about the subject at the HSI office,4 speaking to the seizure officers, inspecting the seized vehicle and contraband, documenting any items retrievedfrom the vehicle, photocopying any seized documents or relevant reports produced by the officers at the POE, checking-in at the security office, and finally conducting any additional checks regarding the information learned in the preliminary investigation. (Id. at 22-26.) Agent Hutchinson testified that these "investigative steps are very important because they build a foundation of information regarding the incident, [] subject, [and] vehicle" that are "very useful when determining the truthfulness of a subject during the interview." (Id. at 27:18-22.) Agent Hutchinson also testified that many of these investigative steps - including reviewing a defendant's criminal history, checking his border crossing pattern, or photographing relevant documents and items - were not necessary to filling a complaint or charging a defendant. (Id. at 41:14-25, 42:1-20.)
Agent Hutchinson reviewed six items that were taken from the vehicle, including a passport, as well as "some vehicle documents" and a receipt. (Tr. 1 at 25:13-15.) He first encountered Mr. Kemmerer during the investigation when he stopped by the holding cell to determine if Mr. Kemmerer needed an interpreter. (Id. at 28:2-13.) After completing the investigation, Agent Hutchinson asked a CBP officer to join him for the interview and then escorted Mr. Kemmerer from his holding cell to an office. (Id. at 27:1-4, 28:14-18.)
Agent Hutchinson began interviewing Mr. Kemmerer at approximately 3:46 p.m. by completing a biographical form with the Defendant. (Tr. 1 at 29:1-9.) Ten minutes into the interview, at "3:56 p.m., approximately," Agent Hutchinson read from the Miranda form and explained to Mr. Kemmerer the rights he was waiving by participating in...
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