Opinion
Case No. 2:03CR 0416 TC
December 23, 2003
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO SUPPRESS
This matter came before the Court for an evidentiary hearing on Defendant Stockmoe's Motion to Suppress. Defendant was present and represented by Mr. Edwin S. Wall. The Government was represented by Assistant United States Attorney Michele M, Christiansen.
In his written motion, Defendant asserted that incriminating statements made by him during a police interview with Officer Randall and Officer Carver were made in violation of Miranda. See Supp. Mem in Support of Defandant's Motion to Suppress p. 2. The Court heard testimony at the evidentiary hearing from Detective Andrew Randall and Officer Erin Carver, both of whom work for the Sandy City Police Department. The Court, having reviewed the memoranda submitted by counsel and having heard the evidence and testimony presented at the evidentiary hearing on the motion to suppress, hereby issues the following report and recommendation.
During the evidentiary hearing, Defendant orally, and for the first time, also challenged the sufficiency of the police affidavit which formed the basis for the issuance of a state warrant authorizing a search of his residence. See Transcript of Evidentiary Hearing on Motion to Suppress pp. 31, 34-36. The Government's objection to enlargement of the motion was sustained on the grounds that Stockmoe's attempt to raise the issue of the sufficiency of the search warrant affidavit did not comport with legal requirements. See Franks v. Delaware, 438 U.S. 154, 170, 98 S.Ct. 1674, 16, 84 (1978).
Stockmoe also failed to offer any proof of deliberate falsehoods contained within the affidavit in his memoranda. See United States v. Schauble II, 647 F.2d 113, 117 (10th Cir. 1981) ("Mere allegations of deliberate falsehood or of reckless disregard for the truth are insufficient to mandate an evidentiary hearing; they must be accompanied by an `offer of proof,'") (citation omitted). Because Stockmoe failed to meet the legal requirements to raise this issue, the Court need not address it any further. See Hackney Inc. v. Mclaughlin, 895 P.2d 1298, 1300 (10th Cir. 1990) (concluding that the trial court properly upheld the validity of a search warrant because there was no evidence offered to meet the Franks v. Delaware standard); see also, Franks, 438 U.S. 154, 158-61, 98 S.Ct. 2674, 2678-80.
FACTUAL BACKGROUND
Sandy City police officer Andrew Randall (Randall) began an investigation of a residence located at 566 East Locust Street based on the statements of two unnamed informants who had witnessed the manufacturing and use of methamphetamine at the residence. See Search Warrant and Affidavit signed March 12, 2003, p. 3. One of the informants had purchased methamphetamine in the past and attempted an undercover buy on January 10, 2003. See id.After the undercover buy failed because no one was home, Randall began an independent police investigation that included several controlled trash covers. See id. During the trash covers Randall found a "glass cooking dish that had [a] white powdery residue inside it [that] field tested positive for methamphetamine," empty pseudoephedrine pill boxes, "several hundred match books" with missing strikers, and mail addressed to Gary Stockmoe at the address. Id. Randall also determined from another investigation that the person informants identified as "Kenny" was most likely Kenny Gentilini. See id. at 4. While conducting surveillance of the home Randall determined that the occupants moved to a new address.See id.
On March 4, 2003, Randall found a new address for both Gary Stockmoe and Kenny Gentilini in their probation files. See id. The address for both of them was listed as 9252 S. Benson Way. See id. Randall then changed the focus of his investigation to the new address. During a controlled trash cover at the new address, Randall found mail showing the Locust Street address and the new forwarding address of 9252 S. Benson Way with Gary Stockmoe's name on it. See id. Randall also discovered from the trash cover other items associated with the manufacture of methamphetamine and diapers that indicated the possible presence of a child in the home. See id. Due to the proximity of the residence to a very busy commercial area, the criminal history of both Stockmoe and Gentilini, and the ability to easily destroy evidence of the manufacture of methamphetamine, Randall obtained a State no-knock search warrant that could be executed day or night. See id. at 6. On the morning of March 14, 2003, the warrant was served by a S.W.A.T. team that entered and secured the residence. See Transcript of Evidentiary Hearing on Motion to Suppress pp. 12, 14-15, 22. They also secured all individuals within the home including Stockmoe and Gentilini who were inside the home at the time of the execution of the warrant. (Tr. 12, 14-15, 22). Randall's responsibility was to interview the occupants of the home that were detained in the living room area. (Tr. 13).
