USA v. Vasquez-Yax

1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:25-cr-00092-MR-WCM
UNITED STATES OF AMERICA, )
)
v. ) MEMORANDUM AND
) RECOMMENDATION
FELICIANO ISMAEL VASQUEZ-YAX, )
)
Defendant. )
______________________________________ )
This matter is before the Court on Defendant’s Motion to Suppress (the
“Motion to Suppress,” Doc. 19), which has been referred to the undersigned
pursuant to 28 U.S.C. § 636 for the entry of a recommendation.
I. Relevant Procedural Background
On November 13, 2025, a criminal complaint was filed charging
Feliciano Ismael Vasquez-Yax (“Defendant”) with one count of being an alien
in possession of a firearm in violation of Title 18, United States Code, Section
922(g)(5). Doc. 1. An arrest warrant was issued the same day. Doc. 2.
On November 21, 2025, Defendant was arrested in the Northern District
of Georgia.
He was indicted on December 2, 2025 on one count of violating 18 U.S.C.
§ 922(g)(5). Doc. 5.
On December 29, 2025, Defendant made an initial appearance in this
district at which time he requested that counsel be appointed for him. His
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request was granted, and, on December 30, 2025, attorney Howard Anderson
was assigned to represent Defendant.
On January 5, 2026, Defendant was arraigned and entered a plea of not
guilty.
On January 27, 2026, Defendant filed the Motion to Suppress and a
supporting memorandum. Docs. 19, 20. The Government subsequently
responded. Doc. 32.
The undersigned conducted a hearing on the Motion to Suppress on May
12, 2026. See United States v. Taylor
, 13 F.3d 786, 789 (4th Cir. 1994) (“When
material facts that affect the resolution of a motion to suppress ... are in
conflict, the appropriate way to resolve the conflict is by holding an evidentiary
hearing after which the district court will be in a position to make findings.”).
During that hearing, the Government called Homeland Security Investigations
Special Agent Nathan Peachey (“Agent Peachey”). The Government also
submitted, without objection, video footage from an officer’s body-worn camera,
a search warrant that was executed on October 25, 2025 (the “First Warrant,”
Doc. 20-1) and a search warrant that was executed on November 6, 2025 (the
“Second Warrant,” Doc. 20-2). Defendant did not present any evidence.
II. Factual Background
Based on the information of record and as presented during the hearing,
the undersigned finds the relevant facts to be as follows:
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A. The Flea Market and the First Warrant
As part of an investigation into violations of intellectual property rights,
on October 18, 2025, Agent Peachey went to the Barnyard Flea Market in
Dallas, North Carolina (the “Flea Market”) where he identified several booths
where products with suspected counterfeit trademarks were being sold.
Two of those booths displayed a sign for “Alivas Multiservices.” From
them, an “undercover purchase” of a phone case was made. That case was later
verified by a “trademark industry representative” as having a counterfeit Louis
Vuitton trademark.
Agent Peachey also observed a van for Alivas Multiservices (the “Van”)
that was parked behind the two booths.
Law enforcement personnel then sought the First Warrant. The
supporting affidavit stated, in part:
On October 18, 2025, [Agent] Peachey went to booths
J1 and J2. SA Peachey observed several phone cases
with trademarks registered to Louis Vuitton, Chanel,
Nike, Sanrio, Disney, and Burberry. A sign in the
hallway in front of the booths listed Alivas
Multiservices of Marion LLC. SA Peachey observed a
van parked just outside of booth J1 marked Alivas
Multiservices of Marion LLC displaying the North
Carolina license plate VHA4782. Queries in law
enforcement databases showed that VHA4782 was
registered to Alivas Multiservices LLC for a Ram
Promaster 1500 Van with the VIN
3C6TRVNG8FE507726. Queries in the North
Carolina Secretary of State’s database showed that
articles of organization were filed for Aliva
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Multiservices of Marion LLC on July 1, 2025 by
Feliciano Ismeal Vasquez-Yax. Further queries in law
enforcement databases showed that the North
Carolina driver’s license [redacted] was issued to
Feliciano Ismeal Vasquez.
