Opinion
No. CR-S-98-339 GGH
May 29, 2002
ORDER
Introduction and Summary
In this misdemeanor action, the undersigned denied Nickson's motion to suppress statements on account of lack of Miranda advisements because the store security personnel were not law enforcement officials. Order, November 22, 2000. No finding was made on the secondary contentions surrounding Nickson's "custody" status. The undersigned did not do so because whether a reasonable person would view herself restrained in the factual interrogation circumstances presented depended, in part, on whether the interrogators were reasonably viewed as law enforcement officials or private security personnel, i.e., the less law enforcement-like the security personnel were, the less likely that Nickson would believe herself restrained (at least based on non-employment reasons). Thus, the initial ruling that the personnel were not law enforcement would color the second ruling on custody. Moreover, Nickson had withdrawn her request for an evidentiary hearing on the custody issue from the outset, but the facts concerning her "custody" were skeletal. The undersigned's order was affirmed by the assigned district judge on April 2, 2001.
Nickson appealed and the Ninth Circuit has asked for a determination on the "factual" issue of custody so as to avoid the constitutional issue regarding the status of the store security personnel. After giving the parties a chance to submit further briefing, the court finds that Nickson was not in custody.
Legal Standards and Burden of Proof
The Supreme Court has held that whether one is in custody for purposes of the Miranda rule is a mixed question of fact and law. United States v. Coutchavlis, 260 F.3d 1149, 1157 (9th Cir. 2001), citing Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S.Ct. 457 (1995). The custody determination is thus two fold — a determination of the factual circumstances surrounding the interrogation, and the objective, legal determination of whether such circumstances indicate custody status.Thompson, 516 U.S. at 112, 116 S.Ct. at 465. In determining custody status, the ultimate inquiry is "simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Coutchavlis, 260 F.3d at 1157. Put another way in the common legal vernacular, "would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." Thompson, 516 U.S. at 112, 116 S.Ct. at 465.
Although ultimate burdens of proof vary widely in suppression situations centered about Fourth and Fifth Amendment issues, in this Fifth Amendment custody context, where the historical facts are equally available to the defendant, it makes sense to apply the normal burden on suppression motions — "the defendant must first allege facts demonstrating that a hearing on the suppression issue is warranted and then at the hearing must produce evidence that he or she is entitled to the relief sought." United States v. Utecht, 238 F.3d 882, 887 (7th Cir. 2001); United States v. Glass, 128 F.3d 1398, 1409-09 (10th Cir. 1997);United States v. Lingenfelter, 997 F.2d 632, 636 (9th Cir. 1993). In the specific context of custody, the courts have found that defendant bears the burden of proving custody. "Of course, it is the [defendant's] burden to establish factually that he was in custody as a pre-condition to an argument that the Constitution protects his silence in that situation."United States v. Moore, 104 F.3d 377, 392 (D.C. Cir. 1997) (Silberman, J. concurring). See also United States v. Charles, 738 F.2d 686, 692 (5th Cir. 1984), abrogated on other grounds, 52 F.3d 1303, 1307 (n. 4) (5th Cir. 1995). Once a defendant has met her factual burden, the court will presume that, with the assistance of the parties, it has a duty to answer the legal question correctly.
Application
In the present case, Nickson expressly withdrew her request for an evidentiary hearing at the initial hearing in this action. RT 1 (Hearing October 19, 1998). Nickson has never asked that this withdrawal be vacated. The parties did not present facts outside of arguments in their legal briefs on the issue of custody. Indeed, Nickson did not present a declaration. Thus, Nickson's ability to demonstrate facts of custody, absent an agreement to the facts, is foreclosed.
The charging document in this case contained an attachment of a military police report recounting in a hearsay and very limited fashion the facts of the store detectives' interrogation.
While it would not have been error for the undersigned in his discretion to order an evidentiary hearing, even in the face of a withdrawal of a request for one, there is no requirement that the undersigned undo a defendant's withdrawal of a request for evidentiary hearing. Moreover, even at this late date, Nickson has not seen fit to present any custody facts in an evidentiary fashion. The court will not cajole the parties to proffer further evidentiary facts, nor will the court accept further proffered facts on reconsideration. This case has gone on long enough.
Although the parties profess that the facts are undisputed, it is clear that certain facts are not agreed upon, e.g., whether defendant was subjected to "[q]uestions that would not stop" (Nickson' s supplemental brief at 6), or whether the vast majority of interrogation time was simply waiting for Nickson's friend to return the taken money (government's brief at 3); whether the store detectives told Nickson that they would refer the matter to the military police, (Nickson's supplemental brief at 6), or whether the matter would be referred to store personnel, (government's supplemental brief at 2). The only agreed upon facts are as follows.
Nickson was stopped leaving the AAFES on-base store by store detectives at the time she was leaving work, approximately 6:00 p.m. Store detectives Butler and Stephens asked her to go into the managers' office to discuss a cash register shortage. Other cashiers had been previously questioned. Nickson initially denied involvement in the shortage, but was then told, in light of the interviews with the other cashiers, that the situation "didn't look good." In response to Nickson's query about possible cooperation, the store detectives stated that "it would not hurt." After some further questioning of unknown duration, Nickson finally admitted that she took the money, and signed a promissory note to pay it back. Nickson then called a friend to bring in the money, but the friend did not appear. Military police were then contacted for purposes of arresting/citing defendant. Nickson was finally cited and released by military police sometime between 8:45 and 9:30 p.m.
It appears that the military police advised Nickson of her Miranda rights at which time Nickson refused to make further statements.
Nickson has not presented facts which would indicate from a totality of the circumstances that she was in law enforcement custody while being interrogated by the store detectives. The above facts are simply too sketchy to make such a finding. None of the ususal custody scenarios are present, i.e., Nickson was not physically restrained, no guns were ever drawn, no traditional police were present during the interrogation, no psychological coercion techniques have been established. The setting was not a law enforcement office, but was the store manager's office. It is totally unclear whether a reasonable person in Nickson's situation would view a possible misdemeanor action as the problem, or whether that person would be more concerned, and hence more restrained in leaving, because of the possible loss of employment — not a Miranda concern. Having Nickson sign a promissory note relative to the cash register shortage appears less of a law enforcement action than a store's personnels' attempt to civilly recoup lost monies.
Nickson, citing United States v. Beraun-Panez, 812 F.2d 578, modified 830 F.2d 127 (9th Cir. 1987), argues that factors such as the language used to compel the defendant's appearance before officers, confrontation with evidence of guilt, physical surroundings of the interrogation, duration of the interrogation, the degree of pressure used to compel the defendant to confess, are all relevant factors in the custody analysis. Surely they are, but insufficient facts have been presented here to determine any of the factors in Nickson's favor.
Conclusion
From the facts presented, the court finds that defendant Nickson was not in custody for purposes of the Miranda rule. The Clerk is ordered to serve the Ninth Circuit, Case No. 01-10238, as it is not clear in the present circumstances (remand for action ordered by the Ninth Circuit) whether any appeal from the undersigned's finding would again have to process before the district judge.
Unlike a magistrate judge's determination in a civil non-consent case, a misdemeanor conviction before a magistrate judge is a final conviction subject to appellate review before the district judge, 18 U.S.C. § 3402, Fed.R.Crim.P. 58(g)(2), and then apparently before the circuit court. Fed.R.Crim.P. 58(g)(1); United States v. Jones, 117 F.3d 644, 645 (2nd Cir. 1997). As an aside, the undersigned is puzzled by a system which permits two levels of direct appellate review for a misdemeanor conviction, but only one level of direct appellate review for a felony, even the most serious of felonies.