Opinion
CR. 07-30097, 2008 DSD 5.
February 15, 2008
Eric D. Kelderman, Assistant United States Attorney, Pierre SD, Attorney for Plaintiff.
Jana Miner, First Assistant Federal Public Defender, Pierre SD, Attorney for Defendant.
REPORT AND RECOMMENDATION FOR DISPOSITION OF DEFENDANT'S MOTION TO SUPPRESS STATEMENTS AND EVIDENCE
Defendant, Lonzo Smith, Jr., has filed a Motion to Suppress Statements and Evidence and Memorandum in support thereof, Docket Nos. 15, 16. In his Motion, Defendant seeks to suppress "all statements made by [him] on October 3, 2007, as well as all physical samples collected [from him] for testing purposes." Plaintiff, United States of America (Government), has filed a Memorandum in opposition to the suppression Motion, Docket No. 19. This Court held an evidentiary hearing on Defendant's Motion at which two witnesses testified and 20 exhibits were received into evidence. Because the Motion is a dispositive one, the Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 U.S.C. § 636(b)(1), the Court does now make and propose the following report and recommendation for disposition of the Motion.
I.
On October 3, 2007, at 2:11 a.m., Sherlinda Kills Plenty telephoned the Rosebud Police Department and reported that someone had attempted to sexually assault her mother, Juanita Kills Plenty, at the latter's home in Parmelee, South Dakota. Rosebud Sioux Tribal Police Officer Calvin Waln, Jr. responded to the call and interviewed Sherlinda and Juanita. Both women said that just before Waln arrived, they saw Defendant standing on the porch to his grandmother's house, located across the street from Sherlinda's residence. After talking to Sherlinda and Juanita, Waln made contact with Lonzo Smith, Sr. (Defendant's father) who was sitting in a vehicle parked in the driveway to the Smith residence. When questioned, Smith, advised that Defendant was not in the residence and was probably at a friend's house. Smith, also refused to allow Waln entry into the house without a warrant, saying that "it's just me and her [referring to Smith's mother] here and she's sleeping."
Waln then left the Smith residence in his vehicle and upon returning saw a male walking in an open area approximately 40 to 50 yards away from the house. Believing that the person he observed was Defendant, Waln got out of his vehicle, jogged over and made contact with the individual. Waln quickly discovered that the person he had stopped was not Defendant, but Alwood Running Horse, who when asked, said he had not seen Defendant. As he started walking back toward his vehicle, Waln saw a bedroom light come on in the house. Within ten to fifteen seconds, the light went off. Waln then climbed on a tire that was leaning against the house, just below the bedroom window. Moments later, a blanket, that was used as a curtain, was pulled partly to the side. When this happened, Waln could see Defendant's face, less than a foot away, and told Defendant to go to the front door where Waln planned to arrest Defendant. Defendant complied and Waln and another officer arrested Defendant "for attempt to commit." Defendant then reentered the house, accompanied by both officers, to put shoes on. After he did so, Defendant was taken to the police department in Waln's vehicle.
While in route, Waln advised Defendant of his Miranda rights, but did not question him. Upon reaching the police station, and while in the booking area, Defendant was read his Miranda rights from an advice of rights form. Defendant initialed each of the rights on the form, indicating that he understood them, and signed the waiver portion of the same. Waln, however, did not interrogate or otherwise talk to Defendant that night. Instead, Defendant was left with a detention officer and thereafter placed into a jail cell.
About ten and-a-half hours later, Defendant met with FBI Agent Oscar Ramirez and Rosebud Sioux Tribe Criminal Investigator Laddimer Clifford at the police department. After the agents introduced themselves, Defendant stated, "Can I get a lawyer here?" Ramirez responded by saying, "Sure you can" and proceeded to tell Defendant that the agents simply wanted to talk to him. Eventually, Defendant was advised of his Miranda rights a third time, via an advice of rights form, signed the form indicating that he was willing to answer questions without a lawyer present, and was interviewed by the agents. During the interview, Defendant admitted that he was with Juanita, but denied that he attempted to rape her. At the conclusion of the interview, Defendant provided a taped statement and in it, made incriminating remarks but maintained his innocence.
