Opinion
18-00036-02-CR-W-BCW
08-07-2023
UNITED STATES OF AMERICA, Plaintiff, v. JOSHUA NESBITT, Defendant.
REPORT AND RECOMMENDATION
LAJUANA M. COUNTS UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Mr. Nesbitt's Motion to Suppress Statements (Doc. #1076), Mr. Nesbitt's Motion to Suppress Buccal Swab (Doc. #1077), and Defendant Joshua Nesbitt's Motion to Suppress Evidence Seized from the Search of his Jail Property/Tennis Shoes (Doc. #1101).
I. INTRODUCTION
On September 6, 2022, the Grand Jury returned a fifteen-count Third Superseding Indictment against Defendants Burkhalter and Nesbitt. (Doc. #1226.) Defendant Nesbitt is charged in all but two counts of the Third Superseding Indictment. The charges are as follows: Count One (Illegal Drug Distribution Conspiracy); Count Two (Cocaine Possession/Distribution), Counts Three and Five (Discharge of Firearm in Furtherance of Crime of Violence or Drug Trafficking Crime); Count Four (Marijuana Possession/Distribution); Counts Six and Seven (Murder Resulting From the Use of Firearm in a Crime of Violence or Drug Trafficking Crime); Count Eight (Witness and Evidence Tampering Conspiracy); Count Nine (Murder of Potential Witness); Count Ten (Witness and Evidence Tampering); Count Thirteen (Robbery Affecting Interstate Commerce); Count Fourteen (Brandishing of Firearm in Furtherance of Crime of Violence); and Count Fifteen (Felon in Possession of a Firearm).
Prior indictments included Co-Defendants Joshua Nesbitt, Joslyn Lee, Nickayla Jones, Autry Hines, Rachel Ryce, Sharika Hooker, and Anthony Peltier. The Government previously filed a Notice of Intent to Seek the Death Penalty against Defendants Burkhalter and Nesbitt, however, on August 30, 2022, the Government filed a Notice of Withdrawal of the Notice of Intent to Seek Death Penalty. (Doc. #1217.) All other defendants, except for Defendant Burkhalter and Defendant Nesbitt, have pled guilty.
An evidentiary hearing was held on November 2, 2022. Defendant Nesbitt was represented by appointed counsel J. Justin Johnston and Jay D. DeHardt. The Government was represented by Assistant United States Attorneys David Raskin and David Wagner. The Government called four witnesses: Captain Christopher Wolfe with the Jackson County Detention Center; Geoffrey Gorup, a paralegal specialist with the United States Attorney's Office for the Western District of Missouri; Officer Leland Blank with the Kansas City, Missouri Police Department; and Detective Scott Gillespie who was with the Raytown, Missouri Police Department at the time of questioning in this matter. The following exhibits were admitted: Government's Exhibit #S-136, a picture of a current inmate telephone at the Jackson County Detention Center; Government's Exhibit #S-137, a recording of a phone call from the Jackson County Detention Center; Government's Exhibit #S-125, the video recording of Defendant Nesbitt's November 30, 2015, interview; Government's Exhibit #S-126, a transcript of Defendant Nesbitt's November 30, 2015, interview; Government's Exhibit #S-127, the Miranda Warning and Waiver form from the November 30, 2015, interview; Government's Exhibit #S-128, signed consent to search form for the buccal swab on November 30, 2015; Government's Exhibit #S-134, certified records from the State of Mississippi of Defendant Nesbitt's criminal record; Government's Exhibit #S-135, the search warrant application and order to obtain Defendant Nesbitt's shoes at the Jackson County Detention Center; Government's Exhibit #S-131, the audio and video recordings of the December 2, 2015 Raytown, Missouri Police Department interview of Defendant Nesbitt; and Government's Exhibit #S-132, the written Miranda warning form from the December 2, 2015 interview.
II. FINDINGS OF FACT
On the basis of the evidence adduced at the evidentiary hearing, the undersigned submits the following proposed findings of fact:
1. Each inmate in the Jackson County Detention Center (Detention Center) has access to at least one telephone which are in the living units. (Tr. at 5.) Instructions for use of the phone are printed on a label on the telephone and includes a warning that all calls are subject to monitoring and recording. (Tr. at 5, 9, 11-12; Exh. #S-136.) To make a call, inmates pick up the receiver, enter a PIN number, and they are then able to make a call. (Tr. at 5.) The inmate telephone system is attached to a computer system which allows the Detention Center to maintain certain information, including who is making the call, the number the inmate is dialing, and how long the call is. (Tr. at 6.) The system also allows for recording, and all calls are automatically recorded, except for attorney or other privileged calls. (Tr. at 6, 7.) When inmates place a call, there is a warning telling both the party being called and the inmate that the call is subject to being recorded or monitored. (Tr. at 7, 8, 9, 12.) This recording is played every time an inmate makes a telephone call. (Tr. at 8.) All recorded calls are saved on a server with the vendor and the Detention Center has access to those recordings. (Tr. at 8.) Recorded phone calls are sometimes obtained by prosecutors and are produced in discovery, however the warnings provided at the time of the call do not mention that calls may be used as evidence in a prosecution. (Tr. at 8, 13, 15.)
2. Audio recordings of Defendant Nesbitt's telephone calls made from the Detention Center were produced during discovery to Defendant Nesbitt and his co-defendants. (Tr. at 16-17.) A total of 2,098 calls were produced. (Tr. at 17.) A paralegal specialist with the United States Attorney's Office for the Western District of Missouri reviewed a sample of the produced calls to determine whether the verbal warning was given during those phone calls and found that all the calls in the sample contained the verbal warning at the beginning of the telephone call. (Tr. at 17, 18; Exh. S-#137.)
