United States of America v. Eleazar Flores-Mora

2019 DNH 100

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 18-cr-160-01-JL Opinion No. 2019 DNH 100 Eleazar Flores-Mora

MEMORANDUM ORDER

Defendant Eleazar Flores-Mora moved to suppress statements

he allegedly made when he was questioned at his residence by two

Immigration and Customs Enforcement (“ICE”) agents. This motion

turns on whether Flores-Mora was in custody during the

questioning. After an evidentiary hearing, the court finds that

Flores-Mora was not in custody, and so was not entitled to the

familiar Miranda warnings required in custodial interrogation.

His motion is therefor denied.

Flores-Mora moved to suppress any statements he allegedly

made regarding his citizenship or alienage during two encounters

with ICE agents, based on Miranda v. Arizona, 384 U.S. 436

(1966). The prosecution did not seek to admit any statements

from the second encounter, leaving only the earlier events of

September 8, 2009 at issue. On that day, two ICE agents

investigated a tip regarding Flores-Mora’s mother and identified

her likely residence. A friend of Flores-Mora, Roberto

Martinez-Rodriguez, answered the door of the house and invited the agents inside. While the agents were speaking to his

friend, Flores-Mora emerged from a bedroom. Flores-Mora spoke

with the agents and told them that he had been born in Mexico

and illegally entered the United States around 1995. He also

produced a Mexican passport. The agents asked Flores-Mora and

his friend to follow them to a local ICE office for civil

processing as aliens present in the United States illegally,

after which they would receives notices to appear in Immigration

Court and would be free to go. Flores-Mora drove his own

vehicle with Martinez-Rodriguez and followed the agents to the

ICE office. At the office, they were kept in a small cell-like

room and separately processed and questioned. They were given

notices to appear and released. The agents did not provide

Flores-Mora Miranda warnings at any point in the day.

After an evidentiary hearing and briefing by the parties,

the court orally granted in part and denied in part the motion

to suppress.1 The court granted the motion with respect to

statements allegedly made at the ICE office, but denied it as to

statements allegedly made at the house. This order sets forth

the basis for the denial. See, e.g., United States v. Joubert,

980 F. Supp. 2d 53, 55 n.1 (D.N.H. 2014), aff’d, 778 F.3d 247

(1st Cir. 2015) (citing In re Mosley, 494 F.3d 1320, 1328 (11th

1 Order of Feb. 25, 2019.

2 Cir. 2007) (noting a district court’s authority to later reduce

its prior oral findings and rulings to writing)).

Background

In August 2009, ICE received an anonymous telephone tip

that an illegal alien named Leticia Mora-Jaimes was residing at

a house in Manchester, New Hampshire. Mora-Jaimes is Flores-

Mora’s mother. Jonathan Posthumus, an ICE special agent,

investigated the tip and found corroborating public records. At

approximately 1 p.m. on September 8, 2009, Agent Posthumus and

Special Agent Michael Meyers went to the residence. They were

dressed in plain clothes. They knocked on the door of the house

and an individual they later identified as Roberto Michael-

Rodriguez opened it. The agents identified themselves as ICE

agents and explained that they were looking for Mora-Jaimes.

Martinez-Rodriguez said that Mora-Jaimes resided there with her

husband, Richard Champagne, but that no one other than himself

was currently present. He stated that he was a friend of the

family and Mora-Jaimes had recently left to go to Mexico for her

mother’s funeral. The agents asked Martinez-Rodriguez for

identification, and he produced a counterfeit California

driver’s license bearing a false name. They asked where he was

born, and he stated he was born in Mexico.

3 While the agents were speaking with Martinez-Rodriguez

in a living room, Flores-Mora emerged from a back bedroom.

Flores-Mora had been sleeping in the bedroom. Rain prevented

him from working at his usual construction job that day. He had

received a call about another potential job, and had exited the

bedroom to get a pen and paper to take down details. Flores-

Mora took down the information and finished his phone call, and

the agents then identified themselves. Agent Posthumus showed

Flores-Mora his credentials and explained that they were looking

for Mora-Jaimes. Flores-Mora answered that she was his mother

and that she had recently departed for Mexico because of the

death of her mother. Agent Posthumus showed Flores-Mora a State

Department photograph of Mora-Jaimes and Flores-Mora confirmed

that it depicted his mother. The agents questioned Flores-Mora

as to his place of birth. He stated that he was born in Mexico

and is a Mexican citizen. He admitted that he was unlawfully

present in the United States and came to the United States as a

small child via the Texas border. Flores-Mora referred to

Martinez-Rodriguez as “Roberto,” revealing the falsity of the

driver’s license. The agents asked for documentation of the

men’s identities, and both Flores-Mora and Martinez-Rodriguez

provided Mexican passports, which they retrieved from bedrooms

and gave to Agent Posthumus. The agents did not enter the

4 bedrooms, but did accompany them to the bedroom doors to ensure

their own safety.