As the Court observed Ramirez and listened to him while he testified, in order to judge his credibility and how much weight to give to his testimony, it was evident that he knew, or at least understood, that Defendant had made a request to have counsel present.
II.
Defendant first claims that his arrest was illegal. He seeks to suppress "[t]he fruits of the events that followed [his] arrest, i.e., questioning, searches, etc. . . . under the Fourth Amendment's Exclusionary Rule." Defendant does not point to any specific evidence that was seized from the Smith residence at the time of his arrest. Rather, he uses his allegedly unlawful arrest as a lynchpin for excluding evidence that flowed from, and was obtained by virtue of, that arrest.
The Court need not reach the question of whether Defendant's arrest was illegal, and if it was, whether the evidence obtained therefrom is subject to suppression under the Fourth Amendment. No evidence was seized and no meaningful statements were made by Defendant incident to his arrest. There thus is nothing to suppress as a result of any violation of the rule in Payton v. New York, 445 U.S. 573 (1980). And, for the reasons more fully explained below, Defendant's statements made to Ramirez and Clifford were obtained in violation of Miranda and are not admissible in the Government's case in chief at trial. This being the case, an analysis under the Fourth Amendment of the circumstances leading up to Defendant's arrest, the propriety of the arrest itself and the evidence and statements derived from the same is unnecessary. The Court accordingly declines to delve into the thicket of, and to rule on, the Fourth Amendment issues raised by the parties.
III. A.
Defendant next claims that the statements he made to agents on October 3rd should be suppressed because he invoked his right to counsel. It is undisputed that moments after Ramirez and Clifford introduced themselves and prior to being advised of Miranda warnings, Defendant made the statement, "Can I get a lawyer here?" to the agents. Defendant asserts that this statement was sufficient, as a matter of law, to invoke his Miranda rights and the protections outlined by that case and its progeny. The Government maintains that Defendant's statement was ambiguous and that police proceeded properly in attempting to clarify Defendant's intentions with respect to counsel.
B.
The right to counsel recognized in Miranda is one of those rights "requiring the special protection of the knowing and intelligent waiver standard." Edwards v. Arizona, 451 U.S. 477, 483 (1981); see also Oregon v. Bradshaw, 462 U.S. 1039, 1046-47 (1983). If a suspect validly waives his right to counsel after being Mirandized, law enforcement officers are free to question him. North Carolina v. Butler, 441 U.S. 369, 372-76 (1979). But, if the suspect requests counsel at any time before or during an interview, he is not subject to further questioning until counsel has been made available to him, unless he initiates conversation.Edwards, 451 U.S. at 484-85; see also Miranda v. Arizona, 384 U.S. 436, 474 (1966). This "rigid" prophylactic rule, see Fare v. Michael C., 442 U.S. 707, 719 (1979), is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Michigan v. Harvey, 494 U.S. 344, 350 (1990). Thus, a suspect who has invoked his right to counsel cannot be questioned regarding any offense unless an attorney is actually present. Minnick v. Mississippi, 498 U.S. 146, 153 (1990); Arizona v. Roberson, 486 U.S. 675, 682 (1988).
"Invocation of the Miranda right to counsel `requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.'" Davis v. United States, 512 U.S. 452, 459 (1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)). If a suspect's reference to an attorney "is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel . . . the cessation of questioning [is not required]." Id. "Rather, the suspect must unambiguously request counsel." Davis, 512 U.S. at 459. Although the suspect need not "`speak with the discrimination of an Oxford don,' he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney."Id. (citation omitted). If a suspect's statement is not objectively clear, Edwards does not require that the officer stop questioning the suspect. 512 U.S. at 459.