3. Detective Leland Blank was the primary detective investigating the October 4, 2015, murder of Anthony Johnson. (Tr. at 22.) That investigation began on October 4, 2015, and Detective Blank interviewed several individuals prior to interviewing Defendant Nesbitt. (Tr. at 44.) Some of the individuals interviewed noted that Defendant Nesbitt was strange, often kept to himself, and would be in the corner of the room. (Tr. at 45.) Detective Blank does not remember any of the individuals describe Defendant Nesbitt as having difficulty performing tasks, having potential cognitive issues, or having mental illness. (Tr. at 45-46.) On November 30, 2015, Detective Blank interviewed Defendant Nesbitt at the Kansas City, Missouri Police Headquarters. (Tr. at 22; Exhs. ## S-125, S-126 at 1.) Detective Ray Lenoir was also present for the interview. (Tr. at 22, 26, 35.) Defendant Nesbitt was already in custody at the time of the interview, having been arrested in Mississippi and extradited to Jackson County where he was charged with the murder of Anthony Johnson. (Tr. at 23.) It was approximately a month between Defendant Nesbitt's arrest in Mississippi to his extradition to Jackson County. (Tr. at 46.) Defendant
Nesbitt remained in custody that entire time. (Tr. at 46.) Defendant Nesbitt was at the Jackson County Detention Center for about a week prior to his November 30, 2015, interview. (Tr. at 46; Exhs. ## S-125, S-126 at 1.) Defendant Nesbitt appeared on a criminal complaint in front of a judge in Jackson County, Missouri prior to the interview and would have had an attorney appointed to him at that time. (Tr. at 56.)
4. At the time of the November 30, 2015, interview, Defendant Nesbitt was detained in the Jackson County Detention Center. (Tr. at 23.) Detective Blank and one other detective transported Defendant Nesbitt back and forth from the Jackson County Detention Center. (Tr. at 26, 47.) Defendant Nesbitt was handcuffed and shackled during transport and was in prison garb. (Tr. at 26, 47.) Any interaction between the detectives and Defendant Nesbitt as he was being transported back and forth between the Detention Center and Police Headquarters was not recorded in any way. (Tr. at 34.) Detectives did not ask Defendant Nesbitt any questions during the transport and did not discuss the case until they got into the interview room. (Tr. at 35.)
5. The November 30, 2015, interview was audio and video recorded. (Tr. at 27; Exh. #S-125.) The interview room was a small room that was set up with a table in the middle and the camera behind Detective Blank capturing Defendant Nesbitt's face, who was at the far end of the room. (Tr. at 35, 36, 47; Exh. #S-125.) Detective Lenoir was seated at the end of the table. (Tr. at 35; Exh. #S-125.) Detective Blank had his badge displayed during the interview. (Tr. at 47.) The detectives had their guns with them during the transport but stored them while at Police Headquarters interviewing Defendant Nesbitt. (Tr. at 48.) A transcript of the recording was completed by a stenographer. (Tr. at 28; Exh. #S-126.) After the stenographer
completed the transcript, the detectives reviewed the transcript and re-listened to the recording to ensure that the transcript was accurate. (Tr. at 28.) Detective Blank did not notify Defendant Nesbitt's attorney that detectives were going to interrogate Defendant Nesbitt and did not provide the attorney an opportunity to be present during the interrogation. (Tr. at 56.)
6. Once Defendant Nesbitt was placed in the interview room, his handcuffs were taken off. (Tr. at 29, 36.) Detectives Blank and Lenoir entered the room and Detective Blank informed Defendant Nesbitt that they were investigating a homicide and that Defendant Nesbitt had to be advised of his Miranda rights. (Tr. at 29, 48-49; Exhs. ## S-125, S-126 at 1.) Defendant Nesbitt did not give any verbal response to the detectives. (Tr. at 49; Exhs. ## S-125, S-126 at 1.) Detective Blank then read aloud the Miranda rights which were printed on a form placed in front of Defendant Nesbitt, and Detective Blank traced the language with a pen as he read. (Tr. at 30, 49, 50; Exhs. ## S-125, S-126 at 1.) Detective Blank read the warnings clearly, with a steady voice, and not overly rushed. (Tr. at 50; Exhs. ## S-125, S-126 at 1-2.) At that point Defendant Nesbitt stated that he had no problem talking. (Tr. at 30, 49, 51; Exhs. ## S-125, S-126 at 1-2.) Detectives then showed Defendant Nesbitt the written form that was read to him and asked that he sign the form acknowledging that he understood the rights. (Tr. at 30; Exhs. ## S-125, S-126 at 2.) Detective Blank filled in parts of the form indicating the date and time the Miranda warnings were given, the date and time the form was signed, the name of the person being questioned, and
that person's education. (Tr. at 30; Exhs. ## S-125, S-127.) Detective Blank accidentally filled in Defendant Nesbitt's name where the signature was supposed to be. (Tr. at 30; Exh. #S-127.) Therefore, Defendant Nesbitt signed immediately above his printed name. (Tr. at 30-31; Exh. #S-127.) Defendant Nesbitt did not indicate that he had any trouble understanding the Miranda warnings. (Tr. at 36; Exhs. ## S-125, S-126 at 1-2.) Detective Blank had no information that Defendant Nesbitt had previously been given Miranda warnings or had previously been interrogated by police. (Tr. at 56.) Detective Blank testified that Defendant Nesbitt seemed to understand the Miranda form. (Tr. at 60.)
7. Neither Detective Blank nor Detective Lenoir offered leniency in exchange for Defendant Nesbitt cooperating with the detectives. (Tr. at 57; Exhs. ## S-125, S-126.) Both detectives indicated that cooperation could help Defendant Nesbitt. (Tr. at 57-58; Exhs. ## S-125, S-126.)