The agents informed Flores-Mora and Martinez-Rodriguez

that based on the information provided they were both aliens

unlawfully present in the United States. The agents said that

they would need to serve both men with a Notice to Appear to

place them in removal proceedings, but would most likely release

them on their own recognizance. The agents proposed that the

men follow them in their own vehicle to the ICE office to

complete this paperwork, so that they would have a ride home

when the processing was complete. At approximately 1:30 p.m.,

Flores-Mora drove his vehicle with Martinez-Rodriguez and

followed the ICE agents to their office.

At the ICE office, the agents separated themselves from

Flores-Mora and Martinez-Rodriguez, and instructed them to enter

through the front door and wait in the lobby. The agents then

brought the men to the policy and processing area and placed

them in a small, locked cell. They were then taken individually

to be photographed, fingerprinted, and booked. One of the men

asked whether this processing constituted an arrest, and Agent

Meyers informed him that it did “count as an administrative

arrest.” The agents researched the men’s criminal records and

consulted with their ICE supervisor about whether the men could

be released. The agents also asked the men if they would be

5 willing to assist ICE in identifying other illegal aliens.

Flores-Mora refused. At approximately 3 p.m., the agents issued

Notices to Appear to both men and released them. Their

passports were not returned to them.

Analysis

Flores-Mora argues that since the statements he made at his

residence were not preceded by Miranda warnings, they were the

product of custodial interrogation and must be suppressed as

violations of his Fifth Amendment rights. The court disagrees

and finds that no custodial interrogation occurred at the

residence.

A. Fifth Amendment and custodial interrogation

The Fifth Amendment to the United States Constitution

protects criminal defendants from compelled self-incrimination.

U.S. Const. Art. V. “‘The Supreme Court developed the Miranda

rules as a prophylactic measure to dissipate the coercion

inherent in the custodial interrogation setting, with a goal of

ensuring that any statements made by a suspect are truly the

product of free choice’ and consistent with the Fifth Amendment

to the United States Constitution.” United States v. Molina-

Gomez, 781 F.3d 13, 21 (1st Cir. 2015) (quoting United States v.

Vázquez, 857 F.2d 857, 861 (1st Cir. 1988)). “It is well

established that Miranda warnings must be communicated to a

6 suspect before he is subjected to ‘custodial interrogation.’”

United States v. Li, 206 F.3d 78, 83 (2000). “Both ‘custody’

and ‘interrogation’ must be present to require Miranda

warnings.” Molina-Gomez, 781 F.3d at 22.

Only custody is at issue here, as the government never

contested that any statements elicited from Flores-Mora were

obtained via interrogation.2 “Custody exists where there is ‘a

formal arrest or restraint on freedom of movement of the degree

associated with a formal arrest.’” Molina-Gomez, 781 F.3d at 22

(quoting United States v. Fernández-Ventura, 85 F.3d 708, 710

(1st Cir. 1996)). Determining whether someone has been subject

to a “restraint on freedom of movement of the degree associated

with a formal arrest” involves “two distinct inquiries: ‘first,

what were the circumstances surrounding the interrogation; and

second, given those circumstances, would a reasonable person

have felt he or she was not at liberty to terminate the

interrogation and leave.’” United States v. Infante, 701 F.3d

386, 396 (1st Cir. 2012) (quoting Thompson v. Keohane, 516 U.S.

99, 112 (1995)). Whether custody exists “depends on the

objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating officers

or the person being questioned.” United States v. Hughes, 640

2 See Obj. to Mot. to Suppress (doc. no. 31) at 5-6.

7 F.3d 428, 435 (1st Cir. 2011) (quoting Stansbury v. California,

511 U.S. 318, 323 (1994)).

B. Lack of custody at house

The First Circuit Court of Appeals has identified four

factors that, among others, guide whether a set of circumstances

amounts to custody: “whether the suspect was questioned in

familiar or at least neutral surroundings, the number of law

enforcement officers present at the scene, the degree of

physical restraint placed upon the suspect, and the duration and

character of the interrogation.” Hughes, 640 F.3d at 435

(quoting Fernández-Ventura, 85 F.3d at 711). All four of these

factors weigh against finding that Flores-Mora was in custody at

the house.

