Opinion
CRIMINAL NO. 4:01cr117
March 14, 2002
OPINION
Defendant, Lawrence Glen Galloway, filed a motion to suppress statements he made after a waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), claiming the waiver was involuntary due to intoxication. Defendant filed a supplemental motion to suppress evidence obtained as a result of the search of his automobile and to suppress statements made by him at the time of his arrest based on a violation ofMiranda, as well as a later statement made by defendant after he was given Miranda warnings under the doctrine of "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 479-84 (1963). For the reasons set forth below, the court finds there was no violation of defendant's constitutional rights. Accordingly, defendant's motions to suppress are DENIED.
I. Findings of Fact
The court bases its findings of fact on the evidence presented in the hearings held on February 5, 2002, and February 13, 2002. Officer Brendan Bartley testified at both hearings, and the court finds his testimony to be credible. Defendant Galloway testified at the February 13, 2002, hearing.
On the evening of September 27, 2001, at approximately 11:30 p.m., Officer Brendan Bartley responded to a domestic assault at 823 33rd Street, Newport News, Virginia. Officer Bartley arrested defendant on a charge of domestic assault involving defendant's girlfriend, Ms. Parker. Defendant was taken to a state magistrate and released, and Officer Bartley served him with an emergency protective order at 1:00 a.m. on September 28, 2001. The emergency protective order prohibited defendant from returning to the 823 33rd Street, Newport News, residence for 72 hours.
One hour later, at approximately 2:00 a.m., Officer Bartley responded back to 823 33rd Street, Newport News, because defendant had returned to the residence. Officer Bartley arrested defendant for violating the emergency protective order. Once defendant was placed in custody and handcuffed at approximately 2:15 a.m., Ms. Slaughter, who also lived at the residence, told Officer Bartley that defendant had possessed a gun before the 11:30 p.m. arrest and that defendant had put the gun in the trunk of his car. She pointed to a brown Volvo parked outside the residence. At this time, a second police officer arrived on the scene. Defendant gave Officer Bartley consent to search the vehicle, told Officer Bartley that the keys were in his pocket, and identified for Officer Bartley the correct key to unlock the car. Officer Bartley opened the trunk and found a gun on top of some clothing. Officer Bartley stopped his search after finding the gun, and the search lasted less than one minute. The search was minimally intrusive, and neither officer drew a weapon or raised his voice at any point during the exchange.
Officer Bartley is soft-spoken and has a matter-of-fact, calm manner. He is not a threatening figure. See supra note 1.
At 4:54 a.m., at the Newport News jail, Officer Bartley advised defendant of his rights, at which time defendant knowingly and voluntarily waived his rights and admitted possessing the gun and the clothing that were found in the trunk of the car. Officer Bartley's interview of defendant at the jail lasted approximately ten minutes or less. During Officer Bartley's four encounters with defendant that night, at 11:30 p.m., 1:00 a.m., 2:00 a.m., and 4:54 a.m., defendant's speech was never slurred and his gait was never impaired. He was consistently coherent and responsive to Officer Bartley. Although defendant had bloodshot eyes and a slight odor of alcohol, Officer Bartley did not make an arrest at either 11:30 p.m. or 2:15 a.m. for being drunk in public, or for any other drunken-related offense. Officer Bartley checked the box on the police form indicating the defendant was "drunk/high" at the 11:30 p.m. arrest, but that box is the only box to check if there is any indication of alcohol. This box is used by the police officer to indicate a lesser degree of alcohol than the box on the form marked "stupor," which Officer Bartley did not check.
II. Discussion
Defendant's motion to suppress and supplemental motion to suppress raise three issues. First, defendant argues the firearm found in his vehicle should be suppressed because he did not knowingly and voluntarily consent to the search of his vehicle. Second, defendant argues that any statements made during his 2:15 a.m. arrest should be suppressed because he had not yet received his Miranda warnings. Third, defendant argues that any statements made the jail at 4:54 a.m., after he was read hisMiranda rights, should be suppressed either (1) as unknowing and involuntary statements or (2) as tainted "fruit of the poisonous tree" because these questions and answers were based on the unconstitutional pre-Miranda statements made by defendant at 2:15 a.m. in response to Officer Bartley's questions.
