Opinion
Cr. No. 06-499 MCA.
December 28, 2006
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendant's Motion to Suppress [Doc. 25], filed November 1, 2006. The Court held a hearing on the motion on November 27, 2006. Having considered the parties' submissions, the relevant law, the arguments of counsel, and otherwise being fully advised in the premises, the Court denies the motion.
I. FINDINGS OF FACT Miranda Miranda Miranda Miranda 18 U.S.C. §§ 922 924
Miranda v. Arizona, 384 U.S. 436 (1966).
On November 1, 2006, Defendant filed a motion to suppress evidence obtained as a result of what he contends was an illegal detention and search of Room 150 of the Rim Rock Lodge Motel on December 29, 2004. [See Doc. 25 at 1]. Defendant argues that to the extent he consented to the entry of his room by Officers O'Donnell and Briseno, such consent was involuntarily given because it came as the result of coercive circumstances. Defendant also submits that he did not voluntarily consent to the search of his room. Consequently, maintains Defendant, any evidence obtained as a result of the entry and search must be suppressed as fruits of the poisonous tree. [See generally id.]. Defendant additionally argues that Officer O'Donnell's questioning Defendant as to his tattoos and criminal history amounted to an act of custodial interrogation, prior to which Officer O'Donnell was required to have advised Defendant of hisMiranda rights. Because Defendant's non-Mirandized statements ultimately led to the recovery of physical evidence, Defendant asks that that evidence be suppressed. A. The Officers' Entry Into and Search of Room 150
I have taken note of the following:
(1) The findings of the Honorable Leroy Hansen in a Memorandum Opinion and Order [Exh. B], filed in the case of United States v. Pringle, No. CR-00-1242 LH, that portions of Officer Briseno's testimony given in that case were not credible;
(2) The findings of the Honorable George A. Harrison in Findings of Fact and Conclusions of Law [Exh. A], filed in the case of State of New Mexico v. Ashcroft, No. CR-99-989-6, that Officer Briseno's testimony at the suppression hearing that he had obtained consent from the defendant to search her person was not credible;
(3) A jury award of $500.00 in compensatory damages against certain defendants, including Officer Briseno, for violations of Fourth and Fourteenth Amendment rights, including unlawful entry, search, seizure, and arrest, in the case of Mitchell v. Briseno, et.al, No. CIV-03-00061 RLP/LCS. [Exh. C]. Exhibit C consists of a Memorandum Opinion and Order dealing with the plaintiff's motions for attorneys' fees and expenses. Exhibit C is silent as to any facts related to the basis for the underlying claim and, as a result, I cannot place the matter in sufficient context such that it could weigh in favor of Defendant in assessing Officer Briseno's credibility in the present case.
However, I have serious concerns that the testimony of a witness in the present case, Mike Briseno, was not found to be credible or believable in several prior cases. Above all else, a witness's credibility is essential to our administration of justice and in this case is essential to a criminal defendant's right to a fair and impartial proceeding.
However, there lacks a sufficient evidentiary foundation and nexus between the facts and circumstances of the present case and the facts and circumstances in the two prior cases sufficient to invite the Court to conclude that, simply because Officer Briseno was found not credible in the prior cases, his testimony must necessarily be rejected in the present case.
Accordingly, I decline to give Exhibits A, B, and C any weight.
"`The Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects. The prohibition does not apply, however, to situations in which voluntary consent has been obtained. . . .'"United States v. Abdenbi, 361 F.3d 1282, 1287-88 (10th Cir. 2004) ( quoting Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). The question of whether consent has been given voluntarily is one of fact to be determined from all the circumstances. United States v. Ledesma, 447 F.3d 1307, 1314 (10th Cir. 2006) (automobile search). "The central question is whether `a reasonable person would believe he was free to leave or disregard the officer[s'] request.'" Id. ( quoting United States v. Manjarrez, 348 F.3d 881, 885-86 (10th Cir. 2003)). The test is one of objectiveness, and neither the personal traits of the defendant nor his subjective intentions are relevant. Abdenbi, 361 F.3d at 1293. The burden of proving valid consent is on the government, which must first present clear and positive testimony that consent was unequivocal and specific and freely and intelligently given and, second, show that the police did not coerce the defendant into granting his consent. United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998).
The Tenth Circuit has identified a number of factors that suggest an encounter was not consensual, including:
(1) the threatening presence of several officers;
(2) the brandishing of weapons;
(3) some physical touching by the officers;
(4) the use of aggressive language or tone of voice indicating that compliance with the officers' request is compulsory;
(5) a request to accompany the officers to the police station;
(6) the prolonged retention of a person's personal effects, such as identification;
(7) the absence of other members of the public; and
(8) the officers' failure to advise the defendant that he is free to leave.Ledesma, 447 F.3d at 1314; see also Abdenbi, 361 F.3d at 1291 (6:15 a.m. encounter between federal agents and apartment co-tenant in apartment bedroom and living room).