8. During the November 30, 2015, interview, there was a discussion of guns used in the Johnson homicide and a homicide in Raytown, and Defendant Nesbitt admitted that he had touched the guns as well as other guns in Co-Defendant Burkhalter's residence. (Tr. at 32, 37; Exhs. ## S-125, S-126 at 13.) Defendant Nesbitt provided verbal consent to providing a DNA sample to compare with samples taken from the guns. (Tr. at 32, 33, 36; Exhs. ## S-125, S-126 at 14.) Later in the interview Defendant Nesbitt stated “I'm done talking about it, bro. That's just what it is.” (Tr. at 51; Exhs. ## S-125, S-126 at 29.) Detective Blank said “okay” and then Defendant Nesbitt stated “I can go on. I can go on and go to bed.” (Tr. at 52; Exhs. ## S-125, S-126 at 29.) Defendant Nesbitt provided his consent to take the DNA early in the
interview and then towards the end of the interview detectives provided a written consent form to provide his DNA sample, which Defendant Nesbitt signed. (Tr. at 31, 33; Exhs. ## S-125, S-126 at 14, 29, S-128.) Detective Blank filled out everything on the form except for the signature and Defendant Nesbitt's printed name. (Tr. at 33; Exh. #S-128.) Defendant Nesbitt did not give any indication that he did not understand the consent to the buccal swab. (Tr. at 36; Exhs. ## S-125, S-126 at 14, 29.) Detective Blank then obtained the buccal swab kit and swabbed Defendant Nesbitt's cheeks. (Tr. at 31; Exhs. ## S-125, S-126 at 30.) During and after collection of the DNA, Detective Blank continued to question Defendant Nesbitt by asking about a cell phone, his tennis shoes, and computer and gaming equipment. (Tr. at 42, 52-53, 54; Exhs. ## S-125; S-126 at 29-30.)
9. Defendant Nesbitt was laid back during the interview and did not seem to be surprised to be there. (Tr. at 38; Exh. #S-125.) Nor did Defendant Nesbitt ask a lot of questions. (Tr. at 38; Exhs. ## S-125, 126.) Detective Blank felt that Defendant Nesbitt was trying to see what information police had about the case. (Tr. at 39.) It appeared to Detective Blank that Defendant Nesbitt knew what was going on and did not have any cognitive issues. (Tr. at 59.) Defendant Nesbitt responded to questions and although Detective Blank occasionally had trouble understanding Defendant Nesbitt's accent, Detective Blank never felt that a response was strange or non-responsive. (Tr. at 59.)
10. Defendant Nesbitt told detectives that he had been on probation since he was 15 or 16. (Tr. at 40-41; Exhs. ## S-125, S-126 at 21.) Detectives obtained criminal records with a cover letter dated January 24, 2018, from Mississippi indicating that Defendant
Nesbitt was previously found guilty of felony escape in September of 2013. (Tr. at 40; Exh. #S-134.) Detective Blank believes the escape was from probation. (Tr. at 55.)
11. On December 4, 2015, Detective Blank applied for a search warrant to obtain Defendant Nesbitt's shoes from the Detention Center and a search warrant was obtained. (Tr. at 41, 42, 43; Exh. #S-135.) A footprint impression was done at the scene of the Johnson murder and the detectives were trying to find out if any of the defendants' shoes matched the impression. (Tr. at 41; Exh. #S-135.) In executing the warrant, Detective Blank relied on the prosecutor who reviewed and signed the application and the judge who ultimately approved of the search warrant. (Tr. at 43.) In the application, Detective Blank stated that the shoes were at the Detention Center in Defendant Nesbitt's property but did not indicate that Defendant Nesbitt told him about the shoes. (Tr. at 60-61; Exh. #S-135.)
12. Raytown Police Detective Scott Gillespie was monitoring the November 30, 2015, interview from a video system in case the Raytown homicide was brought up. (Tr. at 24, 65.) Detective Gillespie was not visible to Defendant Nesbitt in the interview room and did not interact with Defendant Nesbitt. (Tr. at 65, 71.) Detective Gillespie was investigating the homicide of Danny Dean, which occurred on September 10, 2015, outside a Chinese restaurant in Raytown, and investigators believed there was some overlap between the two homicides. (Tr. at 24, 63.) At the time of both interviews, Detective Gillespie knew that the casings between the two homicides matched, and the detectives believed the same gun was used in both homicides. (Tr. at 73.) Detective Gillespie did not participate in the November 30, 2015, interview.
(Tr. at 25.) Having heard Defendant Nesbitt state that he was done talking, Detective Gillespie decided not to try to talk to Defendant Nesbitt that day. (Tr. at 66, 71, 73.) Defendant Nesbitt was not charged with the homicide of Danny Dean at that time but had been charged with the homicide of Anthony Johnson, and Raytown had a stop order for his arrest. (Tr. at 72.) Detective Gillespie was not aware that Defendant Nesbitt had an attorney appointed to him in relation to the Anthony Johnson homicide. (Tr. at 72.)
13. On December 2, 2015, Detective Gillespie and Detective Wolsey interviewed Defendant Nesbitt at the Detention Center. (Tr. at 66; Exh. #S-131.) Nobody from the Kansas City, Missouri Police Department was involved in the December 2, 2015, interview. (Tr. at 66.) After arriving at the Detention Center, Detective Gillespie and Detective Wolsey locked their guns in a locker and were provided a visitor badge. (Tr. at 67.) Then the two detectives were escorted to an interview room where the detectives then set up their recording equipment while Detention Center staff retrieved Defendant Nesbitt. (Tr. at 67.) The mobile recording device was contained in a small briefcase and detectives recorded both audio and video. (Tr. at 68, 74; Exh. #S-131.) The detectives' entire interaction with Defendant Nesbitt was recorded. (Tr. at 68; Exh. #S-131.) Defendant Nesbit was not shackled, handcuffed, or had on any ankle bracelets during the interview. (Tr. at 74; Exh. #S-131.) The interview room was closed, and Detective Gillespie was between Defendant Nesbitt and the door. (Tr. at 74; Exh. #S-131.) After the detectives were done interviewing, they stepped out of the interview room and let Detention Center staff know that they were done with the interview. (Tr. at 67; Exh. #S-131.)
