United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court on Defendant Jose
Velarde-Pavia's Motion to Suppress Statements, filed
August 22, 2019. (Doc. 165). Defendant seeks to suppress one
question and one answer from his exchange with officers
on-scene. (Id.) The United States filed its response
on August 23, 2019 (Doc. 170), and the Court held a hearing
on this matter on August 23, 2019 (see Doc. 172
(clerk's minutes)). As stated at the hearing,
Defendant's Motion to Suppress is granted.
case involves a felony stop based entirely on a search
warrant. Agent Salas' body cam video, accepted as Exhibit
1 at the suppression hearing, shows at least five officers
approaching Defendant and his vehicle with guns drawn.
Officers instruct Defendant to walk backwards toward them,
order Defendant to his knees, and handcuff him. Defendant
appears to be compliant and noncombative. The parties agree
that no reasonable person would have felt free to leave the
the video footage comes from Agent Salas' perspective,
the audio and accompanying transcript pick up out-of-frame
conversations. Indeed, while Agent Salas and another officer
approach Defendant's truck and spot a firearm in plain
view, the audio and transcript reflect a Spanish-language
conversation between Agent Arroyo (as identified in the
transcript) and Defendant. Agent Juarez, who is not visible
on camera but is identified in the transcript, informs
Defendant that he has been stopped pursuant to a drug-related
some static interference, the next clear thing heard on the
audio is Agent Arroyo asking Defendant if he has anything on
him. Agent Arroyo does not specify whether
“anything” means drugs or weapons, and does not
specify whether his question is limited to any weapons
Defendant may have on his person. Defendant responds in the
affirmative, meaning he does have something on him, and
states that he has personal use “hielo” or
“ice” on him.
point, Agent Juarez speaks up and suggests that officers
Mirandize the Defendant “before he starts
talking.” Another voice, identified in the transcript
as Agent Mahone, agrees with Agent Juarez and suggests that
the Defendant be Mirandized so that officers can ask
him questions. Despite this discussion, no one reads the
Defendant any kind of Miranda warning or otherwise
advises him of his rights.
Juarez proceeds to squarely ask Defendant if he has any
drugs. Defendant again says yes. Agent Brackeen, identified
by name in the transcript, begins patting down the Defendant
and asks if he has anything in the truck. Defendant says no.
A few moments later, after Agent Brackeen pats down the
Defendant and checks his pockets, Agent Arroyo lifts the
Defendant's shirt and visually inspects his waistband.
Agent Arroyo then asks the Defendant if he has any firearms.
Defendant says that he has only the one firearm, but does not
identify the firearm's location. Agent Arroyo follows up
this question by asking if Defendant has any firearms
“in [his] boots or anything like that, ” to which
the Defendants says no.
only question for the Court is whether Agent Arroyo's
question about firearms constitutes a custodial interrogation
such that the question and answer must be suppressed.
criminal defendant files a Fourth or Fifth Amendment-based
motion to suppress, the United States bears the burden of
showing, by a preponderance of the evidence, that the
criminal defendant's rights were not violated. United
States v. Matlock, 415 U.S. 164, 177 (1974). However,
“[t]he proponent of a motion to suppress has the burden
of adducing facts at the suppression hearing indicating that
his own rights were violated by the challenged
[conduct].” United States v. Eckhart, 569 F.3d
1263, 1274 (10th Cir. 2009) (quotation omitted). In ruling on
a motion to suppress, courts must view the facts in the light
most favorable to the United States. United States v.
Matthews, 458 Fed.Appx. 717, 722 (10th Cir. 2012)
(citing United States v. Myers, 308 F.3d 251, 255
(3d Cir. 2002)).
the Fifth Amendment, a Miranda warning is required
when a defendant is “interrogated” while in
custody. United States v. Revels, 510 F.3d 1269,
1273 (10th Cir. 2007). “Whether a suspect is in custody
represents an objective determination.” United
States v. Jones, 523 F.3d 1235, 1239 (10th Cir. 2008).
The Supreme Court held in Berkemer v. McCarty that
custodial interrogations are those in which the
defendant's “freedom of action is curtailed to the
degree associated with a formal arrest.” 468 U.S. 420,
a public-safety exception exists for the Miranda
requirement, such that officers may ask questions of a
suspect in custody without providing a Miranda
warning, so long as those questions are related to public
and/or officer safety. New York v. Quarles, 467 U.S.
649, 655-56 (1984); United States v. Lackey, 334
F.3d 1224, 1226-27 (10th Cir. 2003). “[T]he
availability of [the public-safety exception] does not depend
upon the motivation of the individual officers
involved.” Quarles, 467 U.S. at 656. In
cabining the exception, the Supreme Court stated that
“police officers can and will distinguish almost
instinctively between questions necessary to secure their own
safety or the safety of the public and questions designed
solely to elicit testimonial evidence from a suspect.”
Id. at 658-59.
practical matter, the Tenth Circuit distinguishes between
public-safety type questions and custodial interrogation
questions based on whether a responsive answer would
incriminate a suspect. Lackey, 334 F.3d at 1228.
Thus, the practical consideration becomes whether the
“risk of incrimination is limited to non-responsive
answers, ” for example, cases where a suspect provides
more information than requested. Id. In those
instances, the Tenth Circuit has determined that this is
“not a risk particularly worthy of a prophylactic
purposes of this motion, the Court need not determine whether
Defendant was initially “in custody” within the
meaning of Miranda. Instead, the crucial question is
whether Agent Salas' question to Defendant, whether he
had any firearms, constitutes a custodial interrogation. On
the facts of this case, the Court concludes that Defendant
was in custody, Defendant should have been
Mirandized, and the public-safety exception does not
officers' questions shifted from investigatory and
public-safety type questions after Defendant admitted to
having “ice” - that is, methamphetamine - on his
person, after officers noticed a visible firearm in his
truck. Indeed, officers had largely patted Defendant down
before asking him if he had any firearms. More telling, two
of the officers on scene recognized that Defendant needed to
be Mirandized, as further questions would constitute
a custodial interrogation subject to the Miranda
Arroyo's question was sufficiently vague and inartful,
under the circumstances of this case, that it would
reasonably elicit responsive and incriminating information.
Based on the circumstances described above, the Court
concludes the Defendant was in custody within the meaning of
Miranda, and Agent Arroyo's question constituted
custodial interrogation. Therefore, because the Defendant ...