Opinion
No. 01-40091-01-SAC.
December 11, 2001
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion to suppress statements (Dk. 20). Defendant has been charged by indictment with one count of robbery by force, as defined in 18 U.S.C. § 1951. Defendant is alleged to have taken firearms and ammunition from the person or presence of Lee M. Fraker against his will by means of actual and threatened force and violence to Mr. Fraker, i.e, by striking him with a club.
Defendant seeks to suppress all statements which the defendant allegedly made to law enforcement officers on September 19, 2001, the date of his arrest, and on September 20 and 21, 2001, the dates of his subsequent interviews with law enforcement officers. Defendant alleges that he was not timely Mirandized, and that his statements were not made voluntarily because he was in or withdrawing from a drugged condition.
Facts
Very few facts were introduced at the evidentiary hearing in this matter, thus the court relies heavily upon the exhibits to determine crucial facts which were not otherwise established. On September 19, 2001, at approximately 7:57 p.m., defendant was stopped while driving a vehicle by officers of the Kansas City, Kansas policy department for not signaling a turn. Defendant had no driver's license or other photo identification with him at the time. After receiving the passenger's driver's license, and determining that he had warrants for his arrest, the passenger was taken into custody. After the defendant exited the vehicle, one of the officers observed a handgun protruding from under the driver's seat. Dispatch confirmed that the weapon was stolen and that the defendant was a felon on probation. Defendant was immediately taken into custody.
Defendant was taken to the Wyandotte County jail, where he was interviewed the next day by Captain Randy Carreno of the Jefferson County Sheriff's Department, and incriminated himself. Defendant gave a tape recorded statement during part of the interview, which ended at 11:52 a.m.
The following day, September 21, 2001, agents Canon and Wright of the federal Bureau of Alcohol, Tobacco and Firearms interviewed the defendant. Defendant again made incriminating statements during that interview. The government alleges and defendant disputes that Miranda warnings were given to defendant before the interview commenced. Law Miranda warnings are required when a suspect is subjected to custodial interrogation. See Rhode Island v. Innis, 446 U.S. 291, 300 (1980); Miranda v. Arizona, 384 U.S. 436 (1966). Not every statement made by one in custody who has not been Mirandized must be suppressed. If a defendant's statements were voluntary and spontaneous, and not made in response to words or actions by the officer that were "reasonably likely to elicit an incriminating response," United States v. Gay, 774 F.2d 368, 379 (10th Cir. 1985) (citing Innis, 446 U.S. at 301), no Miranda violation occurs.
A suspect who has been informed of his Miranda rights "may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently." Miranda, 384 U.S. at 444. The government bears the burden of proving by a preponderance of the evidence that the defendant's waiver of rights was voluntary. United States v. Toro-Pelaez, 107 F.3d 819, 825 (10th Cir.), cert. denied, 522 U.S. 845 (1997); Colorado v. Connelly, 479 U.S. 157, 168-69 (1986).
To prove a voluntary waiver of Fifth Amendment rights, the government must establish: (1) that the waiver was the product of free and deliberate choice rather than intimidation, coercion, or deception; and (2) that the waiver was made in full awareness of the nature of the right being waived and the consequences of waiving. Moran v. Burbine, 475 U.S. 412, 421(1986). Only if the totality of the circumstances surrounding the interrogation shows both an uncoerced choice and the requisite level of comprehension can a waiver be effective. Id.; United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir. 1996).
In considering whether a statement is of free will, the courts look to several factors, including: "(1) the characteristics of the defendant: age, education, intelligence, and physical and emotional attributes; (2) the circumstances surrounding the statement, including the length of detention and questioning and the location of questioning; and (3) the tactics, if any, employed by officers. (Citations omitted). In no case, however, is any single factor determinative." United States v. Chalan, 812 F.2d 1302, 1307 (10th Cir. 1987), cert. denied, 488 U.S. 983 (1988).
The crucial question in each case is whether the defendant's will was overborne at the time of the confession. See Lynumn v. State of Illinois, 372 U.S. 528, 534 (1963). A confession "must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." Malloy v. Hogan, 378 U.S. 1, 7 (1964).
