UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 

 Plaintiff, Case No. 14-20417 

v. Honorable Victoria A. Roberts 

 Magistrate Judge David R. Grand 

D-8 JOSEPH MELCHER, 

 

 Defendant. 

__________________________________/ 

REPORT AND RECOMMENDATION TO DENY 

DEFENDANT MELCHER’S MOTION TO SUPPRESS [141] 

I. PROCEDURAL HISTORY 

Nine defendants, including Joseph Melcher (“Melcher”), were indicted by a grand jury on 

July 16, 2014, and charged with Conspiracy to Commit an Illegal Gambling Business, contrary 

to 18 U.S.C. §371, and Conducting an Illegal Gambling Business, contrary to 18 U.S.C. §1955. 

(Doc. #1). On February 26, 2015, Melcher filed a motion to suppress statements and admissions 

he made during contact with FBI agents on May 14, 2014. (Doc. #141). The government filed a 

response to Melcher’s motion on March 12, 2015. (Doc. #145). The Court held an evidentiary 

hearing on May 6, 2015. 

II. RELEVANT FACTS

On May 14, 2014, FBI Special Agents Marc Silski and Louis Fischetti made an 

unannounced visit to Melcher’s home. At the evidentiary hearing, Fischetti testified that the 

purpose of this visit was to ascertain whether he and Silski could “flip” Melcher (i.e., convince 

him to become a witness against Thomas Mackey, the primary target of their investigation). 

When the agents arrived at Melcher’s house, they saw a man walking away from that house. 

Fischetti asked the man if he was “Joe,” but the man answered in the negative, saying that he 

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“just cut the grass.” The man proceeded to get into a car and drive away. 

Because the front door of Melcher’s house was open, the agents knocked on the screen 

door and called out for Melcher. When there was no answer, they walked around to the 

backyard, figuring that he might be there if the landscaper just left. Finding no one, they 

knocked on the front door again, at which point the next-door neighbor called out to the agents, 

and they responded that they were looking for Melcher. When advised that he was not home, the 

agents returned to their vehicle and reviewed Melcher’s photograph, determining that the 

“landscaper” might indeed have been Melcher. 

Shortly thereafter, the “landscaper” returned to the scene and pulled up next to the agents 

in his car, saying that he was Joseph Melcher, and his neighbor had advised him that two men 

were looking for him. Melcher testified at the hearing that he initially thought the agents were 

debt collectors, which is why he did not want to speak with them. When Silski and Fischetti 

produced their credentials and introduced themselves as FBI agents, Melcher invited them inside 

his house to talk. Melcher testified that although he was nervous, embarrassed and intimidated, 

he voluntarily invited the agents inside, saying he did so in large part because he did not want his 

neighbors to see him talking to FBI agents. When asked at the hearing whether he believed he 

had to talk with the agents, Melcher said yes, simply because they were “federal agents.” 

Fischetti corroborated Melcher’s testimony that the agents were voluntarily invited inside the 

house, saying that no promises or threats were made to gain admission. 

Once inside, the two agents and Melcher sat down in Melcher’s “front room.” Melcher 

took the seat closest to the front door, which was open and not blocked or obstructed at all. 

Melcher testified that he was nervous1

 and needed a drink of water; he also politely offered water 

 

1

 Fischetti testified that Melcher did not seem nervous when he learned that they were federal 

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to the agents. During the interview, which Melcher estimates lasted no more than 20-30 minutes, 

the agents inquired about Melcher’s relationship with co-defendant Thomas Mackey. According 

to Fischetti, the conversation was very “lighthearted” and Melcher was “easy-going”; indeed, 

they discussed their shared interest in playing the guitar and various individuals they both knew 

through their time in the community. 

It is undisputed that, during the course of this questioning, Melcher made a number of 

admissions to the agents regarding his role in an illegal gambling business.2

 Fischetti testified 

that, before the agents questioned Melcher, they did not read him his Miranda rights, and they 

did not explicitly advise him that he was “free to leave” and/or did not have to answer their 

questions. However, they also testified that they did not tell Melcher he had to speak with them, 

and Melcher was never restrained, placed under arrest, or otherwise prevented from leaving his 

home. Melcher admits that the agents never displayed or drew their weapons during this brief 

encounter. Indeed, Melcher – a criminal justice major – testified that the agents were “laid back” 

during the time they spent with him, and he “didn’t think anything of it,” and “didn’t think it was 

an interrogation.” After completing their interview of Melcher, the agents left his home without 

arresting him. 