14. Prior to beginning the interview, Detective Gillespie read Defendant Nesbitt his Miranda rights directly off the form and asked if Defendant Nesbitt understood his rights. (Tr. at 69, 75; Exhs. ## S-131, S-132.) The form, which was on an iPad, was not in front of Defendant Nesbitt as Detective Gillespie orally read the form. (Tr. at 69, 75; Exh. #S-131.) After orally reading the form, Detective Gillespie asked if Defendant Nesbitt understood his rights, at which point Defendant Nesbitt shook his head yes. (Tr. at 69; Exh. #S-131.) Detective Gillespie requested that Defendant Nesbitt read two lines out loud, but Defendant Nesbitt stated that reading out loud makes him nervous. (Tr. at 69, 75-76; Exh. #S-131.) At that point Detective Gillespie asked if he could silently read the form and Defendant Nesbitt stated he could, so Detective Gillespie provided him approximately ten to fifteen seconds to read the form on the iPad silently to himself. (Tr. at 69, 76; Exh. #S-131.) Detective Gillespie did not talk to Defendant Nesbitt while Defendant Nesbitt was reading the Miranda warnings. (Tr. at 76; Exh. #S-131.) Detective Gillespie again asked if he understood the warnings and Defendant Nesbitt stated he understood and signed the form with a stylus. (Tr. at 69, 76, 77, 78; Exhs. ## S-131, S-132.) Defendant Nesbitt asked several times where to sign the form but did not give any indication that he did not understand his rights or have concerns about waiving his rights. (Tr. at 78; Exh. #S-131.) Defendant Nesbitt never told Detective Gillespie that he did not want to talk anymore. (Tr. at 77; Exh. #S-131.)
Detective Blank could not remember whether Defendant Nesbitt was still wearing the leg shackles and it is not clear from the video. (Tr. at 48; Exh. #S-125.)
III. DISCUSSION
A. Motion to Suppress Statements (Doc. #1076)
Defendant Nesbitt requests that this Court suppress statements to the Kansas City, Missouri Police Department, the Raytown, Missouri Police Department, the Jackson County Detention Center, and the Platte County Sheriff's Department. (Doc. #1076 at 8-11; 38.) Defendant Nesbitt also requests suppression of his recorded jail communications. (Doc. #1076 at 11, 38.) Additionally, he requests “suppression of any fruits of these statements, including his sneakers, his DNA, and his phone records.” (Doc. #1076 at 38.) The sneakers and DNA are the subject of separate motions to suppress, which are discussed later in this Report and Recommendation.
The Fifth Amendment guarantees the right of an individual not to be “compelled to give self-incriminating testimony.” United States v. Washington, 431 U.S. 181, 188, 97 S.Ct. 1814, 1819 (1977). The Supreme Court has found that “without proper safeguards the process of incustody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.” Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624 (1966). Therefore, “an individual must be advised of the right to be free from compulsory selfincrimination, and the right to the assistance of an attorney, any time a person is taken into custody for questioning.” United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990). A “‘defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.'” United States v. Pierson, 2023 WL 4442996, at *5 (8th Cir. July 11, 2023) (quoting Miranda, 384 U.S. 444).
The determination of whether there was a valid waiver of rights has “two distinct dimensions”:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141 (1986). Courts look at “the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047 (1973). Among the significant factors that courts look at is “the intelligence, mental state, or any other factors possessed by the defendant that might make him particularly suggestible, and susceptible to having his will overborne.” Wilson v. Lawrence Cnty., 260 F.3d 946, 952 (8th Cir. 2001). The Government bears the burden, by “a preponderance of the evidence,” of showing that the statements were voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 627 (1972).
Defendant Nesbitt has made arguments throughout his brief regarding “heightened reliability” under the Eighth Amendment as it relates to death penalty cases. As previously mentioned, the Government filed a Notice of Withdrawal of the Notice of Intent to Seek Death Penalty (Doc. #1217). Therefore, the Court will not address arguments associated with the Eighth Amendment.
i. Statements to Kansas City, Missouri Police Department and Raytown, Missouri Police Department
In a lengthy, rambling argument, Defendant Nesbitt generally argues that he did not voluntarily, knowingly, and intelligently waive his Miranda rights, and his statements to the Kansas City, Missouri Police Department and Raytown, Missouri Police Department were not voluntarily made. The Government contends that the waivers were voluntarily, knowingly, and intelligently made and that there was no coercive activity on the part of police, a required element in finding statements to be involuntary.
Per Defendant Nesbitt's recitation, a complaint and affidavit against Defendant Nesbitt in support of probable cause for the murder of Anthony Johnson was filed on October 23, 2015. (Doc. #1076 at 8.) Defendant Nesbitt was 21 years old at the time of the arrest. Pursuant to a Missouri warrant, Defendant Nesbitt was arrested in Mississippi on approximately November 5, 2015, and after a waiver of extradition was extradited to Missouri on November 23, 2015. (Doc. #1076 at 8; Doc. #1113 at 1.) Defendant Nesbitt was then processed into the Jackson County Detention Center on approximately November 23, 2015, and he had an initial appearance in the Circuit Court for Jackson County, Missouri on November 25, 2015. (Doc. #1076 at 8; Doc. #1113 at 1.) Defendant Nesbitt was then interviewed by Kansas City, Missouri Police Department on November 30, 2015, and by the Raytown, Missouri Police Department on December 2, 2015.
