Opinion
Crim. No. 02-57 (ADM/RLE)
April 17, 2002
ORDER and FINDINGS AND RECOMMENDATION
I. Introduction
This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A) and (B), upon the following Motions:
1. The Defendant's Motion for Discovery of Expert Under Rule 16(a)(1)(E).
2. The Defendant's Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant.
3. The Defendant's Motion for Discovery of Statements, Admissions or Answers.
4. The Defendant's Motion to Suppress Evidence Obtained as a Result of the Search and Seizure.
5. The Defendant's Motion for Pretrial Disclosure of 404 Evidence.
6. The Defendant's Motion to Suppress Statements, Admissions and Answers.
7. The Defendant's Motion for Early Disclosure of Jencks Act Material).
Any expert report to be relied upon the Government, in its case-in-chief, shall be produced to the Defendant by no later than twenty-one days before the date of Trial. Therefore, the Defendant's Motion is granted.
The Government has acknowledged its obligations under Giglio v. United States, 405 U.S. 150 (1972), Brady v. Maryland, 373 U.S. 83 (1963), and their progeny, and has advised that this information either has been, or will be, produced to the Defendant. Therefore, the Motion is granted, but our grant of the Motion should not be construed as accepting the Defendant's characterization of each of the categories of information, which are enumerated in his Motion, as properly constituting Brady or Giglio materials. Accordingly, in generally granting this Motion, we necessarily leave the parties, in the first instance, to determine what evidence requires production, pursuant to Brady, to Giglio, or to their offspring.
The Government does not oppose this Motion and, therefore, the same is granted.
The Government has represented that the Rule 404(b) evidence, which comes within its possession, will be disclosed to the Defendant by no later than fourteen days before the Trial date. As a consequence, we grant this Motion, but subject to the fourteen-day time constraint.
The established rule in this Circuit is that, ordinarily, the Government is not required to disclose Jencks Act material prior to the direct examination of the witness to whom the material pertains. See, United States v. Green, 151 F.3d 1111, 1115 (8th Cir. 1998); United States v. Wilson, 102 F.3d 968, 971 (8th Cir. 1996); United States v. Douglas, 964 F.2d 738, 741 (8th Cir. 1992); United States v. White, 750 F.2d 726, 729 (8th Cir. 1984). Nevertheless, the Government has agreed to disclose its Jencks Act material by no later than three days before Trial. Therefore, we grant the Defendant's Motion, but subject to the three-day limitation.
A Hearing on the Motions was conducted on March 13, 2002, at which time, the Defendant, Erasto Rivera-Ruiz, appeared personally, and by Andrew H. Mohring, Assistant Federal Defender, and the Government appeared by John R. Marti, Assistant United States Attorney.
At the close of the Hearing, the parties requested leave to brief the Motions and, consistent with the leave granted, the last brief, on the issues before us, was received by the Court on March 21, 2002, at which time the Motions were taken under advisement. See, Title 18 U.S.C. § 3161(h)(1)(F) and (J); Henderson v. United States, 476 U.S. 321, 330-32 (1986); United States v. Blankenship, 67 F.3d 673, 676-77 (8th Cir. 1995).
As to the Motions which remain for disposition, we recommend that the Defendant's Motion to Suppress Evidence Obtained by Search and Seizure be denied, and that his Motion to Suppress Statements, Admissions, and Answers be granted in part, and denied in part.
II. Findings of Fact
In a one-Count Indictment that was filed with the Court on February 12, 2002, the Defendant was charged with being an illegal alien in possession of a firearm and ammunition, in violation of Title 18 U.S.C. § 922(g)(5)(A), and 924(a)(2). The violation is alleged to have occurred on or about January 31, 2002, in this State and District. As pertinent to that charge, and to the Motions pending before us, the operative facts may be briefly summarized.
