United States v. Simmonds , 641 F. App'x 99 ( 2016 )


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  • 15-577
    United States v. Simmonds
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    Rulings by summary order do not have precedential effect. Citation to a summary order
    filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
    Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
    document filed with this court, a party must cite either the Federal Appendix or an
    electronic database (with the notation “summary order”). A party citing a summary order
    must serve a copy of it on any party not represented by counsel.
    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
    the 11th day of March, two thousand sixteen.
    Present: ROBERT A. KATZMANN,
    Chief Judge,
    ROBERT D. SACK,
    RAYMOND J. LOHIER, JR.,
    Circuit Judges.
    ________________________________________________
    UNITED STATES OF AMERICA,
    Appellee,
    v.                                                  No. 15-577
    VON SIMMONDS,
    Defendant-Appellant.
    ________________________________________________
    For Appellee:                     WENDY FULLER (Kevin J. Doyle and Gregory L. Waples, on
    the brief), Assistant United States Attorneys, for Eric S. Miller,
    United States Attorney for the District of Vermont, Burlington,
    VT.
    For Defendant-Appellant:          STEVEN L. BARTH, Assistant Federal Public Defender (Barclay
    T. Johnson, Research & Writing Attorney, on the brief), for
    Michael L. Desautels, Federal Public Defender for the District
    of Vermont, Burlington, VT.
    Appeal from the United States District Court for the District of Vermont (Reiss, C.J.).
    1
    ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
    and DECREED that the judgment of the district court is AFFIRMED.
    Defendant Von Simmonds appeals from a judgment of conviction in the United States
    District Court for the District of Vermont (Reiss, C.J.). In the early morning of March 8, 2013,
    law enforcement visited the apartment of Kenneth Clark with the intent to perform a “knock and
    talk” because they had received information that he was distributing heroin out of the apartment.
    The visit resulted in a search of Clark’s apartment, where the officers encountered defendant
    Simmonds. During questioning by one of the officers, Simmonds made a number of
    incriminating statements. He was subsequently arrested and indicted on one count of knowingly
    conspiring to distribute cocaine base under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846.
    On June 10, 2013, Simmonds filed a motion to suppress his statements on the basis that
    they were obtained in violation of the Fifth Amendment. The district court held an evidentiary
    hearing and subsequently denied the motion on November 25, 2013. He filed a second motion to
    suppress evidence on December 25, 2013, arguing that the search of Clark’s apartment was
    nonconsensual in violation of the Fourth Amendment. Following an evidentiary hearing and
    supplemental briefing, the district court denied the motion on April 29, 2014. See United States
    v. Simmonds, No. 5:13-cr-42, 
    2014 WL 1706296
    (D. Vt. Apr. 29, 2014). Simmonds was
    convicted by a jury in June 2014. We assume the parties’ familiarity with the underlying facts,
    procedural history, and issues on appeal.
    On appeal from a district court’s ruling on a motion to suppress evidence, we review the
    district court’s “legal conclusions de novo and findings of fact for clear error.” United States v.
    Freeman, 
    735 F.3d 92
    , 95 (2d Cir. 2013). We accord “special deference to the district court’s
    factual determinations going to witness credibility.” United States v. Jiau, 
    734 F.3d 147
    , 151 (2d
    Cir. 2013).
    2
    We turn first to Simmonds’s argument that his statements were obtained in violation of
    the Fifth Amendment. The Supreme Court established in Miranda v. Arizona, 
    384 U.S. 436
    (1966), that “the prosecution may not use statements . . . stemming from custodial interrogation
    of the defendant unless it demonstrates the use of procedural safeguards effective to secure the
    privilege against self-incrimination.” 
    Id. at 444.
    In practice, Miranda requires that “prior to the
    initiation of [custodial] questioning, [law enforcement officers] must fully apprise the suspect of
    the [government’s] intention to use his statements to secure a conviction, and must inform him of
    his rights to remain silent and to ‘have counsel present . . . if [he] so desires.’” Moran v. Burbine,
    
    475 U.S. 412
    , 420 (1986) (fourth alteration in original) (quoting 
    Miranda, 384 U.S. at 468
    –70);
    see also Illinois v. Perkins, 
    496 U.S. 292
    , 296 (1990). Here, the officer who interviewed
    Simmonds, FBI Special Agent Christopher Destito, gave Simmonds a Miranda warning after he
    had been questioning Simmonds for approximately five minutes. By that time, Simmonds had
    already made incriminating statements. After waiving his Miranda rights, Simmonds continued
    to answer questions candidly and provided greater detail about his involvement in drug dealing.