A. Consent to Search Defendant's Vehicle
The Fourth Amendment provides that the "right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. W. Searches conducted without a warrant are per se unreasonable, unless a valid exception to the warrant requirement is applicable. Voluntary consent to a search is such an exception. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc).
The voluntariness of consent to search is a factual question, see United States v. Wilson, 895 F.2d 168, 172 (4th Cir. 1990), which the government must prove by a preponderance of the evidence. See, e.g., United States v. Mendenhall, 446 U.S. 544 (1980). To determine whether defendant Galloway freely and voluntarily gave Officer Bartley consent to search his vehicle, "the totality of the circumstances surrounding the consent must be examined." Lattimore, 87 F.3d at 650; see Schneckloth, 412 U.S. at 227 ("[T]he question whether a consent to a search was in fact `voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.").
In upholding an oral consent to a police officer's request to search the defendant's vehicle as a knowing and voluntary consent, the Fourth Circuit in Lattimore indicated what factors should be considered in determining whether consent was voluntary. 87 F.3d at 650. A court should consider the characteristics of the accused, including age, maturity, education, intelligence, and experience, as well as the conditions under which consent to the search was given, including the officer's conduct, the number of officers present, and the duration, location, and time of the encounter. Id. The court may also consider as a factor whether the defendant knew he had a right to refuse consent, but the voluntariness of the consent does not turn exclusively on whether the government demonstrates that the defendant knew he had the right to refuse. Id.
In this case, the defendant is a forty-four year old man, who appeared mature and savvy during his testimony before the court. Although he only has an eighth grade education, he is articulate and has a high level of comprehension. He has worked for the past twenty-two years as a pipefitter at shipyards in the area, which the court notes is a skilled occupation. Defendant's involvement with the criminal justice system for the past twenty-five years, including a number of prior felony arrests, charges, and convictions, gives him adequate experience to understand what it means to consent to a search. See United States v. Boone, 245 F.3d 352, 362 (4th Cir. 2001) (stating that being a convicted felon suggests that a defendant is not a newcomer to the law). Defendant is not "a newcomer to the law."
See supra note 1.
Moreover, nothing about the officers' conduct, the number of officers present, or the duration, location, and time of the encounter indicates defendant's consent was involuntary. There was only one officer initially present at the scene, and another officer arrived as defendant was being arrested. Defendant consented to the search immediately, at the residence, and without interrogation. He told Officer Bartley that the keys were in his pocket and showed the officer which key was for the car. Although defendant had been placed under arrest and was handcuffed, consent given while in custody may still be voluntary. See Boone, 245 F.3d at 362; see also United States v. Watson, 423 U.S. 411, 424 (1976) (stating "the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search"). Even though defendant had not been read his Miranda rights, this factor, standing alone, is insufficient to invalidate consent. The absence of Miranda warnings is only one factor to be considered in determining whether defendant's consent was voluntarily given, given the totality of the circumstances. See United States v. Elie, 111 F.3d 1135, 1146 (4th Cir. 1997). Finally, the search in this case was minimal, focused, and limited to the trunk of the car for the gun. Officer Bartley's search of the vehicle lasted less than one minute, as the officer did not continue to search once he opened the trunk and found the gun for which he was looking. See generally United States v. McFarley, 991 F.2d 1188, 1191 (4th Cir. 1993) ("While consent generally has its limits, a consensual search or seizure within those limits does not implicate constitutional rights.").
Based on the totality of the circumstances, the court finds defendant knowingly and voluntarily consented to the search of his vehicle.
Because the court finds defendant voluntarily consented, it does not reach the government's alternative positions that the physical evidence from the vehicle should not be suppressed on the grounds of exigent circumstances, probable cause, or inevitable discovery.
B. Statements Made to Officer Bartley at the 2:15 a.m. Arrest
After Ms. Slaughter informed Officer Bartley that defendant had possessed a gun earlier in the evening and had put the gun in the trunk of his car, Officer Bartley asked defendant whether the car was his, and defendant stated it was not. Officer Bartley then asked if defendant had been driving the vehicle, and defendant stated that he had been driving the vehicle for a few weeks. Officer Bartley asked whether there was a gun in the vehicle, and the defendant said there was not. After asking for and receiving consent to search the vehicle, Officer Bartley recovered a gun from the trunk, and as he was transporting defendant to the Newport News jail asked defendant whether he was a convicted felon. These questions occurred without Officer Bartley advising the defendant of his Miranda rights.
