Opinion
CR 17-01252-003-TUC-RCC (EJM)
07-12-2018
United States of America, Plaintiff, v. Timothy Allen West, Defendant.
REPORT AND RECOMMENDATION
Pending before the Court are the following motions filed by the defendant, Timothy Allen West: (1) a motion for a bill of particulars [Doc. 38]; (2) a motion to compel disclosure [Doc. 39]; (3) a motion to suppress evidence based on the destruction of evidence [Doc. 40]; (4) a motion to suppress evidence and statements based on an unlawfully prolonged traffic stop [Doc. 59]; and (5) a motion to suppress statements based on a Miranda violation [Doc. 59].
For the reasons discussed below, the Magistrate Judge recommends that the District Court: (1) deny the motion for a bill of particulars [Doc. 38]; (2) grant, in part, the motion to compel disclosure [Doc. 39]; (3) deny the motion to suppress evidence based on the destruction of evidence [Doc. 40]; (4) deny the motion to suppress evidence and statements based on an unlawfully prolonged traffic stop [Doc. 59]; and (5) grant the motion to suppress statements based on a Miranda violation [Doc. 59].
FACTUAL BACKGROUND
A. The Criminal Charges
On August 9, 2017, a federal grand jury in Tucson, Arizona returned a two-count indictment against the defendant, Timothy Allen West, and two other individuals, charging them with the following offenses: (1): conspiracy to possess with the intent to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 846; and (2) possession with the intent to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 841. As discussed more fully below, the defendant was charged with these offenses because the tractor/trailer he was driving on March 12, 2015, contained over 1,000 kilograms of marijuana. B. The Instant Motions
The defendant has filed two discovery-based motions and two motions to suppress evidence. The defendant moves for a Bill of Particulars regarding the following information: (1) specific overt acts committed by the defendant in furtherance of the alleged conspiracy not detailed in the indictment; (2) the dates and place of occurrence of the agreement between co-conspirators concerning the object or purpose of the conspiracy; and (3) the identity of unindicted co-conspirators. The government argues that the indictment need not identify or prove overt acts in a drug conspiracy charged under 21 U.S.C. § 846, and that the government's disclosure obviates the need for a Bill of Particulars.
The defendant moves to compel disclosure of the following material: (1) the entire contents of case files concerning the investigation of Martin Arandules; (2) the entire contents of case files concerning the investigation of Zona Transportation and its owner, Jose Oliva; and (3) the trucking seals on the doors to the trailer the defendant was hauling. The government argues that the defense has not met its burden of showing the materiality of the requested information.
The defendant moves to suppress evidence because the government destroyed certain evidence. Specifically, the government destroyed the bulk marijuana seized from the trailer and the seals affixed to the trailer's doors, and returned the tractor and trailer to their owners. The government argues that the defense cannot meet its burden in showing that this evidence was exculpatory and/or destroyed in bad faith. Rather, these items were destroyed/returned pursuant to the government's standard policy and practice, and comparable evidence exists in the form of photographs of each of these items.
The defendant moves to suppress evidence seized from the defendant and statements made by the defendant on the following grounds. The defendant argues that marijuana and his statements made to law enforcement should be suppressed under Rodriguez v. United States, 135 S.Ct. 1609 (2015), because the traffic stop was unreasonably and unlawfully prolonged in order to obtain the defendant's consent to search the trailer. The defendant also argues that his statements should be suppressed because, even though he was not under arrest, he had previously invoked his right to counsel and was in a custodial setting when subsequent statements were made to law enforcement.
The government argues that the traffic stop lasted no longer than necessary to address the traffic infractions; any continued conversation between the defendant and law enforcement was consensual; and law enforcement had a reasonable suspicion to lengthen the stop and conduct a search. With respect to the motion to suppress statements based on a Miranda violation, the government argues that the defendant was not under arrest or in custody when those statements were made; and the defendant initiated the conversation with law enforcement and was not questioned until after the defendant initiated that conversation. C. The Evidentiary Hearing on the Pending Motions
1. Special Agent Michael Torres
Special Agent Michael Torres testified as follows on direct examination. Agent Torres is currently a Senior Special Agent with Immigration and Customs Enforcement Office of Professional Responsibility. (5/18/18 Tr. at 7.) Prior to taking that position, he was assigned to the Immigration and Customs Enforcement Homeland Security Investigations ("HSI") in Nogales, Arizona. (Id.) He was the case agent on the instant case when he was in this prior position. (Id. at 8.)
Citations to "5/18/18 Tr." or "5/29/18 Tr." followed by the page number are to the transcript of the evidentiary hearing held on 5/18/18 and 5/29/18.
Agent Torres' testimony first addressed HSI's policy regarding the storage of seized evidence. He testified that whenever evidence is seized during an investigation, HSI coordinates with the Customs and Border Protection Fines, Forfeitures and Penalties Unit ("FFPU"). (Id.) He explained the FFPU are the custodians of high-risk evidence that has some value tied to it, for instance, seized narcotics and vehicles. (Id.) When such evidence is turned over to FFPU, the HSI agent completes a custody seizure receipt, also known as a Form 6051, which documents that evidence turned over to FFPU. (Id.) He believes that FFPU stores seized vehicles at a lot in Tucson, Arizona, and narcotics are stored in a vault in Nogales, Arizona. (Id.)
His testimony then turned to the policy regarding the return of seized evidence. FFPU is responsible for notifying those persons who have an ownership interest in the seized evidence (e.g., a vehicle, tractor, or trailer), of the process to petition to have the property returned to the owner. (Id. at 9.) Once the owner is notified of the seizure, the owner must notify FFPU in writing whether they want to contest the forfeiture or abandon any claim to the seized property. (Id.) If the owner of the property wants to contest forfeiture, FFPU notifies HSI to determine whether there is a need to retain property for evidentiary purposes. (Id.) If the seized property does not have evidentiary value, HSI will notify FFPU that it has no objection to the return of the property. (Id.)
