Opinion
No. 00-40024-07-SAC.
August 3, 2001.
MEMORANDUM AND ORDER
The case comes before the court on the defendant Melissa Dawn Bunce's motion to suppress her statements made following her arrest on March 27, 2000, during a custodial interrogation at her home and a subsequent custodial interrogation at the Joplin Police Department. (Dk. 596). The defendant also seeks to suppress any evidence obtained during the search of her residence at 913 Wall Street, Galena, Kansas, on March 27, 2000. The parties presented their positions in memoranda filed with the court and in oral arguments and evidence submitted at a hearing conducted on May 24, 2001. After reviewing all matters offered for consideration and researching the law relevant to these issues, the court files the following as its ruling on this motion to suppress.
FACTS
On March 27, 2000, around 11:00 a.m., Special Agents Tim Holsinger and Tom Williams with the Kansas Bureau of Investigation went to the residence of the defendant Melissa Dawn Bunce at 913 Wall Street, Galena, Kansas, for the purpose of executing an arrest warrant. When they knocked on the door, Ms. Bunce answered the door and identified herself. The agents identified themselves and received permission to enter the residence where they advised Ms. Bunce that they had a warrant for her arrest and explained the charges behind the warrant. Besides the agents and Ms. Bunce, the only persons in the residence were an adult male who was laying on the couch and a small boy who was Ms. Bunce's son, both of whom left apparently together sometime during the search.
Without giving the Miranda warning, Agent Holsinger proceeded to ask Ms. Bunce if she knew Shane Wright and if she had any type of illegal drugs or paraphernalia in her house. Ms. Bunce admitted she was Wright's girlfriend but denied having anything illegal. The agents next asked whether she minded if they looked around and she said, "fine." Agent Williams remained in the living room with Ms. Bunce while Agent Holsinger began searching the residence. Other than these questions, Agent Holsinger testified that they engaged in nothing more than general conversations with Ms. Bunce. Finding nothing suspicious in plain view, Agent Holsinger brought in a canine officer unit to inspect the residence. The dog indicated on a dresser in the master bedroom where officers found a number of small baggies. Officers also found an address book and $624 cash in Ms. Bunce's purse. Upon finding the cash, Agent Holsinger asked Ms. Bunce if she was employed and she answered, "no."
Around 11:30 a.m., Case Agent Thomas Sullivan with the Drug Enforcement Administration ("DEA") went to Ms. Bunce's residence hoping to learn from her where Wright's methamphetamine lab was located. Upon arriving, he debriefed Agents Holsinger and Williams learning that they had received consent to search the residence and that they had not given a Miranda warning. He then approached Ms. Bunce and explained the seriousness of her situation, the multiple number of defendants involved, and the potential federal sentence she was facing. He further advised that she should be concerned most for the welfare of herself and her child and that providing information about Wright's methamphetamine lab would reflect positively for her. At this point, Ms. Bunce asked Agent Sullivan, "Well, do you think I need an attorney?" Sullivan answered that he was not in a position to offer advise on whether she should have an attorney. Ms. Bunce then told Sullivan she would talk with him and Sullivan proceeded to give the Miranda warning.
Agent Sullivan described Ms. Bunce's demeanor at this time as "visibly shaken, crying," "overcome by emotions at times," "upset," and "heavily sobbing" and said it took him "probably about ten minutes of talking" to "calm her down" before she decided to cooperate. (Dk. 861, p. 50, 70-71). After he orally read the Miranda warning to her, Agent Sullivan asked her if she understood her rights and if she was willing to cooperate. Ms. Bunce again said she was willing and immediately began providing information. Ms. Bunce told Agent Sullivan that Wright located his lab on Keith Rawlins' property and that she had discussed methamphetamine manufacturing with Wright on numerous occasions. When the requested Miranda warning and waiver form was brought to him, Agent Sullivan read it to her, had her sign it and then signed and dated it himself. He also had Ms. Bunce execute a written consent to search form. Agent Sullivan then completed his interview and arranged for Ms. Bunce to be transported. Agent Sullivan described his interview as cursory at this point, because he knew a more detailed interview would follow her arrest and processing at the Police Department in Joplin, Missouri.
