Opinion
Criminal No. 04-182 (JRT/FLN).
August 4, 2004
Frank Magill, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN, for plaintiff.
Dean S. Grau, Suite 1919 I.D.S. Center, Minneapolis, MN, for defendant.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
Defendant Patrick David Quick ("defendant") was indicted on twelve counts of mail fraud in violation of 18 U.S.C. § 1341 and one count of engaging in a monetary transaction in violation of 18 U.S.C. § 1957 and is scheduled to begin trial before this Court on August 16, 2004.
Defendant has filed two motions to suppress evidence. The Magistrate Judge held a hearing on these motions at which Detective Brian Gunderson and defendant testified. In a Report and Recommendation issued June 22, 2004, United States Magistrate Judge Franklin L. Noel recommended that both motions be denied.
This matter is before the Court on objections by the defendant to the report and recommendation. The Court has conducted a de novo review of these objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the report and recommendation of the Magistrate Judge and denies defendant's motions.
BACKGROUND
On August 21, 2003, Detective Brian Gunderson of the Eagan Police Department received a phone call from Ray Diprima, a private detective. Diprima was formerly a special agent for the Bureau of Criminal Apprehension, and Gunderson had worked with him on several investigations. Diprima told Gunderson that Connie Quijano and her father, Alexander, had hired him to investigate an apparent theft by swindle. Diprima reported that he suspected defendant of having swindled Alexander out of 150 gold coins worth in excess of $15,000. Diprima related that he had spoken to defendant at his home at 4594 Maple Leaf Circle in Eagan, Minnesota and that defendant's telephone number was (651) 994-1747. Diprima also reported that defendant confirmed that he operated a business named Rare Trader Incorporated out of his home. During his conversation with Diprima, defendant initially denied knowing Alexander or having any knowledge about the coins. Later, however, defendant recalled a transaction with Alexander, but asserted that he had already paid Alexander. Defendant told Diprima that he was unable to retrieve records of the transaction because of a computer problem.
Alexander Quijano is in his eighties and in the first stages of Alzheimer's.
Following up on Diprima's information, Detective Gunderson contacted Connie Quijano by telephone. Connie confirmed and elaborated on Diprima's statements. She told Gunderson that Alexander had purchased rare coins on four occasions in 1999 and 2000 from a company called Investment Rarities. Sometime in 2002, Alexander was contacted by defendant, who identified himself as the salesman who had sold Alexander the coins. Defendant told Alexander that he operated a business named Rare Trader Incorporated out of his home, and asked if Alexander was interested in selling the coins. Alexander agreed to the sale and, in August or September, 2002, mailed the coins to defendant at 4594 Maple Leaf Circle, Eagan, Minnesota, expecting to receive payment. When Connie learned of the transaction, and that her father had not received any money in return, Connie sent defendant a letter requesting the money. She received no response. Shortly thereafter, Connie hired Diprima.
On May 6, 2003, Connie recorded a telephone conversation with defendant. During the conversation, defendant admitted that he had received the coins, but asserted that he had mailed Alexander a check in payment. Defendant stated that the check did not appear to have been cashed, but he could not confirm the transaction because of a computer problem. Defendant assured Connie that he would re-send the money once the computer problem was fixed.
On May 27, 2003, Connie spoke again with defendant and was told that the computer was fixed. On June 8, 2003, however, defendant informed Connie that the hard drive of his computer was corrupted and he could not access the necessary information. According to Connie, she left three messages for defendant over the next two months. Her calls were not returned, and Alexander has not received payment for the coins.
As part of his investigation, Gunderson ran a criminal history check on defendant and found that defendant had been convicted of gross misdemeanor theft in 1984 and felony third-degree assault in 1993. Gunderson also learned that a 2002 Hyundai Sonata was registered to defendant at his home, that the telephone number Diprima had given him was registered to M. Berry, and that a Michelle Marie Berry also resided at defendant's address.
Based on the above information, Gunderson felt there was probable cause to believe that a crime had been committed and that evidence relevant to that crime would be found at defendant's residence, in defendant's computer, in defendant's vehicle, or on defendant's person. On August 27, 2003, Gunderson submitted an application for a warrant to search defendant's home and a supporting affidavit detailing the above information. The warrant was issued on August 27, and Gunderson and approximately five other officers executed the warrant on the afternoon of August 28, 2003. Defendant, his girlfriend, and her two daughters were home during the search. During the search, Gunderson interviewed defendant twice, and each interview was recorded. The search lasted approximately 3 hours. Defendant was not arrested at that time.