In the case at hand, in addition to the marijuana that was seized, a Kenworth tractor and a trailer were seized. (Id. at 11.) The owners of the tractor and trailer filed a petition contesting forfeiture and requesting that those items be returned. (Id. at 11-12.) Ultimately, both the tractor and trailer were returned to their owners. (Id. at 13-16.) Agent Torres explained that HSI did not object to the return of the tractor or the trailer to their owners. He explained that the owner of the tractor was a target of an HSI investigation and suspicions would have been raised if the tractor was not returned. (Id. at 16-17.) The owner of the trailer denied any knowledge of or involvement in narcotics smuggling, and HSI had no information to suggest that this owner had any involvement in this or other drug loads. (Id. at 16.) Additionally, Agent Torres testified that "there was nothing else evidentiary that we really needed at the time," because pictures of the tractor and trailer were taken and searched thoroughly "to make sure there was nothing else that we would need for our investigation." (Id. at 17.) Agent Torres testified that when agents searched the tractor and trailer there was no odor of marijuana. (Id.) The marijuana was wrapped and sealed very sophisticatedly; he could not smell marijuana even when he walked up to the pallet and put his nose to one of the bales of marijuana. (Id.) As a result, HSI "felt comfortable having those things returned." (Id.)
With respect to HSI's policy regarding the retention of narcotics, Agent Torres again testified that it is stored in FFPU's vault in Nogales, Arizona. (Id.) However, the agency does not have the resources or capacity to hold bulk marijuana. (Id. at 18.) As such, the policy of FFPU is that bulk marijuana needs to be destroyed after 60 days from its seizure. (Id.) He explained that there was no reason to keep the bulk marijuana because agents took pictures of the bulk marijuana bales, weighed it, and documented the narcotics seizure in a Form 6051. (Id.) Also, agents retained a representative bale of marijuana and took core samples from the bales of marijuana. (Id.)
Agent Torres explained that agents take up to ten core samples from bales of marijuana. So if there are nine bales, then nine core samples are taken. If there are more than ten bales, only ten core samples are taken. (Id. at 18.)
Agent Torres testified as follows on cross-examination. Agent Torres testified that the tractor was returned to its owner, Jose Oliva, in August 2015, and the trailer was returned to its owner July 31, 2015. (Id. at 23.) Agent Torres testified that the HSI investigation was opened in 2012, but then closed in 2013. (Id. at 24.) The investigation was reopened in 2014 as a result of a related drug investigation in Detroit, Michigan. (Id. at 24-25.) He explained that several targets were arrested in Detroit and the primary target reported that marijuana was supplied by Martin Arandules, who was a target of Agent Torres's investigation; also, the monies received for the marijuana was headed back south to Arandules. (Id. at 42-43.) Agent Torres testified that he learned that Arandules is related to Jose Oliva, the owner of a business named Zona Transportation, which owned the tractor the defendant was driving on March 12, 2015. (Id. at 46.) There was also a marijuana seizure in Ohio from tractors and trailers owned by Zona Transportation. (Id. at 48.) Agent Torres explained that in February 2015, there were two seizures at the Port of Entry in Arizona totaling almost 10,000 pounds of marijuana; those bundles were wrapped in the same manner as the marijuana discovered on March 12, 2015. (Id. at 49-50.) In fact, the bundles had the same soccer logo on the bales of marijuana; however, the tractor/trailers did not belong to Zona Transportation. (Id. at 49.)
In response to defense counsel's question about why the indictment was not obtained until 2017, Agent Torres explained that at the time of the seizure of marijuana in 2015, the investigation was still ongoing, "there [were] several targets we were looking at" and "[w]e did not want to compromise the case at that point in time." (Id. at 26.) Agent Torres left HSI in early 2017 and does not know what triggered the decision to charge the defendant. (Id. at 25-26.) Agent Torres testified that, to his knowledge, this investigation is still ongoing. (Id. at 27.)
On March 12, 2015, Agent Torres made a call to Arizona Department of Public Safety to have a patrol officer develop a basis for a traffic stop on the defendant. (Id. at 132.) He also requested that DPS try to obtain consent for a search of the trailer. (Id. at 132-133.) Agent Torres responded to the traffic stop shortly after the marijuana was found in the tractor/trailer the defendant was driving. (Id. at 27.) Agent Torres entered the trailer and described the inside of the trailer as follows. At the very front end, which would be right next to the back side of the tractor, there were pallets with cardboard boxes around them which were elevated really high. (Id.) He explained that one would normally see pineapples or some type of fruit piled in the cardboard boxes. (Id.) Instead, there were just bales of marijuana which were "triple wrapped, air sealed." (Id. at 27-28.) There were logos for a soccer team on each bale of marijuana. He explained that he saw the bales when he stood in front of the cardboard boxes. (Id. at 28-29.) He found it odd that the trailer just had marijuana in it, and was not commingled with other products, like fruit or vegetables. (Id. at 53.)
Agent Torres testified that the Forms 6051 documenting a seizure of evidence would be filled out by an agent the same day as the seizure. (Id. at 30.) The core samples of marijuana were taken the same day as the seizure, and the bulk marijuana is weighed. (Id. at 30-31.) He again explained that the bulk marijuana is destroyed after 60 days because of the large amount of marijuana seized in southern Arizona; he testified that the port of entries alone seize between 3,000 to 4,000 pounds of marijuana every two days. (Id. at 32.) Agent Torres testified that bulk marijuana is generally destroyed even when an investigation is ongoing. (Id.) In the case at hand, Agent Torres did not object to the bulk marijuana being destroyed per policy because he had obtained core samples and had taken pictures of the bulk marijuana. (Id. at 41.) He again explained that high-risk evidence - such as narcotics or vehicles - is transferred to FFPU; low-risk evidence like a cell phone would be stored by HSI. (Id. at 37.)
Agent Torres's testimony then turned to the surveillance of Zona Transportation tractor/trailers. He testified that HSI put Zona Transportation license plates into a "reader" that notified law enforcement when those tractor/trailers went through a Port of Entry or Border Patrol checkpoint. (Id. at 48, 54, 105.) The defendant was surveilled on one occasion prior to March 12, 2015, when he was driving a Zona Transportation tractor/trailer. (Id. at 54.) The defendant came to a produce place at about 7:00 a.m. or 8:00 a.m. in the morning, and he stayed there all day until 6:00 p.m. or 7:00 p.m. (Id.) Agent Torres testified that in his experience, it is unusual for a driver to wait 12 hours to take a commodity. The defendant was sent to secondary inspection when he got to a Border Patrol checkpoint and his trailer was searched. (Id. at 54-55.) Agent Torres asked Border Patrol to conduct that search. (Id. at 55.) However, the trailer only contained peppers. (Id. at 55.)
