Opinion
Case No. 00-40097-01-RDR
April 18, 2001
MEMORANDUM AND ORDER
This order is issued following an evidentiary hearing upon pretrial motions in this case. Defendant is charged in two counts. Count one alleges that defendant attempted to manufacture in excess of 50 grams of methamphetamine. Count two alleges that defendant possessed ephedrine and pseudoephedrine with intent to manufacture methamphetamine.
The facts leading to defendant's arrest are that a confidential informant allegedly made a buy of methamphetamine from defendant at defendant's home at approximately 8:30 p.m. on October 15, 2000 in Lawrence, Kansas. The transaction was tape recorded. At about 2:30 a.m. on October 16, 2000, police officers executed a search warrant at the home. They arrested defendant and allegedly found a methamphetamine lab in the home.
At approximately 3:40 a.m., defendant was questioned by Lawrence Police Department officers at the Lawrence Police Department. Two officers participated in the questioning, Detective Lyle Hagenbush and an Officer Hanson. Detective Hagenbush has worked as a police officer since 1994. He testified to the court that the interview of defendant took place in an 8 foot by 10 foot interview room. The room had a table, chairs and a window with a curtain. Defendant received a Miranda warning and agreed to waive his right to be silent.
Defendant appeared alert and unemotional during his interview. He gave intelligent, lucid answers to the questions he was asked. He was able to respond with detail in a clear and appropriate manner. Defendant did not appear intoxicated in any respect, even though he told the officers that he had used methamphetamine a couple of hours prior to the interview.
The officers did not raise their voices during the interview. No tricks were played. There were no intimidating tactics. Defendant was told that he was going to be charged with a serious offense which carried a lengthy prison term and that he could help himself by talking to the police. Nothing specific was offered in exchange for his cooperation.
During the interview, defendant was wearing a white disposable suit which had been provided to him by the police department. The interview concluded at approximately 5:20 a.m.
MOTION TO SUPPRESS CONFESSION (Doc. No. 28)
Defendant has argued that the court should suppress the statements defendant made to the police officers because any waiver of defendant's Miranda rights was not a knowing and voluntary waiver and because his statements to the police were involuntary. After a review of the evidence presented to the court, the court finds that the motion must be denied.
A waiver of Miranda rights must be made voluntarily, knowingly, and intelligently.
"[T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the `totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived."
Moran v. Burbine, 475 U.S. 412, 421 (1986). The government has the burden of proving by a preponderance of the evidence that a waiver of Fifth Amendment rights was voluntary. U.S. v. Toro-Palaez, 107 F.3d 819, 825 (10th Cir.) cert. denied, 522 U.S. 845 (1997). Waiver can be inferred from a defendant's actions as well as his words. Id. A court examines the totality of circumstances to determine whether a waiver was voluntarily given. Id.
In this case, we believe defendant made a voluntary and intelligent waiver of his Fifth Amendment rights. He spoke clearly, intelligently and without hesitation. He was not coerced physically or mentally. He is an intelligent person who did not seem impaired by the use of methamphetamine. See U.S. v. Newman, 889 F.2d 88, 94-95 (6th Cir. 1989) cert. denied, 495 U.S. 959 (1990) (intoxication does not compel a finding that a waiver of rights was involuntary). After a review of all the pertinent facts presented to the court, we find that the waiver of rights was voluntarily and intelligently made following the warning administered by the police.
A determination of voluntariness of a defendant's statement is made after examining several factors including: 1) defendant's age, education and intelligence; 2) the length of the detention and interrogation; 3) the length and nature of the questioning; 4) whether defendant was advised of his constitutional rights; and 5) whether defendant was subjected to or threatened with any physical punishment. See U.S. v. Lugo, 170 F.3d 996, 1004 (10th Cir. 1999). A confession is only involuntary when "the police use coercive activity to undermine the suspect's ability to exercise his free will." Id.