Sometime after the search, Gunderson contacted defendant by telephone and arranged for defendant to come to the police department for an interview. The interview took place on September 22, 2003, at the Eagan Police Department and was recorded. In addition to Gunderson and defendant, FBI Agent Todd Thompson participated in the interview. Defendant was not arrested following the interview.
Defendant moved to suppress any physical evidence obtained as a result of the search at his residence and to suppress any statements made by him to law enforcement officers.
ANALYSIS
I. MOTION TO SUPPRESS EVIDENCE
Defendant asserts that any physical evidence obtained during the search of his residence should be suppressed because the warrant permitting the search was not supported by probable cause and lacked sufficient particularity. The Court disagrees.
A. Probable Cause
Searches conducted pursuant to a warrant are reviewed to determine whether the information in the warrant application and supporting affidavit provided probable cause for the search. Illinois v. Gates, 462 U.S. 213, 236 (1983). "Probable cause exists when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime would be found in a particular place." United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000). The task of a court issuing a search warrant is "simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit . . . 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." Gates, 462 U.S. at 238; see also United States v. Salter, 358 F.3d 1080, 1084 (8th Cir. 2004). In reviewing the decision of the issuing court, the duty of this Court is simply to ensure that the issuing court had a substantial basis for concluding that probable cause existed. United States v. Oropesa, 316 F.3d 762, 766 (8th Cir. 2003) ( citing Gates, 462 U.S. at 238-39) (additional citations omitted). The Court accords considerable deference to the issuing court's determination. Id.
Even if the affidavit were deemed deficient in hindsight, moreover, evidence would not be suppressed if the police acted in good faith reliance on a search warrant issued by a neutral and detached magistrate. United States v. Leon, 468 U.S. 897, 922-23 (1984).
In this case, the contents of the search warrant application and affidavit provided probable case for the search of defendant's residence, vehicle, and person. Probable cause may be found in hearsay statements from reliable persons. Walden v. Carmack, 156 F.3d 861, 870 (8th Cir. 1998) ( citing Gates, 462 U.S. at 245). Gunderson's affidavit related information received from Ray Diprima and from Connie Quijano. Diprima is a former BCA agent with whom Gunderson had worked on multiple occasions. Connie is a private citizen who believed her elderly father may have been the victim of a fraud. She provided specific verifiable information to Diprima and directly to Gunderson. The Court is satisfied that both Diprima and Connie Quijano represent reliable sources, and the information they provided was properly used as a basis for the search warrant.
Defendant hints that Diprima may have been motivated to overstate his case regarding defendant in the interests of collecting his fee from Connie. The Court is of the opinion that as a former BCA agent, Diprima was in a better position than many private investigators to understand the importance of providing careful, accurate information to the police.
In the affidavit, Gunderson stated the following: Connie told Diprima that her father had purchased a significant quantity of gold coins from defendant, that defendant had later contacted her father again, that her father had agreed to sell defendant some gold coins, that her father mailed the coins to defendant at his home address, and that her father had not received payment for the coins. Connie also told Diprima that defendant operated a business named Rare Trader Incorporated out of his home. Diprima verified that defendant resided at the address Connie had given him by visiting the address and speaking with defendant. During the conversation with Diprima, defendant confirmed that he had operated a business named Rare Trader Incorporated from his residence. Defendant told Diprima that he had done business with Connie's father, that he had received some gold coins from Connie's father, that Connie's father did not seem to have cashed the check that defendant had mailed as payment for the coins, and that defendant could not verify the transaction because of a computer problem.
The affidavit also asserted that Connie had repeated the same story to Gunderson when he spoke to her by telephone. Connie provided Gunderson with specific dates and amounts of transactions between defendant and her father. Connie also told Gunderson that defendant had indicated that he kept business records relating to Connie's father in his computer. Additionally, Gunderson independently verified defendant's name, address, telephone number, and vehicle registration.
Given this information, a reasonable person could conclude that the gold coins or other evidence of a crime would be found in defendant's residence. Based upon the totality of the circumstances, this Court finds that substantial evidence existed to support the finding of probable cause to issue the search warrant for defendant's residence, vehicle, and person. Defendant's motion to suppress the warrant for lack of probable cause therefore will be denied.
