Opinion
Criminal Case No. 15-cr-00200-REB
07-20-2017
UNITED STATES OF AMERICA, Plaintiff, v. 1. SHAWN SHIELDS, Defendant.
ORDER
Blackburn, J.
The matters before me are defendant Shawn Shields's (1) Motion for Disclosure [#34], filed September 26, 2016; and (2) Motion To Suppress Evidence [#35], filed September 26, 2016. The government filed responses to these motions [## 37 & 38, respectively], as well as a supplementary to the discovery motion [#39]. I heard these motions on June 22, 2017, and took the matters under advisement. I now deny the motion for discovery in part and deny it as moot in part, and deny the motion to suppress.
"[#34]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
In fashioning my ruling, I considered all relevant adjudicative facts in the file and record of this case pro tanto. I considered the testimony educed at the hearing. I considered, but did not necessarily accept, the reasons stated, arguments advanced, and authorities cited by counsel in their papers and during the hearing. I considered the totality of relevant circumstances.
In assessing the credibility of the witnesses who testified during the hearing, I considered all facts and circumstances shown by the evidence that affected their credibility, including the following factors: the witness's means of knowledge, ability to observe, and strength of memory; the manner in which each witness might be affected by the outcome of the hearing; the relationship the witness had to either side in the case; the internal consistency vel non of the testimony; and the extent to which the witness was either supported or contradicted by other evidence presented during the hearing.
My findings of fact are based on not less than a preponderance of the evidence. Based on the foregoing, I enter the following findings of fact, conclusions of law, and orders.
I. FINDINGS OF FACT
On March 18, 2015, defendant Shawn Shields, an inmate at the United States Penitentiary - Administrative Maximum (ADX) in Florence, Colorado, was involved in a verbal altercation with another inmate, Donald Heisler, while the two were recreating in the J Unit of the prison. On that morning, Special Investigative Service ("SIS") Lieutenant Charles Alvarez was giving a morning briefing to several SIS technicians in their office. At approximately 8:10 a.m., Lieutenant Alvarez glanced at one of the three monitors in the office and observed Mr. Shields running up a stairwell to the second tier of J Unit, with Mr. Heisler in pursuit.
The J Unit is a step-down unit of ADX, an intermediate step between general population, in which inmates are confined to their cells for the majority of each day, and transfer out of ADX to the United States Penitentiary -Florence.
A third inmate - identified at the hearing by Mr. Shields as Vincent Basciano - stopped Mr. Heisler and held him back. Mr. Shields, meanwhile, continued up the stairs to his cell, which was locked, as is standard protocol during inmate recreation time. Lieutenant Alvarez observed Mr. Shields kneel down in front of his cell and reach underneath the door, after which Mr. Shields continued down the corridor. The SIS unit then received a call for assistance from J Unit, and Lieutenant Alvarez and other SIS officers proceeded there.
Although Lieutenant Alvarez testified that J Unit was locked down immediately following Messrs. Heisler's and Shields's altercation, Mr. Shields insisted some eighteen to twenty minutes elapsed before the unit was locked down, during which time, he testified, he and Mr. Heisler had further, calmer, discussions and purportedly resolved their differences. Regardless, the unit ultimately was locked down. All inmates were returned to their assigned cells, and prison staff interviewed individually each inmate who was present and performed a cell-by-cell search to ensure the unit was safe to be reopened. At some point, Mr. Shields was removed from his cell and questioned in an interview room within J Unit. Following this interview (the particulars of which are not specified and are irrelevant here), Mr. Shields was escorted to the Special Housing Unit ("SHU").
Mr. Heisler also was transferred to the SHU.
Before an inmate enters the SHU, standard procedure requires he pass through a machine called the SecurPASS, similar to the full body x-ray scanners used to screen passengers at airports. Following an initial scan, for which Lieutenant Alvarez was not present, another officer approached Lieutenant Alvarez and told him it appeared from the scan that there was something in Mr. Shields's lower abdominal region. Lieutenant Alvarez testified it appeared as if there was a 3.5-inch needle in Mr. Shields's lower abdominal region. The image, however, was "blurry," leaving the officers unsure what they were seeing. Lieutenant Alvarez therefore ordered a second scan. This image, too, was unclear, as was a subsequent scan.