    Simmonds argues that his statements should be suppressed, notwithstanding that he
    waived his Miranda rights, because Agent Destito engaged in an improper “two-step
    interrogation.” See Missouri v. Seibert, 
    542 U.S. 600
    , 604 (2004) (plurality); 
    id. at 622
    (Kennedy, J., concurring). In Seibert, the Supreme Court held that officers may not deliberately
    withhold Miranda warnings in a custodial interview in order to obtain a confession and then cure
    the violation with a mid-interrogation Miranda warning. See United States v. Capers, 
    627 F.3d 470
    , 475–76 (2d Cir. 2010) (summarizing Seibert). However, we need not reach that argument,
    because Simmonds was not in custody before Agent Destito provided him a Miranda warning.
    The determination of whether a person is in custody for Miranda purposes is an
    “objective inquiry” made after examining “all of the circumstances surrounding the
    3
    interrogation.” J.D.B. v. North Carolina, 
    131 S. Ct. 2394
    , 2402 (2011) (quoting Stansbury v.
    California, 
    511 U.S. 318
    , 322 (1994)). Those circumstances include, inter alia:
    the interrogation’s duration; its location (e.g., at the suspect’s home, in public, in a
    police station . . .); whether the suspect volunteered for the interview; whether the
    officers used restraints; whether weapons were present and especially whether
    they were drawn; whether officers told the suspect he was free to leave or under
    suspicion . . . [; and] the nature of the questions asked.
    United States v. FNU LNU, 
    653 F.3d 144
    , 153 (2d Cir. 2011). We begin by asking “whether a
    reasonable person would have thought he was free to leave the police encounter at issue. If the
    answer is yes, the Miranda inquiry is at an end; the challenged interrogation did not require
    advice of rights.” United States v. Newton, 
    369 F.3d 659
    , 672 (2d Cir. 2004). However, if the
    answer is no, the “court must ask whether, in addition to not feeling free to leave, a reasonable
    person would have understood his freedom of action to have been curtailed to a degree
    associated with formal arrest.” 
    Id. “Only if
    the answer to this second question is yes was the
    person ‘in custody’ . . . .” 
    Id. (quoting Berkemer
    v. McCarty, 
    468 U.S. 420
    , 440 (1984)).
    The parties dispute whether the defendant carries the burden of proof with respect to
    custody. Compare United States v. Arboleda, 
    633 F.2d 985
    , 989 (2d Cir. 1980) (“[T]he burden of
    production and persuasion generally rest upon the movant in a suppression hearing.” (quoting
    United States v. De La Fuente, 
    548 F.2d 528
    , 533 (5th Cir. 1977))), United States v. Jorgensen,
    
    871 F.2d 725
    , 729 (8th Cir. 1989) (finding that the defendant “failed to demonstrate that he was
    subjected to custodial interrogation”), and United States v. Davis, 
    792 F.2d 1299
    , 1309 (5th Cir.
    1986) (“[The defendant] had the burden of proving that he was under arrest or in custody.”), with
    United States v. Eggers, 
    21 F. Supp. 2d 261
    , 266 (S.D.N.Y. 1998) (“[T]he government bears the
    burden of establishing by a preponderance of the evidence that the statements were not the
    product of custodial interrogation conducted in the absence of Miranda warnings.”), and United
    States v. Zaleski, 
    559 F. Supp. 2d 178
    , 188 (D. Conn. 2008) (“[T]he government bears the
    burden of proving, by a preponderance of the evidence, . . . that Miranda does not apply because
    4
    the statement was not obtained during custodial interrogation.”). However, we do not decide the
    issue here, because we conclude that the totality of the circumstances show that Simmonds was
    not in custody regardless of which party had the burden of proof.
    Simmonds argues that the officers’ initial, brief use of firearms supports a conclusion that
    the interrogation was custodial. After the officers entered the apartment and began their search,
    Clark informed them that another man was in the apartment. Agent Destito and Rutland
    Detective David LaChance unholstered their guns and approached the back bedroom where they
    encountered Simmonds. LaChance ordered Simmonds to put his hands up and he likely frisked
    Simmonds before they left the room. LaChance then escorted Simmonds out of the room at
    gunpoint and turned him over to Destito, who patted him down in the hallway.
    Although the use of firearms is generally an important factor in our analysis of the
    totality of the circumstances, the fact that the officers initially used firearms and briefly searched
    Simmonds does not compel a conclusion that the ensuing interrogation was custodial, especially
    where the use of firearms was “necessitated by the officers’ safety concerns” and ended “as soon
    as . . . the perceived security threat abated.” United States v. Cota, 
    953 F.2d 753
    , 759 (2d Cir.
    1992); see Cruz v. Miller, 
    255 F.3d 77
    , 86 (2d Cir. 2001) (noting that “[s]everal courts have ruled
    that an initial display of guns, subsequently reholstered, does not result in ‘custody’ that
    requires Miranda warnings”). Here, the district court found that “[w]ithin seconds” the two law
    enforcement officers holstered their firearms after determining that Simmonds was not a threat.
