Opinion
No. 02-40081-01/03-SAC
November 22, 2002.
MEMORANDUM AND ORDER
This case comes before the court on several motions filed by defendants Lawrence Arthur Shaw and Allisen Marie Goodman: defendant Shaw's motion to suppress evidence (Dk. 35); defendant Goodman's motion to suppress evidence (Dk. 44); defendant Goodman's motion for a James hearing (Dk. 49); and defendant Goodman's motion to adopt and join in pre-trial motions filed by defendant Shaw (Dk. 51). Having conducted an evidentiary hearing on the motions on November 6, 2002, the court is now ready to rule.
The third defendant, Brian Dean Brown, is a fugitive.
Facts
According to the facts established at the evidentiary hearing, a state search warrant was issued for a mobile home in Lawrence, Kansas.
At approximately 10:40 a.m. on May 29, 2002, eight or more officers from the Lawrence/Douglas County Drug Enforcement Unit executed the search warrant. Upon arriving at the residence, some of the uniformed officers lined up along the southwest side and corner of the trailer, while others went to the back of the trailer. Deputy Ohman, the only officer not wearing some form of police garb, went to the main entry on the west side of the trailer. He intended to conduct a "ruse entry" by knocking on the door in street clothes in hopes that an occupant would open it, believing him to be someone other than a police officer. The door had only a small narrow verticle window on it. Once the occupant voluntarily opened the door, uniformed officers were to announce "police, search warrant," and then enter the residence.
The ruse entry did not go as planned because as Deputy Ohman stepped in front of the main door, he saw it was open. Through the closed storm door, Deputy Ohman could see into the residence, and could be seen by persons inside. At approximately the same time he arrived at the front door, a white female just on the other side of the door, approximately two feet from him, turned and looked at him, making eye contact. This was Virginia Goodman, an occupant who was not arrested during the event.
Believing that he had been observed, Deputy Ohman opened the storm door without having knocked or announced his presence, stepped out of the way, and held the door open for the uniformed officers to enter. "About a second" after Deputy Ohman opened the door, uniformed officers yelled, "Police, search warrant," and rushed on to the porch and into the trailer. Deputy Ohman then put on a jersey identifying him as a police officer and entered the residence. Four persons were found inside, including the defendants.
Defendants were arrested and transported to the Douglas County Jail on charges of methamphetamine manufacturing, were properly Mirandized, and made incriminating statements during separate interviews. The government concedes defendants Shaw and Goodman have standing to challenge the execution of the search warrant.
Defendant Shaw's motion to suppress (Dk. 35)
Two issues are presented in this motion: 1) whether police officers violated defendants' right to be free from unreasonable searches and seizures by failing to knock and announce their presence into defendant's residence while executing a search warrant; and 2) if such violation occurred, whether subsequent statements should also be suppressed.
Failure to Knock and Announce
Defendants allege that officers violated the Fourth Amendment by failing to give them a reasonable opportunity to voluntarily surrender their privacy when executing the search warrant on their residence. See Wilson v. Arkansas, 514 U.S. 927, 931-36 (1995).
"Evidence seized by state officers will be suppressed in a federal prosecution if the search violated the Fourth Amendment." United States v. Moland, 996 F.2d 259, 260 (10th Cir. 1993) (citations omitted), cert. denied, 510 U.S. 1057 (1994). The knock-and-announce principles found in common law, namely that officers generally announce their presence and authority before entering a home, are part of the reasonableness inquiry under the Fourth Amendment. Wilson, 514 U.S. 927; see United States v. Smith, 63 F.3d 956, 962 (10th Cir. 1995) ("Although the principle is commonly referred to as `knock and announce,' the Court's holding in Wilson requires only an announcement."). This is neither an inflexible or rigid rule of announcement, rather it may yield to "countervailing law enforcement interests." Id.
Both the Supreme Court and the Tenth Circuit have recognized, however, that "[o]fficers may . . . be excused from the usual `knock and announce' rule if exigent circumstances attended the search." United States v. Moore, 91 F.3d 96, 98 (10th Cir. 1996); see also Wilson, 514 U.S. at 936. Exigent circumstances include a reasonable suspicion that knocking and announcing would be dangerous or futile or would impede the officers' investigation. See Richards v. Wisconsin, 520 U.S. 385, 394 (1997).
