United States of America v. Brian Flewell

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable John R. Tunheim, U.S. District Judge for the District**
of Minnesota, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN FLEWELL,
Defendant - Appellant.
No. 11-50113
D.C. No. 2:10-cr-00360-RGK-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted April 12, 2012
Pasadena, California
Before: SILVERMAN and RAWLINSON, Circuit Judges, and TUNHEIM,
District Judge.**
Appellant Brian Flewell (Flewell) challenges the district court’s denial of his
motion to suppress his confession and evidence of child pornography found on his
FILED
APR 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

Miranda v. Arizona, 384 U.S. 436 (1966).1
2
computer. Flewell maintains that his confession and consent to search his
computer were involuntary because Flewell was not advised of his Miranda rights1
prior to an in-home interrogation.
The district court properly denied Flewell’s motion to suppress. The
interrogation was non-custodial, as “a reasonable person in [Flewell’s] position
would [not] have felt deprived of his freedom of action in any significant way . . .”
United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008); see also United
States v. Bassignani, 575 F.3d 879, 883 (9th Cir. 2009), as amended (“An officer’s
obligation to give a suspect Miranda warnings before interrogation extends only to
those instances where the individual is in custody.”) (citation and internal
quotation marks omitted).
The officers’ deceptive tactics did not render Flewell’s confession
involuntary. See United States v. Crawford, 372 F.3d 1048, 1060-61 (9th Cir.
2004) (en banc) (“Trickery, deceit, even impersonation do not render a confession
inadmissible, certainly in noncustodial situations and usually in custodial ones as
well . . .”) (citation omitted).
Flewell voluntarily consented to the search of his computer. The officers
never compelled Flewell to consent and Flewell signed a consent form informing

-- 2 of 3 --

3
him of his right to refuse consent. See United States v. Vongxay, 594 F.3d 1111,
1119-20 (9th Cir. 2010); see also United States v. Childs, 944 F.2d 491, 496 (9th
Cir. 1991) (“The consent form clearly states that a person may refuse to sign it.
Knowledge of the right to refuse consent is highly relevant in determining whether
a consent is valid.”) (citation omitted).
AFFIRMED.

-- 3 of 3 --