United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
before the Court is the Report and Recommendation, (ECF No.
33), entered by Magistrate Judge Cam Ferenbach on November
14, 2016, granting Defendant Dearrl Diggs's
(“Defendant's”) Motion to Suppress, (ECF No.
17). The Government timely filed its Objection, (ECF No. 37),
to the Report and Recommendation, and Defendant timely filed
a Response, (ECF No. 38).
26, 2016, an Indictment, (ECF No. 1), was entered charging
Defendant with Felon in Possession of a Firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
(Indictment at 1-2). The Indictment issued following
Defendant's arrest by Las Vegas Metropolitan Police
Department (“LVMPD”) Officers Spurling and
Donegan. (R. & R. 1:13- 17, ECF No. 33). Defendant was a
passenger in a vehicle that was pulled over by Officers
Spurling and Donegan for failing to make a complete stop at a
stop sign. (Id. 1:13-14). While Officer Spurling was
talking to the driver of the vehicle, Officer Donegan asked
Defendant for identification; Defendant at first gave the
officer a false name, and then later identified himself as
Dearrl Diggs. (Id. 2:3-9). Officer Spurling
approached Defendant and asked if there were any guns or weed
in the car, to which Defendant replied no. (Id.
2:12-16). Because Officer Spurling had already recovered a
baggie in a vile from the driver, which appeared to contain
narcotics residue, and he was therefore going to conduct a
search of the vehicle, Defendant was asked to exit the
vehicle. (Id. 2:16-19).
Spurling informed Defendant that he was going to conduct the
search and asked Defendant again if he had any weapons.
(Id. 2:19-21). Defendant nodded his head “yes,
” but stated “no.” (Id. 2:21-24).
Once Defendant was outside of the vehicle, Officer Spurling
performed a pat-down search and escorted Defendant to the
curb behind the vehicle. (Id. 3:3- 5). Officer
Spurling instructed Defendant to sit on the curb with his
legs crossed in front of him, and told him not to “feel
like he needs to do anything stupid, ”. (Id.
3:5-7). Both Officers testified that Defendant was not free
to leave at this time. (Id. 3:9-10).
Spurling asked the driver who was seated on the curb next to
the Defendant if there were any drugs or guns in the vehicle,
to which Defendant stated there was a weapon. (Id.
3:11-12). Officer Spurling questioned Defendant about the
type and ownership of the weapon, and Defendant provided the
requested information; Spurling placed Defendant in
handcuffs. (Id. 3:11-16). Officer Spurling checked
the car, found a gun, and then read Defendant his
Miranda rights. (Id. 3:16-20). Defendant
stated he understood his rights, and Officer Spurling
continued to question him concerning the gun. (Id.
4:1-5). The Officers discovered the gun was stolen and
arrested Defendant. (Id. 4:6-8).
Motion to Suppress, Defendant seeks to suppress the
statements he made prior to and after the Miranda
warning as a violation of Miranda v. Arizona and
Missouri v. Seibert. (Mot. to Suppress 1:19-21, ECF
No. 17). On November 9, 2016, Judge Ferenbach held an
evidentiary hearing, wherein both Officers Spurling and
Donegan testified. (See ECF No. 30). In the Report
and Recommendation, Judge Ferenbach found that the
“absence of a Miranda warning during
[Defendant's] initial custodial interrogation warrants
the suppression of [Defendant's] pre-warning
statement.” (R. & R. 8:19-21).
Judge Ferenbach found that the post-warning statements should
also be suppressed because the “lack of curative
measures [by the Officers] renders [Defendant's]
post-warning statements inadmissible.” (Id.
14:24-25). As such, Judge Ferenbach recommended granting
Defendant's Motion and suppressing all statements made
after Defendant was seated on the curb. (Id.
may file specific written objections to the findings and
recommendations of a United States Magistrate Judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
D. Nev. R. IB 3-2. Upon the filing of such objections, the
Court must make a de novo determination of those portions of
the Report to which objections are made. Id. The
Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the Magistrate Judge. 28
U.S.C. § 636(b)(1); D. Nev. IB 3-2(b).
Government asserts three objections to Judge Ferenbach's
Report and Recommendation granting the Motion to Suppress.
(Obj., ECF No. 37). First, the Government argues that Judge
Ferenbach erred in finding that the Defendant was in custody
when he made his pre-Miranda statements.
(Id. 4:10-12). Second, the Government argues that
Judge Ferenbach erred in finding that Officer Spurling used a
deliberate two-step interrogation technique. (Id.
4:12). Third, the Government argues that Judge Ferenbach
erred in finding that the Miranda warnings were not
effective so as to render Defendant's statements
inadmissible. (Id. 4:13-14). The objections will be
addressed in turn.
First Objection: Custody
reviewed the record in this case, the Court agrees with the
Government that Defendant was not in custody when he made his
pre-Miranda statements. In the Report and
Recommendation, Judge Ferenbach found that the language, the
officer's tone, and the degree of pressure applied all
found in favor of Defendant being in custody. (R. & R.
5:11-8:16). Although he deemed the physical surroundings of
the interrogation as neutral, and the duration of the
detention was deemed against a finding of custody, Judge
Ferenbach concluded that, based on the totality of the
circumstances, a reasonable person in Defendant's
position would have felt unable to terminate the encounter
with the Officers and leave. (R. & R. ...