USA v. Miller

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States of America v. Nancy Marie Miller
Case No. 1:21-cr-00011-TMB-MMS
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
The matter comes before the Court on the Final Report and Recommendation (“R&R”) of Chief
Magistrate Judge Scoble1 recommending the Court deny Defendant Nancy Marie Miller’s Motion
to Suppress Statements Derived from Custodial Interrogation Pursuant to Miranda v. Arizona2 and
Missouri v. Seibert3 at Docket 72 (the “Motion”).4 Miller objects to the R&R.5 After a de novo
determination of those portions of the R&R objected to by Miller,6 and for the reasons discussed
below, the Court ACCEPTS and ADOPTS the R&R at Docket 84. Consequently, the Motion at
Docket 72 is DENIED.
A. Background
Miller is charged by indictment on three counts: (1) Attempted Possession with the Intent to
Distribute a Controlled Substance;7 (2) Possession with the Intent to Distribute Controlled
Substances;8 and (3) Possession of Firearms in Furtherance of Drug Trafficking.9
1 Dkt. 84 (R&R).
2 384 U.S. 436 (1966).
3 542 U.S. 600 (2004).
4 Dkt. 72 (Motion).
5 Dkt. 98 (Miller Objections).
6 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with a copy [of the
magistrate judge’s proposed findings and recommendations], any party may serve and file
written objections to such proposed findings and recommendations as provided by rules of court.
A judge of the court shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made. A judge of the
court may accept, reject or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.”).
7 Dkt. 2 (Indictment); 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A).
8 Dkt. 2; see 21 U.S.C. § 841(a)(1), (b)(1)(A).
9 Dkt. 2; see 18 U.S.C. § 924(c)(1)(A)(i).
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On July 20, 2021, Juneau resident Terry Miller (“Terry”)10 notified the police that he had been
sent a package with what he believed to be drugs or salt.11 The return address on the package stated
“Nance Miller, Industrial Provisions” located in Belfair, Washington.12 At around 4:30 p.m., the
police confirmed that the package’s contents had field tested positive for methamphetamine.13
Juneau Police Department (“JPD”) Officer Dominic Branson then contacted Terry and interviewed
him over the phone. During this conversation, Terry shared that he did not use methamphetamine
and, when asked if he knew anyone that did, he stated that a former employee, Brett King, was a
methamphetamine user.14 Officer Branson knew that Miller was Terry’s niece and that King and
Miller had dated in the past.15
After this interview, United States Postal Inspection Service (“USPIS”) Special Agent Christopher
Farmer discovered that a “second parcel with the same return shipping address was mailed to a
residence on Oceanview Drive contemporaneous to the parcel mailed to [Terry],” and that this
second parcel was addressed to “Nance Miller.”16 JPD Detective Carl Lundquist then contacted
Miller; in their conversation she confirmed that she had “picked up [the second parcel, an air
conditioner,] from the post office.”17
At around 5:10 p.m., Detective Lundquist and United States Postal Service Special Agent Charles
Nalley arrived at Miller’s residence, where Miller opened the door before the officers were able to
knock.18 The officers began speaking with Miller and she initially denied knowledge of the parcel
shipped to Terry’s home. Only later did she state that her “ex-boyfriend Brett King and other
individuals had used her residence to deliver packages in the past, and that she believed the
packages contained controlled substances.”19
At around 5:35 p.m., Detective Lundquist and Special Agent Nalley asked Miller for permission
to take the second package (the air conditioner) into their custody; Miller agreed.20 Soon after,
Detective Lundquist asked Miller if she was planning to the leave the property because a drug
detection dog was on its way to the residence and he wanted her to be present for its arrival.21
Miller replied that she was planning to go to the supermarket, to which Detective Lundquist
responded, “I’m not going to keep you here.” Miller then replied that he could wait outside while
10 To avoid confusion between Terry Miller and Defendant Nancy Marie Miller, the Court will
refer to Terry Miller by his first name throughout this Order.
11 For a detailed representation of these facts, please refer to the R&R at Docket 84. See also Dkt.
72 at 2; Dkt 79-1 (Cryderman Incident Report); Dkt. 79-2 (Lundquist Incident Report); Dkt. 78 at
2 (Opposition).
