Opinion
Criminal No. 04-49 ADM/RLE.
June 15, 2004
Robert M. Lewis, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of the Plaintiff.
Scott F. Tilsen, Esq., Assistant Federal Public Defender, Minneapolis, MN, on behalf of the Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge for rulings on the Objections of Defendant Janet Francis Lamb ("Defendant") [Docket No. 27] to the May 14, 2004 Report and Recommendation ("RR") of Magistrate Judge Raymond L. Erickson [Docket No. 26]. The RR recommends that Lamb's Motion to Suppress Statements, Admissions and Answers [Docket No. 11] be denied. The factual background in this matter is set forth in the RR and is incorporated by reference for purposes of the present Objections. For the reasons that follow, the Objections are denied and the RR is adopted.
II. DISCUSSION
The district court undertakes an independent, de novo, review of the portions of a RR to which objection is made and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. LR 72.1(c)(2).
Defendant objects to three portions of the RR. She first challenges Magistrate Judge Erickson's conclusion that her statements were voluntary. She asserts that the finding of voluntariness is based upon a misinterpretation of Defendant's demeanor and the coercive effect of the statements and actions of St. Clair, the casino security investigator who questioned Defendant. Second, Defendant objects to the RR's finding that St. Clair was not a state actor under the circumstances of the interviews. Last, Defendant contends that Judge Erickson erred in finding Defendant was not in custody when she spoke with Deputy Krier, and therefore that no Miranda warning was required. Because the requirements imposed by the Due Process Clause of the Fifth Amendment, and Defendant's voluntariness argument based thereon, depend upon St. Clair's status as either a private or government actor, the Court will address the second Objection first.
A. State Action
"[T]he constraints of the Fourth and Fifth Amendments do not apply to purely private activity." United States v. Garlock, 19 F.3d 441, 442 (8th Cir. 1994). Accordingly, even "[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause." Colorado v. Connelly, 479 U.S. 157, 166 (1986). Only where the government controlled or encouraged the conduct at issue, such that the private individual "acted as an instrument or agent of the government," will the Constitution protect the defendant. Garlock, 19 F.3d 441, 442 (internal quotation omitted).
Defendant's Objection is based on her assertion that a tribe-owned casino is a governmental entity and therefore that St. Clair is a government employee pursuing law enforcement functions. The cases relied on by Defendant regarding the meaning of "tribal organization" under 18 U.S.C. § 1163 are inapposite to the issue of government action with respect to the Fifth Amendment and involuntary confessions. She cites no authority for the proposition that an Indian tribe is a government agency or entity for purposes of determining state action in the context of due process requirements.
This statute, entitled "Embezzlement and theft from Indian tribal organizations," prohibits theft of any property "belonging to any Indian tribal organization," as defined in this section. The cases referenced in the Objections involved the question of "whether a corporate entity constitutes a tribal organization," in order to determine whether defendants' alleged misconduct could be charged under 18 U.S.C. § 1163. See United States v. Zephier, 916 F.2d 1368, 1369-71 (8th Cir. 1990) (finding embezzlement from a learning center for Native American children proscribed by § 1163); see also United States v. White Horse, 807 F.2d 1426 (8th Cir. 1986) (considering whether tribal telephone authority was a tribal organization).
Like the officer and auditor investigating the bank's missing funds in Garlock, St. Clair was acting as a private employee pursuing the casino's "valid interest in internal security" and loss prevention when Defendant made her statements. Id. at 444. Because the police had no prior involvement with or arrangement regarding the casino's investigation of Defendant, the Court finds St. Clair was not acting at the control or direction of the government at the time of Defendant's inculpatory statements, and the state action and involuntariness Objections are therefore denied.
B. Custody
Defendant argues the facts of the interview with Deputy Krier amounted to a custodial interrogation and therefore Deputy Krier was required to administer a Miranda warning, but failed to do so.
When assessing whether a defendant is in custody for purposes of the Fifth Amendment, the court evaluates the totality of the circumstances, including whether the suspect is informed she is free to leave and not under arrest, whether she is permitted unrestrained freedom of movement, and whether she voluntarily submitted to questioning.United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990). Additionally relevant are the use of any "strong arm tactics or deceptive stratagems," police domination of the questioning, and whether the subject was placed under arrest at the end of the interrogation. Id.
Based upon the above finding that St. Clair was not a state actor, the Court need only consider the circumstances occurring after Deputy Krier's arrival. Although St. Clair had previously denied Defendant's request for a cigarette break and instructed her to "hang tight," Defendant does not claim that St. Clair informed Krier of these specific details, or that Krier represented to Defendant that she was not free to leave. Deputy Krier did not restrain Defendant's freedom of movement within the interview room, although the door was closed. Defendant points to no deceptive tactics during and with respect to the portion of the interview conducted with Krier, and concedes the atmosphere was not police dominated and that Defendant was not arrested at the termination of the questioning. See id.
The length and circumstances of the discussions with St. Clair, particularly the intimations of the potential for Defendant to keep her job and the extended periods in which she was left alone in the security room, may have been designed to induce a statement. However, St. Clair was not a state agent and therefore was not mandated to give the Miranda warning. Defendant argues St. Clair's conduct and the attendant circumstances must be attributed to the government, but offers no supporting citation or factual basis for such a proposition. As outlined above, theGriffin factors do not support a finding of custody during Krier's interrogation of Defendant and therefore this Objection is denied.
III. CONCLUSION
For the reasons set forth above and based on the files, records, and proceedings herein, IT IS HEREBY ORDERED that:1. Defendant's Objections [Docket No. 27] are DENIED and
2. The RR [Docket No. 26] is ADOPTED.