Opinion
Criminal No. 18313
01-19-2007
COMMONWEALTH OF VIRGINIA, v. AHMED I. MOHAMOUD, Defendant.
MEMORANDUM OPINION AND ORDER
On August 17, 2006, officers of the Loudoun County Sheriff's Department executed a search warrant at the home of the Defendant. Following an initial entry by the SRT team, narcotics investigators entered the residence and initiated both a search of the premises and questioning of the residents. At home on the evening of the search were the Defendant, his two brothers, and his mother. As a result of the search, a quantity of marijuana was found secreted in an opening in the basement ceiling.
After having been read the Miranda warnings by a member of the search team, the four residents were collectively addressed by the principal investigator in the dining room of the home. All four were present in the room when the investigator displayed both the marijuana and the bag in which it was found. In addition, the investigator informed the residents that everyone in the home could be arrested and go to jail for possession with intent to distribute. While the youngest child present asserted his right to remain silent, a request that was scrupulously honored by the investigators, the Defendant responded, "it's mine." This statement that serves as the lynchpin for Defendant's argument in support of his motion to suppress.
Miranda v. Arizona, 384 U.S. 436 (1966).
In determining whether the statements given by the Defendant meet constitutional muster, the Court must look to the totality of the circumstances surrounding the confession, including any statements of intent made by the police. Admissibility is determined upon a preponderance of the evidence standard based upon an objective review of the testimony given. While the Defendant may have been lulled by the officer's exaggerated opinion into the mistaken belief that she could in fact have all of the household members arrested and placed into custody, the statement must be considered in context.
Questioning took place in the familiar surroundings of the Defendant's home. He was aware he need not answer any questions asked and, through his brother's example, that the police were ready to honor such a request. There is no showing that the officer acted in bad faith by making the alleged coercive statement and, given the quantity of the drugs involved, there is more than a scintilla of evidence that would support the arrest of all of the members of the household present at the time the drugs were found. Nothing in the evidence would suggest that it was more likely than not that any one of the occupants was more culpable than another.
The Defendant exhibited no signs of illness or intoxication. His statements were made at a time when he was able to understand and appreciate the questions that might be asked and the implications of the responses given. Individual questioning of the Defendant and of the others was conducted in the kitchen, but a short distance from and in sight of the dining room. No threats or promises made to the Defendant.
In accordance with the due process clause of the Fourteenth Amendment of the Constitution of the United States, in determining the admissibility of a confession, the Court must determine whether the behavior of law enforcement was coercive and overpowered the defendant's will to resist, resulting in an involuntary confession. Rogers v. Richmond, 365 U.S. 534, 544 (1961). The Court must determine the voluntary or involuntary nature of the confession with complete disregard to any considerations regarding the probably truth of the statements. Id.
Under Virginia law, the decision to admit confession evidence is the providence of the Court. Tipton v. Commonwealth, 224 Va. 256 (1982) (citing McCoy v. Commonwealth, 206 Va. 470, 475-77 (1965) and Upshur v. Commonwealth, 170 Va. 649, 655 (1938)). However, once a confession is admitted into evidence, the jury determines its weight. Tipton, 224 Va. 256 at 261.
In Tipton, the Court held that evidence of threats against a defendant's girlfriend, made by police during interrogation, should be admitted in evidence during a pretrial hearing to determine admissibility of the defendant's subsequent confession. Id. The Court went on to hold that where the issue of admissibility of evidence turns on the voluntary or involuntary nature of statements made by the defendant, the Court should hear all pertinent evidence on the subject. Tipton, 224 Va. 256 at 262 (citing Noe v. Commonwealth, 207 Va. 849, 853 (1965)).
In Rogers, the United States Supreme Court found error in a trial judge's instructions focusing the jury's attention on a determination of the probable truth of a defendant's confession, rather than on evaluating the means by which law enforcement induced the defendant's statements to determine if the statement was given voluntarily. Id. at 542. The Court reasoned the constitutional principle of excluding involuntary confessions does not rest on a consideration of the truth of the statement, as even statements corroborated by other independent evidence are inadmissible if obtained through impermissible means. Id. at 541.
In Virginia, a confession may be involuntary and inadmissible if induced by threats to prosecute members of the defendant's family made when the investigation is no longer a general inquiry regarding an unsolved crime. Tipton, 224 Va. 256 at 262 (citing Hammer v. Commonwealth, 207 Va. 135, 147-48 (1966)); Hammer, 207 Va. 135 at 144 (citing Escobedo v. Illinois, 378 U.S. 478 (1964)). In an unpublished opinion, the Court of Appeals of Virginia held that statements made by law enforcement in good faith and for cause at the time are not coercive statements, which could lead to an involuntary confession. See Latta v. Commonwealth, 2002 Va. App. LEXIS 567 (2002).
In Hammer, law enforcement officers threatened to prosecute the defendant's wife, mother, father, and brother, for a crime unrelated to the crime being investigated, if the defendant did not sign a prepared confession. Hammer, 207 Va. 135 at 262. In Escobedo, the defendant and his sister were taken into custody and brought to the police station before coercive interrogation tactics involving an offer to release the defendant's sister were employed to induce incriminating statements. Escobedo, 378 U.S. 478 at 479. In Latta, law enforcement officers discovered narcotics on property owned by defendant and his wife, who were both present when the property was searched. Id. The police then told the defendant that both he and his wife could face charges resulting from the presence of narcotics on their property. Id. The court held that the statement was made in good faith and was not evidence of coercion. Id.
In the present case, police officers executing a search warrant gathered four individuals, including the Defendant and three members of his family, present on the property where narcotics were discovered. The four individuals were questioned together as to ownership of the illegal drugs and during the course of the police investigation, a statement was made indicating that all four could face charges resulting from the presence of narcotics on the property. The police statement was made in good faith based on the joint presence of the occupants on the property and specifically, the mother's ownership of the residence. Unlike in Hammer and Escobedo, the defendant was not in custody at the police station when the dispositive statement was made and the investigation of an unsolved crime was ongoing.
The Defendant made an incriminating statement, admitting ownership of narcotics, during an ongoing investigation of a crime. The statement was offered subsequent to a statement by law enforcement that all four family members present during the search of property could face arrest. While this assertion may be perceived as threatening to family members of the Defendant, because the statement was made in good faith during an ongoing investigation, it was not a coercive statement capable of inducing an involuntary admission of guilt. The Defendant's statement claiming ownership of the narcotics was a voluntary confession.
Accordingly, the motion to suppress the statements made by the Defendant will be denied.
The Clerk shall provide copies of this memorandum opinion and order to counsel without charge.
And this case is continued.
ENTERED this 19th day of January, 2007.
Thomas D. Horne, Judge