Opinion
Case No. 2:03CR389
November 18, 2003
OPINION AND ORDER
INTRODUCTION
Before the Court is Randy Heiner's Motion to Suppress Statements. The Court held a suppression hearing on October 2, 2003. Heiner moves for the suppression of evidence from two separate incidents. First, Heiner requested that the Court suppress all evidence gathered during the April 8, 2003 search of his home, which resulted in the finding of a firearm, Heiner then requested that the Court suppress his May 18, 2003 written and recorded statement regarding the origin of the firearm. At the hearing the Court denied Heiner's request to suppress the evidence found during the April 8, 2003 search, finding that Heiner voluntarily consented to the search of his home, The Court, however, took the second suppression request under advisement. The Court requested supplemental briefing on whether the May 18, 2003 visit by the government to Heiner's home, which produced a written and recorded statement of the origin of the firearm, was a custodial interrogation.
BACKGROUND AND EVIDENCE
At the suppression hearing on October 2, 2003 the government called Agent Olive from the Utah State Department of Adult Probation and Parole (APP) to testify as a witness regarding the May 18, 2003 visit to Heiner's home, which produced Heiner's written and recorded statement. Agent Olive testified that on May 18, 2003, he and Agent Jeff Sundquist, also from APP, went to Heiner's home with the purpose of discovering the origin of the firearm found in the April 8, 2003 search. Heiner allowed the agents to enter his home and to sit down in his living room. Agent Olive testified that he asked Heiner if he could question him regarding the origin of the firearm. Heiner agreed to the questioning. Agent Olive testified that he told Heiner that he did not need to answer the questions he was asking. Agent Olive also testified that he was somewhat surprised when Heiner agreed to answer the questions.Agent Olive stated that the atmosphere surrounding the conversation was calm and the parties were cordial in their treatment of one another. According to Agent Olive "it was just good human to human conversation." During the parties' conversation Agent Olive requested that Heiner make a written statement regarding the firearm. Heiner agreed and filled out the form given to him by Agent Olive, indicating on the form that he had received the firearm from Tracy Evans for his (Heiner's) protection. Agent Olive testified that he did not give the full Miranda warning prior to, or after, Heiner had filled out the form.
The document which Heiner filled out is a form from the Division of APP on State of Utah letterhead, and is one that Agent Olive routinely carries with him. The front page of the document has the following notice: "You are hereby notified that the statements you are about to provide in the attached document(s) may be presented to a Magistrate and/or Judge in lieu of your sworn testimony in a Preliminary Hearing, Court Trial, and/or before a Federal Grand Jury. Any false statements you provide to the State of Utah Peace Officer and/or Federal Investigator that are false will subject you to criminal punishment as stated in the Utah Code Annotated and/or the Federal Laws governing the United States." The front page of the form has a signature line as well as a name line for the person making the statement and also lines for the person's address and telephone number,
Once Heiner filled out the statement the agents left Heiner's home. Heiner was indicted for possession of the firearm on May 23, 2003. Heiner became aware of the firearm possession charge in early July, 2003 and made his first appearance before the Court on July 15, 2003, Heiner argues that the May 18, 2003 discussion with Agent Olive constituted a custodial interrogation and that he should have received full Miranda warnings prior to being questioned. The government argues that Heiner was never in custody and that he answered the questions knowingly and voluntarily. The issue now before the Court, as stated above, is whether Agent Olive's questioning of Heiner on May 18, 2003 constitutes a custodial interrogation.
Based on the evidence the Court enters the following:
FINDINGS OF FACT
1. Agents Olive and Sundquist went to Heiner's home on May 18, for the purpose of inquiring about the origin of the firearm that was found in a search of Heiner's home on April 8, 2003.
2. Heiner allowed the agents into his home and invited them to sit in his living room, Heiner was not required to allow the agents into his home, but did so voluntarily. Heiner could have asked the agents to leave his home at any time during the questioning.
3. Agent Olive told Heiner that he and Agent Sundquist were at his home to discover the origin of the firearm found in the previous search and that they were not there to arrest him.
4. Heiner agreed to answer the questions that Agent Olive asked him, which was surprising to Agent Olive because he had instructed Heiner that he did not have to answer the questions.
5. After answering some questions, Heiner was asked to sign a witness form and make a written statement regarding the origin of the firearm. Heiner voluntarily agreed to fill out the form.