12 Dkt. 72 at 2; Dkt 79-2.
13 Dkt. 72 at 3; Dkt 79-2.
14 Dkt. 79-3.
15 Id.
16 Id.
17 Id.; see Dkt. 78 at 2.
18 Dkt. 79-2; Dkt. 79-3.
19 Dkt. 72 at 4.
20 Id.; Def. Ex. D-5 Dkt. 156.
21 Dkt. 72 at 4; Def. Ex. D-6 Dkt 157; Dkt. 78 at 2.
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she was away and that she would be away for forty-five minutes. The two continued their
conversation and around 5:42 p.m., Detective Lundquist told Miller, “[i]f you could hang out, I’d
rather you be here while we’re doing this, cause, so part of this is you know, I don’t want to have
your stuff without you, so I’d rather for you to be here for this.”22 Miller agreed and remained on
the property while Detective Lundquist continued to ask her questions.23
During this time, Miller shared that she had received the air conditioner from a friend in
Washington because the shipper would not send the air conditioner directly to her residence in
Juneau. She also admitted that she had a shared PayPal account with King under the name of
purported business, “Industrial Provisions.”24
Around 6:30 p.m., seven additional law enforcement officers from various state and federal
agencies arrived at Miller’s residence.25 At that point, Detective Lundquist, acknowledged that
when he had previously told Miller that he wanted her to stay on the premises, he had “[meant]
that [she was] not free to leave.” Detective Lundquist continued by saying that although she was
not “in any trouble” or “under arrest,” he wanted to “make sure that [she was] aware of [her]
rights.”26 Miller responded affirmatively, and Detective Lundquist proceeded to inform her of her
Miranda rights.27
At this point, USPIS Special Agent Kevin Horne and Agent Marcus Chernecke continued
questioning Miller, asking her about the two parcels.28 After nearly an hour of questioning, Miller
stated, “Maybe I need an attorney. I don’t know what to do.”29 In response, Special Agent Horne
said:
I’m going to explain something to you, okay? It’s your 100% right
to get a lawyer any time you want. You can also talk to us, and if
there’s something that you want to answer at this point, we can table
it, just like I tabled the other thing. But as soon as you definitively
say, hey, I can’t talk to you and I want a lawyer, we have to step
away from this.30
22 Dkt. 72 at 5; Dkt. 78 at 2–3.
23 Dkt. 72 at 5; Dkt. 157; Dkt. 78 at 2–3.
24 Dkt. 72 at 6; Dkt. 158.
25 Dkt. 72 at 6–7; Dkt. 78 at 3.
26 Dkt. 72 at 7; Def. Ex. D-7 (minute 22:30-23:20).
27 Def. Ex. D-7 (minute 22:30-23:20); Dkt. 78 at 3; Dkt. 72 at 8.
28 Dkt. 72 at 7–8.
29 Miller claims she began her statement with the phrase, “I need to see a lawyer.” The Government
contends that Miller stated, “Maybe I should get a lawyer.” After reviewing the recording, the
Court agrees with the Government, finding that Miller stated “Maybe I should get a lawyer. I don’t
know what to do.” Def. Ex. D-7 (minute 51:00-53:43); Gov. Ex. 3 (minute 26:15-26:28); Dkt. 72
at 8–9; Dkt. 78 at 3.
30 Dkt. 72 at 8; Dkt. 78 at 8.
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Special Agent Horne then stated that law enforcement was interested in learning who was
responsible for this drug shipment and clarified that law enforcement did not think Miller was the
“puppet master” in this case. He followed this by asking, “Do you still want to kind of feel out
what we have to offer here and what you can offer us? And kind of go through the motions here?”
Miller responded enthusiastically by exclaiming, “Hells yeah!”31
The interrogation continued and Miller “proceeded to confess to her involvement in the shipping
of the drugs to Alaska and her possession of drugs on the property.”32 She also admitted “to having
accidentally mailed the package containing controlled substances to Terry Miller’s address” and
then consented to having her property searched, which resulted in the discovery of “large bundles
of cash and controlled substances in various areas of her residence,” along with firearms.33 Miller’s
cell phones were also “seized pending a search warrant.”34
B. Motion to Suppress Statements Derived from Custodial Interrogation
In the Motion, Miller asks the Court to suppress “statements and admissions obtained in violation
of [her] constitutional right against compelled custodial interrogation under Miranda v. Arizona.”35
Specifically, Miller requests the Court suppress: (1) “all of Ms. Miller’s post-warning statements
because the record establishes that Det[ective] Lundquist deliberately withheld providing Ms.
