                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 19 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       Nos. 14-30146
                                                     15-30036
                Plaintiff-Appellee,
                                                D.C. No.
 v.                                             3:13-cr-00008-RRB-1 (JDR)

JAMES MICHAEL WELLS,
                                                MEMORANDUM *
                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Alaska
                   Ralph R. Beistline, District Judge, Presiding

                       Argued and Submitted July 10, 2017
                              Seattle, Washington

Before: TASHIMA and NGUYEN, Circuit Judges, and WALTER,** District
Judge.

      This memorandum disposition, filed concurrently with our opinion in this

case, is limited to addressing Defendant-Appellant James Michael Wells’

challenge to the denial of his motion to suppress statements made during



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Donald E. Walter, United States District Judge for the
Western District of Louisiana, sitting by designation.
investigative interviews on April 12 and 13, 2012. At trial, the Government

introduced two excerpts extracted from the first interview, conducted on April 12,

and five excerpts extracted from the fifth interview, conducted after Wells had

been Mirandized on April 13. We apply de novo review to Wells’ challenges under

the Fourth and Fifth Amendments and find no error. See United States v.

Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008); United States v. Bassignani, 575

F.3d 879, 883 (9th Cir. 2009). 1

1.    “[A] person has been ‘seized’ within the meaning of the Fourth Amendment

only if, in view of all of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.” United States v.

Mendenhall, 446 U.S. 544, 554 (1980). Mendenhall set forth “[e]xamples of

circumstances that might indicate a seizure, even where the person did not attempt

to leave[:]” (1) threatening presence of officers; (2) display of a weapon; (3)

physical touching; or (4) the use of language or tone of voice indicating

compliance with the officer’s request might be compelled. Id. at 554.

      Wells argues that the following factors contributed to the unreasonableness

of his seizure on April 12, 2012: USCG command had directed Wells and other

COMMSTA employees to be available for interrogation; Wells was kept under


1
 Because it was raised for the first time on appeal, we decline to address Wells’
argument that his statements were involuntary under Garrity v. New Jersey, 385
U.S. 493, 500 (1967).

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USCG command at T1, from approximately 8:23 a.m. until 9:30 p.m.; and the

USCG base was on lockdown, preventing Wells and others from leaving. To the

contrary, and using the Mendenhall factors as our guide, the record reflects that

Wells voluntarily reported to his workplace, which had, by then, been converted

into a crime scene and active investigation site. He was interviewed, in the same

manner as all other COMMSTA employees, by two agents in plain clothes, with

their weapons concealed. Wells was never touched, much less physically restrained

or handcuffed and, at least on April 12, the interviews were not aggressive or

accusatory.

      As we have recognized, “[t]he application of the Fourth Amendment to the

employment context presents special issues.” Aguilera v. Baca, 510 F.3d 1161,

1167 (9th Cir. 2007). In a Coast Guard situation, much like that of the paramilitary

law enforcement agency in Aguilera, “we must glean from the circumstances

whether the subordinate’s decision to heed his superior’s order to remain at a

designated location stemmed from a fear, if he tried to leave, of physical detention,

or merely adverse employment consequences.” Aguilera, 510 F.3d at 1167–68. “A

seizure occurs when an individual submits to a show of lawful authority or an

application of physical force by a law enforcement agent.” Id. at 1167 (citing

California v. Hodari D., 499 U.S. 621, 626 (1991)). Here, any show of authority

derived from the military nature of Wells’ employment and the fact that USCG


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command had locked down the base and asked all employees to remain on site to

assist in the investigation. See United States v. Baird, 851 F.2d 376, 380–82 (D.C.

Cir. 1988) (finding no seizure when on-duty Coast Guard officer was ordered to

report for interview with intelligence officer). Furthermore, “[a]n encounter

between an officer and an individual ‘will not trigger Fourth Amendment scrutiny

unless it loses its consensual nature.’” Aguilera, 510 F.3d at 1167 (quoting Florida

v. Bostick, 501 U.S. 429, 434 (1991)). The record reflects that all COMMSTA

employees, including Wells, cooperated with the investigation and were

interviewed without complaint.

      We conclude that Wells was not seized on April 12, 2012. However, even if

Wells was seized, “[t]he touchstone of the Fourth Amendment is reasonableness.

The Fourth Amendment does not proscribe all state-initiated searches and seizures;

it merely proscribes those which are unreasonable.” United States v. Hawkins, 249

F.3d 867, 872 (9th Cir. 2001) (quoting Florida v. Jimeno, 500 U.S. 248, 250

(1991)). Hawkins’ reasonableness analysis depends on a balancing of interests:

      The reasonableness of seizures that are less intrusive than a traditional
      arrest depends “on a balance between the public interest and the
      individual’s right to personal security free from arbitrary interference
      by law officers.” Consideration of the constitutionality of such
      seizures involves a weighing of the gravity of the public concerns
      served by the seizure, the degree to which the seizure advances the
      public interest, and the severity of the interference with individual
      liberty.