Rule 12(e), Federal Rules of Criminal Procedure, provides that, "[w]here factual issues are involved in determining a motion, the court shall state its essential factual findings on the record." As augmented by our recitation of factual findings in our "Discussion," the essential factual findings, that are required by the Recommendations we make, are contained in this segment of our Opinion. of course, these factual findings are preliminary in nature, are confined solely to the Motions before the Court, and are subject to such future modification as the subsequent development of the facts and law may require. See, United States v. Moore, 936 F.2d 287, 288-89 (6th Cir. 1991); United States v. Prieto-Villa, 910 F.2d 601, 610 (9th Cir. 1990).
In the early morning hours of January 31, 2002, Ross C. Lapp ("Lapp"), who is a Deputy with the Clay County Sheriff's Department, was conducting a routine patrol on Interstate 94 ("I-94"). As he was headed west on I-94, about fourteen miles from the North Dakota border, a vehicle approached him from the back, and his radar recorded that the vehicle was traveling at a speed above the posted speed limit. Further, while the vehicle — which Lapp identified as a van — was passing Lapp, it swerved over the center line, and into the lane in which Lapp was driving. At that point, Lapp transmitted the license plate number of the van to his dispatcher, and initiated a stop. The time was approximately 12:25 o'clock a.m.
When Lapp approached the van, the driver, who was the Defendant, identified himself both verbally, and with an Oregon driver's license. Lapp testified that the Defendant's driver's license was valid, it corresponded to the name that the Defendant had provided, and there were no outstanding Warrants for the Defendant's arrest. Lapp further testified that he had not been specifically looking for the van, or its occupants, and there was no concern regarding the licensing of the vehicle. He testified that he did not suspect that the Defendant had been drinking alcohol, as he did not detect the smell of alcohol, and the Defendant's speech was not slurred. Lapp questioned the Defendant in English.
There was also a passenger in the van, but when Lapp asked him if he would provide identification, it became clear that the passenger could not speak English. Lapp then asked the Defendant to translate the question for the passenger, which the Defendant did. Thereafter, the passenger provided a Mexican voter registration card as identification.
Lapp recounted, at the Suppression Hearing, that he had some concern regarding his safety, arising from his suspicion that the individuals in the van might be transporting drugs. He based this concern on the following factors: the vehicle being used was a van, the stop occurred at night, the interior of the van contained a bed roll and a gas can, there was paneling on the inside of the van, and the front tires were weighed so that they would not bounce. Lapp related that these factors are often found in drug trafficking, and that guns are frequently present in drug trafficking situations. Consequently, in order to ensure his safety, Lapp requested that the passenger of the vehicle sit in Lapp's squad car while Lapp spoke with the Defendant. The passenger complied. Lapp admitted, though, that neither the passenger, nor the Defendant, were verbally or physically hostile while in the van.
Lapp then proceeded to speak with the Defendant. At that point, the Defendant was located outside of the van, and was standing between the back of the van, and the front of Lapp's squad car. Lapp had asked the Defendant if the passenger was an illegal alien, to which the Defendant asked Lapp to give his friend — i.e., the passenger — a break, and he stated that they were going home after having completed some work in St. Paul, Minnesota.
Lapp proceeded to place the Defendant in the back of his squad car, and contacted the Border Patrol to get their assistance in speaking with the passenger. Lapp initially spoke with the Border Patrol dispatcher, who relayed his message to Agent Brent Zimmerman ("Zimmerman"). Zimmerman then contacted Lapp about fifteen minutes later. Between the time that Lapp spoke with the Border Patrol dispatcher, and Zimmerman's call, Lapp talked with the Defendant about conducting a consent search of the van. Lapp testified that he explained the consent form to the Defendant, in English, which the Defendant then signed at approximately 12:45 o'clock a.m.
