United States v. Ismael Azua-Rinconada , 914 F.3d 319 ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4344
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISMAEL AZUA-RINCONADA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Louise W. Flanagan, District Judge. (7:16-cr-00005-FL-1)
Argued: September 28, 2018 Decided: January 28, 2019
Before NIEMEYER and KEENAN, Circuit Judges, and Norman K. MOON, United
States District Judge for the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Keenan and Judge Moon joined. Judge Keenan wrote a separate opinion, concurring.
ARGUED: Anne Margaret Hayes, Cary, North Carolina, for Appellant. Kristine L.
Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, Jennifer, P. May-
Parker, Acting First Assistant United States Attorney, Phillip A. Rubin, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
NIEMEYER, Circuit Judge:
After Ismael Azua-Rinconada (“Azua”) was indicted for illegally entering the
United States in violation of 8 U.S.C. § 1326(a), he filed two motions to suppress all
statements and all other evidence obtained by law enforcement officers during their
encounter with him prior to his arrest. He alleged that the officers, acting without a
warrant, gained access to his residence through coercion, in violation of the Fourth
Amendment, and that they then subjected him to custodial interrogation without
providing him with Miranda warnings, in violation of the Fifth Amendment. Following a
hearing, the district court denied the motions, concluding that the officers received
voluntary consent to enter Azua’s residence and that Azua was not in custody when he
voluntarily gave answers to the officers’ questions. A jury then found Azua guilty of
violating § 1326(a), and the court sentenced him to time served and committed him to the
custody of the Department of Homeland Security for deportation.
On appeal, Azua contends that the district court erred in denying his suppression
motions because (1) the law enforcement officers did not have valid consent to enter his
residence and thus needed a warrant, and (2) the officers’ interrogation of him was
custodial and thus violated his Fifth Amendment rights because no Miranda warnings
had been given. For the reasons that follow, we affirm.
I
On the morning of January 6, 2016, a team of six law enforcement officers
working with Homeland Security Investigations (“HSI”) set out on a “knock and talk”
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operation in a mobile home park in Robeson County, North Carolina. The team was led
by HSI Special Agent Bryan Moultis and included Corporal José Hernandez, a detective
in the Hoke County Sheriff’s Office who spoke Spanish. At approximately 9:30 a.m.,
Agent Moultis and Corporal Hernandez approached the trailer that was Azua’s residence
to conduct a “knock and talk.” At the time, Moultis was wearing a shirt with “police”
written across the chest, was carrying a holstered firearm, and had his badge around his
neck. Hernandez was also carrying a holstered firearm and was wearing a body cam that
recorded the interaction that followed.
As Agent Moultis and Corporal Hernandez stood on either side of the front door of
the trailer, Hernandez knocked on the door. After receiving no response, he continued to
knock, saying “open the door” in Spanish. Hernandez then said, in English, “Publisher’s
Clearinghouse,” and Moultis remarked that he could hear voices from inside the
residence. Hernandez then knocked more forcefully and said in Spanish, “Open the door
or we’re going to knock it down,” followed, in English, by “Police, open the door.”
When Azua and his fiancée, Amaryllis Powell, who was pregnant with Azua’s
child, heard the officers’ knocks and the threat to knock down the door, they became
scared. But when Azua realized that it was police who were at the door, he instructed
Powell to open it because, as he testified, “I knew nothing was going to happen to her.”
He also testified that he did not “believe that they were going to take the door down.”
Powell testified that when she opened the door following Azua’s instruction, she did so
“with consent” and found the officers to be “professional.”
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After Powell opened the door, Corporal Hernandez greeted her and asked if she
was the only person home. She responded that she was. But when Agent Moultis
commented that he and Corporal Hernandez had “heard a whole lot more footsteps than
[hers],” Powell acknowledged that she was not alone. Moultis then asked Powell if she
would “mind if we came in and talked to you” and remarked, “we’d like to talk to you . . .
but it’s awfully cold out here.” Powell responded, “okay, you can come in” and gestured
with her hand for the officers to come inside. As she opened the door wider, she again
said, “okay, you can come in.” Corporal Hernandez said that he “appreciate[d] it” and
shook Powell’s hand.