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249 F.3d at 872–73 (quoting Brown v. Texas, 443 U.S. 47, 50–51 (1979)). Here,

there were strong interests on behalf of USCG in controlling its base and law

enforcement in securing and controlling the crime scene. Any seizure was

minimally intrusive, supported by a substantial governmental interest, and

reasonable.

2.    As principally argued in the district court, Wells also challenges his

statements under the Fifth Amendment, contending that all statements given prior

to the April 13, 2012, issuance of Miranda warnings should have been suppressed.

      Miranda’s holding explicitly does not affect “[g]eneral on-the-scene

questioning as to facts surrounding a crime or other general questioning of citizens

in the fact-finding process.” Miranda v. Arizona, 384 U.S. 436, 477 (1966). “An

officer’s obligation to give a suspect Miranda warnings before interrogation

extends only to those instances where the individual is ‘in custody.’” United States

v. Kim, 292 F.3d 969, 973 (9th Cir. 2002) (quoting Oregon v. Mathiason, 429 U.S.

492, 495 (1977) (per curiam)). “To determine whether an individual was in

custody, a court must, after examining all of the circumstances surrounding the

interrogation, decide whether there [was] a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.” Id. (internal quotation

marks omitted) (alteration in original). “The custody determination is objective and

is not based upon ‘the subjective views of the officers or the individual being


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questioned.’” Bassignani, 575 F.3d at 883 (quoting Kim, 292 F.3d at 973).

Specifically, custody requires that a “reasonable person [would] have felt he or she

was not at liberty to terminate the interrogation and leave.” Thompson, 516 U.S. at

112.

       This Court has previously “identified five factors relevant to the custody

determination: ‘(1) the language used to summon the individual; (2) the extent to

which the defendant is confronted with evidence of guilt; (3) the physical

surroundings of the interrogation; (4) the duration of the detention; and (5) the

degree of pressure applied to detain the individual.’” Bassignani, 575 F.3d at 883

(quoting Kim, 292 F.3d at 974). “These considerations are not exhaustive; ‘[o]ther

factors may also be pertinent to, and even dispositive of, the ultimate determination

whether a reasonable person would have believed he could freely walk away from

the interrogators.’” Id. at 883–84 (quoting Kim, 292 F.3d at 974).

       Our review of the evidence, tracking the Bassignani analysis and applying

the Kim factors, supports the district court’s finding that Wells was not in custody,

and therefore no Miranda warnings were required, on April 12, 2012.

       All COMMSTA employees were ordered to be available for interrogation;

however, no employee expressed any concern about being interviewed, the agents

remained cordial throughout the April 12 interviews, and Wells was never singled

out or made to feel like a target of the investigation. Thus, Wells “agreed to


                                          6                                      14-30146
accompany” officers to an interrogation room. See United States v. Crawford, 372

F.3d 1048, 1059 (9th Cir. 2004) (en banc).

      Wells was never confronted with his guilt nor was he pressured to confess to

anything, until after being Mirandized. Instead, throughout April 12, the agents

were engaged in fact-finding only, and the questioning was non-accusatory. Thus,

interrogators did not “adopt[] an aggressive, coercive, and deceptive tone” or

“‘attempt to challenge [his] statements with other ‘known facts’ suggesting his

guilt, they merely asked [him] about the allegations.’” Bassignani, 575 F.3d at 884

(quoting United States v. Norris, 428 F.3d 907, 913 (9th Cir. 2005)).

      Wells and his co-workers were gathered together in a T1 conference room,

“plainly a familiar environment[;]” not “prevented from contacting others[;]”

allowed to talk to each other between interviews; and questioned in an unlocked

office at their workplace. See Bassignani, 575 F.3d at 885.

      In the immediate aftermath of horrific murders at his workplace, with agents

acting quickly to gather as much fresh information as possible, Wells was

intermittently interviewed for less than one hour. This is akin to the two-and-a-half

hour interrogation in Bassignani, which the court found to be “at the high end” but

not a “marathon session designed to force a confession,” and therefore not

unreasonable overall. 575 F.3d at 886 (internal quotation marks omitted).




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      Though the agents “never explicitly said that [Wells] was free to leave,” he

was never physically restrained. See Bassignani, 575 F.3d at 886. Upon conclusion

of the interviews, Wells was allowed to leave the base on his own at the end of the

day. Cf. United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981).

      In contrast to the custodial interrogation in Kim, Wells was neither restrained

nor threatened; he was interviewed at his workplace and allowed to talk to other

COMMSTA employees between interviews; he was not deprived of restroom

facilities, food or water; there was no display of weapons from either of the two,

plain-clothes agents conducting the interviews; and, as found by the district court,

the interviews on April 12 were “essentially amicable.” Wells was not in custody.

      AFFIRMED.




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