United States of America v. Kody Garrett Houk

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KODY GARRETT HOUK,
Defendant - Appellant.
No. 08-10501
D.C. No. CR-08-00160-SRB-1
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted November 3, 2009
San Francisco, California
Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.
Defendant Kody Garrett Houk appeals from the district court’s denial of his
motion to suppress the incriminating statements that he made during an
interrogation. Reviewing de novo, United States v. Bassignani, 575 F.3d 879, 883
(9th Cir. 2009), we hold that Defendant was not in custody during his interrogation
and, thus, we affirm.
FILED
NOV 12 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 Miranda v. Arizona, 384 U.S. 436 (1966).
2
We look at the totality of the circumstances to determine whether a suspect
is "in custody" for purposes of Miranda.1 United States v. Craighead, 539 F.3d
1073, 1082 (9th Cir. 2008). Here, four of the five factors that United States v.
Kim, 292 F.3d 969, 974 (9th Cir. 2002), identified as relevant to an "in-custody"
determination weigh against the conclusion that Defendant was in custody.
First, an agent asked Defendant if he would speak with her; her language
was not coercive. Second, the agents interrogated Defendant in an ordinary
meeting room located in the post office building where he began and ended his
workdays. The location was neither intimidating nor wholly unfamiliar. Third,
agents questioned Defendant for only about an hour; the entire investigation lasted
for about an hour-and-a-half. Fourth, agents did not touch or handcuff Defendant.
Of significance here, too, is the fact that Defendant was questioned by postal
service employees as part of an internal investigation. The questioning did not
occur in the context of an external criminal investigation. Additionally, the agents
informed Defendant that the interview was voluntary, that he could leave at any
time, and that he would not be arrested that day, as he ultimately was not; he went
home after the interview. Furthermore, Defendant acknowledged in writing that
the interview was voluntary.

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3
Although Defendant was confronted with evidence of his guilt, this sole
factor in favor of an "in-custody" determination does not outweigh the other
factors. Considering the totality of the circumstances, Defendant was not in
custody. Therefore, Miranda warnings were not required.
Our conclusion would remain unchanged even if we were to take into
consideration Defendant’s age at the time of the interrogation, as he urges under
Yarborough v. Alvarado, 541 U.S. 652, 669 (2004) (O’Connor, J., concurring); id.
at 673-74 (Breyer, J., dissenting).
AFFIRMED.

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