Agent Moultis, Corporal Hernandez, and one other officer then entered the trailer.
The officers did not perform a security sweep, but they did request that Powell ask
everyone in the trailer to come to the living room “just for safety reasons.” At that point,
Oscar Lopez, Azua’s brother-in-law, who also lived at the residence, walked into the
living room while Powell took a seat on the couch. As Agent Moultis began to explain
why the officers were there, indicating that they had received information regarding
illegal activity in the area, Azua walked into the room and took a seat on the couch next
to Powell. Moultis greeted Azua by saying, “Hey man, how are you?” Moultis then
asked Azua, Powell, and Lopez if there were any firearms in the trailer. Lopez responded
that he was renting the trailer and owned some firearms. Moultis requested that Lopez
complete a consent form authorizing the police to search the premises, and he also asked
Lopez if a canine unit could come into the house to assist in the search. Lopez agreed.
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While Lopez was filling out the consent-to-search form, Agent Moultis asked
Azua and Powell where they were from originally. Powell responded that she was from
North Carolina, and Azua responded that he was from Mexico, providing Moultis with
his Mexican voter registration card as identification. Agent Moultis then gave Azua a
questionnaire designed to determine a person’s immigration status. He requested that
Azua fill out the questionnaire, using phrases such as “I want you to start filling this out”
and explaining that he wanted Azua “to answer every question.”
While Azua was filling out the questionnaire, Agent Moultis told Lopez to come
with him to the kitchen table, where Moultis asked Lopez questions regarding his
firearms and reports of illegal activity in the area. While Agent Moultis spoke with
Lopez, Azua and Powell sat on the couch alone as Azua completed the questionnaire.
When Azua had completed the questionnaire, Agent Moultis came back to the
living room and took a seat on the couch to ask Azua about some of his answers. During
the discussion, Moultis became suspicious of Azua’s legal status. He asked Powell if she
had begun the process for Azua to become an American citizen, and Powell said that she
wanted to but had not yet done so. Agent Moultis then said to Azua, “You’re going to
have to help me out, because I can be a roadblock for that. I don’t necessarily want to,
but if I don’t feel like you are being honest with me, I will be.” Moultis further told Azua
that, according to his questionnaire, he was “an illegal alien” and that he had “no status in
the United States” and “should’ve never been here.”
Agent Moultis then said to Azua, “Why don’t you come with me, grab some shoes
real quick, and we’re going to go to my car real quick. We’re not going to go anywhere,
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we’re just going to grab some fingerprints.” As Azua rose from the couch, Corporal
Hernandez told him to put on a jacket because it was cold outside, at which point Azua
walked into another room to change clothes. Azua then came back and followed Agent
Moultis to his vehicle where he allowed Moultis to fingerprint him. When Moultis ran a
check of the prints, he learned that Azua’s file contained two warrants for deportation.
He thereupon arrested Azua, and placed him in handcuffs.
After Azua was indicted for illegal entry, in violation of 8 U.S.C. § 1326(a), he
filed two suppression motions — the first seeking to suppress all statements made to
officers in his residence and the second seeking to suppress all evidence taken from his
person and property. Following a hearing, a magistrate judge recommended that Azua’s
motions be denied, concluding that Powell “gave voluntary and knowing consent for
officers to enter the residence even if she heard Corporal Hernandez’s comment about
breaking down the door” and that Azua “was not in custody” so as to require Miranda
warnings. The district court adopted the recommendation of the magistrate judge as its
own and denied Azua’s motions by order dated March 2, 2017.
A jury convicted Azua of illegal entry following trial, and the district court
sentenced him to time served. He was then deported to Mexico.
II
Azua contends first that the law enforcement officers, operating without a warrant,
gained entry into his residence through coercion — not by valid consent, as the officers
claimed — by threatening to break down the door with “an implied claim of lawful
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authority,” in violation of the Fourth Amendment. Because the entry was illegal, he
asserts, all statements he made and all evidence obtained following the entry should have
been suppressed.