"Of course, when a suspect makes an ambiguous or equivocal statement it will often be good practice for the interviewing officer to clarify whether or not he actually wants an attorney."Id. at 461. Clarifying questions help protect the suspect's rights ensuring that he gets an attorney when he wants one and minimize subsequent judicial second guessing as to whether the suspect actually invoked his Miranda right to counsel. Id. The Supreme Court, however, has declined to adopt a rule requiring that officers ask clarifying questions, believing instead that such a practice should be permissive and left to the discretion of officers based on the circumstances present. Id. at 461-62.
C.
The crucial question in the instant case is whether Defendant clearly invoked his Miranda right to counsel when he stated, "Can I get a lawyer here?" After careful review of Defendant's statement, including the words used in it and the context and timing the same was uttered, the Court concludes that the Defendant made a sufficiently clear and unequivocal request to invoke his Miranda right to counsel and have questioning cease.
A number of courts have reached the same conclusion in cases involving very similar requests. See e.g. United States v. Lee, 413 F.3d 622, 625-26 (7th Cir. 2005) ("Can I have a lawyer?");Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (defendant invoked his right to counsel by asking three times at the beginning of the interview whether he could get an attorney "right now"); United States v. Jones, No. CR 06-244 DSD/FLN, 2006 WL 3617876 at **6-7 (D. Minn. Dec. 8, 2006) ("Can I get a lawyer like, right now, or do I have to wait?"); United States v. Hughes, 921 F.Supp. 656, 657 (D. Ariz. 1996) ("Can I call a lawyer?"); Commonwealth v. Hilliard, 270 Va. 42, 46, 613 S.E.2d 579, 582 (2005) ("Can I get a lawyer in here?"); Taylor v. State, 274 Ga. 269, 270, 553 S.E.2d 598, 601 (2001) ("Can I have a lawyer present when I do that?" followed by "Okay" when told she could); Commonwealth v. Contos, 435 Mass. 19, 28-31,754 N.E. 647, 656-58 (2001) ("`I think I'm going to get a lawyer'"); State v. Dumas, 750 A.2d 420, 424 (R.I. 2000) ("`Can I get a lawyer?' could invoke a defendant's constitutional right to counsel under Miranda");Commonwealth v. Thomas, No. 9973 CRO 447, 2000 WL 1597734 at *3 (Mass.Super. Oct. 11, 2000) ("What I'm saying, though, could I get a lawyer right now?"); State v. Gilliam, 748 So.2d 622, 627 (La.App. 1999) ("Can I get a lawyer now?"); but see Robinson v. Stegall, 157 F.Supp.2d 802, 818-19 (E.D. Mich 2001) ("Can I get a lawyer in here right now?" held to be equivocal). With one exception, none of the cases cited by the Government involved requests quite like the one in the present case.
United States v. Eastman, 256 F.Supp.2d 1012 (D.S.D. 2003), a case handed down in the Central Division of this District, did address a request that is arguably close. The Eastman court, in dicta observed that "the statement . . . `Can I have a lawyer' was not an unequivocal request for counsel within the meaning ofDavis and its progeny." 256 F.Supp.2d at 1019, n. 6. The precedential value of this dicta, however, is suspect given the Seventh Circuit's subsequent and contrary decision in Lee, wherein that court held that the statement "Can I have a lawyer?" was an unequivocal invocation of the defendant's right to counsel. 413 F.3d at 625-26. Regardless, the statement, "Can I have a lawyer" is different from and more cryptic than the statement, "Can I get a lawyer here?" The former asks for advice, while the latter is a request to have counsel present. In normal parlance, the syntactic phraseology employed by Defendant here is a reasonable and acceptable way to frame a request for counsel.
A hungry customer at a restaurant might ask the hostess, "Can I get a waitress here?" Similarly, a shopper might ask a sales clerk, "Can I get some help here?" In each case, it is clearly understood that the speaker is making a request for someone or some thing. On the other hand, a patron at a pizza establishment might ask, "Can I get a slice of pepperoni pizza here?" In that case, the question might be understood to mean "Is pepperoni pizza available, and does the establishment sell it by the slice?" The reasonably understood meaning of a request, like the one made by Defendant, will therefore depend upon the circumstances in which it was made.