    Destito then asked Simmonds to take a seat in a lounge chair in the living room.
    Furthermore, the fact that the interview then took place in the living room supports a
    conclusion that it was not a custodial setting. Cf. United States v. Mitchell, 
    966 F.2d 92
    , 99 (2d
    Cir. 1992) (finding the defendant was not in custody because, among other reasons, “[t]he entire
    interview occurred in the familiar surroundings of [his] home”); cf. also United States v.
    Bassignani, 
    575 F.3d 879
    , 885 (9th Cir. 2009) (“[A]n interrogation conducted in familiar
    5
    surroundings weighs against a finding that the defendant was in custody.”). In contrast to cases
    finding custody because of a “police-dominated atmosphere,” Agent Destito was dressed in plain
    clothes, his weapon was holstered and concealed by his jacket, he was not positioned between
    Simmonds and the apartment’s exit, no other officers were involved in the interview, and the
    tone of the interview was conversational in nature. Cf. United States v. Cavazos, 
    668 F.3d 190
    ,
    194 (5th Cir. 2012) (finding an interrogation was custodial because, among other reasons, “more
    than a dozen officers entered and searched the [defendant’s] home”); United States v. Revels, 
    510 F.3d 1269
    , 1275 (10th Cir. 2007) (finding a reasonable person “would have perceived a police-
    dominated atmosphere” when “seven police officers abruptly roused [the defendant and her
    boyfriend] from their bedroom after forcibly entering their home”).
    Simmonds asserts that a finding of custody is supported by the fact that he was the only
    African American in the apartment. However, there is no indication in the record that a
    reasonable person in Simmonds’s position would have felt as though the officers treated him
    differently than the other occupants on account of his race. The district court found that, while
    Simmonds was being interviewed by Destito, the other officers were conducting a search of the
    apartment and “dealing with the other occupants.” Furthermore, the record suggests that the
    officers had legitimate reasons for pursuing Simmonds in the manner that they did, given that he
    was in a separate bedroom when they began the search and that they had legitimate safety
    concerns as they approached the room.
    Destito’s form of questioning also does not necessarily support a conclusion that the
    interrogation was custodial. The district court noted that Destito accused Simmonds of lying,
    confronted him with evidence of his guilt, and advised him that it was in his best interest to be
    honest. However, “[a]ny interview of one suspected of a crime by a police officer will have
    coercive aspects to it, simply by virtue of the fact that the police officer is part of the law
    enforcement system which may ultimately cause the suspect to be charged with a crime.”
    6
    California v. Beheler, 463 U.S 1121, 1124 (1983) (per curiam) (alteration in original) (quoting
    Oregon v. Mathiason, 
    429 U.S. 492
    , 495 (1977)). There is no indication that Destito’s
    questioning was any more coercive than what would be expected in any questioning by a police
    officer of an individual suspected of a crime.
    Neither of the two cases on which Simmonds relies supports a conclusion that the
    interrogation here was custodial. In United States v. Newton, officers knocked on the defendant’s
    door and immediately placed him in 
    handcuffs. 369 F.3d at 663
    . Given that “[h]andcuffs are
    generally recognized as a hallmark of a formal arrest,” 
    id. at 676,
    and that Simmonds was not
    placed in handcuffs prior to or during the interview, that case is distinguishable. The second case
    discussed by Simmonds, United States v. Ali, 
    86 F.3d 275
    (2d Cir. 1996), is similarly inapposite.
    Ali involved an interrogation at an airport where the defendant “was asked to step away from the
    boarding area, his travel documents were removed, and he was surrounded by seven officers with
    visible handguns.” 
    Id. at 276–77
    (quoting United States v. Ali, 
    68 F.3d 1468
    , 1473 (2d Cir.
    1995)). Two officers testified that they would not have allowed the defendant to leave if he had
    tried to do so. 
    Id. at 277.
    In contrast, Simmonds was interviewed only by one officer in an
    apartment and none of the officers had restricted his ability to leave like the officers in Ali had
    done by removing the defendant’s travel papers.
    In light of the totality of the circumstances, we conclude that the interrogation of
    Simmonds that took place prior to the Miranda warning was not custodial.
    We turn next to Simmonds’s Fourth Amendment challenge.1 He argues that the officers
    violated the Fourth Amendment when, without consent, they entered a street level door in order
    to access a hallway and stairwell that led to Clark’s apartment door. It is well established that the
    Fourth Amendment applies only to spaces in which an individual has a reasonable expectation of
    1
    Because Simmonds was an overnight guest in the apartment, he has standing to object to an illegal search under the
    Fourth Amendment. United States v. Osorio, 
    949 F.2d 38
    , 41 (2d Cir. 1991) (“[A]n overnight guest has a ‘legitimate
    expectation of privacy in his host’s home.’” (quoting Minnesota v. Olson, 
    495 U.S. 91
    , 98 (1990))).