The Tenth Circuit has also identified factors that suggest an encounter was consensual, including:
(1) the officers' pleasant or courteous manner and a tone of voice that is not insisting;
(2) a public location, such as the shoulder of an interstate highway;
(3) the prompt return of the defendant's identification and papers; and
(4) the decision by the officers not to draw their weapons.Ledesma, 447 F.3d at 1314; see also United States v. Cruz-Mendez, 467 F.3d 1260, 1265 (10th Cir. 2006) (specifically determining that presence of multiple officers and request for identification and proof of legal status do not necessarily render involuntary consent to enter apartment). None of the above factors is dispositive, however, as the district court must consider all the circumstances surrounding the encounter to determine whether consent was voluntary. Ledesma, 447 F.3d at 1314.
I have applied the above-listed factors to the facts of the instant case and am persuaded that Defendant unequivocally, specifically, freely and intelligently, and without coercion consented to Officer O'Donnell's and Officer Briseno's entry into and search of his room. First, the credible suppression-hearing evidence established that there was nothing particularly threatening or intimidating about the officers' presence. The undisputed testimony revealed that Officers O'Donnell and Briseno were dressed in their standard police uniforms, i.e, short sleeved, navy blue shirts with embroidered badges; pants; and shoes or boots. The officers wore their pants outside their shoes or boots; they did not tuck their pants in commando-style. The officers each carried handcuffs and a flashlight on their belts, but neither was carrying a taser or stun gun. While the officers were armed, they never brandished or even unholstered their weapons. Contrary to Defendant's assertion that "an impressive display of police power" in the form of police cars with lights trained in his direction was evident outside Room 150, [see Doc. 25 at 1], the undisputed suppression-hearing testimony showed that one patrol unit, which was equipped with emergency lights in the windshield and rear deck but no light bar, was parked without even its headlights on. Although two more street-crime unit officers eventually arrived on the scene, they were dressed similarly, if not identically, to Officers O'Donnell and Briseno and also did not display their weapons.
Nor did the credible evidence establish that the officers ever physically touched Defendant (at least not before placing him under arrest and handcuffing him) or spoke to him aggressively. To the contrary, the undisputed testimony revealed that Officer O'Donnell spoke to Defendant in a conversational, relaxed, and normal tone. There has been no allegation that, prior to having placed him under arrest, Officers O'Donnell and Briseno asked Defendant to accompany them to the police station, or that they retained any of his personal effects for a prolonged period of time.
While some of the above-listed factors do weigh in Defendant's favor, I find those factors to be insufficient, considering the totality of the circumstances, to render Defendant's consent involuntary. One factor weighing in Defendant's favor is that the encounter between him and the officers occurred in a non-public location. However, "it is axiomatic that all requests to search a home or apartment are made in nonpublic places." Abdenbi, 361 F.3d at 1288. Additionally, while it is undisputed that the officers did not inform Defendant that he was not required to cooperate with their requests, "[t]here is no per se rule requiring such an advisement." United States v. Little, 18 F.3d 1499, 1505 (10th Cir. 1994).
One of the more compelling factors in the totality-of-the-circumstances analysis is that the encounter between Defendant and Officers O'Donnell and Briseno took place at 1:17 a.m. Yet I find that the import of this factor is somewhat weakened, inasmuch as the evidence supports the finding that Defendant was nevertheless awake when the officers knocked on his door. Deputy Schmidt credibly testified that Defendant told him that Defendant had injected methamphetamine just prior to the officers' arrival because he was planning to stay up late. Officer Briseno credibly testified that before he and Officer O'Donnell knocked on Defendant's door, Officer Briseno noticed that the lights were on in the room. Thus, while I do find hour of day to be a persuasive factor in the analysis, I nonetheless conclude that any coercive effect of the early-morning contact is somewhat tempered by the fact that Defendant was actually awake when Officers O'Donnell and Briseno knocked on his door. Compare Abdenbi, 361 F.3d at 1286 (voluntary consent where, among other things, federal agents entered defendant's bedroom at 6:15 a.m. and, though unclear whether defendant was actually asleep, testimony revealed that defendant was in bed, lights were off, and bedroom was "mostly dark") and Harless v. Turner, 456 F.2d 1337, 1338-39 (10th Cir. 1972) (consent not voluntary where several police officers entered defendant's home at 1:45 a.m., "routed" defendant and his wife out of bed, and directed wife to leave room while they questioned defendant about an alleged rape). B. Whether Officer O'Donnell's Questioning of Defendant Constituted a Custodial Interrogation, Prior to Which Defendant Should Have Been Advised of his Miranda Rights
The Court also has considered United States v. Jerez, 108 F.3d 684 (7th Cir. 1997), which Defendant cites in support of his argument that time of encounter is a significant factor in assessing the totality of the circumstances. Again, while the Court does not disagree that time of encounter is an important consideration, the Court finds the facts of Jerez to be distinguishable from the facts of the instant case. In Jerez, it was approximately 11:00 p.m. when two deputy sheriffs began knocking on the defendants' motel room door. When, after having knocked for a period of three minutes, the deputies realized that they were being "voluntarily" ignored, one of them walked to the side of the motel and began knocking loudly on the window. That deputy then shined his flashlight into the room and onto the face of one of the defendants, who lay in bed. Although the deputies eventually were allowed into defendants' room, the Seventh Circuit held that "[t]he deputies' persistence, in the face of the refusal to admit, transformed what began as an attempt to engage in a consensual encounter into an investigatory stop" triggering Fourth Amendment protections, and further commented that "[s]imply stated, this is a case in which the law enforcement officers refused to take `no' for an answer." Jerez, 108 F.3d at 687-692.
