United States v. Sanchez-Velasco

• Decision Date: 17 April 2020
• Docket Number: No. 18-3568,18-3568
• Citation: 956 F.3d 576
• Parties: UNITED STATES of America Plaintiff - Appellee v. Jeremias SANCHEZ-VELASCO Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

956 F.3d 576

UNITED STATES of America Plaintiff - Appellee

v.Jeremias SANCHEZ-VELASCO Defendant - Appellant

No. 18-3568

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2019

Filed: April 17, 2020

Rehearing and Rehearing En Banc Denied June 10, 2020^*

Emily K. Nydle, Daniel C. Tvedt, Assistant United States Attorneys, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff-Appellee.

Rockne Ole Cole, Cole & Vondra, Iowa City, IA, for Defendant-Appellant.

Jeremias Sanchez-Velasco, Hardin County Correctional Center, Eldora, IA, Pro. Se.

Before LOKEN, GRASZ, and STRAS, Circuit Judges.

LOKEN, Circuit Judge.

Jeremias Sanchez-Velasco visited the Linn County, Iowa Treasurer’s Office the morning of April 27, 2018 to obtain registration and license plates for a newly acquired automobile. He submitted a Guatemalan consular card and proof of car insurance (form "SR-22") bearing the name "Miguel M. Sanchez" to clerk Brynn Love. The name on the SR-22 did not match the name of the secondary owner listed on the Iowa Department of Transportation’s ("IDOT") database. Love called IDOT Investigator Jason Nusbaum. After investigating, Nusbaum told Love he had notified immigration authorities the social security number on file for Sanchez-Velasco did not match his name. Immigration and Customs Enforcement ("ICE") Deportation Officers Billy Walker and Bryce Callison came to the Treasurer’s Office, interviewed Sanchez-Velasco, and arrested him when he admitted to being unlawfully present in the United States. The officers drove Sanchez-Velasco to an ICE facility, where Officer Callison asked Sanchez-Velasco immigration-related questions to prepare a file that would be sent to the Immigration Court for removal proceedings.

A grand jury indicted Sanchez-Velasco for two offenses he committed in 2014, which came to light after his arrest for the immigration violation: unlawfully using a social security card to complete a Form I-9 in violation of 18 U.S.C. § 1546(a), and misusing a social security number in completing state and federal tax forms in violation of 42 U.S.C. § 408(a)(7)(B). After the district court¹ denied his motion to suppress statements made during the ICE officer interviews, Sanchez-Velasco conditionally pleaded guilty to misusing a social security number. The district court dismissed the Form I-9 charge and sentenced him to the 195 days he had served in prison and three years of supervised release. Sanchez-Velasco appeals, arguing his statements to Walker and Callison should have been suppressed because he was responding to custodial interrogation without receiving constitutionally mandated Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Reviewing the legal issues of custody and interrogation de novo and the underlying factual findings for clear error, we affirm. United States v. LeBrun, 363 F.3d 715, 719 (8th Cir. 2004) (en banc) (custody), cert. denied, 543 U.S. 1145, 125 S.Ct. 1292, 161 L.Ed.2d 105 (2005) ; United States v. Ochoa-Gonzalez, 598 F.3d 1033, 1038 (8th Cir. 2010) (interrogation).

I. Background

When Sanchez-Velasco submitted his form SR-22, clerk Love could not find "Miguel M. Sanchez" in the IDOT database. She told Sanchez-Velasco he could leave and have the insurance company fix his SR-22, or he could provide his social security number. Sanchez-Velasco said he had not memorized his number. Love again searched the IDOT database, using the vehicle’s identification number ("VIN"). This disclosed an application for title listing a name similar to Sanchez-Velasco’s and a social security number. Sanchez-Velasco said the name on the title application was his "full name." Love called Nusbaum to learn if the application for title would suffice to complete the vehicle registration. Sanchez-Velasco said he would leave and have his SR-22 fixed. Love asked him not to leave because Nusbaum would provide an answer in a few minutes.

Nusbaum discovered that the social security number on the application for title did not belong to Sanchez-Velasco. He called Love and asked her to "stall" Sanchez-Velasco until law enforcement arrived. Love told Sanchez-Velasco that Nusbaum was still reviewing his documents. Nusbaum called Officers Walker and Callison and told them that someone with a Guatemalan ID was trying to acquire license plates at the Linn County Treasurer’s Office with a social security number that did not belong to him. The deportation officers arrived a few minutes later, wearing plain clothes and concealing weapons and badges.