Defendant alleges, without providing any evidence to support the allegation, that detectives interviewed other witnesses prior to the November 30, 2015, and December 2, 2015, interviews and learned that Defendant Nesbitt “was from the deep South, a high school dropout, suffered intellectual and mental health impairments, and abused alcohol, cocaine, and marijuana.” (Doc. #1076 at 8.) Defendant Nesbitt than spends a great deal of time arguing that because of his background and “adverse experiences” as a Black man from Mississippi, he “experienced psychological coercion during his interrogations.” (Doc. #1076 at 13-25.)
It should be remembered that the “sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion . . . [and it] is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.'” Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 523 (1986); see also United States v. Rohrbach, 813 F.2d 142, 144 (8th Cir. 1987) (acknowledging that “personal characteristics such as those on which [the defendant] relies would be relevant to the voluntariness issue once coercive police activity has been shown, Connelly makes it clear that such personal characteristics of the defendant are constitutionally irrelevant absent proof of ‘coercion brought to bear on the defendant by the State.'”) Defendant Nesbitt has repeatedly tried to undermine the role coercive activity plays in this analysis, in part by citing to cases discussing voluntariness in the Fourth Amendment context. As one court has commented, however, the “Fifth Amendment waiver and Fourth Amendment consent-to-search inquiries . . . are not the same. One difference is that the involuntariness prong of a Miranda waiver requires ‘coercive police activity [as] a necessary predicate,' . . . something generally not required in Fourth Amendment consent cases.” United States v. Montgomery, 621 F.3d 568, 573 (6th Cir. 2010) (internal citations omitted). Therefore, while Defendant Nesbitt's characteristics play a part in the analysis, they alone are not sufficient and there must be proof of coercion by the Government.
The Court has reviewed the November 30, 2015, interview with Defendant Nesbitt and does not find any coercive or threatening behavior on the part of the detectives. As Detective Blank orally read the Miranda warnings to Defendant Nesbitt, the Miranda form was in front of Defendant Nesbitt, and Detective Blank used his pen to trace where they were in the Miranda warnings. The warnings were given in a clear, steady voice, and were not rushed. Detectives remained calm and professional throughout the interview and did not raise their voice or make any threatening gestures. In fact, for the bulk of the interview both detectives had their back to the back of the chair and calmly asked questions of Defendant Nesbitt.
Furthermore, nothing in the interview would have given the detectives pause that Defendant Nesbitt did not understand his Miranda rights. Defendant Nesbitt told detectives he completed the 11th grade and had been in trouble in the juvenile system that led to him being on probation. He never indicated that he could not read the warnings form or could not understand the form, and there was nothing about Defendant Nesbitt's demeanor or personality that would give the detectives any indication that he had trouble understanding the form. Defendant Nesbitt was generally calm throughout the interview and did not exhibit any outbursts or confusion with the questions being put to him. Furthermore, as discussed infra, Defendant Nesbitt requested that the November 30th interview stop, to which the detectives initially honored. Such a request shows a clear understanding of his rights and the ability to effectuate those rights.
The Court has also reviewed the audio and video recordings of the December 2, 2015, Raytown, Missouri Police Department interview and finds that the officers maintained a professional demeanor, did not raise their voice, or make threatening gestures or statements. Detectives orally read Defendant Nesbitt his Miranda rights and asked if Defendant Nesbitt understood his rights to which he indicated that he did. Detective Gillespie then asked that Defendant Nesbitt read the rights himself out loud, but Defendant Nesbitt stated he did not feel comfortable reading aloud, so the detectives gave him ten to fifteen seconds to review the Miranda warnings form on his own. Again, Detective Gillespie asked if the warnings made sense, and Defendant Nesbitt stated that they did. The interview, while a little more intense than the November 30th interview, was professional and not overly heated. At most, detectives applied pressure to Defendant Nesbitt by suggesting that they did not believe Defendant Nesbitt was a bad guy and that they had their sights on Co-Defendant Burkhalter and encouraged Defendant Nesbitt to give them his side of the story.
Defendant Nesbitt argues that due in part to his low education and difficulty reading, the Miranda warnings were not sufficient. Defendant Nesbitt was orally read his Miranda rights, and regarding the December 2nd interview, repeatedly stated he understood those rights, and signed both forms waiving his rights. Therefore, Defendant Nesbitt's suggestion that he could not read the form is irrelevant and there has been no evidence presented that he could not comprehendthose rights. In fact, as discussed earlier, Defendant Nesbitt asserted his right to stop questioning, evidencing a comprehension of his rights. Furthermore, the Court does not find, despite Defendant Nesbitt's allegations, that any of the detectives downplayed the importance of those rights. (Doc. #1076 at 24.)
The subject of Defendant Nesbitt's competency is before the Court and a hearing was held on the subject. (Doc. #1426.) A Report and Recommendation regarding competency was filed on July 6, 2023. (Doc. #1469.)
Each of the interviews were approximately one hour and fifteen minutes, far less than other cases where courts have found no coercion. See Jenner v. Smith, 982 F.2d 329, 334 (8th Cir. 1993) (finding that an interview lasting “six or seven hours is not per se unconstitutionally coercive.”) Detectives in both interviews were respectful, asked “open-ended questions and exhibited no pressure or anger when [defendant] disagreed with their allegations of fact or characterizations of the evidence.” United States v. McClinton, 982 F.2d 278, 283 (8th Cir. 1992) (finding the defendant's will not overborne). Furthermore, “[n]umerous cases have held that questioning tactics such as a raised voice, deception, or a sympathetic attitude on the part of the interrogator will not render a confession involuntary unless the overall impact of the interrogation caused the defendant's will to be overborne.” Jenner, 982 F.2d at 334. Therefore, there is nothing about either of the interviews that leads this Court to believe they were coercive in any way.
The Court notes that regarding the November 30, 2015, interview, actual interrogation was less than an hour as there were times prior to the interview and toward the end that Defendant Nesbitt was left in the interview room by himself.