Defendant contends that when Officer O'Donnell began questioning him about his tattoos and criminal history, Defendant, who was not free to leave, was effectively in custody. Thus, Defendant should have been — but was not — advised of his rights under Miranda. Consequently, argues Defendant, any statements or evidence obtained from that custodial interrogation must be suppressed.
"`It is well established that police officers are not required to administer Miranda warnings to everyone whom they question.'"United States v. Rogers, 391 F.3d 1165, 1169 (10th Cir. 2004) ( quoting United States v. Erving L., 147 F.3d 1240, 1246 (10th Cir. 1998)). Rather Miranda's protections apply only when an individual is subject to "custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 439 (1966). An individual "is not `in custody' forMiranda purposes unless his `freedom of action is curtailed to a degree associated with formal arrest.'" Rogers, 391 F.3d at 1169 ( quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984). Moreover, the "in custody" determination is based on how a reasonable person would understand the situation. Berkemer, 468 U.S. at 442. "This reasonable person `does not have a guilty state of mind and does not have peculiar mental or emotional conditions that are not apparent to the questioning officer.'" Rogers, 391 F.3d at 1169 ( quoting Erving L., 147 F.3d at 1247).
Defendant argues that
[i]f law enforcement had not coerced [him] into allowing them to enter his residence, they would not have inquired about the presence of weapons . . ., had they not asked about the weapon under such coercive circumstances, he never would have directed them to his bedside table where a handgun was secured out of reach, had they not gone to the bedside table to get the gun they never would have seen the drugs and paraphernalia in the bathroom.
[Doc. 25 at 10]. However, applying a totality-of-the-circumstances analysis, see Rogers, 391 F.3d at 1170, I conclude that a reasonable person in Defendant's situation would not have believed he was under arrest at the time Officer O'Donnell began asking questions.
As for the fact that the questioning occurred in Defendant's home, the Tenth Circuit has specifically held that "`courts are much less likely to find the circumstances custodial when the interrogation occurs in familiar or at least neutral surroundings,' such as the suspect's home." United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994) (emphasis in original) ( quoting 1 W. LAFAVE, CRIMINAL PROCEDURE § 6.6(e), at 496 (1984 1991 Supp.)); Rogers, 391 F.3d at 1170. Moreover, as explained above, the credible suppression-hearing evidence established that, among other things, (1) Defendant voluntarily consented to the officers' entry into his room; (2) the encounter between the officers and Defendant was relaxed and nonthreatening; and (3) the officers never brandished their weapons. See, e.g., Ritchie, 35 F.3d at 1485 (lack of force or threat of force weighed against conclusion that defendant was in custody); Erving L., 147 F.3d at 1248 (courteous and nonthreatening nature of police actions weighed against conclusion that defendant was in custody). To the extent that Defendant argues that the presence of uniformed police officers is inherently coercive, I reject his position, given that the Tenth Circuit has held that such a "broad proposition . . . would have the practical effect of preventing all district courts in this circuit from ever finding that an individual's cooperation with law enforcement officials was voluntary." Abdenbi, 361 F.3d at 1288 (rejecting argument that almost all encounters with law enforcement officers carry an "air of menace" and implicit coercion and, therefore, no reasonable person ever feels free to decline a request for permission to enter or search). I conclude that Defendant was not in custody when Officer O'Donnell began asking him questions, and that Defendant voluntarily offered responses to those questions. Accordingly, I deny Defendant's request to suppress statements obtained as a result of Officer O'Donnell's questioning. III. CONCLUSION
Even if the Court had found that Defendant was in custody when Officer O'Donnell began questioning him about his tattoos and criminal history and therefore that statements Defendant made in response to that questioning were given in violation of Miranda, physical evidence obtained as a result would not be excludible, since the Self-Incrimination Clause, which Miranda warnings seek to protect, "cannot be violated by the introduction of nontestimonial evidence obtained as a result of voluntary statements." United States v. Patane, 542 U.S. 630, 637 (2004) (holding that firearm found as result of unwarned but voluntary statement was not excludible under "fruit of the poisonous tree" doctrine).
For the reasons stated above, I conclude that Defendant's encounter with law enforcement officers at the Rim Rock Lodge Motel on December 29, 2004 was consensual in all respects. I further conclude that Defendant freely and voluntarily conversed with the officers and freely and voluntarily responded to questions posed during that encounter. Accordingly, Defendant's motion to suppress will be denied.
IT IS, THEREFORE, ORDERED that Defendant's Motion to Suppress [Doc. 25] is DENIED.