Mr. Shields testified that before being scanned by the SecurPASS machine, he also was required to strip and submit to a visual inspection. That search is not implicated by the present motions.
Following the third inconclusive scan, Lieutenant Alvarez directed Mr. Shields to slightly lift his hands, which were cuffed behind his back, and a fourth scan was performed. The image of this scan was clearer, but Lieutenant Alvarez still was not "100% sure if it was a weapon or what." He asked Mr. Shields whether he had any surgical screws or plates in his lower back. Mr. Shields said he did have a medical screw in his spine, but when Lieutenant Alvarez checked Mr. Shields's lower back, he saw no evidence of a surgical scar to indicate Mr. Shields had undergone surgery for placement of such a device.
Lieutenant Alvarez then left the SecurPASS room, intending to call the medical department to verify whether Mr. Shields had a metal screw or plate in his back. Before he could make that call, however, other officers alerted him that Mr. Shields had said he would surrender the object if Lieutenant Alvarez would show it to him on the screen. Lieutenant Alvarez returned to the SecurPASS room and ordered Mr. Shields to give him the object. Mr. Shields repeated he would do so if Lieutenant Alvarez would show him the scan.
Confronted with the image, Mr. Shields said, according to Lieutenant Alvarez, "Okay you got me, and damn technology now a days is a bitch. Just escort me to a cell and I will give it to you. That's my word and plus I don't want Osagie[']s[] fat fingers in my ass." (Gov't Hrg. Exh. 1 at 1.) Lieutenant Alvarez asked whether the object was metal and if in fact it was concealed in his rectum, and Mr. Shields responded "Yes."
Anthony Osagie is a medical provider at ADX who is authorized, when appropriate, to perform digital body cavity searches.
Lieutenant Alvarez testified that had Mr. Shields declined to surrender the object voluntarily, he would have been placed in a "dry cell" until he passed the object from his body through natural means. A digital body cavity search therefore most likely would have been unnecessary and would have been ordered only as a last resort in any event.
Mr. Shields then was escorted to an observation cell. His restraints were removed and he was provided with a bedpan covered with a plastic trash bag. Mr. Shields removed the object from his rectum and placed it in the bedpan. On later examination, the objects consisted of two pieces of aluminum, one 4.5 inches long and the other 1.5 inches long, both sharpened to points. After Mr. Shields removed these items, he was returned to the scanner for a fifth and final time to verify that nothing else was concealed inside his body. When that scan came back clear, Mr. Shields was escorted to a cell in the SHU.
Mr. Shields testified that he was scanned at least eight times during this encounter. I do not find this testimony credible, although ultimately, the number of scans performed is irrelevant to my determination of the instant motions.
While Lieutenant Alvarez acknowledged that scanning an inmate entering the SHU five times was unusual, he testified he believed this course of action was required in the particular circumstances to ensure the safety and security of both staff and inmates. Lieutenant Alvarez estimated that the screening process took only five to ten minutes. The entire encounter, from the time Mr. Shields was escorted from J Unit to the time he reached a cell in the SHU, lasted approximately thirty minutes. Lieutenant Alvarez described Mr. Shields's demeanor as respectful and compliant throughout, and officers were not abusive, either verbally or physically. Standard security protocols and procedures were followed at each step.
II. CONCLUSIONS OF LAW
Following this incident, Mr. Shields was indicted on one count of knowingly possessing contraband in prison, in violation of 18 U.S.C. § 1791(a)(2). He has moved to suppress the evidence obtained as a result of the SecurPASS search, as well as the statements he made to officers in connection with that search. He also has filed a motion for discovery under Fed. R. Crim. P. 16(a). I consider these matters in reverse order.
A. MOTION FOR DISCLOSURE
Mr. Shields moves for the disclosure of various categories of information pursuant to Fed. R. Crim. P. 16(a)(1), as well as the opportunity to tour and videotape areas of ADX implicated by the incident and to interview certain specified inmates. By its response, the government agreed to some of these requests, subject to certain protocols and restrictions, and as rehearsed in the supplement to the government's response, the parties have reached agreement as to these matters. To that extent, therefore, the motion is moot.