An HSI CI later went to booths J1 and J2. The CI
purchased a phone case with trademarks registered to
Louis Vuitton for $15 from a Hispanic female. The CI
made an offer to buy two phone cases and an older
Hispanic male stated that he could not do that because
of how much he paid for them.
A trademark industry representative from Blazer
Investigations reviewed information from the phone
case purchased from Aliva Multiservices of Marion
LLC and determined that it contained a counterfeit
trademark(s).
Doc. 20-1 at 6.
A North Carolina Superior Court Judge granted the application and
issued the First Warrant, which authorized, among other things, the search of
the Van as well as the two booths that were associated with Alivas
Multiservices. The First Warrant also authorized the seizure of various items,
including “[p]roperty believed to be stolen” and “[a]ny counterfeit goods.”1
On October 25, 2025, law enforcement personnel went to the Flea Market
to execute the First Warrant. Agent Peachey testified that approximately
thirty officers were present at the Flea Market, though only four or five of those
1 The First Warrant also authorized the search of other booths and vehicles not
associated with Alivas Multiservices and the seizure of items from those booths and
vehicles.
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officers were near the area of Defendant’s booths when the First Warrant was
being executed. Defendant spoke with Agent Peachey and other law
enforcement personnel, and it was determined that Defendant was illegally
present in the United States. At no point during the encounter was Defendant
advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966).
Defendant voluntarily surrendered merchandise, and approximately 740
items bearing counterfeit trademarks were seized from Defendant’s booths. In
addition to law enforcement officers, a trademark industry representative was
present and determined what merchandise was counterfeit. Defendant was
issued multiple cease-and-desist letters by the trademark industry
representative as well as a warning letter from the North Carolina Secretary
of State’s Office.
B. Defendant’s Store and the Second Warrant
At some point, Agent Peachey determined that the Van’s registration
was associated with an address of 204 East Court Street, Marion, North
Carolina. Business records for Alivas Multiservices also referenced that
address, as well as Defendant. Based on the Van’s registration information, a
search of social media, and discussions with the Marion Police Department,
Agent Peachey determined that Alivas Multiservices operated a brick-and-
mortar store at that location (the “Store”).
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Marion Police officers also informed Agent Peachey of a previous incident
during which a few individuals had attempted to present counterfeit checks at
the Store and Defendant had chased them into the parking lot while
discharging a firearm.
On November 6, 2025, Agent Peachey met with Marion Police Officers
and a representative of the North Carolina Secretary of State’s Office.
Investigators sent an undercover agent into the Store who observed multiple
items bearing what the agent believed to be counterfeit trademarks.
Agent Peachey then instructed an officer to apply for a search warrant
for the Store, and he and other law enforcement personnel began surveillance
of the Store.
While they were waiting for the search warrant to be issued, officers
observed the Van pull up and Defendant enter the Store. Agent Peachey, other
law enforcement officers, and a trademark industry representative then
entered the Store.2
Agent Peachey approached Defendant, who was standing behind a
counter on one side of the Store. He asked Defendant for permission to look
2 Agent Peachey testified that approximately eight law enforcement officers were on
scene on November 6, 2025, but he did not know how many were inside the Store at
any particular moment. Body worn camera footage indicates that many of the officers
on scene were identified as law enforcement (although some appeared to be in street
clothes).
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around; Defendant told Agent Peachey that the officers could look around and
take anything they needed to take.
Agent Peachey also asked Defendant if there were any weapons in the
Store. In response, Defendant moved behind the counter toward the cash
register. Agent Peachey asked Defendant to stop and to allow Agent Peachey
to retrieve any weapon. Defendant then directed Agent Peachey to a CZ model
P-10 F 9mm pistol (the “First Firearm”) and ammunition behind the counter
and Agent Peachey secured that firearm.
Shortly thereafter, Agent Peachey asked a uniformed patrol officer on
scene – Officer Shook – to turn on his (Officer Shook’s) body worn camera, and
he did so. Agent Peachey also told Defendant that there was a “full Spanish
speaker” with him in case Defendant had any translation issues and that
Defendant was not under arrest.3
Agent Peachey explained that officers were at the Store to make sure
there were no items present like the ones that had been seized from the Flea
Market. In response, Defendant stated that there were “probably a couple” or
“two or three” of each type and pointed to some phone cases behind the counter.