The fact that Defendant made his request for counsel immediately after meeting the agents and well before his Miranda advisement by them demonstrates an avowed desire, on his part, to have counsel present. A reasonable officer in Ramirez's shoes would have known that Defendant wanted counsel and, instead of prevailing upon Defendant to go ahead without counsel (as Ramirez did), would have halted the interview.
Defendant's request, unlike the one alluded to in Eastman, was clear enough to invoke the protections outlined in Miranda and its progeny. Thus, irrespective of whether Defendant gave subsequent, and otherwise valid, waivers of his rights, the statements he made to agents were obtained in violation of hisMiranda right to counsel and are not admissible as substantive evidence at trial.
D.
Although not dispositive to the Court's decision, the conduct of Ramirez, after Defendant requested counsel, is troubling. Ramirez illusively made statements, not to discern Defendant's actual intent, but to persuade him not to invoke his right to counsel and to impel him to give up that right. Indeed, Ramirez's responses to Defendant's request for counsel look more like they were designed to coax Defendant into submitting to an interview than to clarify that request. By his own admission, Ramirez was attempting to obtain incriminating statements from Defendant that could later be used in court against Defendant. Ramirez misleadingly explained the potential effects of invoking the right to counsel, seemingly confused the issue, purposefully downplayed and minimized what he and Clifford wanted to do and successfully muddied Defendant's perception of the availability of his rights. Ramirez's supposed "clarifying" comments appear to be a contrived attempt to get around theMiranda/Edwards rule and to keep the interview alive in hopes of getting a confession from Defendant. See Lee, 413 F.3d at 627;State v. Ray, 659 N.W.2d 736, 742 (Minn. 2003).
After Defendant asked, "Can I get a lawyer here?", Ramirez responded, "Sure you can" and then proceeded to tell Defendant that:
a. "[A]ll [the agents] wanted to do was talk to him";
b. "If he wanted an attorney present inside the interview room at that time . . . [Ramirez] would have to stop the interview";
c. "[H]e had to make the decision if he wanted an attorney or not" and that it "was very important";
d. "[I]f he had a lawyer there [the agents] couldn't talk to him and that means that he would have to request a lawyer"; and
e. "[I]f he wants to continue with the interview, that all [the agents] want to do is talk to him about why he was arrested and ask him questions."
Ramirez then asked Defendant for "permission . . . to advise him of his rights before he made the decision [as to] whether he wanted to continue with the interview or not." Ramirez admitted that he made these statements "to clarify that [Defendant] never requested an attorney and . . . to [e[nsure that anything that was said that might be incriminating could be admitted in court." Upon securing "permission to continue," Ramirez did not Mirandize Defendant as he said he would, but rather went ahead and asked Defendant "several biographical questions." One such question, whether he "was under the influence of any illegal drugs," would have incriminated Defendant, had he responded to it in the affirmative. It was only after Defendant answered the "biographical questions" that Miranda warnings were finally administered to him.
E.
To summarize, Defendant's statement, "Can I get a lawyer here?" was a clear and unambiguous request to have counsel present. As such, Ramirez and Clifford were obliged to terminate the interview until counsel was made available to Defendant. They failed or refused, however, to scrupulously honor Defendant's request, went ahead with the interview and elicited incriminating statements from Defendant. The statements, taken without the benefit of counsel present, or the initiation of further communication by Defendant, were obtained in violation ofMiranda, Edwards and their progeny and must now be suppressed.
Whether or not Ramirez engaged in an impermissible effort to persuade Defendant to abandon and/or waive his right to have counsel present is an issue that need not be decided in order to resolve Defendant's suppression motion. It will suffice to say that Ramirez's tactics were close to running afoul of Miranda. At a bare minimum, Ramirez should not be asking a suspect in custody any questions, much less "biographical questions," that are reasonably likely to result in an inculpatory response, before the suspect is advised of and waives his Miranda rights. See Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
IV.
Having determined that Defendant's October 3rd statements may not be used as substantive evidence, there is left to be decided the question of whether these statements may be used for impeachment purposes.