The district court, adopting the findings of fact made by the magistrate judge,
disagreed with Azua, finding that the officers were granted entry voluntarily. The court
found that the officers “approached the door of the residence in mid-morning, without
drawn weapons and knocked repeatedly without yelling or violent pounding on the door”
and that Azua “directed Powell to answer the door after recognizing the visitors as
officers.” It found further that “Powell was an adult fully capable of communicating
consent” and that once she “opened the door, officers did not use hostile, accusatory or
threatening language.” Rather, the officers “in conversational tone asked for permission
to enter to speak further because it was cold outside, and Powell freely and casually
allowed [them] to enter.” To the court, “[t]hese factors provide[d] significant evidence
supporting a determination of voluntariness.” While the court acknowledged that
Corporal Hernandez’s statements that the officers were with Publisher’s Clearinghouse
and that they would knock down the door weighed against finding consent, it reasoned
that “when these statements are viewed in context . . . in light of the officers’ actions and
tone of delivery as seen on the video recording, they do not show that Powell’s consent
was ‘coerced by threats or force, or granted only in submission to a claim of lawful
authority’” (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973)). The court
found that the “statements made and physical demeanor of the officers and Powell, both
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before and after Powell answered the door, [stood] in stark contrast to circumstances in
those cases where consent has been found involuntary.”
It is, of course, well understood that “the Fourth Amendment generally prohibits
the warrantless entry of a person’s home, whether to make an arrest or to search for
specific objects.” Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). “The prohibition does
not apply, however, to situations in which voluntary consent has been obtained, either
from the individual whose property is searched or from a third party who possesses
common authority over the premises.” Id. (citation omitted). The question whether
consent to search is voluntary — as distinct from being the product of duress or coercion,
express or implied — is one “of fact to be determined from the totality of all the
circumstances.” Schneckloth, 412 U.S. at 227. And because the question is one of fact,
review on appeal is conducted under the clear error standard. United States v. Lattimore,
87 F.3d 647, 650 (4th. Cir. 1996) (en banc).
In this case, we conclude that the district court did not clearly err in finding that
the officers received voluntary consent to enter Azua’s residence. The body cam footage,
which is part of the record, shows that the encounter did indeed stand in “stark contrast”
to those cases where consent was found to be involuntary. See, e.g., Bumper v. North
Carolina, 391 U.S. 543, 548–49 (1968) (finding consent to be involuntary where officers
falsely claimed they had a warrant); Gregg v. Ham, 678 F.3d 333, 336–37, 342 (4th Cir.
2012) (finding consent to be involuntary where a physically disabled woman allowed an
officer, who was armed with a shotgun, and three bail bondsmen into her home after the
officer shook the door and said that she “had to let them come in or he was going to come
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in”); cf. United States v. Elie, 111 F.3d 1135, 1145–46 (4th Cir. 1997) (finding consent to
be voluntary where at least six officers were present), abrogated in part on other grounds
by Dickerson v. United States, 530 U.S. 428 (2000). Azua’s argument to the contrary
depends almost entirely on Corporal Hernandez’s statement, “open the door or we’re
going to knock it down.”
While we do not condone Corporal Hernandez’s statement — and the government
has indeed rightly repudiated it — we nonetheless conclude that, in context, it did not
fatally infect the voluntariness of the consent. The effect of the statement was limited, as
demonstrated by the body cam footage, as well as by Powell’s testimony. The footage
convincingly shows that after Powell opened the door, the officers conversed with her in
a calm, casual manner and that Powell freely and with a degree of graciousness invited
the officers into the trailer. And Powell also testified that she had consented to the entry.
With this evidence, we cannot conclude that the district court clearly erred in finding that
consent to enter was given voluntarily. See Schneckloth, 412 U.S. at 233. Accordingly,
we affirm the district court’s ruling that the officers had valid consent to enter Azua’s
residence and therefore that their entry did not violate the Fourth Amendment.