The sole exceptional circumstance relied upon in this case is that of futility or useless gesture. Compare United States v. Wilson, 899 F. Supp. 521 (D.Kan. 1995). This exception, which finds support in cases from other jurisdictions, excuses the knock and announce requirement where a police officer has a reasonable suspicion that the occupants know of the presence and purpose of the police prior to their entry into the residence. See United States v. Grogins, 163 F.3d 795, 797 (4th Cir. 1998) (knock and announce requirement may be excused when officers have a reasonable suspicion that knocking and announcing their presence would be dangerous or futile); United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996) (exigent circumstances exist when the occupants already know of the officers' authority and purpose); United States v. Dunnock, 295 F.3d 431, 435 (4th Cir. 2002) (futility exception applied where person arrested outside his home had notice of the authority and purpose of the officers executing the search warrant); United States v. Tracy, 835 F.2d 1267, 1270 (8th Cir. 1988) (announcement is a "useless gesture" when police see drug house being fortified to prevent their entry); Miller v. United States, 357 U.S. 301, 310 (1958) (announcement is a useless gesture when "facts known to officers . . . justify them in being virtually certain" the occupants already know their purpose.).
The court thus examines whether Deputy Ohman reasonably suspected that the occupant(s) knew, prior to the entry of uniformed officers, of their authority and purpose. Deputy Ohman was in plain clothes for the purpose of effecting the ruse entry, and has not otherwise been shown to have been recognized as a police officer. He had no prior contact with Virginia Goodman, the occupant who first saw him. She is not alleged to be a person involved in drug dealings, was not arrested during the event, and has not been shown to have had any reason to believe that some man appearing unannounced at her door at 10:30 a.m. would be a police officer.
Nonetheless, Deputy Ohman testified to his belief that the first uniformed officer next to him on the porch was in view so that occupants inside could have seen him before Deputy Ohman opened the door. Although the uniformed officer's job in a ruse entry situation is to stay out of view until the door is opened, the officers positioned themselves based upon the expectation that the main door, having only a narrow window, would be closed. The uniformed officer thus stationed himself at a location where he believed he would not be detected with the main door closed. No testimony has established that from where Ms. Goodman stood, with the main door open, she could not have looked through the glass storm door, see Government's exhibit 1, and seen the closest uniformed officer, approximately three feet to the right of Deputy Ohman. Accordingly, the court finds that Deputy Ohman had reasonable suspicion that the occupant saw the uniformed officer prior to his entry into the residence and was thus aware of the officers' presence and purpose prior to Deputy Ohman's opening of the door and entry soon thereafter by uniformed officers. Accordingly, the futility exception has been met, and no evidence seized from the trailer shall be suppressed.
Suppression of Statements
Defendant Shaw contends that all derivative evidence should be suppressed as fruit of the illegal entry pursuant to Wong Sun v. United States, 371 U.S. 471 (1963). (Dk. 36, p. 6.) The government has not responded to this issue. Nonetheless, having found that the entry was legal, the court denies this motion.
Defendant Goodman's motion to suppress (Dk. 44)
Defendant Goodman's motion raises a different issue in seeking to suppress her statements on the basis that they were made involuntarily. The government contends that defendant's statements were pursuant to a lawful search and arrest, that she was given the Miranda warnings, that she voluntarily waived her Mirandarights, and that her statements should thus not be suppressed.
In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 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); see 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).
In deciding if the waiver was intelligent, the court looks at whether "the defendant knew that he did not have to speak to police and understood that statements provided to police could be used against him." United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990) (citation omitted), cert. denied, 499 U.S. 908 (1991). The defendant need not appreciate "the tactical advantage of remaining silent" for the waiver to be intelligent. Id. The Supreme Court has "never `embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness.'" Connecticut v. Barrett, 479 U.S. 523, 530 (1987) (quoting Oregon v. Elstad, 470 U.S. 298, 316 (1985)).
Even when a defendant's Miranda rights are not violated, the court must still conduct a Fifth Amendment inquiry into the voluntariness of any statements. United States v. Roman Zarate, 115 F.3d 778, 783 (10th Cir. 1997). The court looks to the totality of the circumstances in determining whether the statements were voluntary. United States v. Glover, 104 F.3d 1570, 1579 (10th Cir. 1997). Specific factors relevant in this determination include: the age, education, and intelligence of the defendant; the length of detention and questioning; whether Miranda warnings were given; the defendant's physical and mental characteristics; and the location of the questioning. Chalan, 812 F.2d at 1307; see United States v. Rith, 164 F.3d 1323, 1333 (10th Cir.), cert. denied, 528 U.S. 827 (1999). "In no case, however, is any single factor determinative." Chalan, 812 F.2d at 1307.
