The opinion of the court was delivered by: KAY
This Order concerns two conversations in April, 1996 between Defendant Robbie Sylva ("Sylva") and Kurt Heilbron ("Heilbron"). In early April 1996, Sylva telephoned Heilbron at his residence and told him that if anyone asked that Heilbron should say Sylva paid $ 7,000 for a Ford Mustang when he allegedly paid $ 19,000 for the car. Sylva also telephoned Heilbron on April 17, 1996 after Heilbron asked a mutual acquaintance to ask Sylva to call him.
On January 7, 1997, the Court held a hearing on whether these conversations violated Sylva's Fifth Amendment Due Process rights, Sylva's Fifth Amendment right not to incriminate himself, and Sylva's Sixth Amendment right to counsel. See e.g. Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964).
The Court will discuss separately each constitutional right purportedly violated. As a threshold issue, however, the Court finds, and the government concedes, that Heilbron was working at the behest of the FBI and thus was a state actor.
I. The Fifth Amendment Right Not to Incriminate Oneself
The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." The Supreme Court has held that this right "is fully applicable during a period of custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 478-79, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). As stated in the seminal decision and confirmed ever since, Miranda warnings are required if and only if a defendant is placed in "custody" and then "interrogated." Miranda v. Arizona, 384 U.S. 436, 478-79, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 1528, 128 L. Ed. 2d 293 (1994). If Miranda warnings were required but not given, any statements made during the "custodial interrogation" are inadmissible against the defendant in the prosecution's case in chief. Miranda, 384 U.S. at 476; Harris v. New York, 401 U.S. 222, 224, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971).
An individual is in "custody" for purposes of Miranda when, based on the totality of the circumstances, a reasonable innocent person in Defendant's position would conclude that he was not free to leave. See, e.g., United States v. Gregory, 891 F.2d 732, 735 (9th Cir. 1989) (no custody where defendant consented to be interviewed, the interview took place in his house and in the presence of his wife, no coercion or force was used, and the interview lasted only a few minutes); United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985) (custody where defendant was transported to the police station, questioned in an interrogation room by four different officers for over an hour, and told that he matched the description of the perpetrator and had supplied information only the perpetrator would know).
Whether an individual was in custody is an objective inquiry. Neither the individual's subjective belief that he was not free to leave nor the interrogating officer's subjective view that the individual being questioned is a suspect is relevant. Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 1528, 128 L. Ed. 2d 293 (1994); United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981). Moreover, "the fact that the individual is in a 'coercive environment' is not controlling. Every police interview has coercive aspects . . . ." United States v. Hudgens, 798 F.2d 1234, 1236 (9th Cir. 1986); California v. Beheler, 463 U.S. 1121, 1124-25, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1982).
The Ninth Circuit has identified five factors to be considered in determining whether an individual was in custody for purposes of Miranda :
1. the language used by the officers in summoning the person interviewed;
2. the physical characteristics of the place where the ...