Opinion
Crim. No. 00-334-HA
January 3, 2001
Michael Mossman, Billy J. Williams, United States Attorney's Office, Portland, Oregon, for the Government.
Ellen C. Pitcher and Barbara Creel, Federal Public Defender's Office, Portland, Oregon, for Defendant.
OPINION AND ORDER
I. Introduction.
Defendant Joseph Barney is charged with eight counts of sexual abuse of two female minors on the Burns-Paiute Indian Reservation. During an interview with Bureau of Indian Affairs agents ("BIA agents"), Barney admitted that he sexually abused the girls. Barney filed a motion to suppress his confession, and an evidentiary hearing was held on November 27, 2000. For the reasons stated more fully below, the court denies the motion.
II. Findings of Fact.
On the evening of February 9, 2000, BIA agents Richard Melville and Duane Garvais, along with Tribal Police Officer Margaret Zacarias, went to Defendant Joseph Barney's residence on the Burns-Paiute Indian Reservation in search of his daughter, Crystal Barney. The agents feared that Crystal, along with two other minor females, had been sexually abused by defendant. When they arrived at the residence, John Harvey, the boyfriend of Barney's other daughter, Shayla, answered the door. Officer Zacarias asked for Crystal, and Harvey told her Crystal was not home. Zacarias then asked if they could come inside to look for Crystal. Harvey told them they could not because it was Barney's house and he was not home. Nonetheless, Zacarias entered the house looking for Crystal, while the BIA agents stayed near the front door.
In the meantime Barney, who had been visiting a relative who lived nearby, arrived at the house, as did Crystal and Shayla. Zacarias told the family they were doing "a welfare check" on Crystal. She asked Crystal to go with them to the tribal police station, located a short distance away. Crystal did not want to go, and the atmosphere in the house became quite tense. After Crystal continued to tell Zacarias she did not want to go, Zacarias raised her voice and told Crystal that she had to go with them. Zacarias left a clear impression on the family members that Crystal had no other choice but to go. Defendant Joseph Barney wanted to accompany them, but the officers refused. They took Crystal to the police station, and Barney followed on foot a short time later. When he arrived, Crystal was already being interviewed in another room, and Barney was told to leave the station. During the interview, the officers questioned Crystal about whether her father had had sexual contact with her. After the interview, Crystal was told she would have to stay at her mother's house and was instructed not to talk to Barney. Barney was not told why his daughter had been interviewed or could not return to his house. He speculated from Officer Zacarias' reference to a "welfare check" that the investigation was related to his receipt of government financial assistance for Crystal.
The following day, on February 10, 2000, Barney was drinking coffee at his relative's house when Agents Melville and Garvais arrived at his residence. Barney's older brother, Ernest "Mickey" Barney, noticed the officers, and the two men went to the house to see what the agents wanted. The agents showed the men their identification badges and asked if Barney would accompany them to the station so that they could talk. Barney asked them why they wanted to talk with him, and the agents would not tell him. Instead, they repeated their requests that he come to the station. Again, Barney asked what they wanted. Once again, the agents would not say, but repeated their request. Barney then agreed, telling his brother, "I'll go see what they want." (Tr. 72.)
Barney walked to the station with the agents behind him and Officer Zacarias in front of him. When they arrived at the police station, the agents took Barney through the station and into the adjoining tribal courtroom. The main door of the tribal courtroom is seldom used and is generally known to be locked. The agents closed the door to the police station most of the way so that it was six inches from being shut.
The agents then asked Barney to review and sign a document entitled "Warning of Constitutional Rights." The warning stated,
1. You have the right to remain silent.
2. Anything you say can be used against you in court.
3. You have the right to have an attorney present during questioning.
4. You have the right to the presence of an attorney at our own expense. If this offense is to be tried in federal court and you cannot afford an attorney, one will be appointed for you at no expense.
5. If you decide to answer questions now without an attorney present, you have the right to [s]top answering at any time until you talk to an attorney.
(Government's Exhibit A.) Barney signed an acknowledgment that he understood his rights and signed a second portion of the document acknowledging that he was waiving them. (Id.) The agents did not tell Barney he might be charged federally, but Agent Garvais testified he intended to refer the matter to the United States Attorney for federal prosecution. At the time he signed the waiver, Barney believed he would not be able to receive a court-appointed lawyer and that he could not afford to hire one for himself.
Either immediately before or after giving Barney the form, the agents told him they suspected he had been having sex with his daughter, Crystal, and other minor girls. The agents did not tell Barney he was under arrest. Agent Garvais also testified that he did tell Barney he was free to leave during the questioning if he so desired. On cross-examination, Barney was asked,
Q. [D]uring the course of the interview, prior to your arrest, were you ever told that you were under arrest or that you had to make a confession, that you were going to be arrested anyway?
A. Well they told me I could go, but they didn't —
(Tr. 87). A few moments later, the court asked Barney,
Q. Mr. Barney, when did they tell you you could leave?
A. Tell me to leave?
Q. No, when did they tell you you could leave?
A. They didn't say I could leave.
Q. They never said you could leave?
A. Huh-uh.
Q. I misheard-I must have misunderstood what you said. I thought you said, as part of their advising you, they told you that you could leave. They never used words like that?