In this case it appears that defendant is a mature, educated man of at least average intelligence. He was questioned for no more than two hours in a non-hostile manner and in a comfortable setting. Although the questioning occurred in the early morning hours, defendant appeared alert and well able to express himself clearly and intelligently. He was advised of his constitutional right to silence prior to being questioned. He waived that right. He was not threatened physically. Nor was any mental coercion applied. He was merely told that he could aid himself if he spoke to the police.
Defendant asserts that this last point, when considered in the context of defendant's recent methamphetamine use, and his disposable clothing, provides sufficient evidence that his statements were coerced. We disagree. A general statement that cooperation may benefit the defendant does not compel a finding of coercion. See U.S. v. Roman-Zarate, 115 F.3d 778, 782-83 (10th Cir. 1997). Intoxication is a factor which must be considered, but also does not mandate a finding that a statement made to the police was involuntary. See U.S. v. Muniz, 1 F.3d 1018, 1022 (10th Cir.) cert. denied, 510 U.S. 1002 (1993); U.S. v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990) cert. denied, 499 U.S. 941 (1991); U.S. v. Chrismon, 965 F.2d 1465, 1469-70 (7th Cir. 1992); U.S. v. McKee, 846 F. Supp. 930, 933 (D.Kan. 1994). The only testimony before the court indicates that defendant was clear-headed and made uncoerced statements to the police. We do not believe the factors stressed by defendant are sufficient to overcome the proof offered by the government that the statements made by defendant were voluntarily and intelligently uttered.
Therefore, the motion to suppress shall be denied.
MOTION FOR SPECIFIC KYLES AND BRADY INFORMATION (Doc. Nos. 22 29)
This motion is directed toward the production of a tape recording of the conversation between the confidential informant and defendant on the evening before the search warrant was executed. At the government's request and with the defendant's consent, the court has attempted to listen to the tapes in camera. The court is unable to make out enough of the conversation to understand what is being said. Accordingly, the court cannot determine whether or not the tapes contain exculpatory material.
In an abundance of caution, the court shall permit defense counsel to listen to the tapes outside the presence of defendant or any other agent of defendant. If defense counsel believes there is exculpatory information on the tape, counsel may file a motion within 15 days of the date of this order for leave to share information from the tape with defendant. If either side has any objection to this procedure, an objection may be filed within five days of the date of this order.
MOTION FOR DISCLOSURE OF THE CONFIDENTIAL INFORMANT (Doc. No. 31)
This motion asks the court to require the government to disclose the identity of the confidential informant. At the hearing before the court, counsel for defendant indicated that the name of the confidential informant was already known. Therefore, this motion appears to involve a moot issue. Moreover, as the government asserts, the charges in this case do not directly involve the alleged transaction between defendant and the confidential informant.
The Tenth Circuit has stated:
A defendant seeking to force disclosure of an informant's identity has the burden to show the informant's testimony is relevant or essential to the fair determination of defendant's case. In determining whether to require disclosure, a court must balance the public interest in protecting the flow of information against the individual's right to prepare his defense. Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The court conducts this balancing in light of the crime charged, the possible defenses, and the significance of the informant's testimony. United States v. Sinclair, 109 F.3d 1527, 1538 (10th Cir. 1997). "Where it is clear that the informant cannot aid the defense, the government's interest in keeping secret [the informant's] identity must prevail over the defendant's asserted right of disclosure." Id.(quoting United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir. 1992)).
U.S. v. Gordon, 173 F.3d 761, 767 (10th Cir.) cert. denied, 528 U.S. 886 (1999).
Given the circumstances before the court, we are not convinced that disclosure by the government of the confidential informant is essential to the defense in this case. It is vague, at best, how the informant could aid the defense of this matter. Moreover, defendant appears to know the identity of the informant already.
The motion for disclosure shall be denied.
OTHER MOTIONS
The following three motions appear moot: Motion to disclose expert testimony (Doc. Nos. 23 26); Motion for production of photographs (Doc. No. 30); and Notice of demand for 404(b) and other evidence (Doc. Nos. 21 27).
SUMMARY
In summary, the motion to suppress and the motion to disclose confidential informant shall be denied. The motion for specific Kyles and Brady information is granted in part under the conditions set forth in this order. The remaining motions are considered moot.
IT IS SO ORDERED.