When Zimmerman called, Lapp explained the situation, and asked Zimmerman to translate for him. Zimmerman testified that Lapp's concern was the translation. After speaking with Lapp, Zimmerman had a short con-versation on the telephone with the Defendant, at which time the Defendant stated that he was legally in the United States, and that he had documentation. He would not provide Zimmerman his date of birth or Social Security number, however. Zimmerman then spoke with the passenger, who stated that both he, and the Defendant, were illegal aliens, and that they were traveling from St. Paul to Oregon. Zimmerman spoke with both gentlemen in Spanish, and he did not advise either of them of their Miranda rights. See, Miranda v. Arizona, 384 U.S. 436, 473 (1966). Afterwards, Zimmerman again spoke with Lapp, and advised him that the individuals were illegal aliens, and he requested Lapp to detain both of them.
Lapp proceeded to handcuff both the Defendant, and the passenger, and he called to have their van impounded. He explained that it was departmental policy to have a vehicle impounded when the owner was unable to drive it away, and to also conduct an inventory search so as to document and secure anything of value. During the inventory search, Lapp located a green duffel bag, in which he found a handgun. By that time, two other police units had arrived at the scene to help Lapp with the Defendant and the passenger. The officers proceeded to take the individuals out of Lapp's squad car, and to conduct a pat-down search. Lapp recounted that, once the Defendant was outside of the vehicle, Lapp asked him who owned the bag. The Defendant claimed ownership of the bag, and Lapp then asked him why he had not advised Lapp about the gun. The Defendant again claimed ownership of the bag. At no time during the stop did Lapp advise the Defendant of his rights under Miranda.
The Defendant was: then transported to the Clay County Jail by Deputy Bruce Fluery ("Fluery"). During that escort, the Defendant attempted to converse with Fluery, but Fluery advised the Defendant that he would take the Defendant's statement once they were at the Jail. At the Jail, both Fluery and Lapp were present during the interview of the Defendant, which occurred at about 2:30 or 2:45 o'clock a.m. During the interview, the officers first advised the Defendant of his Miranda rights, in English, and the Defendant agreed to speak to them. The interview was tape recorded, and Lapp testified that no questions were asked of the Defendant, prior to the activation of the tape recorder. Lapp further advised that the interview was in English, and that he had no concerns about the Defendant's ability to understand English because, although his speech was "broken," his answers to the questions posed were appropriate, and the Defendant had been able to translate, for Lapp, the questions Lapp had put to the passenger, during the initial traffic stop, without hesitation.
On February 5, 2002, Special Agent Burton Rutter ("Rutter"), who works with the Department of Alcohol, Tobacco and Firearms, executed a Federal Arrest Warrant for the Defendant, who was then located at the Grand Forks Correctional Center in Grand Forks, North Dakota. The Warrant was executed at about 9:30 o'clock a.m. Rutter and Special Agent Erickson ("Erickson") then placed the Defendant in the back seat of Rutter's car, in order to transport him to Fargo, North Dakota, for an initial appearance.
When Rutter got into the car, he advised the Defendant that he had been arrested pursuant to a Warrant, and he showed the Defendant the Warrant. Erickson then advised the Defendant of his Miranda rights, in English, at which time the Defendant stated that he understood his rights, and he invoked his right to silence. Once the Defendant refused to speak with Rutter, Rutter informed him that it was certainly his choice not to speak, and he stated that the United States Attorney's office would simply have to act on what information it already had, whether or not it had the Defendant's version of the events.
Rutter testified that, less than one minute later, the Defendant started talking on his own volition. The Defendant stated that the gun was not his but, rather, that it belonged to his boss, Alex Kuznetsob ("Kuznetsob"), who had asked the Defendant to transport the weapon to Oregon. Rutter testified that he had spoken to Kuznetsob on the previous day, and that the Defendant's version of the facts corresponded to that of Kuznetsob. Rutter then asked the Defendant who owned the van, and the Defendant replied that it also belonged to Kuznetsob. Apparently, the Defendant was supposed to later return with the van to Minnesota, along with "some friends." When asked whether he was supposed to return with some illegal aliens, the Defendant did not respond. After his initial invocation of his right to silence, the Defendant did not state that he wished to stop speaking, or that he wanted an attorney. The entire conversation was conducted in English and, at no point, did Rutter or Erickson remind the Defendant of his Miranda rights.