With respect to the March 12, 2015 seizure, the defendant was also surveilled by law enforcement when his truck went south past a Border Patrol checkpoint. (Id. at 105.) The defendant brought the tractor/trailer to the back of a building, unhitched his trailer, and drove to the Subway across the street at the Mariposa Port of Entry. (Id. at 57.) Two individuals then took a different tractor, re-hitched the defendant's trailer and took it to an industrial park. (Id.) Agents observed those two individuals open a loading bay and put pallets into the trailer. (Id.) Those two individuals brought the trailer back to the first location where the defendant unhitched his trailer, and the two individuals re-hitched the trailer to the defendant's tractor, handed the defendant some paperwork, and drove away. (Id. at 57, 60.) Agent Torres could not recall whether the defendant got out of the tractor while these other two individuals re-hitched the trailer, or if the defendant remained in the tractor. (Id. at 60-61, 63, 105-107, 110, 123-125, 128-129.) Nevertheless, Agent Torres viewed all of this conduct as suspicious because, in his experience, a driver of a trailer signs off on a manifest and represents that s/he is hauling what is reflected on the manifest. (Id. at 57-58.) However, the defendant did not open the trailer to see what he was hauling, regardless of whether he exited the tractor at the time the trailer was re-hitched. (Id. at 58, 60, 106-107.) Also, the area where the defendant's tractor was unhitched and re-hitched was not a business or warehouse where tractors are loaded or unloaded with commodities. (Id. at 114-115.)
Agent Torres testified that he and other HSI agents arrived shortly after the marijuana was discovered in the tractor. (Id. at 116.) Agent Torres gave the defendant Miranda warnings and he agreed to speak with agents. (Id.) The defendant was cooperative but stated he was not aware that the tractor contained narcotics. (Id. at 117.) Eventually, the defendant invoked his right to have an attorney and refused to speak any further. (Id. at 117-118.) Agent Torres advised the defendant that he was not under arrest and was not going to be charged with a criminal offense at that time. (Id. at 118.) Agent Torres told the defendant he would present the case to the United States Attorney's Office for possible future prosecution. (Id. at 118-119.) The defendant consented to a search of his phone. (Id. at 119.)
Agent Quisenberry transported the defendant to his home in Tucson, Arizona. (Id.) That transportation was provided as a courtesy because the tractor was seized as evidence. (Id.) Agent Quisenberry wore a body wire which recorded the conversation during the transport; he used a digital recorder as well. (Id. at 120, 130.) As to why the conversation during the transport was recorded, Agent Torres testified that the defendant had a better rapport with Agent Quisenberry so a "decision was made to put an audio recording device to see if the defendant would say anything to Agent Quisenberry while [they were] driving." (Id. at 122.) Agent Torres acknowledged that the purpose of a recording was to obtain incriminating information, but he also explained that Agent Quisenberry would not have been able to take notes while driving if the defendant did speak during the transport. (Id.)
2. The Audio Recording of the Conversation During the Ride to Tucson
The audio recording of the conversation during the transport was admitted into evidence but was not played during the evidentiary hearing. The recording reflects that the defendant initiated a conversation with Agent Quisenberry. The conversation started with small talk about the following: (1) the defendant's phone service and need to get a new phone; (2) the defendant's boss's wife being hit by a bullet in the head and killed; (3) treatment for the defendant's medical condition; (4) the defendant's girlfriend and sexual activity; and (5) driving directions. This small talk continued throughout the drive to Tucson. However, details about the offense and marijuana seizure are discussed at certain points. In most instances, the defendant volunteers this information; but, on occasion, Agent Quisenberry asks follow-up questions.
Early on in the conversation the defendant expresses that it is "crazy how they suck you into this shit without you knowing." He says that he would never do anything illegal, doesn't know about drugs, and had "no clue" - "a guy give you a job and you do it." The defendant says that he has been to Mexico and watches CNN so he knows about cartels and does not want to be involved in that. The defendant tells Agent Quisenberry that he hopes law enforcement can "catch these guys."
The defendant explains that it made no sense for there to be two seals on the trailer because only one seal is needed to lock the trailer's doors. The defendant says he is suspicious because the car in front of him was going slowly and that is what caused the following too closely infraction (although he disputed he was following too closely). The defendant expresses that he would like to know how the marijuana was loaded. Agent Quisenberry responds that it is best that the defendant does not know, especially if the owner of the marijuana contacts him. Agent Quisenberry and the defendant discuss that in hindsight you can see the whole picture of why the circumstances of this load may have been suspicious.
The defendant complains about his boss putting him in this position, and says that he is going to call his boss to chew him out. Agent Quisenberry tells the defendant to "feel him out" if you call him. The defendant expresses his dismay about why marijuana would be put in the truck because the owner would want the truck back. The defendant also asks how much the marijuana is worth; Agent Quisenberry responds that he is not sure.
The defendant says that he prayed that law enforcement would see his side of the story and that he is a victim. He also expresses that he could have refused to allow the trailer to be searched; but he thinks that consenting to a search is what saved him. He says the best thing that law enforcement could have done is let him deliver the load and bust the guys who received it.
In response to a comment made by the defendant, Agent Quisenberry asks the defendant if he had a phone number for the recipient of the load. The defendant said that law enforcement has that number (presumably in the defendant's phone). In response to a question from Agent Quisenberry, the defendant states that he was supposed to wait (to re-hitch the trailer) until they called me.
In response to a comment made by the defendant, Agent Quisenberry asks the defendant if he had been stopped by law enforcement before while driving for this company. The defendant explained that he was driving with his boss one day when stopped by law enforcement. He consented to a search of the trailer, which was empty. The defendant explained that he was doing a test run so his boss could assess his driving. The defendant says that his boss should not have let him drive the load on March 12, 2015, given that he consented to a search on this prior occasion.
Agent Quisenberry asks the defendant whether he will still drive for this company. The defendant responds that he doubts it because they only had the one trailer. Also, the defendant says that he does not want to work for this guy again because he does not want to be "in the limelight" again. The agent tells the defendant that if he is asked to drive again he should reach out to law enforcement.
Agent Quisenberry tells the defendant that he appreciates him being cooperative. In response to a comment made by the defendant, Agent Quisenberry says that it is good that we got you and it wasn't guys trying to rip off the marijuana load. There is some discussion about how many times the defendant drove for this company, where he picked up and delivered the prior loads, and what product the defendant was transporting.
There is also some discussion of how the defendant met his girlfriend and her suspected involvement in drug dealing. The defendant mentions that his girlfriend "got nailed before." The defendant expresses that he cares about his girlfriend, but is suspicious about whether she was involved in this incident. He does not plan to tell her that he was stopped by law enforcement because he doesn't "know much about her." Agent Quisenberry tells the defendant that he may "want to keep an eye on her."
