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United States v. Yu

United States District Court, W.D. Kentucky, Louisville

January 14, 2019

UNITED STATES OF AMERICA PLAINTIFF
v.
Tsung Min YU DEFENDANT

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge.

         I. Introduction

         This case is before the Court on Defendant Tsung Min Yu's motion to suppress (DN 17), the report and recommendation of Magistrate Judge Colin H. Lindsay on that motion (the “Report”) (DN 38), and objections filed thereto (DN 39). Yu objects to the magistrate's decision not to suppress evidence of a gun found under Yu's pillow. In doing so, he argues that the officers were without authority to make the arrest and that the statements leading the officers to the gun were made involuntarily. The first argument was not reached by the magistrate because he found it to be untimely. The Court disagrees with that conclusion but, on the merits, agrees that the gun should not be suppressed, since the United States has represented that a valid warrant existed. As to the second argument, the Court finds the statements voluntarily made and insufficient to warrant suppression. Therefore, the Court will accept and adopt the Report as supplemented by this opinion, overrule the objections in part, and sustain the objections in part. As a result, the Court will grant the motion to suppress in part and deny the motion to suppress in part.

         II. Factual Background and Procedural History

         Yu makes no objections to the factual findings of the magistrate. Therefore, the Court adopts and repeats the factual findings of the magistrate in whole:

On December 5, 2017, Immigration and Customs Enforcement (“ICE”) Deportation Officers John Cloyd (“Officer Cloyd”) and Jeremy Bacon (“Officer Bacon”) and ICE Supervisory Detention and Deportation Officer Michael Huffines (“Officer Huffines”) arrested Yu at a residence located at 3530 Leith Lane in Louisville, Kentucky. (DN 28, at PageID # 68-69, 74, 98.) Yu had been referred to another Deportation Officer, Joseph Phelps, by the Citizens and Immigration Services Fraud Unit as a “visa overstay, ” meaning that Yu been granted temporary permission to enter the United States, but had stayed in the country past the date he was supposed to leave. (Id. at 69.) Specifically, Yu had arrived in the United States on June 16, 2008 and was supposed to depart by December 15, 2008. (Id. at 73.)
The Officers arrived at the Leith Lane residence to arrest Yu at 6:00 A.M. and observed a black Lexis registered to Yu parked in the driveway. (Id. at 74-75.) The Officers set up surveillance to see if Yu left the residence and watched for approximately an hour before approaching the door around 7:00 A.M. (Id. at 75-76, 126.) The Officers were wearing khaki or cargo pants, bulletproof vests marked “ICE” and “police, ” and had weapons holstered on their hips. (Id. at 77, 130, 164.) Officer Cloyd went to the door to knock while Officer Bacon stayed near the porch steps. (Id. at 76, 126, 161-62.) Officer Huffines remained in the driveway where he could see both Officers Cloyd and Bacon and the rear of the residence in case anyone decided to flee. (Id.)
When Officer Cloyd knocked, a woman, who was later identified as Charlotte Klimczak (“Klimczak”), Yu's Aunt, answered the door. (Id. at 70-71, 77-78, 126-27.) Officer Cloyd told Klimczak that they were the police, and in response to Officer Cloyd's questions, Klimczak stated that she lived in the house with her niece and nephew. (Id. at 78, 127-28.) Officer Cloyd asked her nephew's name, and she replied, “Tsung Yu.” (Id. at 78.) When Officer Cloyd asked if she would get her nephew, she agreed. (Id. at 78-79, 128.) While Klimczak spoke with Officer Cloyd through the closed storm door, the tone of the entire conversation was casual. (Id. . at 78-79, 100.)
Klimczak was gone briefly before she returned to the door with a male who appeared to be Yu. (Id. at 79-80, 129.) While the Officers had a picture of Yu from his visa application taken approximately eleven years ago, the picture was outdated. Officers had also looked at a current photo of Yu on Facebook before going to the Leith Lane address, but needed to verify Yu's identity prior to arresting him. (Id. at 80-81.) Accordingly, Officer Cloyd identified himself as police and asked Yu who he was. (Id. at 81, 129.) Yu stated that his name was David. (Id.) Officer Cloyd asked if Yu had any identification, to which Yu replied that it was in his bedroom. (Id.) Officer Cloyd asked if Yu could get his ID and as Yu began to turn to go in the house, Officer Cloyd asked permission to follow Yu into the house. (Id.) Yu said yes. (Id. at 81-82, 129.) Officer Cloyd did not demand entrance to the home and did not sense any hesitation in Yu's voice or get any indication that Yu did not want Officer Cloyd to follow Yu inside. (Id. at 82, 129-30.) Klimczak, who was still standing there as Officers Cloyd and Bacon spoke with Yu, likewise did not object to the Officers entering her home. (Id. at 82-83, 130.)
Once inside the house, Yu opened a door, and started to go downstairs. (Id. at 83, 131.) When Officer Cloyd asked Yu if they could follow him downstairs, Yu said yes. (Id.) Officer Cloyd sensed no hesitation in Yu's voice. (Id. at 83.) Officer Huffines remained upstairs with Klimczak. (Id. at 162.) At the bottom of the stairs, in what appeared to be a bedroom, Yu went to the dresser and produced to Officers Cloyd and Bacon an international driver's license identifying him as Tsung Min Yu. (Id. at 84, 87, 132-33.) Officer Cloyd asked Yu why Yu had stated his name was David, and Yu responded that David was just a name he went by since he came to the United States. (Id. at 87.) However, Yu confirmed that he was Tsung Min Yu. (Id.) Yu also indicated that he had a passport in his car, but was not permitted to go get it at that time. (Id. at 102, 133.)
Officer Cloyd asked Yu to sit on the edge of his bed, and in response to questions from Cloyd, Yu admitted that he was in the United States illegally and had overstayed his visa. (Id. at 87, 71.) Officer Cloyd then told Yu that the Officers were with immigration and Yu was going to have to come down to the office with them to do some paperwork, for fingerprints, and to get a court date. (Id. at 87, 103, 133.) However, Officer Bacon also testified that Cloyd told Yu he was being placed under arrest. (Id. at 145.) Whether Officer Cloyd explicitly told Yu he was under arrest or not, both Officers Cloyd and Bacon unequivocally testified that Yu was in fact under arrest at this point. (Id. at 103-104, 108, 116, 145, 149.)
Yu asked the Officers if it was okay to get dressed before he went with them, and they agreed to permit him to do so. (Id. at 88, 133-34.) As Yu began to stand up, Officer Bacon asked him if there were any weapons or anything that could harm the Officers in the room. (Id. at 88, 134-35.) It is undisputed that Yu had not yet received Miranda warnings at the time he was asked this question. (DN 32, at PageID # 191; DN 33, at PageID # 201-03, 211; DN 28, at PageID # 106, 152-53, 175, 177.) In response, Yu stated that there was a gun under the pillow on the bed, and Officer Bacon, who was standing right next to the pillow, flipped the pillow over and saw a small, Smith and Wesson handgun. (Id. at 88-89, 134-35.) Yu was immediately placed in handcuffs for officer safety. (Id. at 89-90, 137.) Yu did not resist or fight in any way and was cooperative and compliant with the Officers. (Id. at 90.) Yu was charged with being an unlawful alien in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2). (DN 1.)
Additional testimony was presented at the hearing regarding what happened after Yu was placed in handcuffs, including testimony regarding Yu being mirandized, waiving his Miranda protections, and the Officers finding ammunition and a second gun. Yu also made ...

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