While speaking with Agent Peachey, Defendant moved back and forth behind
3 It is not clear whether Defendant was told prior to this point that a Spanish-
speaking officer was present. However, Agent Peachey testified, and the body worn
camera footage seems to confirm, that Defendant did not have trouble understanding
the officers or communicating with them in English.
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the counter to turn off music that was playing in the Store and to retrieve an
item for a coworker. Defendant continued to have access to his phone and a
computer behind the counter.
Defendant also described for Agent Peachey the non-public areas of the
building in which the Store was located and to which Defendant had access.
Defendant and Agent Peachey walked through the non-public section of the
Store, with Defendant pointing out various rooms. At one point, and without
prompting, Defendant used an electronic keypad to unlock the door to a room
off a back hallway which contained an open safe. Defendant left the door to
that room, and the safe itself, open.
Agent Peachey and Defendant returned to the public area of the Store
where Agent Peachey asked Defendant, in the presence of the Spanish
speaking officer, if there were any other weapons in the Store. Defendant
responded in the affirmative and explained that there was an unloaded gun in
the safe. Agent Peachey and Defendant then discussed how Defendant had
obtained the various firearms.
In the midst of this discussion, another officer asked for clarification
regarding the location of the gun in the safe. Defendant left the counter, walked
back to the room with the safe, and pointed the gun out to the officers. Officers
then secured a Springfield Armory model 9 9mm pistol (the “Second Firearm”).
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Agent Peachey again asked Defendant if Defendant was “okay” with
officers looking through the Store. Defendant answered that he “didn’t care”
and told Agent Peachey that if officers needed to take anything they could do
so. Officer Shook’s body worn camera footage indicates that throughout this
encounter, officers continued to remove various items from the Store’s shelves.
Agent Peachey then moved away from Defendant and to the front of the
Store. Officer Shook remained with Defendant, as did the Spanish speaking
officer who engaged Defendant and Defendant’s coworker in conversation.
After a short period, another officer walked toward Defendant, asked to take
Defendant’s picture, and patted Defendant down for weapons.
Agent Peachey then returned to Defendant and asked him if he
(Defendant) had any weapons in his home or in the Van, and if Defendant
consented for officers to look in the Van. Defendant gave Agent Peachey the
keys to the Van and said officers could look in it. Agent Peachey left and
Defendant, the Spanish speaking officer, and Defendant’s coworker continued
to talk. During this time, Defendant continued to access his computer as well
as his phone.
Defendant told officers that if they found something that the officers
thought “was bad,” they could “take it out.” In response to a separate officer’s
inquiry, Defendant returned to the non-public areas of the Store to open a
second safe that was located in the back hallway.
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Agent Peachey then returned to the area in which Defendant, the
Spanish speaking officer, Officer Shook, and Defendant’s coworker were
standing and explained that because Defendant was illegally in the United
States, he could not possess firearms and ammunition. Agent Peachey asked
Defendant to sign a civil abandonment form for the First and Second Firearms,
as well as for one magazine and nineteen rounds of ammunition. Defendant
asked the officers questions about the prohibition and explained that other law
enforcement personnel had previously told him he could have firearms inside
the Store. Defendant also explained why he wanted to have firearms in the
Store. After additional discussion, Defendant signed the abandonment form.
Shortly thereafter, another officer served Defendant with the Second
Warrant. Defendant responded that he had already given officers permission
to search the Store and reminded them that he had also told them they could
take items from the Flea Market.
After a short amount of additional discussion, Agent Peachey placed
Defendant under arrest. Defendant’s coworker remained at the Store to lock
up and other officers continued to search the Store. Those officers located a
small handgun style safe that was locked and, while Defendant was in transit
(presumably to be processed by law enforcement), Agent Peachey called to ask
Defendant for the combination to that safe. Defendant stated that he used a
biometric to open it. Officers then forcibly opened the safe and recovered a
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Walther model PPS 9mm pistol (the “Third Firearm”). Additionally, officers
found an EIG model 1960 .22 caliber starter pistol (the “Fourth Firearm”) in a
desk.