Specifically (1) arranging for defense counsel to view those areas of ADX implicated by the charges, and for the taking of digital photos of designated areas; (2) permitting defense counsel to schedule interviews with individual BOP inmates in accordance with standard protocols governing legal visits; (3) providing any BOP records relating to the SecurPASS machine, subject to entry of a protective order; and (4) providing BOP records specific to Mr. Shields, including disclosable portions of Mr. Shields's Central File and his Bureau Electronic Medical Record.
The government continues to object, however, to providing discovery as to the following requested items:
a. all Bureau of Prisons [BOP] policies, procedures, rules, memoranda, and regulations governing
I. BOP personnel entering housing units, including SHU and Step-Down, in ADX Florence in response to disturbances in that unit;
ii. assignment of prisoners to BOP facilities and to specific housing units within those facilities based on points assigned by BOP to prisoners;
iii. the days and times prisoners may be out of their cells in all housing units at ADX Florence, including the SHU and Step-Down units; and
iv. visits with prisoners by family and by legal counsel.
(Motion for Disclosure ¶ 2.a., b., c. & g. at 2-3.) In his motion, Mr. Shields maintained this information was material to his anticipated defenses of necessity and self-defense. ( Id. ¶ 3.b at 4.) During his closing argument, counsel for Mr. Shields further suggested these records were relevant to a defense of selective prosecution.
b. all BOP records pertaining to prisoner-on-prisoner threats and violence in the Step-Down unit at ADX Florence, said records to include information specifying whether there was criminal prosecution.
c. BOP records pertaining to Donald Heisler, 05680-089, specifically records of threats and violence by Mr. Heisler, his methadone prescriptions, and his psychiatric and psychological records.
. . . .
g. those statistics showing the number of prisoners held in ADX Florence, and in the SHU and Step-Down unit, who have been (a) diagnosed with mental illness and/or (b) convicted of violent crimes.
I begin my analysis by rehearsing some of the relevant principles which guide and govern discovery in criminal cases in federal court. In the main, discovery in a criminal case is governed by the provisions of Fed. R. Crim. P. 6, 12, and 16; the Jencks At, 18 U.S.C. § 3500; and the holdings of Brady , Bagley , Giglio , and Roviaro and their progeny. Discovery in this case is controlled also by the Discovery Conference Memorandum And Order ([#10] filed May 21, 2015).
Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
United States v. Bagley , 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
Roviaro v. United States , 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).
As noted by the Supreme Court, "[t]here is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey , 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977). Significantly, there is no requirement that "the prosecution make a complete accounting to the defense of all evidence in its possession," United States v. Baxter , 492 F.2d 150, 173 (9th Cir. 1973), cert. denied , 94 S.Ct. 1945 (1974), and Brady does not require the prosecution to divulge every possible shred of evidence that could conceivably benefit the defendant, Smith v. Secretary of New Mexico Department of Corrections , 50 F.3d 801, 823-824 (10th Cir.), cert. denied , 116 S.Ct. 272 (1995). Moreover, the accused has no right to rummage through the government's files, United States v. Williams , 580 F.2d 578, 585 (D.C. Cir.), cert. denied , 99 S.Ct. 112 (1978), and Brady does not authorize wholesale discovery or demand an "open file" policy, Kyles v. Whitley , 514 U.S. 419, 436-37, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995). See also United States v. Mayes , 917 F.2d 457, 461 (10th Cir. 1990) (Constitution "does not grant criminal defendants the right to embark on a broad or blind fishing expedition among documents possessed by the Government") (citation and internal quotation marks omitted), cert. denied , 111 S.Ct. 1087 (1991).
Instead, Brady requires only the disclosure of information that is material in a constitutional sense. United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). The mere possibility that discovery might help the defense does not establish materiality in the constitutional sense. "The criterion of materiality is met only if there is a 'reasonable probability' that the outcome of a trial would have been different had the evidence been disclosed to the defense." United States v. Gonzalez-Montoya , 161 F.3d 643, 649 (10th Cir. 1998), cert. denied , 119 S.Ct. 1284 (1999). Reading Brady and Giglio together, the government must produce or disclose evidence that is favorable to the accused when relevant to guilt, credibility, or punishment. Giglio , 92 S.Ct. at 766; Brady , 83 S.Ct. at 1196.