However, as long as defendant's statements in response to the officer's questions were voluntary, there was no constitutional violation. Failure to give Miranda warnings is not a constitutional violation, and therefore the statements are admissible unless there was an actual Fifth Amendment constitutional violation. See Elie, 111 F.3d at 1143. A statement is involuntary under the Fifth Amendment only if it is involuntary under the Due Process Clause. To be involuntary under the Due Process Clause, the statement must be the result of police coercion. Id. The court finds defendant's statements to Officer Bartley were not made as a result of police coercion.
Based on the officer's testimony at the hearings on February 5, 2002, and February 13, 2002, there is no evidence that the officer used any technique or method that would offend due process. Being arrested and in handcuffs does not establish involuntariness in and off itself. United States v. Seni, 662 F.2d 277, 281-82 (4th Cir. 1981). Instead, "[a]n incriminating statement is involuntary only if induced by such duress or coercion that the suspect's `will has been overborne and his capacity for self-determination critically impaired.'" Id. (quoting United States v. Wertz, 625 F.2d 1128, 1133 (4th Cir. 1980) (quoting Schneckloth, 412 U.S. at 225)). Officer Bartley did not harm or threaten to harm defendant if defendant did not answer his questions, did not deprive defendant of anything, did not subject defendant to lengthy period of interrogation or isolation, and did not try to deceive defendant. See Elie, 111 F.3d at 1143 (citing as examples of police coercion, inter alia, Beecher v. Alabama, 389 U.S. 35, 36 (1967) (statement obtained after police held a gun to suspect's head); Brooks v. Florida, 389 U.S. 413, 414-15 (1967) (statement obtained after depriving suspect of food and keeping suspect naked in a small cell); Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944) (statement obtained after interrogating suspect virtually nonstop for 36 hours); Spano v. New York, 360 U.S. 315, 323 (1959) (statement obtained after a suspect was erroneously told that a friend, who had three children and a pregnant wife, would lose his job)).
In sum, there was no coercive police conduct to render defendant's statements involuntary under the Due Process Clause. C. Statements Made to Officer Bartley After Waiving Miranda Rights at 4:54 a.m.
The government argues defendant's responses to these questions are admissible under the public safety exception of New York v. Quarles, 467 U.S. 649 (1985). The court recognizes this position may be valid, although the court decides the issue on other grounds.
Defendant's statements after being read his Miranda rights are admissible. First, the court finds defendant knowingly and voluntarily waived his Miranda rights, and second, the "fruit of the poisonous tree" doctrine does not apply.
Defendant asserts in his first motion to suppress that he did not knowingly and voluntarily waive his rights because he had consumed too much alcohol to be able to knowingly and voluntarily waive his rights. "Voluntariness of a confession is assessed by examining the totality of the circumstances surrounding the confession." United States v. Van Metre, 150 F.3d 339, 348 (4th Cir. 1998). The question is whether on these facts defendant's will was "overborne" or his "capacity for self-determination critically impaired." See United States v. Pelton, 835 F.2d 1067, 1071 (4th Cir. 1987) (quoting Schneckloth, 412 U.S. at 225). In order to determine whether a defendant's will has been overborne or his capacity for self-determination critically impaired, the court must consider the characteristics of the defendant, the setting of the interview, and the details of the interrogation. United States v. Braxton, 112 F.3d 777, 781 (4th Cir. 1997).
Defendant's motion to suppress the 4:54 a.m. statement based on alcohol consumption fails for two reasons. First, there was no coercive police conduct. Police coercion is necessary to render a statement involuntary under the Fifth Amendment. Colorado v. Connelly, 479 U.S. 157, 167 (1986) (holding 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"). In fact, defendant's brief states that there is "no direct evidence that [defendant] was coerced into making a statement." (Def's Mot. to Suppress at 3.) There is no evidence that the officer harmed or threaten to harm defendant, held defendant in seclusion or isolation, subjected defendant to continuous or unrelenting questioning, deprived defendant of anything, or deceived the defendant in order to get the statement. In fact, the interview lasted less than ten minutes. When there is "nothing in the interrogating officers' conduct that could be considered as bringing undue pressure to bear upon [defendant] to confess," then the court can find defendant "knowingly, intentionally, and voluntarily consented to the questioning which elicited his confession." Rook v. Rice, 783 F.2d 401, 405 (4th Cir. 1986).