In addition to the firearms, officers seized ammunition from the Store
(collectively, the “Firearms and Ammunition”).4
At no point during the encounter was Defendant advised of his rights
under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
III. Discussion
Defendant moves to suppress the Firearms and Ammunition.
Additionally, Defendant moves to suppress a statement—“I know I’m not a
citizen”—that Defendant made during the execution of the First Warrant as
well as all statements he made on November 6, 2025 (including those related
to Defendant’s citizenship, the Firearms and Ammunition, and consent to a
search of the Store).
In that connection, Defendant argues that neither the First nor Second
Warrant described the items to be seized with sufficient particularity.
Specifically, Defendant contends that the Warrants improperly allowed the
searching officers to determine whether specific property was counterfeit or
stolen. With respect to his statements, Defendant contends that they are
4 These are the firearms and ammunition supporting the charge in the indictment.
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inadmissible because the officers failed to advise Defendant of his rights under
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
In response, the Government contends that the First Warrant was valid
and additionally notes that “[n]o items of evidentiary value for the charged
conduct were seized from [Defendant’s] flea market booths.” Doc. 32 at 5. With
respect to the Second Warrant, the Government primarily relies on
Defendant’s consent to search the Store.
A. The First Warrant
The Fourth Amendment provides that warrants must “particularly
describ[e] the place to be searched, and the persons or things to be seized.” U.S.
CONST. amend. IV. The particularity requirement is meant to ensure that
citizens are not subjected to “a general, exploratory rummaging in [their]
belongings,” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29
L.Ed.2d 564 (1971), and that nothing is left “to the discretion of the officer
executing the warrant.” United States v. Robinson, 275 F.3d 371, 381 (4th Cir.
2001) (citing Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231
(1927)). “‘The degree of specificity required when describing the goods to be
seized may necessarily vary according to the circumstances and type of items
involved... (T)here is a practical margin of flexibility permitted by the
constitutional requirement for particularity in the description of items to be
seized.’” United States v. Torch, 609 F.2d 1088, 1090 (4th Cir. 1979) (quoting
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United States v. Davis, 542 F.2d 743, 745 (8th Cir. 1976) (alterations in
original)). In considering the adequacy of a warrant in this regard, all parts of
the warrant should be read together. United States v. Weston, 962 F.2d 8, 1992
WL 90554, at *5 (4th Cir. Apr. 30, 1992) (unpublished table decision) (citing
Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627
(1976)).
Here, the First Warrant allowed the seizure of “[p]roperty believed to be
stolen.” This description, without more, is insufficiently particular. See Clark
v. Bridges, 211 F. Supp.3d 731, 748 (D.S.C. 2016) (“An exhaustive search of
Fourth Circuit case law has revealed no case where the description ‘stolen
property’ alone was deemed sufficient to satisfy the particularity
requirement.”). Agent Peachey testified, however, that no property believed to
be stolen was seized from Defendant’s booths or the Van pursuant to the First
Warrant.
Whether the First Warrant was valid as to counterfeit goods presents a
closer call. The First Warrant authorized the seizure of “[a]ny counterfeit
goods” and the affidavit that was submitted when law enforcement applied for
the First Warrant identified a specific item (a phone case) at Defendant’s
booths that was determined by a trademark industry representative to display
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a counterfeit trademark.5 Compare United States v. Klein, 565 F.2d 183 (1st
Cir. 1977) (warrant authorizing seizure of "certain 8-track electronic tapes and
tape cartridges which are unauthorized ‘pirate’ reproductions and also any
commercial documentation and advertising materials relating thereto" held to
be a general warrant) with United States v. Chen, No. S1 05 CR 938 DAB, 2007
WL 2244213, at *6 (S.D.N.Y. Aug. 1, 2007) (“The Affidavit described in detail
the USPIS investigation into the counterfeiting activities that Wang along
with others were allegedly engaged in. It is clear from the Affidavit that USPI
Gutierrez and his colleagues at the USPIS were capable of ascertaining that
the CDs and DVDs were counterfeit based on their experience and training,
particularly based on the knowledge they gained from their surveillance.