The defendant expresses some concern that his boss has been to his house and knows where he lives. Agent Quisenberry asks why the defendant's boss came to his house. The defendant says that his boss came by to pay him $400 for a prior delivery; but his boss also brought his cousin and uncle with him.
The defendant asks if he can get some personal belongings from the truck, like his blanket, cigarettes, and possibly his GPS device. Agent Quisenberry says that he will gather up personal items and return any items that do not need to be kept as evidence; but he tells the defendant that agents will likely retain the GPS device because it will contain coordinates of the defendant's trucking routes.
The defendant asks Agent Quisenberry to drive him to his house on Grant and Alvernon. Apparently, Agent Quisenberry was only going to drive the defendant to the Tucson area. The defendant tells Agent Quisenberry that if he drives him home, he will provide bills of lading that he has in his house. Agent Quisenberry agrees to drive the defendant to his house. When they reach the house, the defendant goes into his house and returns to the car with the promised documentation.
3. Trooper Keith Duckett
Trooper Keith Duckett testified as follows on direct examination. Keith Duckett has been employed by the Department of Public Safety as a Trooper for 26 years. (Id. at 74.) He has been a canine Trooper for 21 years. (Id.) While Trooper Duckett was working on March 12, 2015, he received some information about a tractor/trailer that was possibly loaded with narcotics. (Id.) Specifically, he received a phone call from an HSI agent and was informed that HSI was investigating a commercial vehicle that may be loaded with narcotics; he was asked to perform a traffic stop on that vehicle. (Id. at 75; 5/29/18 Tr. at 170-171.) When he received the phone call, he was in Tucson, so he proceeded south on Interstate 19 and turned around at the Papago exit and waited for the tractor/trailer to approach. (5/18/18/ Tr. at 75.) He received another call from an HSI agent who advised that the tractor/trailer was approaching the Papago exit. (Id. at 76.) Trooper Duckett saw the tractor/trailer and noticed that it was following behind a passenger car at a very unsafe distance, which is a violation of Arizona law. (Id.)
Trooper Duckett followed the tractor/trailer for a short distance and then initiated a traffic stop. (Id.) After he exited his patrol car and approached the trailer, he noticed that the back doors had two seals. (Id. at 77.) Trooper Duckett testified that, in his experience, putting two seals is unusual because it is not necessary because the left door cannot be opened until the right door is opened. (Id. at 77-78.) He explained that, in his experience, legitimate trucking companies will only put a seal on the right door. (Id. at 78.) On the many occasions when he has seen two seals on a commercial vehicle it has been loaded with narcotics. (Id. at 78-79.)
Trooper Duckett then spoke with the driver of the tractor. (Id. at 79.) He became further suspicious of possible narcotic activity because the defendant's log book was not accurate. (Id.) The log book reflected that the defendant had gone to Nogales at 1:30 a.m., had done business there, went back to Tucson at 3:00 a.m., and then returned to Nogales at 4:00 a.m. (Id. at 80.) The defendant told Trooper Duckett that his log book did not reflect his actual travels. (Id.) The defendant told Trooper Duckett that "he was going to go back to Tucson, so that's why he prefilled his log book." (Id.) The defendant further stated that he did not go to Tucson because he wanted to meet "with the owner of the company, his boss, and talk about some business that he had with him." (Id. at 81.) Trooper Duckett testified that an inaccurate log book is a violation of Arizona law. (Id. at 82.)
Trooper Duckett also reviewed the shipping documents and noticed that it appeared to be a copy, and did not appear to be a computer-generated document. (Id. at 81.) Also, there were no phone numbers on the document; there was not a phone number for where the defendant picked up the shipment or where he was to drop off the shipment. (Id.) Trooper Duckett testified that when drivers arrive at their destination, there is usually a number on the document that the driver can call to say that they have arrived or are close to the drop off location. (Id.) He testified that he has "stopped hundreds and hundreds of commercial vehicles over the years, and shipping documents have phone numbers on them." (Id. at 81-82.) The defendant told Trooper Duckett that there were five or six pallets in the trailer that contained garage parts. (Id. at 82.) The defendant said that he did not see the trailer being loaded. (Id.)
Trooper Duckett asked the defendant to exit the tractor and go with him to his patrol car. (Id. at 83.) He does this for every traffic stop because his patrol car is basically his office; it is where his computer and printer are located. (Id.) Trooper Duckett went through the log book with the defendant and asked who owned the tractor/trailer. (Id.) The defendant could not recall the name of the owner of the company. (Id.) The defendant said he had only been driving for this company for a short time, and had only done a few loads. (Id. at 84.) In response to Trooper Duckett's question about how much the defendant was being paid, the defendant stated that he was being paid $400 to deliver the load, and makes about 34 cents a mile. (Id.) Trooper Duckett found that response odd because truck drivers know exactly how much they are being paid, "they don't respond with 'about.'" (Id. at 84-85.)
Trooper Duckett asked the defendant if there were drugs or anything else in the tractor. The defendant responded "not that I know of." (Id. at 85.) Trooper Duckett found that response odd because when he asks that question of drivers, if they are confident there is nothing illegal in the vehicle, they just say "no." (Id. at 86.) "But if they're not confident about it, then they will try to place the blame somewhere else and say, not that I know of." (Id.)
Trooper Duckett decided to give the defendant a written warning for both traffic violations. (Id.) He also asked for the defendant's consent to search the trailer, and the defendant agreed to the search. (Id.) Trooper Duckett testified as to the time line of when he gave the defendant the written warning and when he asked for consent to search the vehicle. He testified that on all of his traffic stops, and in this case, he asks whether there is anything illegal in the vehicle when he is returning the driver their documents and issuing the written warning. (Id.) After he has returned all documents (and the warning) to the driver, he asks if he can search the vehicle. (Id. at 86-87.) That is what he did with the defendant. (Id. at 87.) The defendant gave his consent for Trooper Duckett to search the trailer and the defendant signed a consent to search form. (Id. at 87-88; Gov. Ex. 8.) Trooper Duckett described the defendant as friendly and cooperative during their entire interaction. (Id. at 88.)
After Trooper Duckett opened the doors to the trailer, he saw cardboard boxes on pallets, which seemed unusual if the defendant was hauling garage parts. (Id. at 88-89.) Trooper Duckett opened one of the cardboard boxes and saw a bundle of marijuana. (Id. at 89.) He relayed that information to HSI agents who responded to the scene. (Id.)