Furthermore, the fact that the Raytown, Missouri Police Department initiated an interview after Defendant Nesbitt invoked his rights when questioned on November 30, 2015, does not render the Raytown interview unconstitutional. So long as a defendant's rights were “scrupulously honored,” statements made in a subsequent interview are admissible. Hatley v. Lockhart, 990 F.2d 1070, 1073 (8th Cir. 1993).
In determining whether a defendant's right to silence is “scrupulously honored,” this court considers three factors: 1) whether the initial interrogation ceased immediately upon the defendant's request; 2) whether a significant period had passed and fresh Miranda warnings were given before resuming questioning; and 3) whether the later interrogation is restricted to a crime that was not the subject of the first interrogation.United States v. DeMarce, 564 F.3d 989, 994 (8th Cir. 2009). In the instant matter, interrogation on November 30, 2015, initially stopped after the invocation of rights. Just after invoking his right to remain silent, however, Defendant Nesbitt immediately stated, “you can go on and take my DNA and so .....” (Doc. #1076-2 at 29; Exh. #S-126 at 29.) It wasn't until detectives reentered the room to obtain the sample of DNA that detectives asked additional questions about Defendant Nesbitt's property at the Jackson County Detention Center and other matters. (Doc. #1076-2 at 29-31; Exh. #S-126 at 29-31.) These statements are the subject of section (III)(A)(ii), infra. The Court finds that overall questioning had ceased, with limited exception. The Court further finds that two days had passed between the two interviews, the interviews were with different detectives, and in fact different departments, and were completed in different locations. The primary subject of the December 2, 2015, interview was not the same as the November 30, 2015, interview. Raytown, Missouri Police Detectives orally read Defendant Nesbitt his Miranda warnings at the start of the interview and gave him sufficient time to review the warnings for himself. Furthermore, Defendant Nesbitt stated repeatedly stated that he understood his rights. Therefore, Defendant Nesbitt's rights to remain silent were “scrupulously honored” and the December 2, 2015, interview did not violate his rights.
Defendant Nesbitt also argues that his Sixth Amendment right to counsel was violated by both interviews. (Doc. #1076 at 30-31.) As the Government points out, the standard for waiver under the Sixth Amendment is the same as under the Fifth Amendment and Miranda. (Doc. #1113 at 11.) The Supreme Court has held that “[s]ince the right under both sources is waived using the same procedure, doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver.” Montejo v. Louisiana, 556 U.S. 778, 795, 129 S.Ct. 2079, 2090 (2009) (internal citations omitted). Therefore, the discussion supra dispenses of this argument as well.
It is therefore recommended that Defendant Nesbitt's Motion to Suppress the statements from the November 30, 2015, interview with Kansas City, Missouri Police Department and the December 2, 2015, interview with the Raytown, Missouri Police Department be denied.
ii. Statements made on August 29, 2016, and on July 12, 2017, and Invocation of Rights
Defendant Nesbitt also requests that this Court suppress statements made to Jackson County Detention Center investigators on August 29, 2016, and statements made at the Platte County Sheriff's Department on July 12, 2017. No evidence was presented on these two instances. It appears that in both instances, investigators were attempting to investigate incidents occurring at the respective detention facilities. (Doc. #1076 at 10-11; Doc. #1113 at 2.) Investigators with the Jackson County Detention Center did not read Defendant Nesbitt his Miranda warnings before questioning. (Doc. #1076 at 10; Doc. #1113 at 2.) Kansas City, Missouri Police Department investigators then arrived and attempted to interview Defendant Nesbitt. (Doc. #1076 at 10; Doc. #1113 at 2.) Defendant Nesbitt immediately invoked his right to remain silent. (Doc. #1076 at 10; Doc. #1113 at 2.) The investigators with the Platte County Sheriff's Department did read Defendant Nesbitt the Miranda warnings but he immediately invoked his right to remain silent. (Doc. #1076 at 10-11; Doc. #1113 at 2.) Defendant Nesbitt also argues that the statements made on November 30, 2015, after he invoked his rights to remain silent, should be suppressed.
Regarding the August 29, 2016, and July 12, 2017, statements, the Government states that it “will not offer statements from these sessions in its case-in-chief during the guilt or penalty phase of trial.” (Doc. #1113 at 2, n. 1.) The Government also states that it “will not offer any statement Nesbitt made after he said he was ‘done talkin' [during the November 30, 2015, interview] in its case-in-chief.” (Doc. #1113 at 4.) Defendant Nesbitt nevertheless argues that “the Court should order the exclusion of any statements unless Mr. Nesbitt should testify inconsistently.” (Doc. #1149 at 2.) The undersigned finds this to be a reasonable request and notes that there has been no objection to the request. It is therefore recommended that the statements made on August 29, 2016, to the Jackson County Detention Center investigators and the statements made on November 30, 2015, after Defendant Nesbitt invoked his right to remain silent, shall be excluded unless Defendant Nesbitt testifies inconsistently.