Ms. Bunce was transported to and processed into the Joplin Police Department, as were all other individuals arrested that day during the investigation. Agents then called her to the interview room where she met an assistant United States attorney who told her he was aware of her cooperation and would give it consideration. After the government attorney left the interview room, Ms. Bunce told Agent Sullivan that "I think I want an attorney." Agent Sullivan responded, "Do you think you want one or do you want one? If you want one, we'll cease questioning you at this time." Ms. Bunce indicated she was willing to cooperate, and Agent Sullivan and two other agents proceeded with the interview which lasted from 1:10 p.m. through 2:30 p.m.
CUSTODIAL INTERROGATION WITHOUT MIRANDA WARNING
Argument
The defendant contends Agent Holsinger violated her Miranda rights in serving the arrest warrant and, prior to any Miranda warning, questioning her about any relationship with Shane Wright and the possession of drugs, chemicals or money. In its post-hearing memorandum, the government concedes the defendant made incriminating statements in response to agents' questions in violation of the defendant's Miranda rights. The government "agrees that no evidence regarding these statements to Agent Holsinger will be presented in its case-in-chief at any trial of this defendant." (Dk. 919, p. 6).Governing Law
In Miranda v. Arizona. 384 U.S. 436, 444 (1966), the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." "These safeguards include certain rights that an accused must be informed of and must waive before custodial interrogation can commence." United States v. Bautista, 145 F.3d 1140, 1146 (10th Cir.), cert. denied, 525 U.S. 911 (1998). Specifically,
[a suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.Miranda, 384 U.S. at 479. "Only if there is a voluntary, knowing, and intelligent waiver of those rights can authorities question a suspect without counsel being present and introduce at trial in the case-in-chief any statements made during the interrogation." Bautista, 145 F.3d at 1146.
"It is well established that `police officers are not required to administer Miranda warnings to everyone whom they question.'" United States v. Erving L., 147 F.3d 1240, 1246 (10th Cir. 1998) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). There are two requirements that trigger Miranda: (1) "the suspect must be in `custody,' and [(2)] the questioning must meet the legal definition of `interrogation.'" United States v. Ritchie, 35 F.3d 1477, 1484 (10th Cir. 1994) (quoting United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993)).
As soon as the suspect "has been deprived of his freedom of action in any significant way," Miranda, 384 U.S. at 444, or has his freedom limited to a "degree associated with formal arrest," California v. Beheler, 463 U.S. 1121, 1125 (1983), the suspect is considered to be in "custody." United States v. Perdue, 8 F.3d at 1463. The only relevant inquiry "is whether `a reasonable [person] in the suspect's position would have understood his situation . . . as the functional equivalent of formal arrest.'" United States v. Erving L., 147 F.3d at 1246 (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). Consequently, a defendant upon arrest must be advised of his rights before law enforcement officers began any interrogation.
For purposes of Miranda, interrogation "refers not only to express questioning, but also to 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, 301 (1980). It is said that "Miranda applies only if an individual is subject to `either express questioning or its functional equivalent.'" United States v. Davis, 40 F.3d 1069, 1078 (10th Cir. 1994) (quoting Rhode Island v. Innis, 446 U.S. at 300-01), cert. denied, 514 U.S. 1088 (1995). "Volunteered statements of any kind are not barred by the Fifth Amendment." Miranda, 384 U.S. at 478. Thus, absent a showing of coercion or other misconduct by law enforcement, an arrestee's volunteered statements made before receiving the Miranda warning may be used against him. Rhode Island v. Innis, 446 U.S. at 300-02.
Analysis and Conclusion
Upon being told that the officers were there to arrest her, Bunce would have had her freedom limited in the same degree as a formal arrest. A person in that situation would consider herself to be in the officer's custody. Consequently, officers were required to give her the Miranda warning before commencing any interrogation.
"[A] consent to search is not the type of incriminating statement which the Fifth Amendment was designed to address. Consenting to a search is not `evidence of a testimonial or communicative nature' which would require officers to first present a Miranda warning." United States v. Creech, 52 F. Supp.2d 1221, 1225 (Kan. 1998) (quoting United States v. Rodriguez-Garcia, 983 F.2d 1563, 1568 (10th Cir. 1993)), aff'd, 221 F.3d 1353 (10th Cir. Jul. 24, 2000) (Table). Put another way, asking for and receiving consent was not part of the interrogation because giving consent is not a self-incriminating statement. See United States v. McClellan, 165 F.3d 535, 545 (7th Cir.), cert. denied, 526 U.S. 1125 (1999); see also United States v. Hidalgo, 7 F.3d 1566, 1568 (11th Cir. 1993); United States v. Rodriguez Garcia, 983 F.2d at 1568 (collecting cases). On the other hand, asking a suspect whether she had any illegal items or drugs in her residence, whether she was involved with another suspect, or whether she was employed for purposes of explaining the cash found in her purse is express questioning reasonably likely to elicit an incriminating response. The court grants the defendant's motion to suppress her statements made in response to these questions by Agent Holsinger.