Additionally, the agents had the assistance of an investigator from the RIAA
during the minivan's search to determine whether the CDs and DVDs seized
were counterfeit . . . The Court therefore finds that the warrant was sufficiently
particular regarding the items to be seized from the minivan”); United States
v. Vitek Supply Corp., 144 F.3d 476, 481 (7th Cir. 1998) (“Because the warrant
could not have better informed the agents how to distinguish between legal
and illegal substances, the instructions to seize ‘tainted animal feed’ and ‘any
5 While the First Warrant did not require that a trademark industry
representative be present when the First Warrant was executed, Agent Peachey
testified that a representative was present on October 25, 2025 and that officers only
seized merchandise that was identified by the representative as being counterfeit.
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and all misbranded drugs to include clenbuterol and any of its derivatives’ were
sufficiently particular.”).
However, even if the First Warrant was deemed to be insufficiently
particular as to suspected counterfeit items, none of the items seized pursuant
to the First Warrant form the basis of the charge that is pending against
Defendant and there is no indication that the Government plans to use that
evidence for substantive purposes.
B. The Search of the Store
“Although the Fourth Amendment generally prohibits warrantless
searches, valid consent to seize and search items provides an exception to the
usual warrant requirement.” United States v. Buckner, 473 F.3d 551, 553–54
(4th Cir. 2007) (citing Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013,
144 L.Ed.2d 442 (1999); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct.
2041, 36 L.Ed.2d 854 (1973) (internal citation omitted)). “In responding to a
defendant's motion to suppress, the Government bears the burden of
establishing, by a preponderance of the evidence, that it obtained valid consent
to search.” Id. at 553 (citing United States v. Block, 590 F.2d 535, 539 (4th
Cir.1978)).
Consent to search is valid if it is (1) knowing and voluntary and (2) given
by one with authority to consent. Id. at 554. “[C]ourts assess validity based on
the ‘totality of all the circumstances.’” Trulock v. Freeh, 275 F.3d 391, 401 (4th
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Cir. 2001) (quoting United States v. Mendenhall, 446 U.S. 544, 557 (1980)). “In
viewing the totality of the circumstances, it is appropriate to consider the
characteristics of the accused (such as age, maturity, education, intelligence,
and experience) as well as the conditions under which the consent to search
was given (such as the officer's conduct; the number of officers present; and the
duration, location, and time of the encounter).” United States v. Lattimore, 87
F.3d 647, 650 (4th Cir. 1996) (en banc) (collecting cases). “Whether the accused
knew that he possessed a right to refuse consent also is relevant in determining
the voluntariness of consent, although the Government need not demonstrate
that the defendant knew of his right to refuse consent to prove that the consent
was voluntary.” Id.
“Once a defendant voluntarily gives consent, a search that falls within
the scope of that consent is constitutionally permissible.” United States v.
Ortiz, 669 F.3d 439, 445 (4th Cir. 2012) (citing Schneckloth, 412 U.S. at 222).
“Moreover, any consent given is valid until it is withdrawn by the defendant.”
United States v. Ortiz, 669 F.3d 439, 445 (4th Cir. 2012) (citing Lattimore, 87
F.3d at 651).
Here, Defendant consented for officers to search the Store on November
6, 2025 and to seize items they deemed to be illegal. The body worn camera
footage reflects that Agent Peachey informed Defendant that he was not under
arrest at the beginning of the encounter and that Defendant was able to move
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around the Store freely (with the exception of being told not to retrieve the
First Firearm himself), speak with his coworker, and access his phone and
computer. A translator was available throughout the encounter, but Defendant
appeared to understand Agent Peachey and other law enforcement officers
when they spoke to him in English, and he responded to them directly (rather
than through the interpreter). Defendant stated multiple times that the
officers could look around and take anything they needed to take and even
pointed out merchandise similar to that seized previously from the Flea
Market. Defendant also unlocked a door in the back area of the Store without
prompting and handed over the keys to the Van immediately when asked to do
so. And when he was served with the Second Warrant, Defendant stated that
he had already given officers permission to search the Store and to seize items.