With regard to Defendant Nesbitt's invocation of rights, which includes the August 29, 2016, invocation, the July 12, 2017, invocation, and the invocation on November 30, 2015, the Government recognizes its obligation under Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245 (1976), and has stated it will not offer any statement made after Defendant Nesbitt invoked his rights or the fact that he invoked his rights. The undersigned, therefore, does not recommend any further action regarding those invocations.
iii. Recorded Jail Calls
Defendant Nesbitt also argues that dissemination of Defendant Nesbitt's calls from the detention facilities violate “his right to privacy under the Fourth Amendment, his right to remain silent under the Fifth Amendment, and his right to develop mitigation under the Eighth Amendment.” (Doc. #1076 at 33.) As Defendant Nesbitt recognizes, this Court has previously ruled on this issue (Doc. ##535, 557), but requests that this Court reconsider its decision. The Court sees no basis for reconsideration of its earlier ruling and agrees with the Government that a “prisoner who is aware of a prison's policy to record and/or monitor all prisoner phone calls impliedly consents to such monitoring when he chooses to make a phone call.” (Doc. #1113 at 18) (citing United States v. Eggleston, 165 F.3d 624, 626 (8th Cir. 1999) (finding that “[i]f someone agrees that the police may listen to his conversations and may record them, all reasonable expectation of privacy is lost, and there is no legitimate reason to think that the recordings, like any other evidence lawfully discovered, would not be admissible.”); United States v. Lucas, 499 F.3d 769, 780 (8th Cir. 2007) (finding that uncontradicted evidence at the hearing showed that the correctional center provided warnings that all calls, except for those made to attorneys, were recorded and hence the defendant impliedly consented to the recordings.) Here, there was evidence that Detention Center inmates were provided with both written warnings placed on or near the telephones and were warned orally when placing the phone call. Therefore, the undersigned recommends that the motion to suppress the recorded jail calls be denied.
B. Motion to Suppress Buccal Swab (Doc. #1077)
Defendant Nesbitt argues that the buccal swab taken on November 30, 2015, should be suppressed “because he did not voluntarily, knowingly, and intelligently consent to the search and seizure conducted.” (Doc. #1077 at 1.) Specifically, Defendant Nesbitt argues that suppression is required due to his:
race, circumstances of [his] detention, the environment of the interrogation, and [his] intellectual and mental health impairments. . ., his history of substance abuse, the police treatment of [his] Miranda and substantive Fifth and Sixth Amendment rights, and their use of psychologically coercive tactics . . . combined with the detectives' failure to read the consent form and Mr. Nesbitt's confusion when presented with it[.](Doc. #1077 at 4.) The Government contends that the search was voluntarily consented to and therefore reasonable under the Fourth Amendment.
A buccal swab collection of DNA constitutes a search of the person under the Fourth Amendment. Maryland v. King, 569 U.S. 435, 446, 133 S.Ct. 1958, 1969 (2013). “[S]earches conducted without a warrant issued upon probable cause are presumptively unreasonable, subject to a few specifically established exceptions.” United States v. Cedano-Medina, 366 F.3d 682, 684 (8th Cir. 2004). One such exception is where an individual knowingly and voluntarily consents to the search. Id. The totality of the circumstances governs whether consent is voluntary, and the government bears the burden of proof by a preponderance of the evidence. United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990). Therefore, “the government must show that a reasonable person would have believed that the subject of a search gave consent that was ‘the product of an essentially free and unconstrained choice,' and that the subject comprehended the choice that he or she was making.” Cedano-Medina, 366 F.3d at 684 (internal citations omitted).
The Court agrees with the Government that the Eighth Circuit's decision in United States v. Welch, 951 F.3d 901, 906 (8th Cir. 2020), is instructive. In Welch, the Eighth Circuit found that the defendant's “age, intelligence, sobriety, and experience with the criminal justice system, coupled with his Miranda warning, supported a finding of voluntary consent.” Welch, 951 F.3d at 906. The defendant in Welch was a black male, about 30-35 years old, and had prior felony convictions. Id. The court further found that at the time the DNA swab was obtained, the defendant was under arrest, had not been detained long, the interview was free of police intimidation, and defendant complied with the officer's request “without hesitation.” Id.
Here Defendant Nesbitt was in custody, and had been so for approximately a month, and had been provided his Miranda warnings. Defendant Nesbitt completed the 11th grade and had a prior criminal history showing a familiarity with the criminal justice system. Furthermore, this Court has not found any coercive government activity. During questioning, Defendant Nesbitt admitted to holding various guns, including an AR15, but denied shooting any of them. The following exchange then occurred:
BLANK: Would you give us a DNA swab to compare? I mean your . . .
NESBITT: Yeah.
BLANK: . . . DNA's gonna be on that gun, it's on the gun.
NESBITT: I'll give ya one.
BLANK: Okay. Alright we'll do that in a little bit.(Doc. #1076-2 at 13-14; Exh. #S-126 at 13-14.) At the time this exchange took place there were no raised voices and the conversation was easy-going. As noted earlier, it was Defendant Nesbitt who immediately stated “[s]o you can go on and take my DNA and so . . .” after he invoked his right to remain silent. (Doc. #1076-2 at 29; Exh. #S-126 at 29.) Detectives did not initiate the request at that time. After Defendant Nesbitt stated they could take his DNA, the following exchange took place:
BLANK: Okay.
NESBITT: . . I can go on . . .
BLANK: (Inaudible) Let's (inaudible)
NESBITT: I can go on and go to bed.
BLANK: I'll just get a DN . . . for your DNA, I'm gonna get the paperwork on that goin' and get your DNA swab okay?
NESBITT: Alright.(Doc. #1076-2 at 29; Exh. #S-126 at 29.) Detectives then left the room to obtain the DNA kit and when they returned, the following discussion took place:
BLANK: Okay. If you could, this is just givin' your permission to take a DNA swab, okay? You can read through this if you want to, it's kinda like a general form, but all I'm gonna be doin' is takin' your buccal which is DNA, okay?
NESBITT: Where I sign at?
BLANK: Sign right here and then print your name for me okay? And like you said you touched that gun so your DNA's gonna be on it.(Doc. #1076-2 at 29-30; Exh. #S-126 at 29-30.) These exchanges show a voluntary consent to the search. Defendant's will was not overborne in any way. In fact, he invited the collection at the end of the interview. Therefore, the Court recommends that Mr. Nesbitt's Motion to Suppress Buccal Swab (Doc. #1077) be denied.
