US v. Jerry E. Hartsoe
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00479-CMC-1. Copies to all parties and the district court/agency. [999519563].. [14-4559]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4559
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY ELMO HARTSOE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Cameron McGowan Currie, Senior
District Judge. (3:13-cr-00479-CMC-1)
Submitted:
January 14, 2015
Decided:
January 29, 2015
Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William W. Watkins, Sr., WILLIAM W. WATKINS, PA, Columbia, South
Carolina, for Appellant.
William N. Nettles, United States
Attorney, T. DeWayne Pearson, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jerry Elmo Hartsoe was convicted by a jury of eight
counts
of
mail
fraud,
in
violation
of
18
U.S.C.
§§ 2, 1341
(2012); and one count of making false statements, in violation
of
18
U.S.C.
convictions
§ 1001
should
(2012).
be
vacated
Hartsoe
because
asserts
that
his
argues
that
the
he
district court erred when it allowed into evidence statements he
made
to
law
accordance
enforcement
with
Miranda
before
v.
being
Arizona,
read
384
his
U.S.
rights,
436
in
(1966).
Finding no error, we affirm.
We review the factual findings underlying the district
court’s denial of a motion to suppress for clear error and the
court’s legal conclusions de novo.
United States v. Kelly, 592
F.3d 586, 589 (4th Cir. 2010); United States v. Colonna, 511
F.3d 431, 434 (4th Cir. 2007).
When a suppression motion has
been denied, this court “construe[s] the evidence in the light
most favorable to the [G]overnment.”
Id.
“Moreover, when a
district court’s factual finding is based upon assessments of
witness credibility, such finding is deserving of the highest
degree of appellate deference.”
F.3d
450,
452
(4th
Cir.
United States v. Thompson, 554
2009)
(internal
quotation
marks
omitted).
There is no dispute that Miranda warnings are required
when a subject is interrogated while in custody.
2
Miranda, 384
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U.S. at 444.
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The test for determining whether an individual is
in custody for Miranda purposes is whether, under the totality
of
the
circumstances,
the
suspect’s
freedom
of
action
curtailed to a degree associated with formal arrest.
v. McCarty, 468 U.S. 420, 440 (1984).
is
Berkemer
Thus, the key question is
whether, viewed objectively, a reasonable man in the suspect’s
position would have believed he was “in custody.”
Id. at 442.
Because Hartsoe’s presence was voluntary at all times
prior to, during, and after his interview by law enforcement, we
find it unlikely that a reasonable person in Hartsoe’s position
would have believed himself to be in custody during the search
of
his
business.
Hartsoe
was
not
summoned
to
the
search
location by law enforcement, law enforcement agents were not
actively seeking Hartsoe, nor did they do anything to encourage
his arrival.
In fact, when Hartsoe arrived at the scene of the
search, law enforcement asked Hartsoe to leave.
And Hartsoe’s
own testimony evidences that his demeanor upon arriving at the
scene
someone
was
aggressive
who
was
and
demanding,
intimidated
and
and
not
believed
he
indicative
was
in
of
law
enforcement custody.
Once inside the location of the search, the record
establishes
that
Hartsoe
voluntarily
entered
a
separate
room
with the agents so he could escape the commotion caused by law
enforcement’s search, and the agents informed him that he was
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not
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under
Hartsoe
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arrest
testified
and
that
that
he
he
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was
free
approached
to
two
leave.
agents
to
In
fact,
ask
them
questions about the search warrant, and that he ultimately ended
the conversation with the agents by telling them to “Call me
when you’re done, I’ll come back.”
Based on the foregoing, we find that a reasonable man
in Hartsoe’s position would not have believed himself to be “in
custody.”
See United States v. Hargrove, 625 F.3d 170, 179-82
(4th
2010)
Cir.
(finding
defendant
not
“in
custody”
during
police questioning where some officers were armed upon entry of
the defendant’s home; officers directed the occupants’ actions
during the initial safety sweep of the residence, and conducted
a safety pat down of the defendant; only two agents were with
the
defendant
during
the
interview;
the
defendant
was
never
placed in handcuffs and although the agents who questioned him
were armed, their firearms were not drawn during the interview
and they did not threaten defendant; one of the agents told the
defendant prior to the interview that he was not under arrest
and
was
free
to
leave;
the
interview
was
conducted
at
the
defendant’s residence and not a law enforcement facility; and
the defendant was free to move about his home during the search
so long as he did not interfere with the search).
Accordingly, we affirm the district court’s judgment.
We
dispense
with
oral
argument
4
because
the
facts
and
legal
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contentions
are
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adequately
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presented
in
the
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
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