USA v. Robert Matcovich

Filing

Opinion issued by court as to Appellant Robert Russell Matcovich. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 12-15438

Date Filed: 07/03/2013

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15438
Non-Argument Calendar
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D.C. Docket No. 2:12-cr-00007-JES-DNF-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT RUSSELL MATCOVICH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 3, 2013)
Before CARNES, BARKETT and MARTIN, Circuit Judges.
PER CURIAM:

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Robert Matcovich appeals the district court’s denial of his motion to
suppress inculpatory statements he made to federal agents, without receiving
Miranda 1 warnings, during an allegedly custodial interrogation.2 The district court
denied Matcovich’s motion on the ground that he was not in “custody” at the time
he made the inculpatory statements and, therefore, the law enforcement officers did
not have to give a Miranda warning. On appeal, Matcovich argues that this
conclusion was error.
We review a district court’s denial of a motion to suppress as a mixed
question of law and fact. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir.
2009). “Whether [a defendant] was ‘in custody’ and entitled to Miranda warnings
is [also] a mixed question of law and fact.” United States v. Moya, 74 F.3d 1117,
1119 (11th Cir. 1996). We review de novo the district court’s legal conclusions
and we review its factual findings for clear error. Id.
I.
The Supreme Court in Miranda “established that custodial interrogation
cannot occur before a suspect is warned of [his] rights against self-incrimination.”
United States v. Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007). Pre-custodial
questioning, in contrast, does not require Miranda warnings. United States v.
1

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

2

After the district court denied his motion to suppress, Matcovich’s case proceeded to a bench
trial during which he was found guilty of possession of child pornography and distribution of
child pornography, in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B), (b)(1), (b)(2).

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Street, 472 F.3d 1298, 1309 (11th Cir. 2006). The “initial step” in determining
whether a person was in “custody” under Miranda “is to ascertain whether, in light
of the objective circumstances of the interrogation” and the totality of all the
circumstances, “a reasonable person would have felt that he or she was not at
liberty to terminate the interrogation and leave.” Howes v. Fields, ___ U.S. ___,
___, 132 S. Ct. 1181, 1189 (2012) (alterations and quotation marks omitted). An
interviewee’s “status as a suspect, and the coercive environment that exists in
virtually every interview by a police officer of a crime suspect,” does not
automatically create a custodial situation. United States v. Muegge, 225 F.3d
1267, 1270 (11th Cir. 2000) (quotation marks omitted).
One of the factors a court should consider when determining whether the
defendant was “in custody” is the location of questioning. See Howes, 132 S. Ct.
at 1189. Although not dispositive, “courts are much less likely to find the
circumstances custodial when the interrogation occurs in familiar or at least neutral
surroundings, such as the suspect’s home.” United States v. Brown, 441 F.3d
1330, 1348 (11th Cir. 2006) (alterations and quotation marks omitted). Courts may
also consider whether a defendant was “unambiguously advis[ed] . . . that he is free
to leave and is not in custody.” Id. at 1347. This is a “powerful factor” that
“generally will lead to the conclusion that the defendant is not in custody absent a
finding of restraints that are so extensive that telling the suspect he was free to
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leave could not cure the custodial aspect of the interview.” Id. (quotation marks
omitted). Other relevant factors “includ[e] whether the officers brandished
weapons, touched the suspect, or used language or a tone that indicated that
compliance with the officers could be compelled,” Street, 472 F.3d at 1309
(quotation marks omitted), as well as the duration of the questioning, statements
made during the interview, the presence of physical restraints during questioning,
and “the release of the interviewee at the end of the questioning,” Howes, 132 S.
Ct. at 1189.
II.
Considering the totality of the circumstances, the factors weigh in favor of
finding Matcovich’s interrogation non-custodial. The Magistrate Judge3
determined that Special Agent Cox told Matcovich that he was not under arrest and
that immediately before questioning began, Special Agent Cramsey told Matcovich
that “he was not under arrest, was free to leave, could begin to answer questions
and then stop, and could answer only the questions he wished.” In addition, the
Magistrate Judge found that Matcovich was interviewed in the place where he had
lived for six years. Matcovich has not shown that these findings were clear error,
and they strongly suggest that Matcovich’s interrogation was not custodial. See
Brown, 441 F.3d 1347–48. Further, there is no indication that there were restraints

3

The district court adopted the Magistrate Judge’s Report and Recommendation.

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on Matcovich’s freedom of movement “that [were] so extensive that telling [him]
he was free to leave could not cure the custodial aspect of the interview.” Id. at
1347 (quotation marks omitted).
There are also a number of factors that suggest the interview was custodial,
even though explained as being necessary for security reasons. First, when law
enforcement officers entered the boarding house where Matcovich lived in order to
execute the search warrant, there was a “police-dominated atmosphere” with a
number of officers handcuffing residents and bringing them to a central location.
However, when cuffed the residents were told that “they were not under arrest, it
was just for officer safety” and “shortly thereafter, the search warrant was
announced, the handcuffs were removed, and the residents were told that they were
not under arrest.” Second, Matcovich was not allowed to go to his bedroom to
retrieve his cigarettes, rather, an agent retrieved the cigarettes for him. Special
Agent Cramsey testified that this was out of precaution for the safety of the
officers who were still searching Matcovich’s room pursuant to a search warrant.
Third, Matcovich was required to leave the door slightly open when using the
bathroom. Special Agent Cramsey testified that this was for his safety and
Matcovich’s safety because by this point it had become clear to Special Agent
Cramsey that Matcovich was “a perpetrator and offender.”

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However, these facts standing alone do not render this a custodial
interrogation when: (1) Matcovich was unambiguously told that he was free to
leave, was not in custody, and did not have to answer questions, see Brown at
1347; (2) he was “in the familiar and comfortable surroundings” of his home, see
id. at 1349; (3) he was not physically restrained during questioning, see Howes,
132 S. Ct. at 1189; (4) the agents’ weapons were holstered when they spoke with
Matcovich, see United States v. Luna-Encinas, 603 F.3d 876, 881 (11th Cir. 2010);
(5) “[a]lthough an officer accompanied [Matcovich] throughout the house for
safety reasons, he was free to” go outside to smoke and move about the house to
get dressed and make coffee, see Brown, 441 F.3d at 1348–49; (6) there is no
evidence that Special Agent Cramsey conveyed his suspicion that Matcovich was a
perpetrator to Matcovich, see Stansbury v. California, 511 U.S. 318, 325, 114 S.
Ct. 1526, 1530 (1994); and (7) after the interview was over, Matcovich left
voluntarily with an FBI polygrapher and was not arrested until a later time, cf.
Howes, 132 S. Ct. at 1189.
For these reasons, we agree with the district court that Matcovich’s
statements were not made during a custodial interrogation.
AFFIRMED.

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