Mr. Shields has failed to make the requisite showing of materiality as to any of the disputed categories of evidence he seeks. Given the evidence before the court as to the circumstances of the altercation between Mr. Shields and Mr. Heisler, the legal defenses of necessity and self-defense would not excuse or mitigate Mr. Shields's possession of a weapon. Recognizing that prisons are "inherently dangerous places" which "present unique problems" - including, particularly, almost inevitable acts of inmate-on-inmate violence - the Tenth Circuit nevertheless has found "there is no legitimate purpose for a prisoner to carry a weapon designed to kill, injure or disable another," and the possession of such weapons merely "facilitate[s] . . . more frequent acts of violence and more severe injuries." United States v. Perez-Jiminez , 654 F.3d 1136, 1142-43 (10th Cir. 2011) (citations and internal quotation marks omitted).
Or, as articulated more dramatically by the Seventh Circuit, "[i]f prisoners could decide for themselves when to seek protection . . . and when to settle matters by violence, prisons would be next to impossible to regulate. The guards might as well throw the inmates together, withdraw to the perimeter, and let them kill one another." United States v. Tokash , 282 F.3d 962, 970 (7th Cir.), cert. denied , 122 S.Ct. 2344 (2002) (citation and internal quotation marks omitted).
Although the Tenth Circuit has not yet addressed the issue directly, for precisely these reasons, other courts have refused to recognize justification defenses where an inmate claims to have armed himself in anticipation of a future attack. See , e.g., United States v. Sahakian , 453 F.3d 905, 909 (7th Cir. 2006); United States v. Bello , 194 F.3d 18, 26-27 (1st Cir. 1999); United States v. Holt , 79 F.3d 14, 16 (4th Cir.), cert. denied , 117 S.Ct. 157 (1996) (citing cases). In other words, in the prison context, courts have construed the essential element of imminence narrowly, requiring a prisoner to
establish that he experienced something more than a "generalized fear of attack by some unknown or unspecified assailant at some unknown time in the future." Instead, he must demonstrate "the threat was immediate and that there was no reasonable alternative to violating the law."Sahakian , 453 F.3d at 909 (quoting United States v. Tokash , 282 F.3d 962, 966, 971 (7th Cir.), cert. denied , 122 S.Ct. 2344 (2002)). See also United States v. Goldbaum , 319 Fed. Appx. 663, 665 (9th Cir. March 18, 2009); Holt , 79 F.3d at 16.
Needless to say, that exceedingly narrow exception is not at all implicated on the facts of this case. Mr. Shields was under no threat of imminent danger at any time during the events of March 18. Mr. Shields acknowledged his confrontation with Mr. Heisler was purely verbal. Although Mr. Heisler subsequently chased Mr. Shields, there is no evidence that he presented a threat of serious bodily injury or death to Mr. Shields in that moment, and in fact, his pursuit was arrested, promptly and effectively, by another inmate. Moreover, Mr. Shields testified that in the time before the unit was locked down, he and Mr. Heisler discussed and resolved their differences amicably. There is therefore no basis to conclude that discovery of evidence of unrelated disturbances on the unit, generalized statistics regarding prisoner-on-prisoner threats and violence, or the mental health status of Mr. Heisler or ADX inmates generally will be material in the sense contemplated by Rule 16(a).
Nor is this evidence discoverable under Mr. Shields's belated resort to a suggested defense of selective prosecution, raised for the first time during counsel's closing argument at the hearing, which is both procedurally improper and substantively unavailing. Procedurally, a Rule 16(a) motion is not the proper vehicle by which to seek documents relevant to such a claim. United States v. Armstrong , 517 U.S. 456, 463, 116 S.Ct. 1480, 1485, 134 L.Ed.2d 687 (1996) ("We hold that Rule 16(a)(1)(C) authorizes defendants to examine Government documents material to the preparation of their defense against the Government's case in chief, but not to the preparation of selective-prosecution claims.").