B. Specificity
A warrant must be sufficiently specific to allow the police to identify the property to be seized. United States v. Tyler, 238 F.3d 1036, 1039 (8th Cir. 2001). The degree of specificity required in a warrant is flexible and will vary with the circumstances and the type of items involved. Marvin v. United States, 732 F.2d 669, 673 (8th Cir. 1984); United States v. DeLuna, 763 F.2d 897, 908 (8th Cir. 1985). A warrant that "provide[s] reasonable guidance to the exercise of informed discretion of the officer executing the warrant" will be upheld. United States v. Faul, 748 F.2d 1204, 1219 (8th Cir. 1984).
In this case, the warrant authorized seizure of:
50 Uruguay gold coins, 76 Brazilian gold coins, 24 Franklin half dollars;
Receipts showing the sale of the gold coins;
Bank account records for Patrick Quick and for the business called RTI, (Rare Trader Incorporated);
Paperwork showing residency;
Paperwork showing Patrick Quick doing business as Rare Trader Incorporated also known as RTI;
Paperwork showing correspondence between RTI and Patrick Quick with Alexander and Connie Quijano.
The warrant also authorized, in great detail, seizure of computer hardware and software.
Each of the listed items is clearly related to the suspected criminal activity described in the supporting affidavit. The seizure of the computer equipment was proper in light of the information that defendant kept records relevant to the suspected criminal activity on his computer. Gunderson's reasonable concern that any relevant computer evidence be carefully collected and preserved was detailed in the affidavit. The Property Inventory receipts indicate that the police seized only items listed in the warrant. Thus, the Court is satisfied that the warrant adequately specified the property to be seized, ensuring that the police seized only evidence related to the suspected criminal activity. The Court therefore will not suppress the warrant for insufficient specificity.
II. MOTION TO SUPPRESS STATEMENTS
Defendant contends that his statements to police during the search warrant execution and several days later at the Eagan Police Department should be suppressed because he was not given Miranda warnings and because the statements were involuntary. The Court disagrees.
A. Miranda warnings
Pursuant to Miranda v. Arizona, 384 U.S. 436, 444 (1966), "an individual must be advised of the right to be free from compulsory self-incrimination, 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). Any statements taken in violation of this directive are subject to suppression. Miranda, 384 U.S. at 476. However, voluntary statements by a suspect not in custody do not require the protection of Miranda. Id. at 478-79. Thus, warnings are not required "simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect." California v. Beheler, 463 U.S. 1121, 1125 (1983) (quotation omitted); United States v. LeBrun, 363 F.3d 715, 720-21 (8th Cir. 2004).
A person is "in custody" for Miranda purposes if the person is either under "formal arrest or under any other circumstances where the suspect is deprived of his freedom of action in any significant way." Griffin, 922 F.3d at 1347 ( citing Miranda, 384 U.S. at 444; Berkemer v. McCarty, 468 U.S. 420, 429 (1984)). The Court examines the extent of the physical or psychological restraints placed on the suspect during interrogation in light of whether a "reasonable person in the suspect's position would have understood his situation" to be one of custody. Id. ( quoting Berkemer, 468 U.S. at 442). If defendant believed his freedom of action had been curtailed to a "degree associated with formal arrest," and that belief was reasonable from an objective viewpoint, then defendant was "in custody" during his interviews with police. Beheler, 463 U.S. at 1125; Berkemer, 468 U.S. at 440. "The relevant factors to be considered in making a determination of custody include an accused's freedom to leave the scene, and the purpose, place and length of the interrogation." Griffin, 922 F.2d at 1347.
Defendant was not in custody during any of his three interviews with police. Defendant was interviewed twice at his home, in his living room, while the search warrant was being executed. At the start of the first interview, which was recorded, defendant agreed to sit and talk with Gunderson. Defendant acknowledged that he knew that he was not required to speak with Gunderson, that criminal charges might follow the conversation, that he was not in custody, and that he could "get up and walk away" at any time. Defendant was not handcuffed or otherwise restrained. In his objections to the Magistrate Judge's recommendation, defendant argues that he was "essentially surrounded [with] his driveway blocked, preventing his use of his car" and "dominated in his own home by approximately five police officers." However, there is no indication that defendant asked, or otherwise expressed a desire, to leave, or that police would not have permitted him to leave. Additionally, while it is no doubt unnerving to have police officers search one's home, Gunderson was the only officer in the living room with defendant during the interviews. The other officers were elsewhere in the house executing the search warrant. Defendant was not placed under arrest at any point.