Randall testified that his interview with Stockmoe began by advising him of his Miranda rights, which Randall read from a card he keeps in his pocket. (Tr. 13-14). Randall "documented the time on a scratch piece of paper [when he] read Miranda to people." (Tr. 14). This included the time he gave Stockmoe his Miranda rights. (Tr. 14). Randall testified that " he did not have his weapon out nor did he make any threatening movements toward Stockmoe while advising him of his rights." (Tr. 16, 21). Stockmoe agreed to speak with Randall and he did not revoke that agreement or state that he wanted an attorney. (Tr. 17-13).
After interviewing Stockmoe, Randall "was getting ready" to interview Gentilini when Officer Erin Carver "came into the room and asked" to sit in on the interview. (Tr. 18, 48). At "his time Carver told Randall that he had "located a gun in the garage while they were searching." (Tr. 18). After interviewing Gentilini, Randall "walked back out . . . into the living room" with Gentilini and then asked "Stockmoe if he minded talking . . . again." (Tr. 19). Stockmoe "got up" and went with Randall "back into the same room" where the first interview was conducted. (Tr. 19). Randall testified that approximately "a half an hour to 40 minutes" passed since the first interview with Stockmoe. (Tr. 19). Prior to interviewing Stockmoe the second time, Randall testified that he "asked him something to the effect do you remember your rights" and "if he was willing to still talk to me?" (Tr. 19). Stockmoe said "yes" and agreed to talk to Randall. (Tr. 19). During this second interview Stockmoe did not request an attorney or say that he did not want to talk anymore. (Tr. 19-20, 50-52). Stockmoe admitted that the gun was his, "that he had never fired the weapon, never used it, [but] just hung onto it for no better reason than not knowing how to get rid of it." (Tr. 20).
Officer Carver, part of the detective division at the time of the execution of the warrant, was assigned to process the evidence found in the garage area. (Tr. 46-47). Carver assisted Randall in interviewing Gentilini and in interviewing Stockmoe the second time. (Tr. 47-49). Carver testified that Randall told Stockmoe "he still had his Miranda rights" and asked him "if he remembered his Miranda rights" and asked whether he would be willing to still talk. (Tr. 50). Stockmoe said he was willing to still talk. (Tr. 50). Carver testified that he never made any threats toward Stockmoe and that Stockmoe never asked for an attorney or said he did not want to talk. (Tr. 51). During the second interview Stockmoe initially denied knowing anything about the gun but then made certain admissions about it. (Tr. 52).
Findings
1. The testimony and evidence introduced through Randall show by a preponderance of the evidence that Defendant was given his Miranda warnings prior to the first interview. (Tr. 16-18).
2. Defendant having been advised of his Miranda rights agreed to waive his rights and speak with Randall without an attorney present. (Tr. 16-18).
3. The testimony and evidence introduced through Randall and Carver show by a preponderance of the evidence that Defendant was reminded of his Miranda rights prior to being interviewed a second time. (Tr. 19, 50, 57). However, even if Randall and Carver had failed to remind Stockmoe of his Miranda rights before the second interview, the Court finds that Stockmoe was not entitled to a second Miranda warning. See Mitchell v. Gibson, 262 F.3d 1036, 1057-58 (10tn Cir. 2001). Stockmoe argues that he failed to receive his Miranda warnings when he was "interrogat[ed] by both Officers Randall and Carver" about a firearm that had been found in the garage and therefore, Stockmoe's "statements and the evidence obtained from those statements" should be suppressed. The Court disagrees. The testimony offered indicates that approximately a half an hour to forty minutes passed between Stockmoe's first and second interviews. (Tr. 19). The passage of time alone does not: invalidate a previously givenMiranda warning. See Gibson, 262 F.3d at 1057-58 ("`The mere passage of time . . . does not compromise a Miranda warning. Courts have consistently upheld the integrity of Miranda warnings even in cases where `several hours' have elapsed between the reading of the warning and the interrogation.'" (quoting United States v. Diaz, 814 F.2d 454, 461 (7th Cir. 1987))). Stockmoe was interviewed in the same room and there were no change of circumstances between the first and second interviews that entitled Stockmoe to a second Miranda warning. (Tr. 18, 47-49); see e.g., United States v. Andaverde, 64 F.3d 1305, 1313 (9th Cir. 1995) (concluding that new warnings were not required before the defendant was interviewed the day after arrest).
RECOMMENDATION
For the foregoing reasons:IT IS HEREBY RECOMMENDED that Stockmoe's Motion to Suppress be DENIED.
Copies of the foregoing report and recommendation are being mailed to all parties who are hereby notified of their right to object. The parties must file any objection to the Report and Recommendation within ten days after receiving it. Failure to object may constitute a waiver of objections upon subsequent review.