III. Discussion
On the basis of this Record, the Defendant seeks to suppress the gun that was found in the van he was driving, as well as his statements to Lapp, Zimmerman, Fleury, Rutter, and Erickson. The Government opposes these Motions.
A. The Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure.
As a general overview, the Motions to Suppress are premised on the notion that the prolonged detention of the Defendant, and his passenger, exceeded the justification for the traffic stop, and that any resulting evidence, or statements, were the product of an unconstitutional arrest, and should be suppressed. Consequently, we first examine the legality of the stop.
1. The Validity of the Traffic Stop.
a. Standard of Review. 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." United States Constitution, Amendment IV. A roadside traffic stop "is well established" as a "`seizure' within the meaning of the Fourth Amendment." United States v. Jones, 269 F.3d 919, 924 (8th Cir. 2001); quoting Delaware v. Prouse, 440 U.S. 648, 653 (1979); see also United States v. Martinez-Fuerte, 428 U.S. 543, 556-558 (1976); United States v. Briononi-Ponce, 422 U.S. 873, 878 (1975). An essential purpose behind the Fourth Amendment's proscriptions is to impose standards of reasonableness upon the exercise of law enforcement's discretionary powers, so as to safeguard an individual's privacy from arbitrary invasion by the Government. See, Delaware v. Prouse, supra at 653-54; Marshall v. Barlow's Inc., 436 U.S. 307, 312 (1978); Camara v. Municipal Court, 387 U.S. 523, 528 (1967). Thus, whether or not a certain action is permissible under the Fourth Amendment "is judged by balancing [that act's] intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. at 654.
In considering the extent to which a traffic stop intrudes on an individual's Fourth Amendment interests, the Supreme Court has held that traffic stops are investigative detentions, not custodial detentions and, thus, the principles of Terry v. Ohio, 392 U.S. 1 (1968), govern our analysis of the reasonableness of the stop. See, United States v. Jones, supra at 925, citing Berkemer v. McCarty, 468 U.S. 420, 439 (1984); see also, Delaware v. Prouse, supra at 663. As a result, the Supreme Court has instructed that, prior to making a traffic stop, a law enforcement officer must have "probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations — or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered." Delaware v. Prouse, at 661. "Reasonable suspicion requires "`a particularized and objective basis" for suspecting the person stopped of criminal activity,'" and is not as demanding a standard as that of "probable cause." Thomas v. Dickel, 213 F.3d 1023, 1025 (8th Cir. 2000), quoting Ornelas v. United States, 517 U.S. 690 (1996), quoting in turn, United States v. Cortez, 449 U.S. 411, 417 (1981).
b. Legal Analysis. Here, the Defendant has admitted that Lapp had reasonable basis for making the initial traffic stop, in order to question him about his speeding and his crossing over the center line. He asserts, however, that once Lapp ascertained that the Defendant was not intoxicated, that he possessed a valid license, that the vehicle was licensed and registered properly, and that the Defendant had no outstanding Warrants, the traffic stop, and the consequential detention, should have ended. The Defendant contends that Lapp's subsequent investigation exceeded the justification for the stop, and the resulting detention and investigation were, therefore, unlawful. We disagree.
As the Defendant admits, there was reasonable suspicion to stop his vehicle, due to the fact that he was speeding, and had crossed over the center line in close proximity to Lapp's vehicle. See, e.g., United States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995) ("We have recently clarified that `[a]ny traffic violation, however minor, provides probable cause for a traffic stop.'"), quoting United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) [en banc]. Once stopped, the officer may conduct "reasonable investigation," which includes "asking for the driver's license and registration, requesting that the driver sit in the patrol car, and asking the driver about his destination and purpose," and he "may engage in similar routine questioning of the vehicles passengers to verify information provided by the driver." United States v. Johnson, supra at 357 [internal citations omitted]; see also, United States v. Foley, 206 F.3d 802, 805 (8th Cir. 2000).