CONSENT TO SEARCH THE RESIDENCE Arguments
The defendant argues her consent was not voluntary but poisonous fruit from the Miranda violation and the direct result of officers' coercive tactics.
Governing Law
A search conducted pursuant to a valid consent is an exception to the warrant requirement found in the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). For this exception to apply, the government must prove by a preponderance of the evidence that consent was freely and voluntarily given. United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993). The government does not discharge its burden "by showing no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 549 (1968). The government first "must present `clear and positive testimony that consent was unequivocal and specific and freely and intelligently given.'" United States v. Pena, 143 F.3d 1363, 1367 (10th Cir.) (quoting United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995)), cert. denied, 525 U.S. 903 (1998). The government also must prove that the officers used no implied or express duress or coercion in obtaining the consent. Id. This determination is made upon considering the totality of the circumstances. Schneckloth, 412 U.S. at 225-27.
The determination entails weighing several relevant factors. An officer's failure to advise that a person may refuse to consent is relevant, but it is only one factor and is not dispositive. United States v. Pena, 143 F.3d at 1367; see Schneckloth, 412 U.S. at 249 ("[W]hile the subjects knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent." Other factors center on "whether the defendant suffered, inter alia, `physical mistreatment, use of violence or threats of violence, promises or inducements, deception or trickery.'" United States v. Dozal, 173 F.3d 787, 796 (10th Cir. 1999) (quoting United States v. Glover, 104 F.3d 1570, 1584 (10th Cir. 1997)). The "physical and mental condition and capacity of the defendant within the totality of the circumstances" are considerations. United States v. Pena, 143 F.3d at 1367. "Because the pressure to acquiesce to an officer's request may be increased if more than one officer is present, this is a relevant factor, but not a dispositive one." United States v. Cabrera, 117 F. Supp.2d 1152, 1157 (Kan. 2000) (citing United States v. Bozarth, 141 F.3d 1186, 1998 WL 163387, at *3 (10th Cir. Apr. 8, 1998) (Table).
Because a request to search is not interrogation triggering a defendant's Miranda rights, officers may obtain a voluntary consent to search without first administering a Miranda warning. United States v. McCurdy, 40 F.3d 1111, 1118 (10th Cir. 1994). The lack of a Miranda warning does not invalidate consent to search, but it is a factor under the totality of the circumstances that is relevant in deciding voluntariness. United States v. Payne, 119 F.3d 637, 643-44 (8th Cir.), cert. denied, 522 U.S. 987 (1997). "[T]he request for consent to search can be properly separated from whatever illegal interrogation that might have preceded it, thereby making the consent constitutionally valid." United States v. McClellan, 165 F.3d 535, 544 (7th Cir. 1999) (citation omitted); see United States v. Elie, 111 F.3d 1135, 1142 (4th Cir. 1997) (" Wong Sun and its "fruit of the poisonous tree" analysis is inapplicable in cases involving mere departures from Miranda."); United States v. Singleton, 922 F. Supp. 1522, 1530 (Kan. 1996) ("Because Miranda procedural violations are only presumptively coercive but not actually coercive, they do not trigger the "fruit of the poisonous tree" doctrine or the "cat out of the bag" analogy." (citation omitted)). "It is only when the police coerce the defendant's consent to make a search during an interrogation that such consent will be considered as involuntary and thus unconstitutional.").
Analysis and Conclusion
The court summarily rejects the defendant's "fruit of the poisonous" tree argument as not supported by the case law. The court finds no evidence of agents here coercing the defendant into giving consent to search her home. The government has discharged its burden of proving by a preponderance of the evidence that defendant's consent was freely and voluntarily given. Without duress, threats, promises, coercion, deception or trickery, the agents simply asked for permission to search her home and the defendant consented unequivocally to this specific request. The defendant was in the comfortable confines of her home accompanied by an adult male and her child when the agents made this request. Nothing about the defendant's physical or mental condition or capacity appeared to interfere with her ability to understand the officer's simple request or to give consent freely and intelligently. There is no evidence that the defendant ever waivered about her consent or voiced any objection during the search. The defendant eventually executed a written consent to search form. The court is satisfied that the defendant's consent to search was freely and voluntarily given.