With respect to the Firearms and Ammunition specifically, Defendant
directed law enforcement officers to the First and Second Firearms and
voluntarily signed the abandonment form related to those weapons.
With respect to the Third and Fourth Firearms, Defendant’s consent was
not withdrawn at any point (including after Defendant was arrested and
removed from the Store) and the scope of Defendant’s consent (even if it is
deemed to have been limited to allow a search for items of a size similar to a
cell phone case) encompassed the areas in which the Third and Fourth
Firearms were located. See e.g., United States v. Sanchez, No. 21-1328, 2023
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WL 111046, at *2 (10th Cir. Jan. 5, 2023) (“when the officers arrived, Ms.
Gutierrez gave the officers permission, then sometime later she was
voluntarily transported to the police station to be interviewed. There is nothing
in the record to suggest that during that time, she withdrew her permission or
was unaware that the officers would remain in the home. Thus, the consent
remained valid throughout the duration of the officers’ presence in the home”)
(internal citations omitted); United States v. Bustos-Andrade, No. PX-16-588,
2017 WL 6729901, at *4 (D. Md. Dec. 29, 2017) (defendant’s consent to an
initial, cursory search of his vehicle extended to a second, more careful search
of defendant’s vehicle that was “a continuation of the first, cursory search” even
where defendant took an intervening trip with officers to a hotel room).
In sum, the undersigned finds that Defendant’s consent for law
enforcement to search the Store on November 6, 2025 was valid.
C. Defendant’s Statements
“An incriminating statement ‘made during a custodial interrogation will
be suppressed unless police advise the defendant of his rights under Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the
defendant knowingly, intelligently, and voluntarily waives those rights.’”
United States v. Ivey, 60 F.4th 99, 112 (4th Cir. 2023), cert. denied, No. 22-
7784, 2023 WL 6378334 (Oct. 2, 2023) (internal citations omitted).
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The initial question here, then, is whether Defendant was “in custody”
when he made the statements he wishes to suppress. United States v.
Leggette, 57 F.4th 406, 410 (4th Cir. 2023) (if a defendant “is not ‘in custody,’
then statements made during an interrogation remain admissible, even if the
defendant were not given Miranda warnings”) (citing United States v. Leshuk,
65 F.3d 1105, 1108 (4th Cir. 1995)).
“When deciding whether a defendant not under formal arrest was in
custody—and thus if the Miranda requirements apply—a court asks whether,
‘under the totality of the circumstances, a suspect's freedom of action [was]
curtailed to a degree associated with formal arrest.’” United States v. Hashime,
734 F.3d 278, 282 (4th Cir. 2013) (internal citations omitted); see also Leggette,
57 F.4th at 413-414 (“Miranda warnings are not required every time an
individual has their freedom of movement restrained by a police officer. Nor
are they necessarily required every time ‘questioning imposes some sort of
pressure on suspects to confess to their crimes.’ Instead, they are required only
when a suspect's freedom of movement is restrained to the point where they do
not feel free to terminate the encounter and the circumstances reveal the same
inherently coercive pressures as the type of station house questioning at issue
in Miranda.’”) (internal citations omitted). The Fourth Circuit has explained
that:
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This inquiry is an objective one, and asks whether “‘a
reasonable man in the suspect's position would have
understood his situation to be one of custody.’” United
States v. Colonna, 511 F.3d 431, 435 (4th Cir. 2007).
In other words, the court considers whether “a
reasonable person [would] have felt he or she was not
at liberty to terminate the interrogation and leave.”
United States v. Jamison, 509 F.3d 623, 628 (4th Cir.
2007).
Facts relevant to the custodial inquiry include, but are
not limited to, “the time, place and purpose of the
encounter, the words used by the officer, the officer's
tone of voice and general demeanor, the presence of
multiple officers, the potential display of a weapon by
an officer, and whether there was any physical contact
between the officer and the defendant.” United States
v. Day, 591 F.3d 679, 696 (4th Cir. 2010). Also
pertinent are the suspect’s isolation and separation
from family, see United States v. Griffin, 7 F.3d 1512,
1519 (10th Cir.1993), and physical restrictions, United
States v. Griffin, 922 F.2d 1343, 1347 (8th Cir.1990).