Melcher indicated in his motion to suppress that, at the time of the interview in question, 

he had no prior criminal history and no experience with the police or federal agents. (Doc. #141 

at 15). At the evidentiary hearing, however, Melcher admitted that he previously had been 

arrested twice for alcohol-related driving offenses. On each occasion, Melcher voluntarily 

 

agents. Indeed, Fischetti testified that Melcher’s demeanor did not change at all. 

2

 For example, Melcher admitted that he had found bettors for co-defendant Mackey, and that he 

would receive 15% of his bettors’ losses. He also admitted that he would access his bettors’ 

online accounts to monitor their betting. Most of Melcher’s bettors typically bet between $100 

and $200 per bet, and Melcher explained that once an account reached $500, he would deliver 

the money to Mackey. 

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answered police questions before being provided with a Miranda warning. On one of these 

occasions, however, Melcher refused officers’ requests to perform a breathalyzer test. 

Melcher now argues that the statements he made to Special Agents Silski and Fischetti 

should be suppressed because he was not advised of his Miranda rights when he was 

“objectively not free to leave and was therefore in custody.” (Doc. #141 at 10). 

III. ANALYSIS AND CONCLUSION

The Fifth Amendment provides that “[n]o person shall be ... compelled in any criminal 

case to be a witness against himself.” U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 

436, 458 (1966), the United States Supreme Court held that because custodial interrogations are 

inherently coercive, certain pre-interrogation warnings are required whenever such custodial 

interrogations occur. An interview rises to the level of a custodial interrogation when there is a 

“formal arrest or restraint on freedom of movement,” or when an individual is deprived of 

“freedom of action in any significant way.” Stansbury v. California, 511 U.S. 318, 322 (1994) 

(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)); Miranda, 384 U.S. at 444. Here, 

the issue before the Court is whether Melcher was in “custody” at the time of his statements to 

the agents, such that he should have been provided with a Miranda warning. 

In Stansbury, the Supreme Court explained that “the initial determination of custody 

depends on the objective circumstances of the interrogation, not on the subjective views harbored 

by either the interrogating officers or the person being questioned.” Id. at 323. To determine 

whether a defendant was in custody such that Miranda warnings were required, the court must 

examine the circumstances surrounding the interview and measure the situation by how a 

reasonable person being questioned would have “gauge[d] the breadth of his or her freedom of 

action.” Id. at 325 (internal quotations omitted). In United States v. Salvo, 133 F.3d 943 (6th 

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Cir. 1998), the Sixth Circuit provided additional guidance on the custody determination, setting 

forth four factors to be considered in determining whether a defendant was in custody for 

Miranda purposes: 

(1) the purpose of the questioning; (2) whether the place of the questioning 

was hostile or coercive; (3) the length of the questioning; and (4) other 

indicia of custody such as whether the suspect was informed at the time 

that the questioning was voluntary or that the suspect was free to leave or 

to request the officers to do so; whether the suspect possessed unrestrained 

freedom of movement during questioning; and whether the suspect 

initiated contact with the police or voluntarily admitted the officers to the 

residence and acquiesced to their requests to answer some questions. 

Id. at 950. 

As Melcher recognized in his initial brief, “... several Courts of Appeals have found that 

when police question a suspect in a residence, these circumstances often do not rise to the kind of 

custodial situation that necessitates Miranda warnings, whether they are free to leave or not.” 

(Doc. #141 at 14-15 (citing United States v. Howard, 991 F.2d 195, 200 (5th Cir. 1993) (no 

custody when questioning occurred at defendant’s home and he was told he was not under arrest, 

although told to “stay put”); United States v. Gregory, 891 F.2d 732, 735 (9th Cir. 1989) (no 

custody when suspect consented to brief interview in home with wife present and agents returned 

guns to their holsters); Krantz v. Briggs, 983 F.2d 961, 962 (9th Cir. 1993), overruled on other 

grounds (Miranda warnings not required when officers went to suspect’s girlfriend’s home and 

suspect voluntarily invited them inside and agreed to talk); Devier v. Zant, 3 F.3d 1445, 1458 

(11th Cir. 1993) (Miranda warnings not required when defendant questioned at home without 

Miranda warnings and then volunteered to continue questioning at station)). Indeed, the Sixth 

Circuit has recognized that interviews that occur within an individual’s home rarely rise to the 

level of custodial interrogations; this is because a person generally feels most comfortable in his 

own home and usually commands a sense of control over what goes on within it. See United 

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States v. Panak, 552 F.3d 462, 465-66 (6th Cir. 2008). 