INTERROGATION AFTER INVOCATION OF RIGHT TO COUNSEL
Argument
The defendant contends the evidence shows she requested an attorney prior to the questioning at her home and repeated this request prior to her interview at the Joplin police department. Despite these requests, the agents did not cease their interrogation in violation of Edwards v. Arizona, 451 U.S. 477 (1981).Governing Law
Once a defendant has invoked his right to counsel, law enforcement officers cannot interrogate the defendant outside the presence of his attorney unless the defendant waives the right. See United States v. Roman-Zarate, 115 F.3d 778, 782 (10th Cir. 1997) (citing Miranda v. Arizona, 384 U.S. 436, 474 (1966)). In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the Supreme Court held that "an accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police." "If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards." McNeil v. Wisconsin, 501 U.S. 171, 177 (1991). "This is designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Id. (quotation omitted).
The Supreme Court in Davis v. United States, 512 U.S. 452, 458 (1994), observed that the rule in Edwards requires a court to "determine whether the accused actually invoked his right to counsel." See Valdez v. Ward, 219 F.3d 1222, 1232 (10th Cir. 2000), cert. denied, 121 S.Ct. 1618 (Apr. 16, 2001). Specifically, the Supreme Court said:
To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. (citation omitted). 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." McNeil v. Wisconsin, 501 U.S. at 178. But if a suspect makes a reference to any attorney that 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, our precedents do not require the cessation of questioning. See ibid. ("[T]he likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards"); Edwards v. Arizona, supra at 485 (impermissible for authorities "to re-interrogate an accused in custody if he has clearly asserted his right to counsel") (emphasis added).
Rather, the suspect must unambiguously request counsel. As we have observed, "a statement either is such an assertion of the right to counsel or it is not." (citations omitted). Although a suspect need not "speak with discrimination of an Oxford don," (citation omitted), 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. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. (citation omitted).
. . . .
To recapitulate: We held in Miranda that a suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance. We held in Edwards that if the suspect invokes the right to counsel at any time, the police must immediately cease questioning him until an attorney is present. But we are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue.512 U.S. at 458-59, 462. ("Maybe I should talk to a lawyer" is ambiguous). The Court also refused to adopt a rule requiring officers to ask only clarifying questions in response to a suspect's ambiguous statement. 512 U.S. at 461-62.
Analysis and Conclusion
The first issue is whether at her home Ms. Bunce unequivocally requested counsel when she asked Agent Sullivan, "Well, do you think I need an attorney?" The Tenth Circuit has recognized the following similar statements to be ambiguous or equivocal, "I might want to talk to an attorney," United States v. Zamora, 222 F.3d 756, 766 (10th Cir.), cert. denied, 121 S.Ct. 641 (Dec. 4, 2000), and "Do you think I need an attorney?" United States v. March, 999 F.2d 456, 460-61 (10th Cir.), cert. denied, 510 U.S. 983 (1993). See Diaz v. Senkowski, 76 F.3d 61, 63 n. 1, 64 (2nd Cir. 1996) ("Do you think I need a lawyer" is an ambiguous request). In asking the question as she did, Ms. Bunce may have been contemplating invocation of her right to counsel but it still "constitutes an equivocal invocation of the right to counsel." March, 999 F.3d at 461. When confronted with this query, Agent Sullivan plainly did not understand it to be a request for counsel but rather acted reasonably in advising Ms. Bunce that he was not in a position to offer advice on whether she should have an attorney. As this query lacks any clear statement of a present desire to have or consult with counsel, a reasonable police officer in these circumstances would not have understood the defendant's request for advice from the officer to have been a request for an attorney. Agent Sullivan then proceeded to read Ms. Bunce her Miranda rights, and she agreed to speak with him without making any further inquiries or assertions regarding this right to counsel. Ms. Bunce subsequently was presented with a written waiver of Miranda rights which she signed. The court is satisfied that the defendant's query under these circumstances was not an unequivocal invocation of her right to counsel.