Trooper Duckett testified as follows on cross-examination. Trooper Duckett testified that the mission of his traffic stop was to give the defendant a ticket or warning for unsafe following distance, as well as to interdict narcotics that were possibly on the truck. (Id. at 90.) The whole encounter with the defendant was between 15 and 20 minutes. (Id.) During that time, he questioned the defendant about his log book, his job, and what he was carrying in the trailer. (Id. at 90-91.) Trooper Duckett agreed that the defendant said that his employer's name was "Frank," but he did not provide a last name. (Id. at 98.)
Trooper Duckett was recalled by the defense on May 29, 2018, to testify about the video/audio recording of the traffic stop. Trooper Duckett again testified that HSI agents requested that he make a traffic stop of the defendant. (5/29/18 Tr. at 170-171.) He again testified that the basis for his stop was following too closely, and he issued a warning for that infraction as well as for the log book violation. (Id. at 171.)
Trooper Duckett acknowledged that in the video/audio recording, there were several different times when he asked the defendant what was in the trailer. (Id. at 172.) The first time was about nine minutes into the recording when he asked what the defendant was carrying, and the response was garage parts. (Id.) About ten minutes later, after the discussion about the defendant's log book, Trooper Duckett asked about the defendant's boss, the owner of the company. (Id.) About a minute later, Trooper Duckett tells the defendant he is going to give him a warning for both traffic infractions. (Id. at 173.) Trooper Duckett believes he had not yet handed the defendant the written warnings. (Id.) About four minutes later, Trooper Duckett again asked whether there was anything illegal in the truck. (Id.) The defendant responded "only medication." (Id.) At that point, he handed the defendant the written warnings and the defendant's documentation. (Id. at 174.) Trooper Duckett again confirmed there is nothing illegal in the truck. (Id.) The defendant responded "not that I know of." (Id.) At that point, Trooper Duckett asked for consent to search the trailer, and the defendant gave his consent. (Id. at 176.)
DISCUSSION
A. Motion for a Bill of Particulars
Federal Rule of Criminal Procedure 7(f) states that the court may direct the government to file a bill of particulars. "The purpose of a bill of particulars is to protect a defendant against a second prosecution for an inadequately described offense, and enable him to prepare an adequate defense." Cook v. United States, 354 F.2d 529, 531 (9th Cir. 1965). A bill of particulars also ensures that the government provides the defendant details of the charges necessary to prepare a defense and to avoid prejudicial surprise at trial. United States v. Chavez, 845 F.2d 219, 220 (9th Cir. 1988). However, "[a] defendant is not entitled to know all the evidence the government intends to produce, but only the theory of the government's case." Cook, 354 F.2d at 531.
The Court concludes that a Bill of Particulars is not required in the case at hand. As the government correctly points out, a drug conspiracy charged under 21 U.S.C. § 846 does not require the government to allege or prove an overt act. United States v. Shabani, 513 U.S. 10, 11 (1994). Moreover, the indictment alleges the time frame, place, and object of the alleged conspiracy, as well as co-defendants involved in the conspiracy. According to the government, its theory is that this conspiracy occurred on or shortly before March 12, 2015, when the defendant was driving the tractor/trailer and the two co-defendants took the defendant's trailer to load it with marijuana. Stated another way, this conspiracy is discreet and not part of any other larger conspiracy involving Martin Arandules or Jose Oliva. To the extent that those individuals are unindicted co-conspirators in the instant offense(s), the defense has been (and will be) made aware of that fact through the government's disclosure. Accordingly, it is recommended that the Motion for a Bill of Particulars be denied. B. Motion to Compel Disclosure
Federal Rule of Criminal Procedure 16 provides, in pertinent part, that upon a request by a defendant, the government must disclose any relevant written or recorded statement made by the defendant, and all documents within the government's control that are material to preparing the defense, that the government intends to use at trial in its case-in-chief, or that was obtained from or belongs to the defendant. For purposes of Rule 16, "[t]he prosecutor will be deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant." United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989).
"To obtain discovery under Rule 16, a defendant must make a prima facie showing of materiality." United States v. Lucas, 841 F.3d 796, 804 (9th Cir. 2016). This is a low threshold which is satisfied if the requested information would help the defendant prepare a defense. Id. However, "[n]either a general description of the information sought nor conclusory allegations of materiality suffice; a defendant must present facts which would tend to show that the [g]overnment is in possession of information helpful to the defense." Id. (quoting United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)).
Brady v. Maryland, 373 U.S. 83, 87-88 (1963) requires disclosure of all material exculpatory evidence, including evidence that is merely inconsistent with the government's theory of the case, which would tend to negate guilt or impeach the credibility of a government witness. The government has a "duty to learn of any favorable evidence known to the others acting on the government's behalf in the case . . . ." Kyles v. Whitley, 514 U.S. 419, 445 (1995). "To challenge the government's representation that it lacks Brady information, [a defendant] must either make a showing of materiality under Rule 16 or otherwise demonstrate that the government improperly withheld favorable evidence." Lucas, 841 F.3d at 807.
Under both Rule 16 and Brady, the issue for purposes of the motion to compel disclosure is whether the defendant has made the required showing of materiality of the requested information. The motion to compel disclosure seeks any and all information relating to the investigation(s) into Martin Arandules, Jose Oliva, and Zona Transportation. Essentially, the defense wants the government to turn over its entire case file on these other investigations. The defense has not met its burden in showing the materiality of such a broad request; nor has the defense rebutted the government's representation that any and all Brady information has already been disclosed to the defense.
However, there is a subset of this requested information that is material to the defense. Specifically, any narcotics seizures and/or arrests that the government contends are associated with Martin Arandules, Zona Transportation, and/or its owner, Jose Oliva. The defendant was driving a tractor owned by Zona Transportation and the marijuana bales had soccer decals affixed to them. The defense in the case at hand is that the defendant had no knowledge that the trailer he was hauling contained marijuana. Agent Torres testified about at least one other seized marijuana load in a Zona Transportation tractor/trailer, as well as other marijuana seizures where identical soccer logos are affixed to the bundles. Given these prior seizures and HSI's historical and current investigation of Martin Arandules, Zona Transportation, and Jose Oliva, the defense is entitled to information on these narcotics seizures to help establish a "no knowledge" defense. For example, whether other truck drivers who were stopped with narcotics belonging to Martin Arandules or Jose Oliva also claimed no knowledge of the narcotics, and/or whether the drivers were referred for prosecution. Accordingly, the Court concludes that the defense should have access to disclosure regarding prior drug seizures associated with Martin Arandules, Zona Transportation, and Jose Oliva.
