United States v. Jerry Hartsoe ( 2015 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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. § 1001 (2012). Hartsoe asserts that his
convictions should be vacated because he argues that the
district court erred when it allowed into evidence statements he
made to law enforcement before being read his rights, in
accordance with Miranda v. Arizona, 384 U.S. 436 (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.” United States v. Thompson, 554
F.3d 450, 452 (4th Cir. 2009) (internal quotation marks
omitted).
There is no dispute that Miranda warnings are required
when a subject is interrogated while in custody. Miranda, 384
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U.S. at 444. 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 is
curtailed to a degree associated with formal arrest. Berkemer
v. McCarty, 468 U.S. 420, 440 (1984). 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 was aggressive and demanding, and not indicative of
someone who was intimidated and believed he was in 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 under arrest and that he was free to leave. In fact,
Hartsoe testified that he approached two agents to 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 Cir. 2010) (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 because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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