The second issue is whether at the Joplin police department Ms. Bunce unequivocally requested counsel when she told Agent Sullivan that "I think I want an attorney." The defendant argues this statement is just as clear as the statement in Cannady v. Dugger, 931 F.2d 752 (11th Cir. 1990), that was held to be an unequivocal request for counsel. The court disagrees. Cannady was murder suspect who had been interviewed several times about the murder while incarcerated on other charges. At one of the initial interviews, Cannady had given an alibi defense which investigators discovered to be inaccurate. The investigator confronted the suspect with this information and asked if he had killed the victim. At some point during this interview, Cannady told the investigator, "I think I should call my lawyer." The investigator knew Cannady wanted his attorney as he "pushed the phone toward Cannady and waited for him to make the call." 931 F.2d at 755. Cannady, however, did not make the call, and instead of asking any clarifying question, the investigator simply asked if he wanted to talk about the murder. Under these circumstances, the court had no difficulty treating the statement as an unequivocal request for counsel, as principally evidenced by the investigator's subsequent conduct and question.
Unlike Cannady, Agent Sullivan's actions and statements do not demonstrate that he plainly understood Ms. Bunce to have requested counsel but rather sought clarification of her statement, "Do you think you want one or do you want one?" Agent Sullivan went so far as to remind Ms. Bunce that, "If you want one, we'll cease questioning you at this time." When asked to clarify, Ms. Bunce did not say she wanted an attorney present but rather indicated she wanted to keep talking with the agents.
The court is satisfied that Agent Sullivan reasonably could not tell from Ms. Bunce's initial statement whether she wanted an attorney present. First, the literal words fall short of articulating a desire with the requisite level of clarity. While showing what the defendant was contemplating, they do not state the defendant's immediate desire. See Burket v. Angelone, 208 F.3d 172, 198 (4th Cir.) ("I think I need a lawyer," is not an unequivocal request for counsel), cert. denied, 530 U.S. 1283 (2000). Second, the context of the defendant's statement casts some reasonable confusion over the defendant's intent to have an attorney now. The defendant had already waived her rights orally and in writing and had already admitted her knowledge and involvement to Agent Sullivan. See Valdez v. Ward, 219 F.3d at 1233; Lord v. Duckworth, 29 F.3d 1216, 1221 (7th Cir. 1994). Having just spoken with an assistant United States Attorney and learned that her cooperation would receive his consideration, the defendant could have been referring to her need for an attorney later in the bargaining over consideration. Third, the apparent meaning of Ms. Bunce's statement may depend on how she spoke or express it to Agent Sullivan. Based on Sullivan's request for clarification, Ms. Bunce must have emphasized the tentative phrase, "I think," in her statement. Cf. State v. Kennedy, 333 S.C. 426, 510 S.E.2d 714, 716 (1998) ("[O]bvious from the record the solicitor and everyone involved viewed petitioner's request [`Well, I think I need a lawyer.'] as an invocation of his right to counsel.") In a direct and non-coercive manner, Agent Sullivan asked her to clarify what she meant by "I think." When called upon to do that, Ms. Bunce indicated it was not her desire to have an attorney present and continued to cooperate with the agents. Because the defendant did not actually invoke her right to counsel, the court concludes there was no violation of the Edwards rule here.
WAIVER OF MIRANDA RIGHTS/VOLUNTARINESS OF STATEMENTS
Argument
The defendant insists the agents used coercive circumstances and denies that she voluntarily waived her Miranda rights and that her answers to Agent Sullivan's questions were voluntary under Fifth Amendment standards.Governing Law
A waiver of Miranda rights "is voluntary if the totality of the circumstances demonstrates (1) the waiver was a product of free and deliberate choice rather than intimidation, coercion, or deception, and (2) the waiver was made in full awareness of the nature of the right being waived and consequences of the right being waived and consequences of waiving." United States v. Bautista, 145 F.3d at 1149 (citations omitted). The government bears the burden of proving by a preponderance of the evidence that the defendant's waiver of rights was voluntary. United States v. Toro-Pelaez, 107 F.3d 819, 825 (10th Cir.), cert. denied, 522 U.S. 845 (1997). A waiver can be effective only if the totality of the circumstances surrounding the interrogation shows both an uncoerced choice and the requisite level of comprehension. Moran v. Burbine, 475 U.S. 412, 421 (1986).
In deciding if the waiver was intelligent, the court looks at whether "the defendant knew that he did not have to speak to police and understood that statements provided to police could be used against him." United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990) (citation omitted), cert. denied, 499 U.S. 908 (1991). A defendant, however, need not appreciate "the tactical advantage of remaining silent" for the waiver to be intelligent. Id. "Once the defendant validly waives his Miranda rights, interrogation may continue the defendant invokes his rights or changed circumstances suggest the responses have become involuntary. United States v. Abreu, 730 F. Supp. 1018, 1030 (Colo. 1990), aff'd, 935 F.2d 1130 (10th Cir.), cert. denied, 502 U.S. 897 (1991).