The transcripts of both interviews indicate that defendant and Gunderson had calm, relatively detailed conversations. Gunderson's questions were clear and relevant to the suspected criminal activity. Gunderson's questions, statements, and behavior were not coercive, and the interviews were not unnecessarily prolonged. Each of the interviews in defendant's home ended calmly when Gunderson finished his questions.
Similarly, defendant was not in custody during the September 22 interview at the police station. Defendant agreed to come to the police station for another interview, and met Gunderson at the police station and the appointed time. Defendant was again informed that he was not under arrest, was not required to talk to Gunderson and FBI Agent Thompson, and that he could end the interview and leave at any time. Defendant was also informed that it was likely that criminal charges would be filed. Defendant indicated unequivocally that he understood the above and agreed to the conversation. As in the previous interviews, the questions were clear and relevant to the investigation. The interview was not unnecessarily prolonged or otherwise coercive. Defendant was not arrested at the conclusion of the interview.
The above circumstances do not amount to a restriction on defendant's freedom sufficient to render him `in custody,' either during the interviews at him home or during the interview at the police station. Thus, Miranda warnings were not required and defendant's statements will not be suppressed on this basis.
B. Voluntariness
Any statement, whether made while in custody or not, will be suppressed if it was not provided voluntarily. In determining whether a statement was voluntarily made, the Court examines the "totality of the circumstances to determine whether pressures exerted by the authorities overwhelmed the defendant's will." United States v. Rodriguez-Hernandez, 353 F.3d 632, 636 (8th Cir. 2003) (internal quotations and citation omitted). Defendant contends that his statements to police were involuntarily given because of "his vulnerable state of mind during interrogation" and "the constraints both on him and his family." The Court does not doubt that defendant, like many criminal suspects, felt vulnerable and nervous while being questioned by Gunderson and by Thompson, or that it was difficult for defendant, his girlfriend, and her children to lead normal lives knowing that an investigation was ongoing. However, such feelings do not amount to an overwhelming of defendant's will sufficient to render his statements involuntary.
Although the search no doubt worried defendant's girlfriend and had the potential to upset defendant's girlfriend's children, there is no indication that either the girlfriend or her children were restrained or unnecessarily hassled during the search. In fact, it appears that police made efforts to protect the children from the search by allowing them to stay in an upstairs room while it was being conducted. Neither defendant nor his girlfriend and her children were harassed, coerced, threatened, or otherwise subjected to unnecessary stress during the investigation of defendant's activities. Thus, defendant's concerns for his girlfriend and her daughters are not attributable to police behavior, and were not any more severe than the concerns one would ordinarily have for his family during a difficult, stressful time.
Additionally, defendant was neither threatened nor promised anything during his interviews with police. Gunderson told defendant that his cooperation with the investigation would be relayed to the County Attorney's office. This potentially hopeful piece of information was offset by Gunderson's and, later, Thompson's extremely clear statements that criminal charges were likely to be filed against defendant, but that they were not in a position to determine what those charges would be.
During all of the interviews, defendant unequivocally confirmed that he understood that he did not have to talk to the police, that he could leave at any time, that criminal charges might be filed in the future, but that he was not under arrest. Defendant answered questions in detail, remembering specific sales, names, and prices. Although defendant expressed disbelief at Thompson's suggestion that he live his life normally while waiting to see if charges would be filed, defendant's demeanor and behavior during the interviews do not describe a person whose will has been overborne or whose capacity for self-determination has been critically impaired. See Simmons v. Bowersox, 235 F.3d 1124, 1132 (8th Cir. 2001).
In light of the above discussion, the Court finds that defendant's statements to police did not require Miranda warnings and were voluntarily given. The motion to suppress his statements will therefore be denied.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES plaintiff's objection [Docket No. 37] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 31]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's motion to suppress statements, admissions, and answers and derivative evidence [Docket No. 17] is DENIED.
2. Defendant's motion to suppress evidence obtained as a result of search and seizure [Docket No. 18] is DENIED.