Second, although defendant's first motion to suppress is premised on his consumption of alcohol, the presence of alcohol is not sufficient to render a waiver invalid without more. See Pelton, 835 F.2d at 1071-72 (holding a defendant's statements to law enforcement agents were voluntary even though he had consumed alcohol and narcotic drugs earlier that afternoon). Rather, the key question is whether defendant's behavior at the time of giving the statements suggested impairment. See id.; see also United States v. Smith, 218 F.3d 777, 781-82 (7th Cir. 2000) (holding confession voluntary even though the defendant had ingested cocaine and sleeping pills because the defendant did not appear "unable to make knowing choices"); United States v. Palmer, 203 F.3d 55, 60-61 (1st Cir. 2000) (holding confession voluntary despite heroin withdrawal and anti-depressant drug use because the defendant appeared "clear-headed").
Officer Bartley testified that he smelled alcohol on defendant's person at 11:30 p.m., but that defendant's behavior did not suggest intoxication: defendant answered all the officer's questions in a coherent manner, defendant was cooperative, defendant did not slur his speech, and defendant did not walk as though impaired. The officer did not see defendant with an alcoholic beverage at either the 11:30 p.m. or the 2:00 a.m. arrest. Furthermore, defendant's arrest occurred three hours before he waived his Miranda rights and gave statements to the officer. The totality of the circumstances does not indicate that defendant was in a position of being unable to voluntarily waive his Miranda rights. There is nothing that demonstrates defendant's capacity for self-determination was critically impaired.
In his supplemental motion to suppress, defendant raises the application of the "fruit of the poisonous tree" doctrine. See Wong Sun, 371 U.S. at 479-84. However, once the court finds the 2:15 a.m. statements, including consent, were voluntarily provided to the officer, there is no "poisonous tree" to analyze. Furthermore, because Miranda violations are not Fifth Amendment constitutional violations, but departures "only from the prophylactic standards laid down by [the Supreme Court] in Miranda to safeguard that privilege," the fruit of the poisonous tree doctrine would not apply. Elie, 111 F.3d at 1141 (quotingMichigan v. Tucker, 417 U.S. 433, 445-46 (1974)).
In a factually analogous case, Oregon v. Elstad, 470 U.S. 298 (1985), two officers went to a defendant's home with a warrant, and after executing the warrant the officers questioned him about a recent burglary. As a result of the interrogation, Elstad voluntarily confessed. After confessing, he was taken to the police station, advised of his Miranda rights for the first time, where he waived those rights and re-confessed to the burglary. Elstad later sought to suppress the second confession as fruit of the poisonous tree, but the Supreme Court held that the "tainted fruit" doctrine did not apply to the second confession. Id. at 309; see also Elie, 111 F.3d at 1141.
In Elstad, the admissibility of the second confession turned on the fact that the initial inculpatory statement, although technically in violation of Miranda, was voluntary. The Fourth Circuit summarized the Supreme Court's holding in Elstad as follows: "[D]erivative evidence obtained as a result of an unwarned statement that was voluntary under the Fifth Amendment is never `fruit of the poisonous tree.'" Elie, 111 F.3d at 1142; see also Correll v. Thompson, 63 F.3d 1279, 1290 (4th Cir. 1995) ("Elstad thus makes clear that when the initial confession is obtained in violation of the Fifth Amendment, a later voluntary confession may be tainted by the earlier one, but when the earlier confession merely violates the technical proscriptions of Miranda, no taint analysis is necessary."), cert. denied, 516 U.S. 1035 (1996).
Because defendant's waiver of his Miranda rights was knowing and voluntary, and because defendant's 2:15 a.m. statements and consent were knowing and voluntary, the 4:54 a.m. statement is admissible.
III. Conclusion
For the reasons set forth above, the court DENIES defendant's motion to suppress and supplemental motion to suppress.
The Clerk is DIRECTED to send a copy of this Opinion to counsel for the defendant and to the Assistant United States Attorney.
IT IS SO ORDERED.
nunc pro tunc February 13, 2002
The court issued its opinion orally from the bench on this date, but reserved the option to file a written opinion at a later date.