III
Azua also contends that after officers entered his residence, he “was in custody
when he was interrogated by Agent Moultis, and Agent Moultis failed to inform him of
his Miranda rights.” He claims accordingly that his Fifth Amendment rights were
violated. To support his argument, Azua points to the fact that officers obtained entry
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into his residence by threatening to break the door down, causing him “to believe he was
required to comply with any demand or request made by the officers.” In addition, he
notes that no officer “told him [that] he was not under arrest or that he was free to leave.”
In concluding that the questioning of Azua was not a custodial interrogation, the
district court found that Azua “was questioned on his couch in his living room in mid-
morning, next to Powell, with [Lopez] also in the same room interacting with the
officers” and that the “officers introduced themselves in conversational tone, without
raising their voices, pulling weapons or using force on any person.” It found that the
“officers asked permission before bringing in a canine officer for a search,” that the
“officers did not isolate [the] defendant, and [the] defendant went to his room alone to put
on warmer clothes before he followed Agent Moultis outside.” The court found further
that the “officers did not use threats or deception to obtain statements from [the]
defendant, but rather truthfully described the subjects they were investigating.” To the
court, “[t]hese factors all support[ed] the non-custodial and voluntary nature of the
statements given by [the] defendant.” While the court did recognize factors weighing in
favor of finding custody — namely, that the “officers never told [the] defendant he was
not under arrest or free to leave”; that “Moultis instructed [the] defendant to fill out an
immigration field questionnaire”; and that “Moultis suggested by his questions that [the]
defendant was suspected of an immigration violation” — the court viewed these factors
as insufficient “to transform the officers’ visit into a custodial interrogation” when
considering the totality of the circumstances.
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The Fifth Amendment provides that “No person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. And the Supreme
Court has mandated the use of procedural measures to ensure that defendants, when
subjected to custodial interrogations, are advised of their Fifth Amendment rights. See
Miranda v. Arizona, 384 U.S. 436, 444–45 (1966). Thus, unless a defendant is advised of
his Fifth Amendment rights pursuant to Miranda and voluntarily waives those rights,
statements he makes during a custodial interrogation must be suppressed. See United
States v. Giddins, 858 F.3d 870, 879 (4th Cir. 2017).
When determining whether an interrogation is custodial for purposes of Miranda,
“a court asks whether, under the totality of the circumstances, a suspect’s freedom of
action was curtailed to a degree associated with formal arrest.” United States v. Hashime,
734 F.3d 278, 282 (4th Cir. 2013) (internal quotation marks, brackets, and citation
omitted). “This inquiry is an objective one, and asks . . . whether a reasonable person
would have felt he or she was not at liberty to terminate the interrogation and leave.” Id.
at 282–83 (internal quotation marks, brackets, and citation omitted); see also J.D.B. v.
North Carolina, 564 U.S. 261, 271 (2011) (noting that the inquiry does not take into
account “the subjective views harbored by either the interrogating officers or the person
being questioned” (internal quotation marks and citation omitted)). And since the inquiry
“calls for application of the controlling legal standard to the historical facts,” it “presents
a mixed question of law and fact qualifying for independent review.” Giddins, 858 F.3d
at 880 (internal quotation marks and citation omitted).
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In this case, we conclude that the totality of the circumstances supports the
conclusion that Azua was not in custody when questioned in his residence. For most of
his interaction with the officers, Azua was seated next to Powell on the couch, where he
elected to sit when entering the room, with the officers on the opposite side of the room.