6. The document which Heiner filled out is a form from the Division of Adult Probation and Parole with State of Utah letterhead, and is one that Agent Olive routinely carries with him. The front page of the document has the following notice: "You are hereby notified that the statements you are about to provide in the attached document(s) may be presented to a Magistrate and/or Judge in lieu of your sworn testimony in a Preliminary Hearing, Court Trial, and/or before a Federal Grand Jury. Any false statements you provide to the State of Utah Peace Officer and/or Federal Investigator that are false will subject you to criminal punishment as stated in the Utah Code Annotated and/or the Federal Laws governing the United States." The front page of the form has a signature line as well as a name line for the person making the statement and also lines for the person's address and telephone number,
7. Heiner voluntarily chose to make a statement on the written form.
8. Agent Olive never placed Heiner under arrest nor did he restrain Heiner's freedom in any significant manner. Heiner was free to discontinue the questioning at any time.
9. The atmosphere surrounding the event was devoid of aggression or hostility, Heiner was not exposed do undue pressure or coercive tactics by the agents, The parties appear to have had a cordial conversation.
10. Heiner was never given the full Miranda warning during the time the agents were at his home. Heiner was indicted for illegal possession of a firearm on May 23, 2003 and learned about the charge in July, 2003.
DISCUSSION AND ANALYSIS
Custodial Interrogation
Heiner argues that he was subjected to a custodial interrogation on May 18, 2003 when Agents Olive and Sundquist came to his home to question him regarding the origin of the firearm found previously in his home. Heiner alleges that because he was subjected to a custodial interrogation he should have received Miranda warnings before his statement was elicited. It is well established precedent that in order to receive Miranda warnings the individual claiming the right must be in custody subject to a custodial interrogation. Miranda v, Arizona, 384 U.S. 436, 444 (1966). Custodial interrogation is divided into two parts, custody and interrogation. Custody is defined in Miranda as the deprivation of one's freedom in any significant way. Miranda, 384 U.S. at 444. The Supreme Court has since refined the definition of custody to the "formal arrest or restraint on freedom of movement of the degree associated with formal arrest." California v. Beheler, 463 U.S. 1121, 1123 (1983), In determining if an individual has been placed into custody the Court determines whether "a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 422 (1984).
The Court finds that Heiner was never placed into custody. Heiner voluntarily allowed the agents into his home, voluntarily answered the questions he was asked, even after being told that he did not have to answer them. Heiner voluntarily filled out the witness statement form. He had ample opportunity to read the document, which indicated that his statement could be used as evidence in Court. Heiner was never placed under arrest nor was his freedom of movement ever restrained. The evidence establishes that a cordial conversation took place between Heiner and Agent Olive, a conversation in which Heiner freely and voluntarily chose to participate. Based on the foregoing, the Court finds as a matter of law that Heiner was never placed into custody by Agent Olive. He was never formally arrested nor restrained.
Coercion
Even where a finding is made that the defendant was not in custody when he made the incriminating statement(s), the Court must assess whether the statement was given voluntarily and not as a result of coercion. Rogers v. Richmond, 365 U.S. 534, 544 (1961). The Court considers the totality of the circumstances in determining the voluntariness of the statement. Frazier v. Cupp, 394 U.S. 731, 739 (1969). Applying these standards to Heiner's request for suppression, the Court does not find evidence of undue pressure or coercion. The atmosphere surrounding the questioning was cordial, devoid of hostility or aggression. The Court also finds that no coercive tactics or threats were employed by the agents. Heiner voluntarily of his own free will answered questions and filled out the form, even after he was told that he was not required to do so.
The fact that the agents told Heiner they were not there to arrest him, while not perhaps devoid of ambiguity, does not change the circumstances so as to warrant a finding of custody or coercion. Heiner was free to seek further clarification as to whether he could possibly be arrested in the future even if the agents were not planning to do so on that day. In United States v. Ervingh, 147 F.3d 1240 (10th Cir. 1998) the Tenth Circuit held that when law enforcement personnel enter the home of the defendant and inform him of the purpose of the visit and specifically state that they are not there to arrest the defendant, the statements made the defendant are not considered to be made in a custodial interrogation. The Tenth Circuit also observed that "the mere fact that the officers were focusing on [the defendant] as the primary suspect in the case does not transform the interview into a custodial interrogation." Ervingh 147 F.3d at 1247.
The Court finds the facts in Erving to be analogous to the facts presented in the case at bar. The Court therefore finds pursuant to Tenth Circuit precedent the actions taken by Agents Olive and Sundquist on May 18, 2003 to procure Heiner's written statement were not coercive in nature and did not amount to a custodial interrogation,
Based on the foregoing the Court DENIES Heiner's Motion to Suppress.
IT IS SO ORDERED.