A. No, they never said that to me.
Q. Okay. I have no further questions.
(Tr. 88-89.) Although the court generally finds both the testimony of Garvais and Barney to be credible, the witnesses disagree whether the agents told Barney he was free to leave. Because Barney's testimony was contradictory in this regard, the court resolves the issue in favor of the testimony of Agent Garvais and finds that the agents did inform Barney he could leave. After obtaining his waiver, the agents questioned Barney for fifteen or twenty minutes. They accused Barney of having sex with the girls, and Barney repeatedly denied the allegations. "They kept insisting that I did it, and I kept telling them no." (Tr. 82.) At one point during the interview, Myra Peck, Crystal's mother, who had learned that Barney was being questioned, came into the courtroom where defendant was being interviewed and began yelling, before she was restrained and escorted from the courtroom. Barney testified that on a few occasions, the agents raised their voices at him during the questioning. Barney testified that he did not believe he was free to leave during the interview, while Garvais testified that if Barney had gotten up and walked out, he would have let him do so. Barney eventually made incriminating statements, and signed a confession admitting to having sex with at least one minor girl, but not Crystal. Barney was immediately arrested and held in tribal custody for five days until his initial appearance in tribal court of February 15, 2000. On June 28, 2000, Barney was indicted on federal charges.
III. Conclusions of Law.
Barney argues that his confession was obtained in violation of his Miranda rights because the "Warning of Constitutional Rights" he signed was inadequate. Because the court finds, however, that Barney was not "in custody" at the time his confession, any constitutional defect in the BIA's warning form does not require suppression of Barney's confession as the agents were not required to administer Miranda warnings before questioning Barney.
Miranda v. State of Arizona, 384 U.S. 474, 86 S.Ct. 1601 (1966).
It is well settled that "police officers are not required to administer Miranda warnings to everyone whom they question." Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 714 (1977). An officer has a duty to administer Miranda warnings "only where there has been such a restriction on a person's freedom as to render him `in custody.'" Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1529 (1994) (per curium) (quoting Mathiason, 97 S.Ct. at 714 (1977). An individual is "in custody" at the point a reasonable person would feel that he was not free to terminate the interrogation. Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457 (1995). "In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but `the ultimate inquiry is whether there [was] a `formal arrest' or restraint on freedom of movement' of the degree associated with a formal arrest.'" Id. (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520 (1983) (per curium)). The court must "employ an objective standard, asking whether a reasonable person in the interviewee's position would consider himself or herself free to leave." People of the Territory of Guam v. Palomo, 35 F.3d 368, 375 (9th Cir. 1994).
In this case whether Barney was "in custody" at the time of his confession requires an examination of several factors. First, the circumstances surrounding Barney's questioning are relevant to whether a reasonable person in his position would believe he or she was not free to leave. See United States v. Scharf, 608 F.2d 323, 325 (9th Cir. 1979) (intense surveillance and custodial interrogation within 24 hours before led the defendant to reasonably believe he was "in custody"); United States v. Bekowies, 432 F.2d 8, 13 (9th Cir. 1970) (defendant was "in custody" when his house was searched immediately before he was questioned). On the previous evening, the agents had taken Crystal from Barney's home against her will. Moreover, they forced her to go the police station for questioning, after entering Barney's house without permission to do so. These surrounding circumstances make it more likely that Barney would reasonably believe he was "in custody" at the time of his confession.
The government cites Bains v. Cambra, 204 F.3d 964 (9th Cir. 2000), cert. denied, ___ S.Ct. ___ 2000 WL 1577887 (Dec. 4, 2000), for the proposition that circumstances such as a defendant's knowledge of a prior search of his residence are not relevant to an "in custody" determination. Bains is contrary to Scharf and Bekowies, which reached opposite conclusions. It is well settled that one panel cannot overrule another panel of the Ninth Circuit; however, the difference between Bains and the other cases can be reconciled by the procedural posture of Bains. Bains came to the Ninth Circuit through a petition for writ of habeas corpus from a California state prisoner. Under current habeas law, federal courts must give deference to state court decisions unless the state decision involved "an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States[.]" Bains, 204. F.3d at 971 (quoting 28 U.S.C. § 2254(d)). Thus, in Bains, the Ninth Circuit was merely contrary to Supreme Court precedent, even if the state-court decision was not in accordance with Ninth Circuit precedent.
Second, the court must consider whether Barney voluntarily agreed to be questioned. See Mathiason,97 S.Ct. at 714 (a suspect who speaks with the police voluntarily, even at the invitation of the police, is not "in custody"). Even though the agents had to repeat their request that Barney talk with them at the tribal police station before Barney agreed, Barney's response to the requests demonstrates that his decision to be interviewed was voluntary. In response to the requests, Barney told his brother, "I'll go see what they want." (Tr. 72.) Barney's remark shows that he believed agreeing to the interview was his own decision and he did not believe his only option was to go with the officers.