Accordingly, it is recommended that the District Court grant, in part, the Motion to Compel Disclosure. C. Motion to Suppress Evidence based on the Destruction of Evidence
The due process duty to preserve evidence in possession of the government is limited to evidence that "might be expected to play a significant role in the suspect's defense." California v. Trombetta, 467 U.S. 479, 488 (1984). Such evidence "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Trombetta, 467 U.S. at 488-489. If the missing evidence is not "apparently exculpatory," but simply "potentially useful" evidence, due process is not violated unless law enforcement acted in "bad faith" in destroying or losing the evidence. Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
The defense argues that the government's returning the tractor and trailer to their owners and the destruction of the bulk marijuana and the seals affixed to the doors of the trailer violated due process and requires suppression of any evidence found in the tractor/trailer. The defense concedes that any evidence it may have found in the trailer is speculative, but argues that there are a number of ways in which inspecting the truck and seals would have exposed materially exculpatory information. For instance, the marijuana bales may have been wrapped so sufficiently that there was little or no odor, thus bolstering a no knowledge defense. The defense could have done fingerprint testing on the marijuana packaging to establish that the defendant did not load it or to inculpate the co-defendants or some other third party. The defense also claims it was deprived of the opportunity to inspect the soccer logos affixed to the marijuana bales and connect those labels to a third party and/or track down the source of the labels. Also, the serial number on the missing seal may have matched the number on the bill of lading, thus supporting the defense theory that the defendant believed he was transporting garage door parts and had no reason to inspect the cargo.
The government argues that the defense has not established that the destroyed evidence possessed any exculpatory value that was apparent before it was destroyed. Furthermore, the government argues that comparable evidence is available because the government took pictures of the tractor/trailer, the bulk marijuana, how the bales were wrapped, and the soccer logos. Finally, the government points out that the defense cannot establish bad faith because the destroyed evidence does not contain any value, and the evidence was disposed of pursuant to normal practices and procedures.
The Court concludes that the defendant has not demonstrated that the destroyed evidence has any exculpatory value or that the government acted in bad faith in disposing of that evidence. As the defendant concedes, any evidence that it may have found in the tractor/trailer is speculative. Similarly speculative are the purported ways in which inspecting the truck or the marijuana bales would have exposed materially exculpatory evidence. The testimony at the evidentiary hearing was that there was no odor of marijuana in the trailer, or from the marijuana bales, because of the way the marijuana was wrapped. Because these facts are undisputed, there is no need to inspect the trailer or marijuana bales. The testimony also established that the defendant did not load or touch the marijuana bales; as such, it is undisputed that his fingerprints would not be on the bales. The defense can bring out during trial that the government never tested the bales for prints to find out who loaded and/or touched the marijuana bales; the defense need not establish who loaded the marijuana to prove its no knowledge defense. Moreover, comparable evidence exists for the defense because the government took pictures of the tractor/trailer, the marijuana and its wrappings, as well as the soccer logos on the marijuana bales. For these reasons, the defense has not shown that this missing evidence has exculpatory value.
It is not clear whether one or both of the seals were destroyed or lost, and if so, whether photographs were taken of the seals. In the motion to compel disclosure, the defense argues that the seals are material to the defense because a fingerprint analysis will aid in identifying other culpable parties. In the motion to suppress evidence, the defense argues that the serial number on the missing seal may have matched the number on the bill of lading, thus supporting the defense theory that the defendant believed he was transporting garage door parts and had no reason to inspect the cargo. The Court does not find either argument compelling for the following reasons.
If the government has the seals or pictures of the seals, then that evidence should be disclosed to the defense.
It is undisputed that the defendant did not attach the seals to the trailer and, as noted above, the defense need not identify other responsible parties to establish a no knowledge defense. With respect to whether the serial number on the seal may have matched the bill of lading, if the seals have indeed been destroyed and no photographs of them were taken, the defense can request an appropriate jury instruction regarding that missing evidence to aid its no knowledge defense. But this speculative argument does not establish that the seals are exculpatory and that suppression of evidence is warranted.
Finally, the defense has not demonstrated that the government acted in bad faith when it destroyed or disposed of the evidence at issue. The bulk marijuana was destroyed pursuant to the standard practice and procedure of law enforcement. Agent Torres testified that his agency does not have the resources or capacity to hold bulk marijuana. (5/18/18 Tr. at 18.) As such, the policy is that bulk marijuana needs to be destroyed 60 days after seizure unless there is some need to retain the bulk marijuana. (Id.) He explained that there was no reason to keep the bulk marijuana because agents took pictures of the bulk marijuana bales, weighed it, and documented the narcotics seizure in a Form 6051. (Id.) Also, agents retained a representative bale of marijuana and took core samples from the bales of marijuana. (Id.) Thus, the destruction of the bulk marijuana pursuant to HSI's standard practice and procedure does not amount to bad faith.
The tractor and trailer were likewise disposed of in accordance with standard forfeiture practice and procedure because they had no evidentiary value. Agent Torres did testify that the owner of the tractor was a target of an HSI investigation and suspicions would have been raised if the tractor was not returned. (Id. at 16-17.) However, the defense did not question Agent Torres as to whether the government had sufficient evidence against that target to proceed with a forfeiture of the tractor. Moreover, as discussed above, the defense has not demonstrated that the tractor has some exculpatory value or would be useful to the defense. Thus, the decision to return the tractor which had no evidentiary value does not amount to bad faith.
With respect to the seals that were attached to trailer's doors, again, it is not clear if those items still exist or whether pictures were taken of them. In fact, at the evidentiary hearing the defense did not ask any questions about whether the seals still exist or what happened to them. Accordingly, the defense has not met its burden in showing the seals were destroyed in bad faith (if they have indeed been destroyed).
For the reasons detailed above, the Court recommends that the motion to suppress evidence based on the destruction of evidence be denied. D. Motion to Suppress Evidence and Statements
1. Prolonged traffic stop
The defendant argues that the marijuana and his statements made to law enforcement should be suppressed because the traffic stop was unlawfully prolonged in violation of Rodriguez v. United States, 135 S.Ct. 1609 (2015). The defense contends that the mission of the traffic stop was completed when Trooper Duckett gave the defendant written warnings for the traffic infractions. The defense submits that Trooper Duckett unlawfully prolonged the stop in order to obtain the defendant's consent to search the trailer.