First, the questioning took place at Flores-Mora’s

residence, which he described as “my house in Manchester.”3 This

questioning “occurred in surroundings familiar to the defendant:

his own home.” Hughes, 640 F.3d at 435. “Though questioning in

a suspect’s dwelling may at times comprise a custodial

interrogation, such a location generally presents a less

intimidating atmosphere than, say, a police station.” Id. at

435-36 (citations omitted). While Flores-Mora may have

naturally been surprised at the agents’ presence in the house,

3 Statement of Eleazar Flores-Mora (doc. no. 30-3).

8 they were allowed in by Martinez-Rodriguez. While certainly not

dispositive of this factor, there is no evidence that either

one voiced or privately harbored any objection to the agents’

presence. Flores-Mora was able to complete a phone call without

interruption before speaking with the agents. And the

questioning took place in a living room. Flores-Mora testified

that Agent Meyers followed him to the doorway of his bedroom

when he went to retrieve his passport. According to Flores-

Mora, Agent Meyers explained this as “safety protocol,”4 and

further Flores-Mora testified that Agent Meyers remained outside

the bedroom and did not enter. There is “nothing in the record

to suggest that the officers either exploited [the home’s] cozy

confines or invaded the defendant’s personal space.” Id. at

436. The familiarity of the surroundings thus weighs against a

finding of custody.

Second, two ICE officers were present during the

questioning. Two officers does not suggest custody under these

circumstances. See id. (non-custodial where four officers

present but only two participated in interrogation); United

States v. Nishnianidze, 342 F.3d 6, 12, 14 (1st Cir. 2003)

(interrogation by three officers non-custodial); United States

v. Quinn, 815 F.2d 153, 157, 161 (1st Cir.1987) (interrogation

4 Tr. of Suppression Hearing (doc. no. 49) at 16-17, 59-60.

9 in presence of five officers non-custodial). And Flores-Mora

and Martinez-Rodriguez were not separated during the questioning

at the house. Two agents were thus interviewing both Flores-

Mora and his friend. This arrangement weighs against a finding

of custody.

Third, Flores-Mora was not physically restrained in any way

at the house. Indeed, he emerged from a bedroom unannounced and

without a physical reaction from the agents,5 and was asked to

drive himself to the ICE office at the conclusion of the

questioning. So this factor weighs against custody.

Fourth, the interrogation at the house lasted approximately

30 minutes. Both Agent Posthumus and Flores-Mora testified that

the conversation there was pleasant and courteous.6 Flores-Mora

also testified that after the agents “identified themselves as

officers, I believe that you pretty much have to do what they

tell you.”7 But these “subjective views,” absent a basis in

objective conditions, do not indicate custody. See Hughes, 640

F.3d at 435. The duration and character of the interrogation

weigh against custody.

5 The agents had been told that Martinez-Rodriguez was alone in the house. 6 Tr. of Suppression Hearing (doc. no. 49) at 16-17, 59-60. 7 Id. at 47.

10 All four factors weigh against finding that Flores-Mora was

in custody. Flores-Mora may have subjectively felt that he was

not at liberty to terminate the interrogation or leave because

of his status as an undocumented alien. But, again, this does

not enter into the objective custody analysis. See Hughes, 640

F.3d 428, 435; Yarborough v. Alvarado, 541 U.S. 652, 666-669

(rejecting consideration of defendant’s “prior history with law

enforcement” and “contingent psychological factors”); cf. United

States v. Magana, 70 F. App’x 859, 865 (6th Cir. 2003)

(unpublished) (objective Fourth Amendment seizure analysis

presumes a “reasonable, innocent person” so district court erred

by considering that defendant “knew that he was an illegal alien

and that an I.N.S. agent was present”). Flores-Mora was not in

custody when he was questioned at his home.8 Thus, no custodial

interrogation triggering the need for Miranda warnings took

place.

8 Flores-Mora argues that the fact that his passport was seized is relevant to the custody analysis. Def’s Reply to Gov’s Suppl. Obj. (doc. no. 51) at 8. But even if this factor is relevant, Flores-Mora’s passport was not taken until after he had already admitted his citizenship and alienage to the agents. In other words, even if turning over his passport converted the conditions into custodial conditions from that point forward, Flores-Mora made no further incriminating statements after that point, leaving no statements for the court to suppress.

11 Conclusion

Flores-Mora was not in custody during the events at his

residence, but was in custody when questioned at the ICE office.

The court thus GRANTED IN PART and DENIED IN PART Flores-Mora’s

motion to dismiss,9 suppressing only statements made at the ICE

office.

SO ORDERED.

____________________________ Joseph N. Laplante United States District Judge

Dated: June 26, 2019

cc: Helen W. Fitzgibbon, AUSA Jeffrey S. Levin, Esq.

9 Document no. 30.