The officers’ language, demeanor, and actions were calm and nonthreatening, and the
tenor of the interaction remained conversational. While it is true that Agent Moultis, in
explaining to Azua how to fill out the questionnaire, used command words of the kind
used when giving instructions, the body cam footage convincingly supports the view that
Moultis was not commanding Azua but simply explaining how to fill out the form in the
manner that such instruction is typically given. And while Azua was undoubtedly
intimidated during the interaction by having police in his home, especially in view of his
immigration status, that intimidation appeared no greater than that which is characteristic
of police questioning generally. And “police questioning, by itself, is unlikely to result in
a [constitutional] violation.” INS v. Delgado, 466 U.S. 210, 217 (1984) (observing in the
context of a Fourth Amendment seizure that, “while most citizens will respond to a police
request, the fact that people do so, and do so without being told they are free not to
respond, hardly eliminates the consensual nature of the response”). Moreover, Azua’s
questioning was markedly different from interrogations that have been found to be
custodial. See, e.g., Hashime, 734 F.3d at 280–81 (noting that officers, equipped with a
battering ram, entered the defendant’s home with guns drawn, ordered everyone outside,
and subsequently questioned the defendant in a basement storage room for three hours);
United States v. Colonna, 511 F.3d 431, 433–35 (4th Cir. 2007) (noting that officers
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awoke the defendant at gunpoint after kicking his bedroom door open, kept the defendant
under guard, and kept his family away from him while interrogating him for three hours
in a police vehicle); cf. United States v. Hargrove, 625 F.3d 170, 177–82 (4th Cir. 2010)
(concluding that a two-hour interview was noncustodial despite an initial pat-down
search and an initial security sweep involving a number of officers who had their
weapons drawn); United States v. Parker, 262 F.3d 415, 417–19 (4th Cir. 2001)
(concluding that a 30-minute interview in a bedroom with the door closed was
noncustodial).
Azua again relies heavily on Corporal Hernandez’s statement that the officers
would knock down the door, contending that the statement gave him “good reason to
believe he was required to comply with any demand or request made by the officers.”
Azua seems to be arguing that Hernandez’s statement tainted his entire interaction with
the law enforcement officers, such that it necessarily rendered any following questioning
custodial. But we agree with the district court that this argument is unpersuasive.
Hernandez’s statement was but one fact among many to be considered in determining the
overall tenor of Azua’s interaction with the officers, which was decidedly casual,
nonhostile, and noncoercive.
Azua also points out that no one notified him that he was not under arrest or that
he was free to leave and contends that Agent Moultis implied that he was a suspect. But
the lack of such notification is not dispositive of the custody issue, see Davis v.
Allsbrooks, 778 F.2d 168, 171–72 (4th Cir. 1985), and “even a clear statement by an
13
officer that the person being questioned is a suspect does not alone determine custody,”
United States v. Howard, 115 F.3d 1151, 1155 (4th Cir. 1997).
In sum, considering the totality of the circumstances, Azua’s “freedom of action”
was not “curtailed to a degree associated with formal arrest,” meaning that he was not in
custody and Miranda warnings were therefore not required. Hashime, 734 F.3d at 282
(internal quotation marks and citation omitted). Accordingly, we conclude that the
district court did not err in concluding that Azua was not subject to custodial
interrogation in violation of the Fifth Amendment.
* * *
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
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BARBARA MILANO KEENAN, Circuit Judge, concurring:
I join the well-reasoned majority opinion in full. I agree that the district court did
not clearly err in concluding under the totality of the circumstances, including the
contemporaneous video recording, that Powell voluntarily permitted Corporal Hernandez
and Agent Moultis to enter her home. I further agree that the district court did not err in
concluding that Azua was not in custody for Miranda purposes when Agent Moultis
questioned Azua in his home.
I nonetheless write separately to emphasize that the majority opinion should not be
construed as deviating from this Circuit’s well-established precedent that a defendant’s
alleged consent to a search of his property ordinarily will be deemed invalid when that
consent was obtained through an “officer’s misstatement of his or her authority.” United
States v. Saafir, 754 F.3d 262, 266 (4th Cir. 2014). The present case presents a rare
exception to this general principle.
Here, the facts show that after knocking on the dwelling door, Corporal Hernandez
stated in Spanish, “Open the door or we’re going to knock it down.” It is undisputed that
Corporal Hernandez lacked the authority to forcibly enter the home, because he and
Agent Moultis were engaging in a “knock and talk” without a search warrant and in the
absence of exigent circumstances. United States v. Cephas, 254 F.3d 488, 494 (4th Cir.