C. Motion to Suppress Evidence Seized from Search of Jail Property (Doc. #1101)
Finally, Defendant Nesbitt argues that the search warrant used to obtain his tennis shoes from the Jackson County Detention Center was “issued without a sufficient showing of probable cause in the supporting affidavit and was therefore issued in error by the signing judge.” (Doc. #1101 at 3.) Defendant Nesbitt also argues that the Leon good faith exception does not apply because the affidavit “does not establish a reasonable nexus between Mr. Nesbitt's tennis shoes and the criminal offense” and since Detective Blank executed the warrant, he cannot avail himself of the Leon good faith exception. (Doc. #1101 at 3.)
A warrant may only be issued upon a finding of probable cause. U.S. Const. amend. IV.
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity' and ‘basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... conclud[ing]” that probable cause existed.'Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332 (1983). The affidavit “must be evaluated as a whole.” United States v. Anderson, 933 F.2d 612, 614 (8th Cir. 1991).
Under this deferential standard, this Court finds that the issuing judge had a substantial basis for the probable cause determination. The affidavit at issue set forth the details of the Johnson murder and eyewitness testimony that provided descriptions of individuals that were seen running from the area at the time. (Doc. #1116-1 at 3; Exh. #S-135 at 3.) The affidavit then discusses details of the investigation that led up to four named accomplices to the robbery and/or murder of Johnson providing details about Defendant Nesbitt's involvement with the robbery and murder of Johnson. (Doc. #1116-1 at 3-4; Exh. #S-135 at 3-4.) The fact that the affidavit relies on statements by accomplices does not render the information unreliable. United States v. Palega, 556 F.3d 709, 714 (8th Cir. 2009) (noting that such information merely goes to the credibility of the informants and finding that because “these informants admitted to participating in drug crimes themselves, their credibility stems from this participation and the first-hand accounts of their interactions with or knowledge of the Defendant.”) The affidavit then details Defendant Nesbitt being charged with the Johnson murder and his arrest, extradition to Missouri, and interview completed on November 30, 2015. The affidavit then notes that a shoe impression was taken at the crime scene and the Detention Center employees informed detectives that a pair of tennis shoes was in Defendant Nesbitt's inmate property. (Doc. #1116-1 at 4; Exh. #S-135 at 4.) Under these circumstances there was probable cause.
It should be noted that no information relating to statements made after Defendant Nesbitt invoked his right to remain silent on November 30, 2015, and which are the discussion of section (III)(A)(ii) of this Report and Recommendation were included in the affidavit.
Even if the undersigned were to find that the affidavit was lacking in probable cause, the Leon good faith exception would apply. Under “the Leon good-faith exception, disputed evidence will be admitted if it was objectively reasonable for the officer executing a search warrant to have relied in good faith on the judge's determination that there was probable cause to issue the warrant.” United States v. Moya, 690 F.3d 944, 948 (8th Cir. 2012). “In assessing whether the officer relied in good faith on the validity of a warrant, we consider the totality of the circumstances . . . and we confine our inquiry ‘to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the [issuing judge's] authorization[.]'” United States v. Grant, 490 F.3d 627, 632 (8th Cir. 2007). Other than to broadly state that the affidavit in this matter was “lacking of indicia of probable cause,” Defendant Nesbitt has not pointed to anything in particular which renders reliance on this affidavit and warrant to be unreasonable. See United States v. Proell, 485 F.3d 427, 431 (8th Cir. 2007)(setting forth the four situations identified by the Supreme Court which would cause an “officer's reliance on a warrant [to] be unreasonable[.]”) The Court has already determined that there was a substantial basis for probable cause, and the court notes here that the information contained in the affidavit came from numerous sources to the extent that it is not entirely unreasonable to rely of the affidavit. Furthermore, a prosecutor with Jackson County Prosecutor's Office signed off on the application for the search warrant. See United States v. Perry, 531 F.3d 662, 666, n. 6 (8th Cir. 2008) (finding that “[a]nother factor that adds to the reasonableness of Deputy Wallace's belief that the affidavit was not so lacking in probable cause was the county prosecutor's determination that the affidavit provided probable cause for the search.”) Therefore, the Leon good faith exception would apply in this situation. Defendant Nesbitt's suggestion that Leon is inapplicable where the same officer who applied for the warrant was the executing officer, is without merit. See United States v. Mayweather, 993 F.3d 1035, 1043 (8th Cir. 2021) (finding that “we do not vary our analysis when the officer who applies for a search warrant also executes the warrant.”)
The undersigned, therefore, recommends that Defendant Joshua Nesbitt's Motion to Suppress Evidence Seized from the Search of His Jail Property/Tennis Shoes (Doc. #1101) be denied.
IV. CONCLUSION
Based on the foregoing, it is
RECOMMENDED that the Court, after making an independent review of the record and applicable law, enter an order denying Mr. Nesbitt's Motion to Suppress Statements (Doc. #1076) with the limited exception that the statements made on August 29, 2016, to the Jackson County Detention Center investigators and the statements made on November 30, 2015, after Defendant Nesbitt invoked his right to remain silent shall be excluded unless Defendant Nesbitt testifies inconsistently. It is further
RECOMMENDED that the Court, after making an independent review of the record and applicable law, enter an order denying Mr. Nesbitt's Motion to Suppress Buccal Swab (Doc. #1077). It is further
RECOMMENDED that the Court, after making an independent review of the record and applicable law, enter an order denying Defendant Joshua Nesbitt's Motion to Suppress Evidence Seized from the Search of His Jail Property/Tennis Shoes (Doc. #1101). It is further
Counsel are reminded they have fourteen days in which to file any objections to this Report and Recommendation, however, given the approaching trial date, the Court would appreciate any objections and/or responses to the Report and Recommendation be filed within seven days. A failure to file and serve objections by this date shall bar an attack on appeal of the factual findings in this Report and Recommendation which are accepted or adopted by the district judge, except on the grounds of plain error or manifest justice.