The questioning is limited, however, to the circumstances that justified the stop. See, United States v. Tillmon, 64 F.3d 1120, 1124 (8th Cir. 1995), citing United States v. Cummins, 920 F.2d 498, 501 (8th Cir. 1990). of course, the officer may expand the scope of his questioning "`if the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense." United States v. Johnson, supra at 357, quoting United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993); see also, United States v. Foley, supra at 806 ("An officer may properly expand the scope of his investigation as reasonable suspicion dictates."); United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994) ("If reasonably related questions raise inconsistent answers, or if the licenses and registration do not check out, a trooper's suspicions may be raised so as to enable him to expand the scope of the stop and ask additional, more intrusive, questions."). Attendant with the traffic stop, an officer may also request that the driver and/or the passenger step out of the vehicle. See, United States v. Beatty, 170 F.3d 811, 812 (8th Cir. 1999).
In this case, Lapp began by asking for the Defendant's identification, which he provided, and he then asked if the passenger would provide identification. This basic request is quite under-standable, considering Lapp's justified concern for his own safety, since the stop occurred at night, on an Interstate, with two individuals occupying the stopped van. See, e.g., United States v. Morris, 910 F. Supp. 1428, 1441 (N.D. Iowa 1995) ("A detention following a vehicle stop does not exceed its reasonable scope while the law enforcement officer who made the stop makes an initial request for identification from the driver and any passengers, asks for an explanation of the presence of the occupants of the vehicle in the area, their destination and purpose, and runs a warrant check on the drivers licenses of all occupants of the vehicle, and a check on the registration of the vehicle to see if it is stolen or otherwise not in order."). When Lapp encountered a language barrier to his communication with the passenger, he requested the Defendant's assistance, which the Defendant provided, and the passenger identified himself with a Mexican voter registration card. Thus, Lapp was confronted with an individual who spoke no English, and only identified himself with a foreign identification card.
Although Lapp's initial reasonable suspicion for stopping the Defendant's vehicle was unlawful speeding, and unsafe driving, upon approaching the car, and speaking with the Defendant and his passenger, Lapp's suspicion appropriately expanded to the reasonable suspicion that the Defendant's passenger might be an illegal alien. Moreover, this suspicion was not only articulable, but it was corroborated by the Defendant when, after requesting that the passenger sit in the squad car, Lapp spoke with the Defendant about the passenger's immigration status, and the Defendant asked Lapp to give the passenger a break. Thus, we conclude that the continued detention of the Defendant, and his passenger, was proper in order to investigate the immigrant status of the passenger.
2. The Search of the Van and Seizure of the Firearm.
During the investigation of the passenger's immigration status, Lapp sought help from the Border Patrol with translation services. About fifteen minutes later, Zimmerman called, and spoke with not only the passenger, but also with the Defendant. The passenger advised Zimmerman that both he, and the Defendant, were illegal aliens. The passenger's admission to Zimmerman established probable cause to detain both the Defendant, and the passenger, on the basis that they were illegal aliens, as the passenger had reported to Zimmerman. Consequently, since Lapp believed, on the basis of the totality of the evidence then presented, that both the Defendant and his passenger were illegal aliens, he properly arrested them, handcuffed them, and took them into custody.
To the extent that the Defendant is challenging the statement made by the passenger, since neither Lapp nor Zimmerman provided a Miranda warning prior to that statement, the Defendant clearly cannot contest that questioning since he lacks standing to do so. See, e.g., United States v. Rodriguez-Arreola, 270 F.3d 611, 616 (8th Cir. 2001) ("Even if Trooper Koltz violated Molina's Fourth Amendment rights — a question not before us — Rodriguez cannot use the violation of another individual's rights as the basis for his own Fourth Amendment challenge."). Paraphrasing the Court, in Rodriguez-Arreola, supra at 616, "[t]he fact that [the Defendant] cannot demonstrate an expectation of privacy in the statements made by [his passenger], however, means that he does not have standing to assert such a Fourth Amendment violation."