Miller with Miranda advisements;” and (2) “any statements Ms. Miller made after attempting to
invoke her right to counsel . . . as law enforcement agents failed to honor her invocation and cease
the interrogation.”36
First, Miller argues that “a reasonable person in [her] position would have understood that she was
not free to terminate the encounter [with law enforcement].”37 Applying a “totality of the
circumstances analysis,” Miller bases her position on the following factors:38 (1) she was “initially
contacted as a part of a state and federal criminal investigation regarding suspected drug
distribution activity” at her home; (2) she was confronted with “evidence of guilt” and as “the
interrogation progressed and it became clear that she was now a suspect, Ms. Miller’s answers
became increasingly curt”; (3) her home became a “police-dominated atmosphere” with the
presence of nine law enforcement officers; (4) she was advised of her Miranda rights after police
had been at her house for an hour and a half, remaining at her residence for a total of three hours;
and (5) her “physical movements were limited and controlled by the agents” and no other persons
were present during the police interrogation.39
31 Def. Ex. D-7 (minute 53:33-54:00); Dkt. 78 at 3.
32 Dkt. 72 at 9; Dkt. 78 at 4.
33 Dkt. 72 at 9; Dkt. 78 at 4.
34 Dkt. 72 at 9.
35 Id. at 1.
36 Id. at 9.
37 Id. at 10.
38 Id. at 10 (citing United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001)).
39 Id. at 10–15.
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Miller contends that because she was in custody, her eventual Miranda advisements were
ineffective because law enforcement deliberately refrained from providing them to her.40 Miller
cites Justice Kennedy’s concurrence in Missouri v. Seibert,41 and concludes that the audio
recordings demonstrate the Detective Lundquist “deliberately withheld providing Ms. Miller with
Miranda advisements.”42 As such, Miller argues that the later “mid-stream Miranda warning” was
insufficient 	because 	the 	law 	enforcement 	officers 	did 	not 	take 	“curative measures” 	and
downplayed the importance of the eventual Miranda advisal.43
Second, Miller contends that “[e]ven if the mid-stream Miranda advisement was effective, Miller
unequivocally invoked her right [to] counsel during the subsequent interrogation” and “her request
was not respected.”44 Miller concludes that she “unambiguously asserted her right to counsel and
the 	officers’ 	flagrant 	refusal 	to 	honor 	her 	request 	renders 	her 	subsequent 	statements
inadmissible.”45
The Government opposes the Motion.46 First, the Government argues that the evidence obtained
through the officers’ questioning of Miller should not be suppressed because “Miller was not in
custody when she was initially interviewed” and was read her Miranda warnings only “once she
was in a custodial setting.”47 Alternatively, the Government asserts that if the Court finds “the
initial questioning of Miller was custodial, the officers did not treat the situation as a two-step
interrogation as recognized by Missouri v. Seibert.48 Second, the Government contends that
Miller’s “statement regarding counsel” was ambiguous and “no reasonable officer would have
concluded that Miller was invoking her right to counsel.”49
C. Final Report and Recommendation
Chief Magistrate Judge Scoble recommends the Court deny the Motion, determining that (1) Miller
was not in custodial interrogation at any time throughout the questioning by Detective Lundquist
and Special Agent Nalley; and (2) Miller did not properly invoke her right to counsel.50
Addressing the issue of whether Miller was in custodial interrogation, the Magistrate Judge first
clarifies that Miller was interrogated at her home, recognizing that Detective Lundquist and
Special Agent Nalley “peppered Miller with investigatory questions that were intended to discern
40 Id. at 15.
41 542 U.S. 600 (2004).