Moreover, and substantively, Mr. Shields has presented neither argument nor evidence to raise a colorable claim of selective prosecution. In deference to the independent authority and broad discretion of the Executive Branch in prosecutorial decisions, the standard for proving a selective prosecution claim is a "demanding" one, id., 116 S.Ct. at 1486, which requires "clear evidence" "that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose," i.e., an equal protection violation. Id. at 1487 (citation and internal quotation marks omitted). The standard for obtaining discovery on such a claim is correspondingly rigorous and requires the movant to make "'a credible showing' of both discriminatory effect and discriminatory intent." United States v. Deberry , 430 F.3d 1294, 1300 (10th Cir. 2005), cert. denied , 127 S.Ct. 113 (2006) (quoting Armstrong , 116 S.Ct. at 1489). That showing, in turn, requires some evidence that similarly situated individuals were treated more favorably than the movant based on some "unjustifiable standard such as race, religion, or other arbitrary classification." Wayte v. United States , 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985) (citation and internal quotation marks omitted).
Nothing in counsel's perfunctory disclosure of his anticipated selective prosecution claim suggests he has a good-faith basis to maintain that Mr. Shields was singled out for prosecution based on some constitutionally protected characteristic which might implicate equal protection concerns. Instead, counsel made clear that his theory is premised on the alleged fact that Mr. Shields is the only inmate prosecuted for the possession of contraband on the J Unit during the time Mr. Shields has been incarcerated there. Without even argument that, for instance, Mr. Shields is the only Caucasian male in the J Unit, this inchoate theory does not come close to making the showing necessary to entitle Mr. Shields to discovery in support of a selective prosecution claim, even if he had filed a proper motion.
Thus, based on the foregoing, I find and conclude as follows: (1) that the government understands the discovery to which Mr. Shields is entitled by law; (2) that the government has discharged reasonably its duty to provide the discovery to which Mr. Shields is entitled; (3) that the government is aware of its continuing duty to disclose to Mr. Shields the discovery to which he is entitled by law; (4) that Mr. Shields has been provided pro tanto the discovery to which he is entitled under Rule 16, as codified and construed, and under Brady , Bagley , Giglio , and Roviaro , and their progeny; (5) that no discreet or specific discovery violation is claimed or circumstantiated; and (6) that Mr. Shields is not presently entitled to discovery beyond that already provided by the government or otherwise available to him or beyond that which the government represents it will provide. Thus, to the extent Mr. Shields has the discovery to which he is entitled, his motion will be denied as moot, and to the extent he requests discovery to which he has no present right, his motion will be denied.
B. MOTION TO SUPPRESS
Mr. Shields seeks to suppress both the contraband weapons retrieved as a result of the SecurPASS screening as well as the statements he made to officers in connection therewith. I discuss and analyze these separate elements of his motion seriatim.
1. Reasonableness of Search
The Fourth Amendment safeguards against unreasonable searches and seizures. See U.S. CONST . Amend. IV.
The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.United States v. Knights , 534 U.S. 112, 11819, 122 S.Ct. 587, 591, 151 L.Ed.2d 497 (2001) (citation and internal quotation marks omitted). Because "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system," Bell v. Wolfish , 441 U.S. 520, 545-46, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979) (citation and internal quotation marks omitted), "persons subject to criminal sanctions, such as incarcerated prisoners and parolees, have more limited Fourth Amendment rights," Jenkins v. Currier , 514 F.3d 1030, 1033 (10th Cir. 2008).