Failure to timely Mirandize
Defendant contends that because he was in custody at the time he made statements to various law enforcement officers on Sept. 19, 20, and 21, those statements should be suppressed because he was not timely advised of his rights as required by Miranda.
Defendant first alleges that the arresting officers asked him about the gun on September 19th without first giving him Miranda warnings, and that in response, defendant incriminated himself. (Dk. 20, p. 2). No evidence was offered to support this allegation however, thus no Miranda violation has been shown. Further, the Tenth Circuit has recently held that officers may ask about the presence of loaded weapons in a vehicle, even without any suspicion that such a weapon exists, because of officer safety. United States v. Holt, 264 F.3d 1215, 1218-19 (2001).
Defendant next alleges that he was not timely Mirandized on September 20, 2001, when interviewed by Captain Carreno. This assertion is based upon the fact that Captain Carreno's notes show that the interview began at approximately 10:37 a.m., (Gvmt. Exh. 1, p. 3 of notes), but defendant did not sign a written waiver of rights form until 11:20 a.m. (Gvmt. Exh. 1, p. 1 of statement of rights). Carreno's report additionally states, however, that the interrogation did not commence until the Miranda warnings were read to the defendant. (Id., p. 3, stating that defendant "was provided with his MIRANDA RIGHTS (written form) prior to questions being asked pertaining to the robbery.") This evidence that defendant was Mirandized before his interview began is uncontradicted. That defendant was not asked to sign a written waiver until some time after he had been orally advised of his rights does not compel the conclusion that defendant was not Mirandized until the time at which the written waiver form was presented for his signature.
Defendant was interviewed a second time on the 20th by Captain Carreno, but the sole evidence relevant presented regarding this interview is that defendant "was provided with his MIRANDA RIGHTS (written form/attached) before any questions were asked." (Gvmt. Exh. 1, p. 4 of Carreno's notes.)
As to the interview on the 21st, Special Agent Billy Lee Wright of the Bureau of Alcohol, Tobacco and Firearms testified. Wright's report and his testimony on cross examination both establish that the defendant was advised of his Miranda rights before his interview began. See Gvmt. Exh. 3, p. 1. The narrative section of the report begins by stating:
On September 21, 2001, Special Agents Tim Canon and Bill Wright conducted an interview with Roy E. Roberts in reference to the robbery of the Winchester Gun and Rock Shop. Agent Wright first advised Roberts of his Miranda rights from the same Miranda waiver he signed during an interview with Captain Carreno. Roberts acknowledge (sic) all the initials and signature on the form are his, and that he wished to continue cooperating in the investigation. He further advised that he wished to waive his Miranda rights and continue talking to investigators. Roberts then provided the following information.
Gvmt. Exh. 3, p. 1. On cross-examination, Special Agent Wright testified that he reviewed the Miranda statement of rights form with the defendant before he began the interview with him. No contrary evidence was presented.
Based upon the uncontradicted exhibits, i.e., Carreno's and Wrights's reports, and the credible testimony of Special Agent Wright, the court finds that defendant was Mirandized prior to each of his interviews on the 20th and 21st, and that no Miranda violation has been shown.
Voluntariness of Statements
Defendant next alleges that his statements to officers were not made voluntarily because he was suffering from drugs or withdrawal therefrom at the time his statements were given. Both parties recognize that Colorado v. Connelly, 479 U.S. 157 (1986) governs this issue.
Wright admitted that he had no training in detecting withdrawal symptoms, that defendant stated that he was addicted to cocaine and heroin and had been using them together, and had used on the 19th. Wright additionally testified that defendant stated that he was cold shortly after his interview on the 21st, but made no requests to him other than to move him from the Wyandotte County jail.
Defendant relies in part upon his assertion that the passenger, Eric Coleman, told the arresting officers that defendant had injected heroin into himself every fifteen minutes that day. But neither Special Agent Wright nor Captain Carreno was among the arresting officers, and there is no evidence that either officer who interviewed the defendant spoke to Eric Coleman before the interview with the defendant. Although Wright testified that he had reviewed the police report from the arresting officers prior to interviewing the defendant, that report (Gvmt Exh. 2) is void of reference to Coleman's statement and contains no allusion to defendant's drug usage.
