United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS [ECF
Honorable Victoria A. Roberts Judge
matter is before the Court on Defendant Thomas Edward
Kemp's Objections to United States Magistrate Judge
Elizabeth A. Stafford's Report and Recommendation
(“R&R”). Magistrate Judge Stafford
recommended that Kemp's motion to suppress be denied.
Defendant raises three objections to the R&R.
court reviews de novo “any objection to the
magistrate judge's recommendation, ” and “may
accept, reject, or modify the recommendation, receive further
evidence, or resubmit the matter to the magistrate judge with
instructions.” Fed. R. Crim. P. 59(b)(3); see
also 28 U.S.C. § 636(b)(1). Based on that de
novo review, and for the reasons set forth below, the
Court overrules Defendant's objections and adopts the
R&R in its entirety.
facts of this case were accurately stated in the R&R,
many of which the Court restates here.
the execution of a search warrant at Kemp's residence on
June 9, 2017, ATF Agents Jackson and Dynes questioned Kemp
regarding certain firearms transactions. Agent Jackson
estimated that the interview lasted between 30 and 45
minutes; Agent Dynes thought that it lasted between 45
minutes and one hour. Kemp testified that the interview
lasted approximately two hours. The interview was conducted
on the front porch of Kemp's home. Agent Jackson said
that the location of the interview was Kemp's suggestion,
but also because “[w]e wanted to get him away from his
brother and the dogs were locked in a room and there was
really no other suitable place to sit down and talk to him
privately.” [ECF No. 26, PageID 145].
Jackson described Kemp as being in “custody”
during the interview; Agent Dynes said that Kemp was
“detained” at that time. [Id., PageID
158, 186, 211].
Jackson testified that, at the start of the interview, he
read Kemp his Miranda rights from a card he keeps in
his wallet; the Government attached a copy of that card to
its response to the motion to suppress. Agent Dynes
corroborated Agent Jackson's testimony.
Jackson and Dynes testified that after Kemp was read his
Miranda rights, Agent Jackson asked if he understood
those rights and if he wanted to waive them and speak to him,
and that Kemp responded affirmatively. Agent Jackson then
questioned Kemp, and Kemp made incriminating statements.
Agent Jackson testified that he intended to record the
interview since he considered Kemp to be in custody, but that
the recorder malfunctioned and failed to record. His written
notes do not refer to the reading of Miranda rights;
he testified that he would not normally include that in his
notes. Agent Dynes also took written notes about the
interview, but lost them. Agent Dynes said that he used his
notes to write the incident report. That report states,
“S/A Jackson advised Kemp of his Miranda Rights, which
Kemp verbally waived.” [Id., PageID 218].
tells a different story. He claims that the agents never
advised him of his rights, and that he would not have spoken
to them had they done so. Yet, he acknowledged that he was
aware of his Miranda rights, including the right to
remain silent, the right to an attorney, and that
“[a]nything you say will be held against you in
court.” [Id., PageID 239-40]. He had seen
police shows in which people sometimes refused to speak to
police or asked for a lawyer. Despite being aware of these
options, Kemp admitted that he did not tell the agents that
he wanted to stop talking or ask for a lawyer. He did
exercise his right to refuse to sign a written statement.
objects to the Magistrate Judge's findings that (1) the
Government has shown by a preponderance of the evidence that
Agent Jackson read Defendant his Miranda rights; (2)
Defendant responded affirmatively when asked if he understood
his rights; and (3) that in light of the finding that Agent
Jackson properly warned Defendant of his Miranda
rights, an inference can be made that he waived them by
speaking to the agents. Since neither the Government nor
Defendant raised any other objections, the Court reviews
these objections assuming that Defendant was in official
police custody and subject to custodial interrogation.
defendant's incriminating statements may only be admitted
as evidence if the defendant has been “warned that he
has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right
to the presence of an attorney, either retained or
appointed.” Miranda v. Arizona, 384 U.S. 436,
444, 86 S.Ct. 1602, 1612 (1966). The defendant may waive
these rights as long as the waiver is knowing, intelligent,
and voluntary. Id. “For a waiver to be knowing
and intelligent, the suspect must be fully advised of his
constitutional privileges. To be voluntary, a ...