Nevertheless, inmates do retain privacy interests in the integrity of their own bodies. Dunn v. White , 880 F.2d 1188. 1192 (10th Cir. 1989), cert. denied , 110 S.Ct. 871 (1990). In determining whether a particular search of an inmate's person is sufficiently intrusive to implicate the Fourth Amendment, the court must balance "the need for the particular search against the invasion of personal rights that the search entails," considering "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell , 99 S.Ct. at 1884. "[T]he greater the intrusion, the greater must be the reason for conducting a search." Levoy v. Mills , 788 F.2d 1437, 1439 (10th Cir. 1986). Ultimately, the determination whether the search is reasonable depends on the totality of the circumstances. United States v. Montoya de Hernandez , 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985
I reject Mr. Shields's attempt to liken an x-ray scan to more highly intrusive bodily invasions which must be supported by a finding of probable cause. See , e.g., Winston v. Lee , 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985) (surgical removal of bullet); Schmerber v. California , 384 U.S. 757, 768-770, 86 S.Ct. 1826, 1834-35, 16 L.Ed.2d 908 (1966) (blood test). See also Maryland v. King , - U.S. -, 133 S.Ct. 1958, 1979, 186 L.Ed.2d 1 (2013) (contrasting invasive surgery as considered in Winston with "minimal intrusions" which need not be supported by probable cause). A key consideration in determining the intrusiveness of a search is the indignity or embarrassment attendant thereon. See United States v. Vega-Barvo , 729 F.2d 1341, 1345 (11th Cir.), cert. denied , 105 S.Ct. 597 (1984) ("[P]recedents clearly indicate that to determine the level of intrusiveness of a search, we must focus on the indignity of the search, and that extensiveness alone does not control;" finding x-ray no more intrusive than strip search); United States v. Mejia , 720 F.2d 1378, 1382 (5th Cir. 1983) (rejecting suggestion that intrusiveness is "the equivalent of physical invasion" and noting that intrusiveness inquiry "is keyed to embarrassment, indignity, and invasion of privacy;" holding x-ray not excessively intrusive under all circumstances). Although context still matters, of course, in general, an x-ray scan is plainly less intrusive than other methods that might be employed to search for contraband. See , e.g., Spencer v. Roche , 659 F.3d 142, 147-48 (1st Cir. 2011), cert. denied , 132 S.Ct. 1861 (2012).
There is no question here that ADX officials have a legitimate interest in ensuring inmates do not have possess weapons. See Bell , 99 S.Ct. at 1878 ("[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.") (citation and internal quotation marks omitted). It is also uncontested that submission to a SecurPASS scan is routine for all inmates entering the SHU; thus, Mr. Shields was not singled out in this regard. Mr. Shields, however, suggests the search was unreasonable because exposure to the x-rays the SecurPASS employs - especially multiple exposures as was done here - is unsafe.
Mr. Shields has failed to carry his burden of proof on this aspect of his motion, however. See Rakas v. Illinois , 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978); United States v. Rascon , 922 F.2d 584, 587 (10th Cir. 1990), cert. denied , 111 S.Ct. 2037 (1991). Although Mr. Shields referred to several different documents in his brief which purportedly establish that the SecurPASS is a "limited use" system based on the amount of radiation it emits, he offered none of these documents in evidence during the hearing. Moreover, both in his motion and at the hearing, Mr. Shields elicited no evidence whatsoever to suggest the type or amount of radiation emitted by the SecurPASS device presents any danger to persons subject to the scan, much less a danger so unreasonable as to take on constitutional dimensions. Contrary to counsel's implicit suggestion during closing arguments, this is not a matter of which a court can take judicial notice, even if Mr. Shields had attempted to introduce such evidence at the hearing. See Estate of Lockett by & through Lockett v. Fallin , 841 F.3d 1098, 1111 (10th Cir. 2016), cert. denied , 2017 WL 1408753 (U.S. June 26, 2017) ("Under the Federal Rules of Evidence, courts may take judicial notice of a fact 'that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.'") (quoting FED. R. EVID. 201(b)).
Counsel in closing arguments pointed out that the district court in Rahman v. Schriro , 22 F.Supp.3d 305 (S.D.N.Y. 2014), a case on which the government relies in its response to the motion to suppress, took judicial notice of an Environmental Protection Agency fact sheet on radiation. See id. at 311. That observation does not change my analysis here. Mr. Shields offered nothing to suggest the documents to which he cites in his motion are official government publications that might be appropriate for judicial notice. Moreover, the proponent in Rahman actually made the EPA document part of the record before the court, a necessary prerequisite to the court's consideration of the evidence that was not undertaken here.
Given the evidence thus before me and totality of the circumstances in this case, I have little trouble in concluding that use of the SecurPASS scanner in this instance constituted a reasonable search. The search was conducted pursuant to a routine protocol applicable to all inmates entering the SHU, a procedure justified in itself by legitimate penalogical concerns for staff and inmate safety and institutional security. The repeated use of the scanner to determine whether Mr. Shields was secreting contraband was not unreasonable given the inability to obtain a clear image initially. The entire episode lasted no more than ten minutes. There is nothing to suggest that the scan, similar to that conducted at airport security checkpoints, is physically painful or embarrassing, certainly much less so than the strip search Mr. Shields testified he underwent before being scanned, much less the digital rectal exam he anticipated if he refused to surrender the contraband.
