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United States v. Kemp

United States District Court, E.D. Michigan, Southern Division

June 29, 2018



          Honorable Victoria A. Roberts Judge


         This 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.

         This 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.


         The facts of this case were accurately stated in the R&R, many of which the Court restates here.

         During 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].

         Agent 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].

         Agent 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.

         Agents 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].

         Kemp 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.

         Kemp 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.

         III. ANALYSIS

         A 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 ...

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