42 Dkt 72 at 17.
43 Id. at 20.
44 Id. at 21.
45 Id. at 23–24.
46 Dkt. 78.
47 Id. at 7.
48 Id. at 7.
49 Id. at 11–12.
50 Dkt. 84 at 15–24.
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whether Miller had knowledge of, or had taken affirmative action regarding the two packages, the
mailing addresses, and possible co-conspirators.”51
The Magistrate Judge confirms that Miller was not in custody prior to being read her Miranda
warnings. The Magistrate Judge reasons that, when reviewing the totality of the circumstances,52
“Miller was subjected to an interrogation that was not custodial in nature or conducted in a police-
dominated atmosphere” when chatting with the two first two law enforcement officers that first
arrived at her residence.53 “Because Miller was not in custody for Miranda purposes during
Detective Lundquist and [Special Agent] Nalley’s interrogation, neither law enforcement official
was obligated to advise Miller of her Miranda rights and no Fifth Amendment violation
occurred.”54
However, the Magistrate Judge determines that Miller was “subjected to a custodial interrogation
at the time that additional agents arrived.”55 Although the Magistrate Judge recognizes that it was
“true that Detective Lundquist, just prior to the Miranda warnings, told Miller, ‘You asked to go
to the store a little bit ago, and I told you that I wanted you to stay here with us … And, so, that
basically means, you are not free to leave,’” the Magistrate Judge emphasizes that “custody
determination is objective and not based upon the subject views of law enforcement officials.”56
Since the Magistrate Judge’s analysis turned on an assessment of the objective facts and whether
a “reasonable person would have not felt ‘at liberty to terminate the interrogation and leave,”57 the
conclusion that Miller was not in custody is not affected by Detective Lundquist’s later admissions.
Because the Magistrate Judge finds that Miller was not in custody, he concludes that the Court
“need not decide Miller’s argument regarding ‘midstream Miranda warnings’ under Missouri v.
Seibert . . . because a finding of custody is required to properly raise such an argument.”58
51 Id. at 13, 15–16 (citing United States v. Williams, 842 F.3d 1142, 1147 (9th Cir. 2016)).
52 See United States v. Craighead, 539 F.3d 1073, 1077-1084 (9th Cir. 2008); (Craighead stressed
that “courts have generally been much less likely to find that an interrogation in the suspect’s home
was custodial in nature [since] the suspect is in familiar surroundings,” and the “element of
compulsion concerned the Court in Miranda is less likely to be present where the suspect is in
familiar surroundings.”); United States v. Kim, 292 F.3d 969, 973–74 (9th Cir. 2002) (The Ninth
Circuit has identified five factors relevant to the custody determination: “(1) the language used to
summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt;
(3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the
degree of pressure applied to detain the individual.”); see also Dkt. 84 at 14–15 (citing Craighead
and Kim).
53 Dkt. 84 at 16–21.
54 Id. at 21.
55 Id.
56 Id. at 14, 22 (citing United States v. Bassignani, 757 F.3d 879, 883 (9th Cir. 2009) (quoting Kim,
292 F.3d at 973)).
57 Id. at 14, 22 (citing Thompson v. Keohane, 516 U.S. 99, 112 (1995)).
58 Id. at 22.
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The Magistrate Judge then “agrees with the [G]overnment’s characterization of Miller’s
ambiguous and equivocal request for counsel.”59 The Magistrate Judge reasons that Miller’s
ambiguous statement, “Maybe I should get a lawyer. I don’t know what to do,” “was filled with
uncertainty and trepidation,” finding this statement to be akin to the statement at issue in Davis v.