Third, although Barney was questioned in the courtroom adjacent to the tribal police station, this fact does not render his interrogation custodial. A suspect is not considered to be "in custody" merely because the interview takes place at a police station. Mathiason, 97 S.Ct. at 714. Barney argues that after he was led into the courtroom, the agents almost closed the door so that it was within six inches of being shut. This, however, is also insufficient to make an interview custodial. See Bains v. Cambra, 204 F.3d 964 (9th Cir. 2000), cert. denied, ___ S.Ct. ___ 2000 WL 1577887 (Dec. 4, 2000) (upholding, under a deferent habeas-corpus standard, a state court's determination that a suspect who was at a police station voluntarily was not "in custody" because the door to the interview room had been shut).
Fourth, at the start of the interview, the agents told Barney he was free to leave. When a reasonable person is told he may leave the interview, he is unlikely to believe that he in fact cannot go. This fact suggests that Barney's interview was non-custodial. United States v. Humphrey, 34 F.3d 551, 553 (7th Cir. 1994) (suspect not "in custody" when told he was free to determining that the California courts' decision that the petitioner was not "in custody" was not leave); Lucas v. United States, 408 F.2d 835, 836 (9th Cir. 1969) (suspect not "in custody" when told he was not under arrest).
Fifth, Barney argues that the nature of the interview itself would lead a reasonable person to believe it was custodial. At the evidentiary hearing, Barney testified that during the questioning, "[t]hey kept insisting that I did it, and I kept telling them no." (Tr. 82.) However, the Ninth Circuit has stated that "targeted questioning solely by virtue of occurring at a police station does not constitute a custodial interrogation sufficient to trigger the requirements of Miranda." Bains, 204 F.3d at 972. Barney was questioned for only twenty minutes, and the only allegation of police misconduct was that "[o]ne of the officers raised his voice a few times." (Tr. 87.) Thus, this case is unlike United States v. Lee, 699 F.2d 466, 468 (9th Cir. 1982), where the suspect was questioned for an hour in an FBI car while other investigators were in and around his house and was apparently never told he was free to leave.
There is no evidence that the agents were responsible for Myra Peck's appearance at the interview.
Sixth, at no point was Barney shown a weapon or told he was under arrest or had to go with the officers. In addition, he was not handcuffed or physically restrained in any way. Seventh, Barney argues in his supplemental briefing that he is so crippled with arthritis he was constructively detained in the courtroom. This argument is without merit. As an initial matter, Barney failed to develop these facts at the evidentiary hearing where the government would have had an opportunity to rebut them. In addition, Barney's contention is belied by the evidence. On the previous evening, Barney walked to the police station and back on his own volition, and he did so again when he returned the following day. Thus, the court concludes that Barney's arthritis played no part in whether he was free to leave the interview. Eighth, Barney argues that his arrest at the conclusion of the interview "tends to support the reasonableness of his belief that he was in custody from the inception of the encounter and that his arrest was imminent." United States v. Griffin, 922 F.2d 1343, 1355 (8th Cir. 1990). Ninth Circuit precedent indicates, however, that little weight, if any, should be given to this fact. In Bekowies, 432 F.2d at 14, the Ninth Circuit found that the defendant's arrest at the conclusion of the interview does not, in and of itself, give rise to an inference that he was in custody during the interview. In Bekowies, the defendant came in contact with the police because he was harboring a federal fugitive in his home, and the police searched it to find the fugitive. The officers went out of their way to find a reason to arrest the defendant, ultimately concluding that
he had an outstanding jaywalking ticket. Id. at 11. The court stated, Finally, there is the fact that at the conclusion of the interrogation, Bekowies was indeed taken into custody. Had the agents simply arrested him for harboring a federal fugitive, we would draw no inference from their conduct, for at that time they had (Miranda problems aside) more than ample probable cause. But instead they went out of their way to discover some reason (we hesitate to say pretext), apart from the harboring charge, for keeping Bekowies in custody, and arrested him finally for a petty traffic offense.
It is true that this arrest occurred after the completion of the interrogation. But the subsequent arrest necessarily colors what went before, and it is difficult indeed to say that Bekowies was unreasonable in believing himself in custody when, as it turned out, his belief was correct.
Id. at 13. Thus, the circuit court's statement that it would "draw no inference" from the arrest but for the officer's other conduct indicates that the mere fact that Barney was arrested after interrogation is insufficient to find he was "in custody" at the time of the interview. Id.
IV. Conclusion.
Although Officer Zacarias's conduct in forcing Crystal Barney to meet with the agents on the previous evening adds credence to Barney's argument that a reasonable person in his position would believe he was in custody during his own interview, the evidence demonstrates that Barney went to the station voluntarily and the agents told him he was free to leave. In addition, during the interview, Barney was not shown a weapon, handcuffed, or otherwise physically restrained, and his interview lasted only twenty minutes. After weighing these factors, the court concludes that Defendant Barney was not "in custody" at the time of his confession. Therefore, defendant's motion to suppress, (doc. 29), is denied.
IT IS SO ORDERED.