2001) (“Warrantless entries into a residence are presumptively unreasonable.”). Thus,
Corporal Hernandez falsely implied that he had authority to execute his threat to “knock
down” the door, and his threat was an affront to the very purpose of a “knock and talk,”
which is to make a brief, investigatory inquiry at a home. See Westfall v. Luna, 903 F.3d
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534, 545 (5th Cir. 2018) (citation omitted); Covey v. Assessor of Ohio Cty., 777 F.3d 186,
192-93 (4th Cir. 2015).
Nonetheless, I am persuaded that Corporal Hernandez’s statement, viewed in the
context of the contemporaneous video recording, did not invalidate Powell’s consent.
Both the visual image and the audio components of the recording are of excellent quality.
The recording shows that when Powell opened the door, Agent Moultis calmly greeted
her. The two engaged in a nonconfrontational conversation, with Agent Moultis speaking
in a modulated and relaxed tone. At the end of the conversation, Agent Moultis did not
demand entry into the residence but, instead, asked if Powell would “mind if [the
officers] came in and talked” because it was “awfully cold” outside.
This exchange captured on the video recording stands in “stark contrast” to
circumstances in which we have held that an officer’s use of false statements or threats
rendered involuntary a defendant’s purported consent. For example, we have held that
law enforcement officers did not obtain voluntary consent to enter and search a home
after falsely claiming to the occupant that the officers had obtained a search warrant.
United States v. Rush, 808 F.3d 1007, 1009, 1011-12 (4th Cir. 2015); see also Bumper v.
North Carolina, 391 U.S. 543, 548-50 (1968).
And, in our decision in Saafir, we discussed the coercive effect of an officer’s
false representation of authority to search a defendant’s car. There, following a traffic
stop, an officer noticed a “hip flask” commonly used to hold alcohol in the vehicle’s
driver’s-side pocket. Saafir, 754 F.3d at 265. The officer falsely informed the driver that
the flask provided the officer with probable cause to search the car. Id. In holding that
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this false assertion of law fatally tainted the ensuing search in which a weapon was
recovered, we emphasized that a search is unreasonable if it is based on law enforcement
action “engaging or threatening to engage in conduct that violates the Fourth
Amendment.” Id. at 265-66 (quoting Kentucky v. King, 563 U.S. 452, 462 (2011)).
Other circuits likewise have emphasized that a defendant’s purported consent to a
search of his property will be deemed invalid when officers have misrepresented their
authority, or illegally have threatened action based on an assertion of police authority.
See United States v. Poe, 462 F.3d 997, 1000 (8th Cir. 2006) (holding that officers did
not obtain valid consent to enter a home after ten minutes of persistent knocks and a
demand by the officers that the occupant open the door); United States v. Alberts, 721
F.2d 636, 640 (8th Cir. 1983) (holding that an officer did not obtain valid consent to enter
the property after the officer’s false claim of having a valid search warrant); United States
v. Bolin, 514 F.2d 544, 559-61 (7th Cir. 1975) (holding that officers did not obtain valid
consent to enter the defendant’s home after subjecting the defendant to custodial
interrogation and threatening, without any basis, that the defendant’s girlfriend would be
arrested).
Here, the evidence shows that Corporal Hernandez’s statement was, in effect, a
misrepresentation of his authority to enter the home. After he made that statement,
however, neither officer exhibited any other aggressive conduct. United States v.
Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (considering the conditions under which
consent is given in assessing voluntariness). In fact, the video recording demonstrates
that Powell and the officers engaged in casual, nonconfrontational conversation, such that
17
any coercive effect from Corporal Hernandez’s initial statement had dissipated by the
time Powell motioned to the officers to enter the dwelling.
In my view, in the absence of such ameliorating context, a dishonest or reckless
threat such as the one made by Corporal Hernandez would have been sufficiently
coercive to invalidate Powell’s consent. See Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973) (consent is a “fact to be determined from the totality of all the
circumstances”); Saafir, 754 F.3d at 267. With this distinction in mind, I join in the
majority opinion holding that the district court did not clearly err in concluding under the
totality of the circumstances that Powell voluntarily consented to the officers’ entry into
her home.
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