The government first argues that the traffic stop was not unlawfully prolonged because Trooper Duckett asked for consent to search the trailer immediately after issuing the written warnings while the defendant and Trooper Duckett were still at the patrol car. The government also argues that the continued conversation between the defendant and Trooper Duckett before the defendant returned to his vehicle was a consensual encounter. Finally, the government argues that even if the traffic stop was unlawfully prolonged and not a consensual encounter, Trooper Duckett had a reasonable suspicion to conduct a search of the trailer based on the collective knowledge doctrine. Specifically, the reasonable suspicion arose from the investigation conducted by HSI agents prior to the traffic stop as well as Trooper Duckett's own observations.
The Court concludes that the traffic stop was not unnecessarily and unlawfully prolonged as in Rodriguez In that case, the traffic stop was extended seven to eight minutes in order to have a canine sniff the vehicle. 135 S.Ct. at 1616. The Supreme Court held that "[t]he critical question . . . is not whether the dog sniff occurs before or after the officer issues a ticket . . . but whether conducting the sniff prolongs - i.e., adds time to - the stop." Id. The Court reasoned that "[t]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission' - to address the traffic violation that warranted the stop and attend to related safety concerns." Id. at 1614. Thus, the "[a]uthority for the seizure . . . ends when tasks tied to the traffic infraction are - or reasonably should have been - completed." Id. A traffic stop "seizure remains lawful only 'so long as [unrelated] inquiries do not measurably extend the duration of the stop.'" Id. at 1615.
In light of the conclusion that the traffic stop was not unlawfully prolonged, the Court will not address whether the request for a consent search was a consensual encounter or whether Trooper Duckett had a reasonable suspicion to search the trailer. --------
Contrary to the defendant's contention, the facts of the instant case bear little resemblance to Rodriguez. As the government points out, the defendant in Rodriguez remained in his vehicle, had all of his documents and the written warning from the officer, did not consent to a canine search, and the canine did not arrive until seven to eight minutes after the mission of the traffic stop was completed. Thus, the Supreme Court's focus was on the time lapse between when the traffic stop had ended until the canine arrived for a purpose unrelated to the traffic stop. Moreover, the Supreme Court noted that the Fourth Amendment tolerates unrelated investigations that do not lengthen the roadside detention.
Here, unlike in Rodriguez, Trooper Duckett's unrelated inquiry regarding a consent search did not measurably extend the duration of the traffic stop. Both Trooper Duckett's testimony and the video/audio footage of the traffic stop reflect that Trooper Duckett asked for consent to search the defendant's vehicle immediately after issuing the written warning while both men were still at the patrol car. Indeed, Trooper Duckett testified that his practice is to ask drivers for consent to search the vehicle when he issues the written warning or citation. Thus, in essence, the mission of the traffic stop ended at the same time as the request for consent to search the vehicle; therefore, the traffic stop was not unlawfully prolonged and there was no violation of Rodriguez.
Accordingly, it is recommended that the motion to suppress evidence and statements on this ground be denied.
2. Statements made during the defendant's transport to Tucson
The defendant also moves to suppress the statements he made to law enforcement during the ride to his home in Tucson, Arizona, because he previously invoked his right to have an attorney present. Although the defendant acknowledges that he was not under formal arrest during the ride to Tucson, he argues that "his freedom of motion was severely limited by virtue of his being in a moving police vehicle, and he was plainly not free to leave." [Doc. 59 at 6.] The defendant points to the fact that the conversation was surreptitiously recorded as evidence that law enforcement was trying to obtain a statement from the defendant after he invoked his right to counsel.
The government argues that the objective facts establish that the defendant was not in custody for purposes of Miranda at the time he made the statements at issue. The government also argues that the defendant initiated the conversation during the ride to Tucson and the agent did not engage in follow-up questions related to the marijuana until after the defendant made unprovoked statements.
The Fifth Amendment of the United States Constitution prevents the government from using "statements . . . stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 444 (1966). As a result, whenever a person is in custody, they must be advised of their right to remain silent and their right to the presence of an attorney prior to commencing interrogation. Miranda, 384 U.S. at 444.
"Custody" for purposes of Miranda "is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion." Howes v. Fields, 132 S. Ct. 1181, 1189 (2012). Even when a formal arrest has not occurred, a person may be in custody for purposes of Miranda if their freedom of movement is restrained to "the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam). That said, the question is whether the setting in which the questioning occurred is one "from which a reasonable person would believe that he or she was not free to leave." United States v. Beraun-Panez, 812 F.3d 578, 580 (9th Cir. 1987). Accordingly, in determining whether a person is in custody, a court must focus on the objective circumstances of the questioning rather than the subjective views of the suspect or the officers. Stansbury v. California, 511 U.S. 318, 322 (1994).
Here, it is not disputed that the defendant was initially advised of his Miranda rights and agreed to waive those rights and speak with law enforcement. There is also no dispute that the defendant later invoked his right to counsel and terminated the interview. The dispute is whether the defendant was in custody during the ride to Tucson and needed to be again advised of his Miranda rights prior to Agent Quisenberry speaking with him about the details of the offense.
In Edwards v. Arizona, the Supreme Court held that after a suspect invokes the right to counsel, further interrogation without counsel is impermissible unless the suspect initiates further communications with law enforcement and the suspect is again advised of and waives the right to counsel. 451 U.S. 477, 484-485 (1981). A suspect "initiates" a conversation with authorities by asking "questions which 'evinced a willingness and a desire for a generalized discussion about the investigation[.]'" United States v. Velasquez, 885 F.2d 1076, 1086-1087 (3d Cir. 1989) (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983)). There are some routine inquiries, such as a request for a drink of water or to use the telephone, that "cannot be fairly said to represent a desire on the part of the accused to open up a more generalized discussion relating directly or indirectly to the investigation." Bradshaw, 462 U.S. at 1045. However, a suspect can initiate a conversation with law enforcement which evidences a willingness and desire to discuss the investigation by asking a question as simple as: "[w]ell, what is going to happen to me now?" Id.
In Bradshaw, the Supreme Court reaffirmed Edwards, but clarified that the "initiation" of a conversation by a suspect does not amount to a waiver of a previously invoked right to counsel. 462 U.S. at 1044. The Court held that these were separate inquiries, and articulated a two-part test to determine whether a suspect in custody may be subjected to further interrogation after s/he has requested an attorney: (1) the suspect must initiate the conversation with authorities, not vice versa; and (2) after the suspect initiates the conversation, the waiver of the right to counsel and the right to silence must be knowing and voluntary. Id. at 1045-46 (1983); see Smith v. Illinois, 469 U.S. 91, 95 (1984) (per curiam) (recognizing two-step analysis of initiation and waiver); Rodriguez v. McDonald, 872 F.3d 908, 921 (9th Cir. 2017) (recognizing two-step analysis of initiation and waiver).