The voluntariness of a confession is examined on the totality of circumstances including the following factors: "(1) the defendant's age, intelligence, and education; (2) the length of the detention and interrogation; (3) the length and nature of the questioning; (4) whether the defendant was advised of his constitutional rights; and (5) whether the defendant was subjected to or threatened with any physical punishment." United States v. Lugo, 170 F.3d 996, 1004 (10th Cir. 1999) (citing in part Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). "No single factor is determinative." United States v. Benally, 146 F.3d 1232, 1240 (10th Cir. 1998) (citation omitted).
"[A] confession is only involuntary when `the police use coercive activity to undermine the suspect's ability to exercise his free will.'" United States v. Lugo, 170 F.3d at 1004 (quoting United States v. Erving L., 147 F.3d 1240, 1249 (10th Cir. 1998)). In Connelly, the Supreme Court clarified that "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment." 479 U.S. at 167. Absent evidence of coercion, a defendant's personal characteristics are constitutionally irrelevant. United States v. Erving L., 147 F.3d at 1249.
When a defendant's initial statement is obtained in violation of Miranda, the admissibility of a subsequent statement made after Miranda warnings is an issue governed by Oregon v. Elstad, 470 U.S. 298 (1985). In Elstad, the Supreme Court held that if a statement obtained in violation of Miranda is nevertheless voluntary, a subsequent statement is not subject to the "fruit of the poisonous tree" analysis applicable to a constitutional violation. See id at 309. Instead, "the admissibility of any subsequent statement should turn . . . solely on whether it is knowingly and voluntarily made." Id. In deciding the voluntariness of the latter statement, a valid waiver of Miranda rights is normally dispositive: "A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." Id. at 314. In short, the Supreme Court rejected the "cat out of the bag" theory under which, once an incriminating statement has been made, no subsequent confession can be truly voluntary:
[T]here is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. . . . No further purpose is served by imputing "taint" to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.Id. at 318 (footnote omitted).
Analysis and Conclusion
Ms. Bunce's answers to Agent Holsinger's questions, while in violation of her Miranda rights, were voluntarily made. There is no evidence that Holsinger threatened or coerced Ms. Bunce into answering his questions or used any tactics to undermine her ability to exercise free will. Holsinger's questions were short, simple and direct, and the defendant's emotional state did not interfere with her ability to comprehend and answer them freely and voluntarily. Following Elstad, the court finds that Agent Sullivan's subsequent administration of the Miranda warnings to Ms. Bunce removes the conditions that preclude the admission of her earlier unwarned statements.
The court finds that the government has proved that the defendant's decision to waive orally and in writing her Miranda rights was voluntary, knowing and intelligent and that her statements subsequently made were voluntary under the Fifth Amendment. There is no evidence that the defendant was threatened with or subjected to physical punishment, that she was misled, deceived or tricked in anyway, or that the agents engaged in any overreaching conduct. Contrary to the defendant's arguments, it is not overreaching or coercive for an officer to recount truthfully and factually the serious circumstances and considerations facing a suspect who is being asked to cooperate. See, e.g., United States v. Garcia, 52 F. Supp.2d 1239, 1254-55 (Kan. 1999) (and cases cited therein). The length of questioning was neither long nor protracted, but rather it was conducted in what appears to be polite and respectful manner with part of it even occurring in the comfortable surroundings of the defendant's home. The record is devoid of any evidence to suggest that Ms. Bunce was susceptible to coercion because of her age, intelligence or education. She displayed a certain amount of fortitude and knowledge in asking about her need for counsel prior to the officers ever reading the Miranda warning. Though she was plainly upset by her circumstances, there is no evidence that the agents exploited her agitated state. Rather, after patiently talking with Ms. Bunce and calming her, the agents engaged in her conversation during which she demonstrated her capacity for thinking intelligently about her situation and for communicating her thoughts rationally to the agents. The totality of the circumstances leads this court to the conclusion that Ms. Bunce voluntarily and knowingly waived her Miranda rights and that all of her post- Miranda statements were voluntary under the Fifth Amendment.
IT IS THEREFORE ORDERED that the defendant Melissa Dawn Bunce's motion to suppress (Dk. 596) is granted as to her pre- Miranda incriminating statements made in response to Agent Holsinger's interrogation and is denied in all other respects.