Opinion
1:06-cr-402-WSD.
July 31, 2007
OPINION AND ORDER
This matter is before the Court on Defendant Alfredo Cruz Garcia's ("Defendant") Objections [58] to the Report and Recommendation [54] issued by Magistrate Judge C. Christopher Hagy on Defendant's Supplemental Motion to Suppress ("Suppression Motion") [46]. In the Suppression Motion, Defendant moved to suppress a recording of his responses to questions he was asked during his booking and after his arrest. The booking recording was compared with conversations intercepted pursuant to a wiretap authorized under 18 U.S.C. § 2516 et seq. The booking recording was used to identify Defendant as a participant in the conversations intercepted by wiretap.
Defendant argued in the Suppression Motion that his responses to the booking questions were recorded when he was in custody and before he was given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). He argued that he is entitled to an evidentiary hearing on this matter and that the recorded responses must be suppressed. The Magistrate Judge found that there were no disputed facts, and thus an evidentiary hearing was not required. The Magistrate Judge recommended that the Suppression Motion be dismissed because booking questions do not constitute interrogation for the purposes of Miranda, and there is no privilege against compulsory self-incrimination where identifiable physical characteristics, such as voice exemplars, are at issue. The Magistrate Judge thus recommended that the Suppression Motion be denied.
In his Objections, Defendant claims that, contrary to the Magistrate Judge's findings, there are contested facts. Specifically, he alleges the following facts are in dispute:
1. Defendant was not informed that "his voice was recorded to establish that [he] participated in the incriminating wiretap conversations."
2. Defendant was "incarcerated," and "[o]fficers/agents failed to inform [him] of his Miranda Rights."
3. "The Government admits that . . . Defendant was in custody and entitled to Miranda rights."
4. "The Government admits that the recording of Defendant's voice in response to booking questions was intentionally done to establish that Defendant participated in incriminating wiretap conversations. . . ."
5. "The Government's purpose behind . . . the booking interview was to secretly and covertly obtain voice exemplars. . . ."
6. "The subject booking interview was NOT a `routine booking information' exception to Miranda, because it was covertly and secretly recorded and intentionally and deliberately executed purposefully without notice to [the] Defendant, to obtain incriminating evidence. . . ."
(Obj. [58], at 2-4) (internal quotations omitted). Defendant argues these "contested" facts require an evidentiary hearing, and the Magistrate Judge's recommendation is erroneous.
I. STANDARD OF REVIEW
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify a judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge "shall make a de novo determination of those portions of the report or specify proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(c). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (quoting H.R. 1609, 94th Cong., § 2 (1976)). With respect to those findings and recommendations to which the Defendant has not asserted objections, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).
II. DISCUSSION
A. Objection to fact findings
Defendant argues there are six areas of disputed facts which require an evidentiary hearing to resolve. The objection is facially unfounded. Although couched as a "dispute," Defendant admits that the Government acknowledges — and the Magistrate Judge found — that the booking questions were asked and responses given after Defendant was in custody, before he was administered Miranda warnings, and Defendant was not told his responses would be recorded and compared to intercepted conversations. The Magistrate Judge based his recommendations these facts. There is no factual dispute, and the Court adopts the facts set forth in the R R. Defendant's objection to the denial of an evidentiary hearing is overruled.
B. Legal conclusions and recommendations
Defendant also objects to the Magistrate Judge's R R by repeating the arguments he made in the Suppression Motion. Defendant simply restates that his responses to the booking questions were unconstitutionally obtained because they were in response to a custodial interrogation without Miranda warnings, and he was not told his responses would be recorded. He relies onMiranda and United States v. Glen-Archila, 677 F.2d 809 (11th Cir. 1982), as authority that the response recording was unconstitutional.
The Magistrate Judge's discussion of these cases demonstrates that their holdings do not support Defendant's argument. The well-developed law in the Eleventh Circuit is clear that booking questions do not constitute interrogation for the purpose ofMiranda. It is constitutional for the government to obtain a voice exemplar, even if the exemplar is compelled, because exemplars are not protected by the Fifth Amendment. "The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." United States v. Dionisio, 410 U.S. 1, 6 (1973). The Fifth Amendment "offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, [or] to write or speak for identification. . . ."Id. Our circuit has long followed the holding in Dionisio that voice exemplars are not protected by the Fifth Amendment. Jones v. Dugger, 839 F.2d 1441, 1443 (11th Cir. 1988). Moreover, United States v. Sweeting, 933 F.2d 962, 965 (11th Cir. 1991), is clear authority that "[a] officer's request for routine information for booking purposes is not interrogation" and thus does not requireMiranda warnings. Sweeting, 933 F.2d at 965 (internal quotations and citations omitted). These cases lead to the inescapable conclusion that the recording of Defendant's responses to the booking questions, which were not compelled, did not violate the Fifth Amendment.
Defendant appears to rely on Glen-Archila for his argument that if the booking questions were asked for the purpose of collecting an exemplar, he was entitled to be read the Miranda warnings before he was questioned. Glen-Archila does not support this argument. The Court in Glen-Archila was clear that booking questions do not require Miranda warnings so long as the questions are not a pretext to invoke incriminating responses.Glen-Archila, 677 F.2d at 816. There is no suggestion the questions here were other than routine questions asked during the booking process. That they were recorded does not charge the character of the questions.
Accordingly,
IT IS HEREBY ORDERED that the Court OVERRULES the objections set forth in Defendant's Objections to Court's Proposed Findings and Recommendations [58].
IT IS FURTHER ORDERED that the Court ADOPTS AS ITS ORDER the Report and Recommendation [54] and Defendant's Supplemental Motion to Suppress ("Suppression Motion") [46] is DENIED.