Hashime, 734 F.3d at 282–83 (internal citations
omitted).
Here, Defendant argues that law enforcement created a “police-
dominated atmosphere”—presumably both at Store and at the Flea Market—
that was custodial. In support of that position, Defendant relies on United
States v. Kim, 292 F.3d 969 (9th Cir. 2002).
In Kim, officers executed a search warrant at the defendant’s store.
When they arrived, they handcuffed the defendant’s son (who was working at
the time) and, when the defendant arrived later, allowed her to enter the store
but barred her husband from accompanying her. The defendant called out to
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her son, but officers instructed him not to answer and ordered the defendant
(who spoke little English) to “shut up” and to speak in English. Although the
defendant was not handcuffed, she was not told she was free to leave and she
testified that she felt surrounded. She was questioned for at least 30 minutes
before an interpreter arrived and for another 15 to 20 minutes thereafter.
Under those circumstances, the court found that the defendant was in custody
for purposes of Miranda, explaining that “the police…temporarily took over
complete control of [the defendant’s] store, creating ‘a police-dominated
atmosphere,’ in which the police kept [the defendant] physically isolated from
two family members who could have provided both moral support and, given
her limited English, a more complete understanding of the overall situation.”
Kim, 292 F.3d at 977.
In this case, the undersigned is not convinced that law enforcement
personnel, either at the Flea Market or the Store, created a “police dominated
atmosphere” that was akin to police custody.
With respect to the events of October 25, 2025, while a number of officers
were present at the Flea Market, only a few were located in the area of
Defendant’s booths. Further, when Defendant spoke to law enforcement, he
voluntarily surrendered merchandise, and the record does not indicate that the
interactions between Defendant and the officers were anything other than
cordial.
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With respect to the events of November 6, 2025, for reasons similar to
those discussed above relative to Defendant’s consent for the officers to search
the Store, the undersigned is persuaded that Defendant was not “in custody”
until he was formally placed under arrest.6 See United States v. Hargrove, 625
F.3d 170, 180-82 (4th Cir. 2010) (explaining that “[a] more relaxed
environment usually indicates less formal police control over the location or
the defendant, and thus suggests a setting that is not of the degree typically
associated with a formal arrest” and concluding that “the totality of the
circumstances supports the finding that a reasonable man in [defendant’s]
position would have understood that he was not ‘in custody’ from Agent
Chance’s statements that [defendant] was not under arrest and was free to
leave, as well as the surrounding circumstances of the interview. This
conclusion is further bolstered by the evidence in the record as to [defendant’s]
own conduct at the time—cooperative, loquacious, and expressing interest in
working undercover to help the Task Force…”); United States v. Parker, 262
F.3d 415, 419 (4th Cir. 2001) (defendant was not in custody where she was told
she was not under arrest, was not handcuffed or otherwise restrained, officers
6 The only statement apparently made by Defendant
after he was arrested was his
response to Agent Peachey’s call regarding access to the safe where the Third Firearm
was located. Since Defendant was not provided with Miranda warnings prior to
making that statement, it would be subject to suppression. However, it is not clear
that the Government intends to use that statement.
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did not draw their weapons, she was in her own home while being questioned,
and one of her relatives was able to enter the interview room on two occasions
during questioning).
IV. Recommendation
The undersigned respectfully RECOMMENDS that the Motion to
Suppress (Doc. 19) be DENIED.
Signed: June 17, 2026
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Time for Objections
The parties are hereby advised that, pursuant to Title 28, United States
Code, Section 636(b)(1)(B), written objections to the findings of fact,
conclusions of law, and recommendation contained herein must be filed within
fourteen (14) days of service of same. Responses to the objections must be filed
within fourteen (14) days of service of the objections. Failure to file objections
to this Memorandum and Recommendation with the presiding District Judge
will preclude the parties from raising such objections on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985).
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