    7
    privacy. United States v. Hayes, 
    551 F.3d 138
    , 143 (2d Cir. 2008); see Katz v. United States, 
    389 U.S. 347
    , 361 (1967) (Harlan, J., concurring). We have held that a person does not have a
    reasonable expectation of privacy in the common areas of multi-unit buildings. See United States
    v. Holland, 
    755 F.2d 253
    , 255–56 (2d Cir. 1985) (discussing Katz).
    The apartment complex in which Clark lived had multiple street-level doors, each of
    which provided access to one or more different apartments. On the morning of the search, the
    officers opened the unlocked street level door that Clark used and entered the hallway that led to
    his apartment upstairs. The district court credited Clark’s statement that it was not atypical for
    the door to be unlocked and that friends and members of the public, such as deliverymen, often
    accessed his apartment front door through use of the hallway. Indeed, there was no doorbell or
    knocker on the outside door that a visitor could use to indicate to Clark that they were there.
    In light of the district court’s finding that members of the public often had free access to
    the hallway, we conclude that Simmonds did not have a reasonable expectation of privacy in the
    hallway. See 
    Holland, 755 F.2d at 256
    (finding that an individual did not have a reasonable
    expectation of privacy in a hallway because “on any given day . . . [he] reasonably might expect
    to meet the landlord or his agents, . . . deliverymen, tradesmen, or one or more visitors to [an]
    apartment”). Therefore, the district court did not err in denying Simmonds’s motion to suppress
    on this ground.
    Simmonds also challenges the search on Fourth Amendment grounds on the basis that
    Clark’s consent to search the apartment was not voluntary because Clark opened the door in
    response to a demand under color of authority and because Clark was intoxicated when he gave
    consent. Neither of these arguments warrants a reversal of the district court’s denial of the
    motion to suppress.
    A warrantless search does not violate the Fourth Amendment if “the authorities have
    obtained the voluntary consent of a person authorized to grant such consent.” United States v.
    8
    Elliott, 
    50 F.3d 180
    , 185 (2d Cir. 1995). However, where consent is “granted only in submission
    to a claim of lawful authority,” the consent is not considered voluntary. United States v. Isiofia,
    
    370 F.3d 226
    , 233 n.2 (2d Cir. 2004) (quoting Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 233
    (1973)).
    When the officers reached Clark’s apartment door, Detective LaChance knocked on the
    door and Clark responded, “come in.” LaChance knocked again after ten to fifteen seconds and
    shouted “Rutland City Police” and asked Clark to open the door. Clark did not recall the request
    to open the door, but he testified that he went and opened it voluntarily. The district court found
    that LaChance credibly testified that the officers received verbal consent to enter the apartment
    and written consent when they entered the kitchen and before the search took place. The district
    court considered the fact that Clark described his memory of the events as “hazy” and “a little
    foggy” and Clark’s statement that he may have been under the influence of crack cocaine at the
    time. But the court found that LaChance credibly testified that Clark was very calm, cooperative,
    and able to answer the agents’ questions. Agent Desisto also credibly testified that Clark was
    coherent and did not appear drunk. Clark’s speech was not slurred and his eyes were not glassy.
    Relying heavily on our decision in United States v. Taylor, 
    745 F.3d 15
    (2d Cir. 2014),
    Simmonds also argues that the record shows that Clark was so intoxicated that he fell asleep
    “immediately” while the apartment was being searched, suggesting that Clark was too
    intoxicated to give consent. In Taylor, we found that a defendant’s post-arrest statements to law
    enforcement were not voluntary in part because he “fell asleep repeatedly during questioning and
    was only intermittently alert.” 
    Id. at 20.
    Here, however, the officers credibly testified that Clark
    was coherent and able to answer their questions. Specifically, LaChance testified that he did not
    observe signs of impairment and that Clark’s answers to questions “were clear and he seemed to
    understand what we were talking about.” A close look at the testimony corroborates LaChance’s
    description of Clark’s demeanor on the night of the search.
    9
    Because the record supports a conclusion that Clark voluntarily opened the door after the
    officers knocked and that he consented to the search verbally and in writing, we conclude that
    Simmonds’s Fourth Amendment rights were not violated. Accordingly, the district court did not
    err in denying Simmonds’s motion to suppress on this ground.
    We have considered all of Simmonds’s remaining arguments on this appeal and find that
    they lack merit. For these reasons, we AFFIRM the judgment of the district court.
    FOR THE COURT:
    CATHERINE O’HAGAN WOLFE, CLERK
    10