Mr. Shields's motion to suppress the contraband retrieved as a result of this search therefore will be denied.
2. Inculpatory Statements
Mr. Shields also seeks to suppress the statements he made to officers in connection with the SecurPASS search. As his motion addresses only the Fourth Amendment, I take him to assert that these statements should be suppressed as the fruits of an illegal search. It should go without saying, however, that "[t]o successfully suppress evidence as the fruit of an unlawful detention, a defendant must first establish that the detention did violate his Fourth Amendment rights." United States v. Nava-Ramirez , 210 F.3d 1128, 1131 (10th Cir.), cert. denied , 121 S.Ct. 206 (2000). As I have found otherwise, the motion fails on that basis alone. Nevertheless, in an abundance of caution, I address the Fifth Amendment implications of Mr. Shields's motion as well.
The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. CONST. Amend. V. To safeguard that right, statements obtained as a result of a custodial interrogation are not admissible against a defendant unless he has been given the advisements prescribed by Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or their equivalent. Duckworth v. Eagan , 492 U.S. 195, 201-02, 109 S.Ct. 2875, 2879-80, 106 L.Ed.2d 166 (1989). Before the strictures of Miranda become relevant, therefore, the defendant must be "in custody" and subject to "interrogation." United States v. Chee , 514 F.3d 1106, 1112 (10th Cir. 2008). Because I find Mr. Shields was not subject to interrogation, I do not consider whether he was in custody.
Miranda applies only to "express questioning or its functional equivalent," i.e., "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis , 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980) (footnote omitted). "This is an objective [inquiry,] . . . and we focus on the perceptions of a reasonable person in the suspect's position rather than the intent of the investigating officer." United States v. Yepa , - F.3d -, 2017 WL 3014352 at *4 (10th Cir. July 17, 2017) (citation and internal quotation marks omitted). As is particularly relevant here, "[a]ny statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence." Miranda , 86 S.Ct. at 1630.
It is undisputed that after Lieutenant Alvarez left the SecurPASS room to call the medical department, Mr. Shields told one or more of the officers who remained behind he would agree to surrender the contraband if Lieutenant Alvarez showed him the scan image. There is nothing in the record to contradict the clear inference that Mr. Shields made this statement spontaneously and voluntarily. There was no question pending before Mr. Shields at that time, and there is no evidence that any officer did or said anything to attempt to draw Mr. Shields out or otherwise invoke an incriminating response. See Yepa , 2017 WL 3014352 at *6-7. Nor did Lieutenant Alvarez's subsequent order demanding Mr. Shields relinquish the hidden contraband call for a verbal response. Thus Mr. Shields's repetition of his earlier statement likewise was voluntary. Moreover, Mr. Shields's statements on being confronted with the image itself were not made in response to any statement or question and thus also patently were volunteered.
Lieutenant Alvarez's earlier question as to whether Mr. Shields had surgical screws or plates in his back was more akin to "words or actions . . . normally attendant on custody," which are not considered to constitute interrogation within the scope of the Fifth Amendment. Yepa , 2017 WL 3014352 at * 4 (quoting Innis , 100 S.Ct. at 1689) (internal quotation marks omitted). --------
Accordingly, I find and conclude that Mr. Shields's motion to suppress the statements made by him during this encounter with ADX officers in the SHU on March 18, 2015, whether considered under the Fourth or the Fifth Amendment, should be denied.
III. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That defendant Shawn Shields's Motion for Disclosure [#34], filed September 26, 2016, is denied in part and denied as moot in part as follows:
a. That the motion is denied with respect to the discovery described in paragraphs 2.a., 2.b., 2.c., and 2.g of the motion; and
b. That in all other respects, the motion is denied as moot; and
2. That Mr. Shields's Motion To Suppress Evidence [#35], filed September 26, 2016, is denied.
Dated July 20, 2017, at Denver, Colorado.
BY THE COURT:
/s/_________
Robert E. Blackburn
United States District Judge