United States.60 In Davis, the United States Supreme Court concluded that because this petitioner’s
statement was not an unequivocal invocation, law enforcement officers “were not required to stop
questioning petitioner, though it was entirely proper for them to clarify whether petitioner in fact
wanted a lawyer.”61 Consequently, the Magistrate Judge concludes that “a reasonable law
enforcement official, in light of the context and the circumstances, would not have interpreted
Miller’s statement as an unambiguous and unequivocal request for counsel.”62 As such, “Miller
did not unambiguously invoke her right to counsel and law enforcement officials were not required
to cease the interrogation at that point.”63
D. Objections
Miller files seven objections to the R&R, outlined as follows.64 First, Miller argues that the
Magistrate Judge “misstates United States v. Kim65 with respect to the voluntariness of a police
encounter.”66 Miller asserts that Kim demands a “more thorough inquiry” and “stands for the
proposition that an initially voluntary encounter may become involuntary under circumstances
much like [Miller’s].”67 Miller concludes that because the R&R “fails to apply the analysis in
Kim,” its conclusion regarding the “voluntariness of [Miller’s] encounter must be rejected.”68
Second, Miller argues that the R&R “erroneously concludes that law enforcement did not confront
[her] with evidence of guilt and that this weighs in favor of a finding that [she] was not in
custody.”69 Miller asserts that this conclusion is “not supported by the record” because “after [she]
denied knowing about any shipment to [Terry’s] residence, law enforcement responded that the
parcel in fact contained ‘a lot of drugs.’”70
Third, Miller objects to the R&R’s finding that Miller was “not in custody” because there were
“only two officers on the scene and such a number could not have ‘overborne’ her freedom or
will.”71 Likewise, Miller argues that she “did not enjoy unrestricted freedom of movement” and
objects to the finding that the “presence of law enforcement did not neutralize the familiarity of
59 Id.
60 512 U.S. 452, 463 (1994); Dkt. 84 at 23 (citing Gov. Ex. 3 at minute 26:15-26:28).
61 Dkt. 84 at 23 (citing Davis, 512 U.S. at 463).
62 Id. (citing Davis, 512 U.S. at 459).
63 Id. at 24.
64 See generally Dkt. 84; Dkt. 98.
65 292 F.3d 969, 974 (9th Cir. 2002).
66 Dkt. 98 at 1–2.
67 Id. at 1.
68 Id. at 2.
69 Id.
70 Id.
71 Id.
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her location [her home].”72 As such, Miller concludes that “[n]o reasonable person in her
circumstances would conclude they could simply walk into another room or drive away to prevent
further questioning.”73
Fourth, Miller asserts that the R&R “erroneously concludes that the degree of pressure applied to
[her] weighs against finding she was in custody.”74 Specifically, Miller argues that she was in
custody because she was told that: (1) a parcel contained “a lot of drugs”; (2) a drug-detecting dog
would be arriving; (3) she should not “go to the store as she had planned”; and (4) she should “stop
searching for her truck keys just before seven additional law enforcement officers arrived.”75
Fifth, Miller argues that because she was in custody, the R&R’s “subsequent Miranda findings
must be rejected.”76
Sixth, Miller argues that the R&R “erroneously concludes that the [law enforcement] officers did
not deliberately withhold the Miranda advisement.”77 Miller asserts that this conclusion fails
because it applies “circular reasoning that because [she] was not in custody, [withholding the
Miranda advisement] was in fact ‘good police work,’” and ignores the Motion’s previous
arguments “in anticipation of such an objection.”78
Finally, Miller contends that the R&R “erroneously concludes that [her] invocation of her right to
counsel was ambiguous,” claiming that she stated, “maybe I need to see a lawyer.”79 In addition,
Miller argues that the R&R “ignores the Edwards analysis offered in anticipation of this
argument.”80
The Government does not object to the R&R.
E. Discussion
Having reviewed the R&R, Miller’s objections, the relevant audio recordings, and the record, the
Court concludes that the seven objections do not merit revision or rejection of the R&R.81 The
Court assesses each of Miller’s objections in turn.
First, the Magistrate Judge did not misapply the legal proposition laid out in Kim. In Kim, the Ninth
Circuit highlighted that the voluntary initiation of contact with the police is not the “end of the
inquiry into whether a defendant was ‘in custody’ during [an] encounter [with the police],”
72 Id.
73 Id.
74 Id. at 3.
75 Id.
76 Id.
77 Id.
78 Id. (citing Dkt. 72 at 17–19).
79 Id.
80 Dkt. 84 at 3 (citing Dkt. 72 at 21–23).
81 See generally Dkt. 98.
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specifying that an important additional focus is whether law enforcement “established a setting
from which a reasonable person would believe that he or she was not free to leave.”82 The court
outlined five factors that are “likely to be relevant to deciding” the question of custody: “‘(1) the
language used to summon the individual; (2) the extent to which the defendant is confronted with
evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the
detention; and (5) the degree of pressure applied to detain the individual.’”83
In this case, the Magistrate Judge correctly applied the Kim factors and did not rely solely on the
fact of Miller’s voluntary initiation of contact with the police. Indeed, the R&R comprehensively
applies the five Kim factors, expanding far beyond the single inquiry of whether Miller voluntarily
initiated contact with law enforcement by opening the door to her residence upon the two officer’s
arrival.84 Because the Magistrate Judge assessed the five factors relevant to the totality of the
circumstances as instructed by Kim—an analysis that is well-supported by the record and relevant
audio recordings—Miller’s first objection does not warrant alteration of the R&R.