On the Miranda statement of rights and waiver of rights form, (Gvmt. Exh. 1), Captain Carreno noted defendant's use of heroin and cocaine on the 19th. Carreno's notes also reflect defendant's statement that for the last four to five weeks, defendant had used "daily" one gram of heroin and one fourth ounce of cocaine. (Gvmt. Exh. 1, p. 4 of notes.) Wright testified that all the attachments to Exhibit 1 appear to be one and the same as those provided to him by the Jefferson County Sheriff's Department. The attachments to Exhibit 1 include Carreno's notes regarding defendant's drug usage. Thus it appears, although this testimony was less than clear, that Special Agent Wright had reviewed Carreno's notes by the time Wright interviewed the defendant, and therefore both Carreno and Wright had knowledge of defendant's frequency and amount of drug usage.
Defendant appears to allege that the officers' knowledge of defendant's drug usage or withdrawal should have led them to conclude that defendant was unable to give any statement voluntarily. The law is not so broad as to support this proposition.
If "mental impairment . . . should have reasonably been apparent to . . . interrogators," then "a lesser quantum of coercion [will] render the confession involuntary." United States v. Sablotny, 21 F.3d 747, 752 (7th Cir.1 994); see also Williams v. Collins, 16 F.3d 626, 638 (5th Cir.) (noting as relevant to the petitioner's claim that his confession to police was involuntary, due to police coercion and to his "diminished capacity," that neither the police officers, who were experienced in detecting drug or alcohol usage, nor the petitioner's father, "testified that [the petitioner] appeared to be impaired in any way"), cert. denied, 512 U.S. 1289, 115 S.Ct. 42, 129 L.Ed.2d 937 (1994). However, even in such cases, for a confession to be involuntary, "the police must somehow overreach by exploiting a weakness or condition known to exist." United States v. Robertson, 19 F.3d 1318, 1321 (10th Cir.), cert. denied, 513 U.S. 906, 115 S.Ct. 271, 130 L.Ed.2d 189 (1994); see also United States v. Guerro, 983 F.2d 1001, 1004 (10th Cir. 1993) (same); Thompson v. Cox, 352 F.2d 488, 489 (10th Cir. 1965) (holding that the petitioner's confession to police was voluntary where there was no evidence that any information gained by police from the lie detector test or the interrogation of the petitioner while he was on medication "was used as a tool to influence [the petitioner's] final decision to tell of his participation in the crime"); Miller v. Dugger, 838 F.2d 1530, 1537 (11th Cir.) ("[E]ven the interrogators' knowledge that a suspect may have mental problems does not make the suspect's statement involuntary unless '[t]he police exploited this weakness with coercive tactics.' " (quoting Connelly, 479 U.S. at 165, 107 S.Ct. at 520)), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.2d 933 (1988). Nickel v. Hannigan, 97 F.3d 403 (10th Cir. 1996).
Under the law stated above , coercive police activity is a necessary predicate to a finding that a confession is not voluntary within the meaning of the due process clause. See Connelly, 479 U.S. at 167. Here, no evidence is alleged to support a finding of police misconduct of any kind. The evidence confirms Special Agent Wright's testimony that defendant's physical or mental condition was not exploited in any manner. Special Agent Wright testified that when he interviewed the defendant on the 21st, he did not appear to be sick or ill, and appeared mentally able to respond to the questions asked. Wright stated that defendant had good recall and provided a great deal of detail about the activities of himself and his companions. Carreno's notes additionally reflect defendant's ability to express himself and to provide detail relevant to the questions asked. Although defendant had reportedly taken heroin and cocaine on the date of his arrest, his ability to give voluntary statements during the two days immediately thereafter was not impaired to the extent that he could not give a voluntary statement. See Elliott v. Williams, 248 F.3d 1205 (10th Cir. 2001) (affirming court's determination that statement by defendant who had taken heroin was voluntary and admissible).
The government has met its burden to show that defendant's statements were the product of free and deliberate choice rather than intimidation, coercion, or deception and that his statements were made in full awareness of the nature of the right being waived and the consequences of waiving. See Moran, 475 U.S. at 421(1986).
IT IS THEREFORE ORDERED that defendant's motion to suppress (Dk. 20) is denied.