In the case at hand, the recording of the conversation between the defendant and Agent Quisenberry establishes that the defendant initiated the conversation about the instant offenses. However, the recording also establishes that Agent Quisenberry did not again advise the defendant of his right to counsel, but did question the defendant about the offenses. Thus, the conversation violated Edwards unless the Court concludes that the defendant was not in "continuous custody" during the ride to Tucson.
In the wake of Edwards, the Ninth Circuit has made clear that the Edwards rule does not apply where there has been a significant break between interrogations during which time the defendant has been released from custody. "[T]he Edwards rule does not apply to suspects who are not in continuous custody between the time they request counsel and the time they are reinterrogated." United States v. Hines, 963 F.2d 255, 257 (9th Cir. 1992) (citing United States v. Skinner, 667 F.2d 1306 (9th Cir. 1982)).
In Skinner, the defendant voluntarily went to the police station to speak with law enforcement. 667 F.2d at 1308. He was advised of and waived his Miranda rights; however, the interview terminated after he invoked his right to counsel. Id. The defendant was allowed to leave the police station that day. Id. He was arrested the following day and questioned by officers after again being advised of and waiving his right to counsel. Id. The defendant moved to suppress this second statement pursuant to Edwards because he had requested counsel the prior day. Id.
The Ninth Circuit concluded that the defendant was not in continuous custody for purposes of Edwards when he was questioned by law enforcement the day after he invoked his right to counsel during the first interview at the police station. Id. at 1309. The court noted that the defendant went voluntarily to the police station on the day he invoked his right to counsel, and he was allowed to leave the station that same day. Id. Although he was arrested and questioned the following day, the court concluded that when the defendant "left that afternoon, he had the opportunity to contact a lawyer or seek advice from family and friends if he chose to do so." Id. Accordingly, the court found that he was not in continuous custody and, as such, there was no violation of Edwards. Id.
In Hines, federal agents visited the defendant at his home to question him about activities that were the subject of a state prosecution for which he had been provided counsel. 963 F.2d at 256. The defendant told agents that he should speak with his attorney. Id. After speaking with his attorney, federal agents returned to the defendant's home two days later to speak with the defendant about activities unrelated to the state prosecution. Id. The defendant waived his right to counsel and agreed to answer questions. Id. The defendant was ultimately charged with federal criminal offenses. Id. The district court granted the defendant's motion to suppress the statements made during the second meeting. Id.
The Ninth Circuit reversed, holding that even assuming that the defendant "was in custody during both interviews, and that he properly invoked his Miranda rights at the first interview, he cannot claim the protection of the Fifth Amendment for two reasons: (1) there was a break in custody between the first and second interviews; and (2) the district court found that [the defendant] knowingly and intelligently waived his right to counsel at the second interview." Id. at 256-257. As in Skinner, the court reasoned that "the Edwards rule does not apply to suspects who are not in continuous custody between the time they request counsel and the time they are reinterrogated." Id. at 257. Because the defendant did not dispute that he was not in custody between the first and second interview, "[t]his 'Skinner break' is sufficient to defeat application of the Edwards rule against reinterrogation." Id.
The government does not cite to Skinner or Hines. That is understandable given that the defendants in those cases were not in custody at the time they first invoked their right to counsel, and were re-advised of their Miranda rights for the subsequent interviews. Instead, the government relies on United States v. Coleman, 208 F.3d 786 (9th Cir. 2000), in arguing that once the defendant was released from custody, any prior invocation of Miranda rights does not apply to subsequent non-custodial questioning. [Doc. 62 at 8.] However, the facts of Coleman (as well as Hines and Skinner) are quite different from the case at hand, and undercut the government's argument. As discussed below, the Court finds that the doctrine of continuing custody applies in the case at hand and the defendant should have been re-advised of his Miranda rights during the ride to Tucson once he initiated a conversation about the offense with Agent Quisenberry.
In Coleman, the defendant invoked his right to counsel during a custodial interrogation. 208 F.3d at 788-789. The defendant was released from custody the next day. Id. at 789. Law enforcement initiated contacts with the defendant days later at his apartment, but did not re-advise him of his Miranda rights during those interviews. Id. The defendant moved to suppress the statements made at those later interviews. The Ninth Circuit held that the doctrine of continuing custody did not apply to those later interviews. The court pointed out that the defendant "had been released from custody for a significant period of time before investigators questioned him again . . . ." Id. at 790. The court reasoned that "the different setting and passage of time establish[ed] that [the defendant] was not in continuing custody." Id. As such, the court affirmed the denial of the motion to suppress statements. Id. at 791.
By contrast, here, a minimal amount of time passed between the defendant's release from custody (and his invocation of his Miranda rights) and the follow-up conversation during the drive to Tucson. Unlike in Skinner, the defendant never "had the opportunity to contact a lawyer or seek advice from family and friends if he chose to do so." 667 F.2d at 1309. Rather, the follow-up conversation during the ride to Tucson was immediate, and not a day or several days later as in the cases discussed above. Also, the setting of that latter conversation - a law enforcement vehicle - is certainly more similar to a police station than, for instance, the defendant's home. That conclusion is supported by the surreptitious taping of the conversation during the ride to Tucson. Agent Torres testified that the defendant was not under arrest, but Agent Torres made the defendant aware that the case would be presented to the prosecutor for possible future prosecution. Although Agent Torres testified that the defendant was provided with a ride as a courtesy, he also admitted that the conversation was recorded because agents hoped to obtain incriminating information. This attempt to obtain incriminating information on the heels of the defendant's invocation of his right to counsel triggers the doctrine of continuing custody, even though the defendant was not formally under arrest. Agent Quisenberry could have simply re-advised the defendant of his Miranda rights after the defendant initiated a conversation about the instant offense. Because he did not do so and the court finds that the defendant was in continuing custody, the Court recommends that the motion to suppress statements be granted on this ground.
Pursuant to 28 U.S.C. § 636(b) and Rule 59(b)(2) of the Federal Rules of Criminal Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. No reply shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CR 17-01252-TUC-RCC. /// ///
Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right of review.
DATED this 12th day of July, 2018.
/s/_________
Eric J. Markovich
United States Magistrate Judge