Second, Miller’s objection misconstrues the Magistrate Judge’s finding regarding the second Kim
factor.85 Although the Magistrate Judge concluded that this factor “weigh[ed] in favor of a custody
finding, Miller seems to imply that the Magistrate Judge arrived at the opposite conclusion.86 In
any case, the Magistrate Judge accurately assessed the “extent to which Miller [was] confronted
with evidence of guilt.”87 In doing so, the Magistrate Judge concluded that because “law
enforcement questioning was aimed at eliciting incriminating information,” the “analysis under
the interrogation element [of the Miranda analysis] applies with equal force to this factor,”
weighing “in favor of a custody finding.”88 Since the Magistrate Judge correctly assessed the facts
of this case and concluded that it weighed in favor of a custody finding, this aspect of the R&R
does not require alteration.89
82 Id. at 973–974 (quoting Stansbury v. California, 511 U.S. 318, 322 (1994).
83 Kim, F.3d at 974; see Dkt. 98 at 1.
84 Dkt. 79-2; Dkt. 79-3.
85 292 F.3d at 974 (“(2) the extent to which the defendant is confronted with evidence of guilt”).
86 Dkt. 98 at 2 (“The Report erroneously concludes that law enforcement did not confront Ms.
Miller with evidence of guilt and this weighs in favor of a finding that Ms. Miller was not in
custody.”).
87 Dkt. 84 at 18.
88 Id. (emphasis added); see also id. at 15–16 (assessing whether Miller was interrogated for
purposes of the Miranda custody analysis).
89 Dkt. 98 at 2.
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Third, the Magistrate Judge’s analysis of the third Kim factor,90 and his additional considerations
under Craighead,91 do not warrant revision.92 The Magistrate Judge concluded that “[w]hat tips
the scale toward a finding against custody is that Miller’s freedom or will was not overborne by
the presence of two on-scene law enforcement officials,” a fact distinguished from the eight on-
scene officers in Craighead.93 This conclusion is supported by the various audio recordings of
Miller’s encounter with the two initial law enforcement officers, which could be described as
casual, “open,” and “friendly.”94 Likewise, the record reflects that Miller “enjoyed unrestricted
freedom of movement in and around her residence,” evinced by her movement from the residence
to the mail box package delivery location and extensive search for her truck keys around the
premises. Although at various points Miller expresses her desire to visit a supermarket, the audio
recordings reflect that at no point did the officers obligate her to remain at her residence—they
merely requested she remain at home.95 As such, the R&R reaches the correct conclusion with
respect to the operative question of whether Miller was in custody for Miranda purposes, which
rests on “whether law enforcement created a police-dominated atmosphere at [her] residence.”96
Because law enforcement did not create a “police-dominated atmosphere,” this aspect of the R&R
does not require alteration.
Fourth, the R&R did not err in concluding that the fifth Kim factor,97 which weighed against the
finding that Miller was in custody.98 The R&R correctly finds that under the totality of the
circumstances and under the third Kim factor, as supported by the relevant audio recordings, Miller
was not under such pressure that would indicate she was in custody.99 As explained in the analysis
of the first three objections, this objection does not warrant revision of the R&R.
Fifth, because the Magistrate Judge did not err in his conclusion that Miller was not in custody, it
is not appropriate for the R&R’s “subsequent Miranda findings [to] be rejected.”100 Ultimately, as
discussed in the previous assessments of Miller’s objections, through an accurate application of
the relevant law, the Magistrate Judge correctly concluded that “Miller was subjected to
90 292 F.3d at 974 (“(3) the physical surroundings of the interrogation”)
91 539 F.3d at 1077 (“courts have generally been much less likely to find that an interrogation in
the suspect’s home was custodial in nature [since] the suspect is in familiar surroundings,” and the
“element of compulsion concerned the Court in Miranda is less likely to be present where the
suspect is in familiar surroundings.”).
