United States District Court, D. Minnesota
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
matter is before the Court on the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Hildy Bowbeer. (Docket No. 77.) The R&R recommends
denying Defendant Jeffery Detloff's Motions to Suppress
(Docket Nos. 42 and 43), and Defendant Detloff Marketing and
Asset Management's Motion to Suppress (Docket No. 54).
Defendants filed timely objections to the R&R. (Docket
Nos. 78, 79.)
Court must conduct a de novo review of any portion of the
R&R to which specific objections are made. 28 U.S.C.
§ 636(b)(1)(C); Fed.R.Civ.P. 72(b); D. Minn. L.R.
72.2(b). Based on that de novo review, and for the reasons
set forth below, the Court overrules Defendants'
objections and adopts the R&R.
full factual background of this matter is set forth in the
R&R and need not be repeated here. In short, the Detloffs
and Detloff Marketing and Asset Management
(“DMAM”) are suspected of engaging in a scheme to
defraud various financial institutions by submitting false
bids and invoices and by soliciting/receiving kickbacks. On
June 10, 2015, FBI Agent Jonathan Holden and Assistant United
States Attorney (“AUSA”) Andrew Rosa questioned
Jeffery Detloff in his office at DMAM's facility while
agents conducted a search of the building. Detloff challenges
the constitutionality of his questioning. Both Detloff and
DMAM challenge the constitutionality of: (1) the search
warrants; (2) the May 2015 search of Detloff's trash as
part of the FBI's investigation; and (3) the search of a
storage area within DMAM's facility.
Constitutionality of Questioning
Detloff argues that his statements during questioning should
be suppressed because he was subjected to a custodial
interrogation and was not given a Miranda warning.
. . . requires that a warning as to the availability of the
privilege against self-incrimination and to the assistance of
counsel be issued prior to questioning whenever a suspect is
(1) interrogated (2) while in custody.” United
States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990)
(emphasis omitted). The Court must therefore determine
whether Detloff was in custody while federal agents were
questioning him in his office at DMAM's facility.
“Custody occurs either upon formal arrest or under any
other circumstances where the suspect is deprived of his
freedom of action in any significant way.” Id.
(emphases omitted). But not all interactions with law
enforcement rise to the level of custody; only if the
individual reasonably believes that his “freedom of
action ha[s] been curtailed to a ‘degree associated
with formal arrest'” is he in custody for purposes
of Miranda. Id. (quoting California v.
Beheler, 462 U.S. 1121, 1125 (1983)).
determine whether Detloff was in custody, Griffin
suggests consideration of the following factors:
(1) whether the suspect was informed at the time of
questioning that the questioning was voluntary, that the
suspect was free to leave or request the officers to do so,
or that the suspect was not considered under arrest; (2)
whether the suspect possessed unrestrained freedom of
movement during questioning; (3) whether the suspect
initiated contact with authorities or voluntarily acquiesced
to official requests to respond to questions; (4) whether
strong arm tactics or deceptive stratagems were employed
during questioning; (5) whether the atmosphere of the
questioning was police dominated; or, (6) whether the suspect
was placed under arrest at the termination of the
Id. at 1349.
discussed below, these factors indicate that Detloff was not
in custody during his questioning.
Voluntary Questioning and Freedom to Leave
Holden and AUSA Rosa were present during Detloff's
interview. Detloff alleges that because Holden and Rosa
cannot recall whether they informed Detloff that the
interview was voluntary, this factor weighs
“substantially in favor of suppression.” (Docket
No. 78 at 10.) However, even if the agents failed to inform
Detloff that questioning was voluntary and he was free to
leave, “‘the opposite inference'-that a
suspect not being told he is free to leave during police
questioning is a strong indication he was in custody-does not
necessarily follow, because ‘the touchstone of our
inquiry remains whether [the suspect] was restrained as
though he were under formal arrest.'” United
States v. Laurita, 821 F.3d 1020, 1024 (8th Cir. 2016);
(quoting United States v. Lowen, 647 F.3d 863, 868
(8th Cir. 2011)). As stated in the R&R, there is no
evidence in the record that Detloff was restrained in any way
or that he was denied freedom of ...