The Supreme Court concluded, more than three decades ago, that although statements taken in violation of the prophylactic Miranda rules may not be used in the prosecution's case in chief, they are nonetheless admissible to impeach the conflicting testimony of a defendant.Oregon v. Hass, 420 U.S. 714, 722-23 (1975); Harris v. New York, 401 U.S. 222, 224-26 (1971). If the defendant chooses to testify on his own behalf, he assumes a reciprocal "obligation to speak truthfully and accurately," Harris, 401 U.S. at 225, and may not `turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.'" Id. at 224 (quoting Walder v. United States, 347 U.S. 62, 65 (1954)); Hass, 420 U.S. at 722; see also United States v. Havens, 446 U.S. 620, 626 (1980). The Court has mandated the exclusion of reliable and probative evidence for all purposes only when it has been derived from involuntary statements. New Jersey v. Portash, 440 U.S. 450, 459 (1979); Mincey v. Arizona, 437 U.S. 385, 398 (1978). The Court has never prohibited the prosecution from using relevant and voluntary statements of a defendant when the violations alleged relate only to procedural safeguards (like the Miranda rules) that are "not themselves rights protected by the Constitution," see Michigan v. Tucker, 417 U.S. 433, 444 (1974), "but are instead measures designed to insure that constitutional rights are protected," Harvey, 494 U.S. at 351. In such cases, the "search for the truth" outweighs the "speculative possibility" that exclusion of evidence might deter future violations of rules that are themselves not compelled directly by the Constitution itself." Hass, 420 U.S. at 722-23; Havens, 446 U.S. at 627.
While not entirely free from doubt, the Court is satisfied, based on the totality of the circumstances present, that Defendant's statements were not "extracted by threats, violence or express or implied promises sufficient to overbear [his] will and [to] critically impair his capacity for self-determination. United States v. LeBrun, 363 F.3d 715, 724 (8th Cir. 2004) (en banc) (quoting Simmons v. Bowersox, 235 F.3d 924, 1132 (8th Cir.), cert. denied, 534 U.S. 1124 (2001)), cert. denied, 543 U.S. 1145 (2005). Certainly Ramirez's ripping of Defendant's shorts, during the interview, may suggest, in the abstract, that Defendant's statements were involuntary. The circumstances surrounding the rip, however, did not cause the environment to become a coercive one in which Defendant's will was overborne. Had Defendant felt threatened or intimidated by Ramirez's actions, he presumably would not have continued with the interview, agreed to provide an oral taped statement and said the things he did on the tape.
As he was talking with and demonstrating DNA transference to Defendant, Ramirez grabbed ahold of Defendant's shorts and ripped them. The laying of hands on a suspect's person and clothing while interrogating him is improper and cannot be condoned.
On the tape, Defendant confirmed that he had been advised of his rights, that he understood them and was willing to give a taped statement to agents. He likewise confirmed that no promises or threats had been made to him and no pressure or coercion had been used to get him to make such a statement. Later, he admitted that he lied to police about being at Juanita's house on the night in question, that he had touched her butt and forced himself on her and stated that he should probably be punished.
The record as a whole demonstrates that Defendant's statements were voluntary. As such, the statements may be utilized at trial if and when Defendant elects to testify in his own defense.
V.
Based on the foregoing discussion, and in accordance with § 636(b)(1), the Court hereby recommends that Defendant's Motion to Suppress Statements and Evidence, Docket No. 15, be granted in part and denied in part. The Motion should be granted to the extent that it seeks to exclude, as substantive evidence, the statements Defendant made to Ramirez and Clifford on October 3rd, and any evidence derived directly therefrom. In all other respects, the Motion should be denied.
NOTICE
Failure to file written objections to the within and foregoing Report and Recommendation for Disposition of Defendant's Motion to Suppress Statements and Evidence within ten (10) days from the date of service shall bar an aggrieved party from attacking such Report and Recommendations before the assigned United States District Judge. See 28 U.S.C. § 636(b)(1).