92 Dkt. 84 at 18–20.
93 Id. at 19.
94 Id.; see generally Def. Ex. D-7; Gov. Ex. 1–3.
95 Def. Ex. D-6 at 01:36-01:52 (For example, Officer states, “If you could hang out, I’d rather you
be here, while we’re doing this. So part of this is, I don’t want you to have your stuff without you.
So I’d rather you be here for this. Hopefully it won’t be long.”); see generally Def. Ex. D-4–D-7;
Gov. Ex. 2.
96 Dkt. 98 at 18–19.
97 292 F.3d at 974 (“[d]egree of pressure applied to detain [Miller]”).
98 Dkt. 84 at 21.
99 Id. at 21.
100 See id.; Dkt. 98 at 3.
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interrogation that was not custodial in nature or conducted in a police-dominated environment.”101
Therefore, this aspect of the R&R does not require revision.
Sixth, the R&R was correct in its conclusion that law enforcement officers did not deliberately
withhold their Miranda advisement prior to the arrival of the additional law enforcement
officers.102 Miller’s argument regarding “midstream Miranda warnings” under Missouri v.
Seibert103 is inapplicable because the totality of the circumstances indicate that she was not in
custody—a required element of the Seibert test.104 The Magistrate Judge correctly concluded that
the law enforcement officers did not engage in the “forbidden two-step technique”105 from Seibert,
citing valid Ninth Circuit caselaw for the proposition that there “is nothing wrong with officers
seeking to question a suspect in a non-custodial situation. . . . So long as the officers believed that
the interview remained non-custodial, where they turned out to be mistaken, a subsequent, warned
confession must be allowed into evidence if voluntarily given.”106 Because Miller’s interview with
the two officers remained non-custodial, this aspect of the R&R does not require revision.
Finally, the Magistrate Judge’s finding that Miller’s request for counsel was “ambiguous and
equivocal” was correct.107 The Court agrees that a “careful review of Gov. Ex. 3 at 26:15-26:28
dispels any doubt in Miller’s language: ‘Maybe I should get a lawyer. I don’t know. What to
do.’”108 This statement is similar to the statement at issue in Davis v. United States,109 where the
petitioner stated, “Maybe I should talk to a lawyer.” In Davis, the Supreme Court held that law
enforcement officers were not required to stop questioning the petitioner, however “it was entirely
proper for them to clarify whether the petitioner in fact wanted a lawyer.”110 This controlling case,
along with similar rulings from the Ninth Circuit,111 demonstrate that Miller’s invocation was
neither unambiguous nor unequivocal, and law enforcement was not required to stop interrogation
at that point.112 Therefore, the R&R does not require revision as to Miller’s request for counsel.
F. Conclusion
101 Dkt. 84 at 21 (emphasis in original).
102 Id. at 21–22.
103 542 U.S. 600, 621–22 (2004)
104 See Dkt. 84 at 22–23.
105 The “two-step” technique in Siebert, refers to a “question first” tactic in which law enforcement
chooses not to Mirandize an individual in custody in order to elicit an incriminating confession,
and then gives a Miranda warning mid-interrogation. This two-step interrogation tactic makes a
repeated incriminating statement made after the warning to be inadmissible at trial. See Siebert,
542 at 604.
106 Id. at 23 (citing Reyes v. Lewis, 833 F.3d 1001, 1031 (9th Cir. 2016).
107 Id.
108 Id.
109 512 U.S. 452, 463 (1994).
110 Id.; Dkt. 84 at 23.
111 E.g., Michaels v. Davis, 51 F.4th 904, 923 (9th Cir. 2022).
112 Dkt. 84 at 23–24.
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The Court concludes that Miller’s objections do not merit revision or rejection of the R&R.
Accordingly, the Court ACCEPTS AND ADOPTS the R&R at Docket 84. Consequently, the
Motion at Docket 72 is DENIED.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: January 5, 2023.
Case 1:21-cr-00011-TMB-MMS Document 104 Filed 01/05/23 Page 12 of 12