The government has met its burden to show that it used procedural safeguards effective to secure the privilege against self-incrimination, and that defendant waived her Miranda rights voluntarily, knowingly, and intelligently. It is undisputed that defendant was timely given Miranda warnings, that she executed a written waiver of those rights by reading and initialing each subsection which explained those rights, and that she signed an acknowledgment that her written statement was made of her "own free will." See Gvmt. Exh. 3. Defendant was then 19 years old, had a high school education, did not appear to be under the influence of drugs or alcohol, spoke coherently, and gave responsive answers. No evidence shows that any physical force was used, or any verbal threats were made.
Defendant Goodman focuses upon the facts that she was asked incriminating questions, was repeatedly called a "liar," was not offered snacks or more breaks, was confined in a small room for two and one half hours, was accused of doing drugs, and was emotionally distraught to the point of tears. Defendant contends that she believed that she would not be released unless and until she gave a written statement, but has not alleged that this erroneous belief was based upon or resulted from any statement or acts of any police officer.
The entire interview process, including housekeeping matters, took approximately two and one half hours, but from the beginning of the interview to receipt of defendant's written statement was one hour and 37 minutes.
These facts are not individually or collectively sufficient to show police coercion, as is required. See Colorado v. Connelly, 479 U.S. 157, 167 (1986) (coercive police activity is a necessary predicate to a finding that a confession is not voluntary within the meaning of the due process clause.) No evidence of police coercion having been presented, suppression based upon alleged involuntariness shall be denied.
Motion for James Hearing
Defendant Goodman has requested a James hearing to determine the admissibility of co-conspirators' statements. See United States v. James, 590 F.2d 575 (5th Cir. 1979).
Under Tenth Circuit law, the district court may satisfy the prerequisites for admission of a co-conspirator statement through either of two means: by holding a James hearing or by provisionally admitting the statement "with the caveat that . . . the party offering [it] must prove the existence of the predicate conspiracy through trial testimony or other evidence." United States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995). Although the Tenth Circuit has recently restated its "strong preference for James proceedings where the government relies on co-conspirator statements," United States v. Gonzalez-Montoya, 161 F.3d 643, 649 (10th Cir. 1998), cert. denied, 526 U.S. 1033 (1999), the Tenth Circuit does permit the district court to provisionally admit the statement with the caveat that the offering party must prove the existence of the predicate conspiracy through trial testimony or other evidence. Id. In that event, the court must find that: (1) a conspiracy existed, (2) the declarant and the defendant were members of the conspiracy, and (3) the statements were made in the course of and in furtherance of the conspiracy. United States v. Radeker, 664 F.2d 242, 243 (10th Cir. 1981); Fed.R.Evid. 801(d)(2)(E). In either case, the court may consider the hearsay statement itself, as well as independent factors, in determining whether the government has established a conspiracy by a preponderance of the evidence. See Fed.R.Evid. 801(d)(2); see also Bourjaily v. United States, 483 U.S. 171, 181(1987).
At times this court has opted not to conduct a James hearing, choosing instead to require the government to make the requisite showing at trial. See e.g., United States v. Preston, 1996 WL 254379, *18-19 (D.Kan. Apr.5, 1996). The court will do the same here. Accordingly, government's counsel shall proffer its 801(d)(2)(E) evidence at the status conference prior to trial, either orally or in written form, at its option. Such proffer shall include not only the specific statement(s) of the coconspirator which the government seeks to admit pursuant to 801(d)(2)(E), but also a concise summary of other evidence sufficient to meet its burden under that rule, i.e., that a conspiracy existed, that the declarant and the defendant were members of the conspiracy, and that the statements were made in the course of and in furtherance of the conspiracy. See Radeker, supra. After receiving this proffer, the court will be in a better position to determine whether a James hearing is then necessary to prove the existence of the predicate conspiracy.
IT IS THEREFORE ORDERED that defendant Goodman's motion to adopt and join in defendant Shaw's pre-trial motions (Dk. 51) is granted; that defendant Shaw's motion to suppress (Dk. 35) is denied, and that defendant Goodman's motion to suppress statements (Dk. 44) is denied.
IT IS FURTHER ORDERED that defendant Goodman's motion for a James hearing (Dk. 49) is taken under advisement, and the government is ordered to proffer any 801(d)(2)(E) evidence at the status conference prior to trial in accordance with the terms of this memorandum.