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United States of America v. Daniel Arthur Clevenger

October 18, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
DANIEL ARTHUR CLEVENGER, DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS [Doc. No. 16].

Presently before the Court is defendant Daniel Arthur Clevenger's motion to suppress his statements based on: (1) the agents' failure to provide him with warnings required by Miranda v. Arizona, 384 U.S. 436 (1966); (2) delay in presentment under Corley v. United States, 129 S. Ct. 1558 (2009); and (3) the agents' engagement in a two-step interrogation strategy prohibited by Missouri v. Seibert, 542 U.S. 600 (2004), and United States v. Williams, 435 F.3d 1148 (9th Cir. 2006). The Court held evidentiary hearings on September 28, 2011 and October 12, 2011 with regard to the motion. Having heard the testimony and considered the parties' arguments, and for the reasons set forth below, the Court DENIES the motion to suppress.

BACKGROUND

Clevenger was arrested at approximately 3:45 p.m. on Monday, July 25, 2011 on suspicion of alien smuggling. He was transported to the Brown Field Border Patrol Station, where he arrived at approximately 4:43 p.m. (Selden Decl. ¶¶ 5-6 [Doc. No. 19-2].) He was processed and placed in a holding cell. Throughout the time he was detained at the Brown Field Station, Clevenger was the only prisoner in that holding cell. (Id. ¶ 8.) He received three regular meals per day-each consisting of a bean, egg, and cheese burrito. According to Clevenger, he was not allowed to bathe, shower, or brush his teeth. He could not change his clothes and slept on the floor with only two blankets. The room in which he was detained had a toilet with an attached faucet.

Shortly after Clevenger's arrest, Border Patrol agents performed a canine screening of his vehicle and discovered a small bag containing crystal methamphetamine. (Report of Investigation ("ROI") at 5-6 [Doc. No. 16-2, App. L].) While observing Clevenger through a camera in his holding cell, the agents also noticed that he appeared to be extremely agitated, was talking to himself, and was digging at his skin. (Id. at 6.) At 5:50 p.m., Supervisory Border Patrol Agent ("SBPA") Zimmer went into Clevenger's holding cell to inquire whether Clevenger was under the influence of any drugs at that time. (Id. at 5.) According to the Report of Investigation:

Clevenger stated that he had last smoked crystal meth on Saturday July 23, 2011. Clevenger stated that it was his birthday and he had a bad birthday so he smoked crystal meth pretty much all that day up to about midnight. Clevenger stated that he was just giving some people a ride. He then stated the guy spoke perfect English to him and he had "fucked up". (Id. at 6.) Because he believed Clevenger was under the influence of a controlled substance, SBPA Zimmer "decided to give Clevenger a few hours to compose himself and to allow any possible side effects [of] his prior crystal meth binge to subside." (Id.)

Border Patrol agent Garcia took Clevenger's statement at around 12:30 a.m. on July 26, 2011. The statement was made in English and was video-taped. Before taking the statement, agent Garcia informed Clevenger of his Miranda rights. While agent Garcia was informing him of his rights, Clevenger asked whether he had been arrested. Agent Garcia answered that Clevenger had been arrested for alien smuggling. Clevenger then asked about obtaining a lawyer, but was informed that he would not get one until he was taken downtown to the Metropolitan Correctional Center ("MCC"). Following this exchange, Clevenger agreed to waive his right to remain silent and to have counsel present, and gave a statement to agent Garcia. According to the interviewing agents, Clevenger did not appear to be under the influence of any drugs during the interview.

Clevenger's interview focused on the events leading up to him being arrested for alien smuggling. (ROI at 6-7.) After Clevenger made his statement, he remained at the Brown Field Station. On Tuesday morning, July 26, 2011, the Prosecutions Unit at the Brown Field Station called the MCC, received a booking window number, and were told that an MCC official would call when space became available. (Selden Decl. ¶ 7.) At approximately 7 a.m. on Wednesday, July 27, 2011, an official from MCC informed the Border Patrol Prosecutions Officer that they had the available space. (Id. ¶ 11.) The complaint and probable cause statement were taken to the U.S. Attorney's Office that morning, and the complaint was signed and filed shortly thereafter. (Id. ¶10.) Clevenger arrived at the MCC at approximately 9:30 a.m. and was set for initial appearance before Magistrate Judge McCurine on Wednesday, July 27, 2011. For unknown reasons, that appearance was continued to Thursday, July 28, 2011 at 10:30 a.m. [See Doc. Nos. 2 & 3.]

DISCUSSION

Clevenger makes three separate arguments in his motion to suppress: (1) his first statement to the agents about his methamphetamine use at 5:50 p.m. on July 25, 2011 should be suppressed because he was not advised of his Miranda rights; (2) his second statement to the agents about the events leading to the alien smuggling charges made at 12:30 a.m. on July 26, 2011 should be suppressed because the nine-hour period between the time of his arrest and the time when he made that statement amounted to an unreasonable delay under Corley, 129 S. Ct. 1558; and (3) his second statement should also be suppressed because the agents engaged in a two-step interrogation strategy prohibited by Seibert, 542 U.S. 600, and Williams, 435 F.3d 1148.

I. Suppression of the pre-Mirandized statement.

There is no dispute that Clevenger's first statement at 5:50 p.m. was obtained before Clevenger was advised of his Miranda rights. At the evidentiary hearing, however, the government represented that it does not intend to use anything said during that statement at trial. Based on the government's representations, the Court DENIES AS MOOT Clevenger's motion to suppress on this ground.

II. Suppression based on delay in presentment.

Clevenger next alleges that his second statement to the agents, made at 12:30 a.m. on July 26, 2011, should be suppressed because the nine-hour period between the time of his arrest and the time when he made that statement amounted to an unreasonable delay under Corley, 129 S. Ct. 1558. The Government contends the delay was reasonable because it was due to processing ...


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