Officer Walker asked if there was a quiet place to talk to Sanchez-Velasco. Love’s supervisor directed them to a nearby conference room. Walker asked Sanchez-Velasco, "Please will you come with me? I have some questions for you." Sanchez-Velasco walked into the conference room; Callison closed the door. Neither Walker nor Callison identified himself as an ICE officer, nor did they tell Sanchez-Velasco he was free to leave. Walker testified he "considered him to be detained" for questioning, not arrested. Callison testified Nusbaum’s tip "gave us reasonable suspicion to speak to the gentleman" about whether he was lawfully present in the United States. Walker asked Sanchez-Velasco in Spanish whether the Guatemalan consular card belonged to him and whether it contained his information. Sanchez-Velasco answered yes. Walker asked if he was unlawfully present in the United States. When Sanchez-Velasco answered yes, he was arrested for violating the Immigration and Nationality Act.

At the ICE office, after Sanchez-Velasco was photographed and fingerprinted, Officer Callison asked immigration-related biographical questions -- his name, country of birth, city of birth, date of birth, current address, parents’ names, parents’ country of citizenship, other family members, whether he was scared to return to his home country, why he came to the United States, and whether he had any pending claims for immigration relief. Callison did not ask Sanchez-Velasco how he used or acquired his social security number. Indeed, Nusbaum only told Callison about the false social security number on the application for title after Callison had finished questioning Sanchez-Velasco.

II. Discussion

Miranda requires law enforcement officials to advise a person in "custody," prior to "interrogation," of his right to be free from compulsory self-incrimination and to the assistance of counsel. An individual is "in custody" when "there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (quotation omitted); see LeBrun, 363 F.3d at 720. This is an objective determination considered from the perspective of a reasonable person in the suspect’s position. Stansbury v. California, 511 U.S. 318, 322-23, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). In conducting the custody inquiry, "we consider the totality of the circumstances that confronted the defendant at the time of questioning." United States v. Czichray, 378 F.3d 822, 826 (8th Cir. 2004), cert. denied, 544 U.S. 1060, 125 S.Ct. 2514, 161 L.Ed.2d 1109 (2005). We typically focus the analysis on six non-exclusive factors enumerated in United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990), as the district court did in this case. However, "it is important to recall that ... ‘custody’ cannot be resolved merely by counting up the number of factors on each side of the balance." Czichray, 378 F.3d at 827.

A. Questioning at the Treasurer’s Office. Sanchez-Velasco contends he was in custody when he was questioned by Officer Walker in the Treasurer’s Office conference room. The district court, focusing its analysis on the non-exclusive Griffin factors, concluded that the following facts demonstrated that Sanchez-Velasco was not in custody when asked two questions in the conference room: neither Walker nor Callison restrained or touched Sanchez-Velasco; he voluntarily followed the officers into the conference room and answered Walker’s questions; the officers concealed their guns and ICE insignia; Officer Walker pursued a narrow line of inquiry in a short period of time, using a normal tone of voice without deception or intimidation.

The second Griffin factor is whether a suspect possessed unrestrained freedom of movement inconsistent with his being in custody. In opposing Sanchez-Velasco’s motion to suppress, the government argued that the deportation officers had reasonable suspicion to briefly detain Sanchez-Velasco and question him regarding his right to be in the United States under 8 U.S.C. § 1357(a)(1) and 8 C.F.R. § 287.8(b)(2). In recommending that the motion to suppress be denied, the magistrate judge recognized that immigration officers have this authority and concluded, in any event, the second factor weighed against a finding that Sanchez-Velasco was in custody because no evidence was offered that Sanchez-Velasco understood he was under arrest when questioned in the conference room. The district court agreed, noting that at no time did Officer Walker tell Sanchez-Velasco he was not free to leave. In these circumstances, the district court concluded, a reasonable person in Sanchez-Velasco’s position would not feel as if he were under arrest. We agree with this assessment.

On appeal, Sanchez-Velasco argues the conference room interview was custodial because the officers not only failed to tell him he was free to leave, but also because, subjectively, they believed he was not free to leave. As the district court properly recognized, the custody issue turns on an objective determination of whether a reasonable person would have considered himself under arrest, not on the officer’s subjective belief not communicated to the suspect. Of course, an officer’s belief that a suspect is not free to leave may be communicated by actions as well as words. But that...