Unpublished Disposition, 872 F.2d 431 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 431 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Stephen Samuel SOLOMON, Defendant-Appellant.

No. 88-1097.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 13, 1989.Decided April 5, 1989.

Before JAMES R. BROWNING, BEEZER and KOZINSKI, Circuit Judges.


MEMORANDUM* 

Stephen Samuel Solomon appeals his conviction for possession of cocaine with intent to distribute and conspiracy to distribute cocaine under 21 U.S.C. § 841 (1982 & Supp. IV 1986) and 21 U.S.C. § 846 (1982). Solomon contends that the district court erred in refusing to suppress a statement he made to DEA agents prior to his arrest. He also contends that the district court erred in holding that it lacked discretion under 21 U.S.C. § 841(b) to impose only a fine. We review the district court's determination of the custody issue for clear error, see United States v. Poole, 794 F.2d 462 (9th Cir.), as amended, 806 F.2d 853 (9th Cir. 1986), and its interpretation of section 841 de novo.

A. Solomon first contends that his statement to the DEA agents that his co-conspirator Owens had been at his house earlier that day should have been suppressed, since the statement was made under the constraint of a custodial interrogation. In deciding whether a person is subject to custodial interrogation, we review the totality of circumstances. See United States v. Combs, 762 F.2d 1343, 1348-49 (9th Cir. 1985); United States v. Booth, 669 F.2d 1231, 1235-36 (9th Cir. 1981). "Pertinent areas of inquiry include the language used by the officer to summon the individual, the extent to which he or she is confronted with evidence of guilt, the physical surroundings of the interrogation, the duration of the detention and the degree of pressure applied to detain the individual." Booth, 669 F.2d at 1235.

The district court determined that, although Solomon was not free to leave the premises, he was not in custody and therefore need not have been given Miranda warnings prior to any questioning. The district court found that Solomon's detention

was in the nature of the Terry [v. Ohio, 392 U.S. 1 (1968) ] stop. It was an investigative ... question simply to identify the person present, and the circumstances under which he was present; the persons that he had dealt with in the very recent past. And that there was nothing intrusive about it. That ... the stop and the questions were ... not the kind of investigation that would follow an arrest.

Transcript of Proceeding at 44, United States v. Solomon, No. CR-87-480-RHS (N.D. Cal. January 6, 1988) (hereinafter "Transcript"). We agree with the district court. The DEA agents' questioning of Solomon at the threshold of his residence was consistent with their authority under Terry v. Ohio to make limited inquiries of a potential suspect for a brief period of time. See United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.), cert. denied, 476 U.S. 1185 (1986). Their actions were based on a well-founded suspicion that Solomon may have violated federal narcotics laws. They knew that Solomon lived at the residence, and that Owens' Volkswagen had been seen parked in front of the residence shortly before its driver delivered a large quantity of cocaine to a DEA agent. The DEA agents were not, however, certain of Solomon's identity or whether Owens had in fact visited the residence earlier in the day. They thus had no probable cause to arrest Solomon.

Nor were many of the indicia of "custodial interrogation" present: Solomon was not physically restrained, handcuffed, or threatened with firearms; nor was he advised that he was under arrest or confronted with any evidence of his guilt. As the district court correctly noted, "temporary custody for investigative purposes is not enough to constitute it as a ... legal arrest for Miranda purposes." Transcript at 41. We have consistently held that brief custody of suspects, including custody involving the use of physical restraint, is consistent with the valid exercise of police authority pursuant to an investigative stop. See, e.g., United States v. Buffington, 815 F.2d 1292, 1300-01 (9th Cir. 1987); United States v. Jacobs, 715 F.2d 1343, 1345-46 (9th Cir. 1983); United States v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir. 1982), cert. denied, 459 U.S. 1211 (1983).

B. Solomon next contends that section 841(b) (1) (A) gives the district court discretion to impose only a fine if it chooses to do so. This argument is foreclosed by United States v. Hoyt, No. 87-1224, slip op. at 2517 (9th Cir. Mar. 17, 1989), where we held that section 841(b) (1) (A) "requires a mandatory minimum ten year sentence for those convicted of selling 5,000 grams or more of cocaine." Id. at 2530. The district court therefore did not err in sentencing Solomon to the mandatory ten year term of imprisonment.

The judgment of the district court is AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3