Applying these principles to the instant case, the Court is persuaded that Special Agents 

Silski and Fischetti acted properly in speaking to Melcher without first administering Miranda

warnings, as Melcher was not in custody during this encounter. Crucially, the agents met with 

Melcher at his home, which courts have consistently held rarely – if ever – rises to the level of a 

coercive environment. See, e.g., United States v. Reynolds, 2013 WL 2417940, at *5 (E.D. 

Mich. June 3, 2013) (“Generally, questioning occurring in a defendant’s home does not present a 

police coercive environment and therefore does not rise to the kind of custodial situation that 

necessitates Miranda warnings.”); United States v. Gillman, 432 F. App’x 513, 516 (6th Cir. 

2011) (“An in-home encounter between police and a citizen is generally non-custodial.”) 

Moreover, the agents’ discussion with Melcher was “admittedly brief” (Doc. #141 at 16), lasting 

no more than twenty or thirty minutes. And, Fischetti testified that the primary purpose of their 

questioning was to delve into Melcher’s relationship with Mackey, not to ascertain Melcher’s 

own personal criminal conduct. 

The “other indicia of custody” also weigh in favor of a finding that Melcher was not in 

custody. Although he initially evaded the agents by identifying himself as the “landscaper,” 

Melcher later voluntarily returned to his home to speak with them. He then invited them inside 

his home to talk (and even offered them a glass of water). Melcher admitted that the agents were 

“laid back” and that he did not consider their questioning to be “an interrogation.” At no point 

was Melcher told he could not leave; indeed, he was in the seat closest to the door (which was 

open) during the discussion, and his freedom of movement was not restricted in any way. 

Although Melcher believed the agents were armed, he admits that they never displayed or drew 

their weapons and that he was not handcuffed or otherwise restrained in any way. At the end of 

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the discussion, the agents left without arresting Melcher. Moreover, Melcher, a criminal justice 

major, had a history of voluntarily answering police questions in far more coercive situations 

(and, on the flip side, had refused police requests when he believed it appropriate). Given these 

facts, the Court concludes that Melcher was not in custody, and, therefore, the agents were not 

required to advise him of his Miranda rights. See Reynolds, 2013 WL 2417940, at *5; Gillman, 

432 F. App’x at 516. 

In arguing to the contrary, Melcher asserts that he felt “intimidated,” that he felt he was 

not free to leave, and that he believed he had to answer the agents’ questions because “they were 

federal agents.” As the government points out in its response to Melcher’s motion, however, 

these subjective impressions and feelings cannot form the basis for suppression. The Supreme 

Court has emphasized that the determination of custody under Miranda “depends on the 

objective circumstances of the interrogation, not on the subjective views harbored by either the 

interrogating officers or the person being questioned.” Stansbury, 511 U.S. at 323 (emphasis 

added); see also Biros v. Bagley, 422 F.3d 379, 389 (6th Cir. 2005). Moreover, because the 

interview occurred in Melcher’s home, the fact that neither agent explicitly told him he was free 

to leave is not determinative; as courts have recognized, in such circumstances, the appropriate 

inquiry is not whether the suspect feels he can leave but, rather, whether the police will terminate 

questioning if asked to leave. See United States v. Czichray, 378 F.3d 822, 826 (8th Cir. 2004); 

Salvo, 133 F.3d at 950. Here, there was nothing the agents did or said that indicated they would 

not stop questioning Melcher if he asked them to leave. 

In sum, having assessed the totality of the circumstances, the Court concludes that 

Special Agent Silski and Fischetti’s questioning of Melcher on May 14, 2014, did not constitute 

a custodial interrogation. Thus, Melcher’s statements to them should not be suppressed. 

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IV. RECOMMENDATION 

For the reasons set forth above, IT IS RECOMMENDED that Melcher’s Motion to 

Suppress (Doc. #141) be DENIED.

Dated: May 27, 2015 s/ David R. Grand 

 DAVID R. GRAND 

 UNITED STATES MAGISTRATE JUDGE 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation and 

Order, any party may serve and file specific written objections to the proposed findings and 

recommendations and the order set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 

72(b)(2); E.D. Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any 

further right of appeal. See Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 

F.3d 976, 984 (6th Cir. 2005). Only specific objections to this Report and Recommendation will 

be preserved for the Court’s appellate review; raising some objections but not others will not 

preserve all objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 

F.2d 1370, 1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th 

Cir. 2006). Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. 

LR 72.1(d)(2). 

A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be 

concise, and should address specifically, and in the same order raised, each issue presented in the 

objections. 

 

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CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on May 27, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager

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