Once in custody, there was no one left to drive the van away from the side of the highway. As Lapp testified, the departmental policy provided that such a vehicle must be impounded, so he called to have the van towed, and he then began an inventory search, which was also mandated by departmental policy. During the search, Lapp located a firearm. The Defendant seeks to suppress the firearm, as he claims that it was seized in violation of his Fourth Amendment rights, but we are unable to agree.
As the Supreme Court explained in South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976), "[i]n the interests of public safety and as part of what the Court has called `community caretaking functions," Cady v. Dombrowski, [ 413 U.S. 433, 441 (1973)], automobiles are frequently taken into police custody," and when they are, the police "generally follow a routine practice of securing and inventorying the automobiles' contents." These inventorying policies were developed to protect "the owner's property while it remains in police custody," to protect "the police against claims or disputes over lost or stolen property," and to protect "the police from potential danger." Id. at 369; see also United States v. Mayfield, 161 F.3d 1143 (8th Cir. 1998). The Supreme Court has thus concluded "that inventories pursuant to standard police procedures are reasonable" under the Fourth Amendment. See, South Dakota v. Opperman, supra at 372; see also Colorado v. Bertine, 479 U.S. 367, 374 (1987); United States v. Hartje, 251 F.3d 771, 775-76 (8th Cir. 2001); United States v. Mayfield, supra at 1145.
There is no contention, let alone evidence, that the inventory search of the van was not pursuant to a standard policy. In fact, as Lapp testified, when there is no licensed individual who can drive a vehicle from a traffic stop, standard operating procedure was to have the car inventoried, and towed. Accordingly, we conclude that the search of the vehicle was pursuant to a standard inventory procedure, normally employed before a vehicle is towed at the insistence of law enforcement and, therefore, that there is no basis for the suppression of the evidence uncovered in that inventory search. Thus, we recommend that the Defendant's Motion to suppress evidence seized from the vehicle be denied in its entirety.
B. The Defendant's Motion to Suppress Statements, Admissions and Answers.
Having determined that the inventory search of the Defendant's vehicle did not violate his Fourth Amendment rights, we need not, and do not, address the Government's alternate argument — namely, that the search was valid pursuant to the Defendant's consent.
The Defendant seeks to suppress the statements he made to Lapp, at the scene of the traffic stop, and during his custodial interview in the Clay County Jail, as well as his statements to Zimmerman, and Rutter. As each of these statements involve different circumstances, we address them separately, after detailing our standard of review.
1. Standard of Review. Police Officers are not required to administer Miranda warnings to everyone whom they question. See, Oregon v. Mathiason, 429 U.S. 492, 495 (1977). Rather, Miranda warnings are required for official interrogations, but only where "a person is taken into custody for questioning." United States v. Hanson, 237 F.3d 961, 963 (8th Cir. 2001), quoting United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990); see also, Berkemer v. McCarty, 468 U.S. 420, 428-29 (1984). Of course, "[c]ustody occurs not only upon formal arrest, but also under any other circumstances where the suspect is deprived of his freedom of movement." United States v. Hanson, supra at 963; see also, Thompson v. Keohane, 516 U.S. 99, 106 (1995) ("Custodial interrogation" is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."), quoting Miranda v. Arizona, supra at 444. As for the interrogation prong of our analysis, "express questioning or its functional equivalent" may constitute "interrogation." United States v. Allen, 247 F.3d 741, 765 (8th Cir. 2001); see also, United States v. Dickson, 58 F.3d 1258, 1265 (8th Cir. 1995); United States v. Cordova, 990 F.2d 1035, 1037 (8th Cir. 1993).
Once a suspect is in police custody and subject to interrogation, he must then be informed of his constitutional right to remain silent, and to be represented by legal counsel during questioning. See, Miranda v. Arizona, supra at 473. "The right to counsel recognized in Miranda is sufficiently important to suspects in criminal investigations, * * * that it `requir[es] the special protection of the knowing and intelligent waiver standard.'" Davis v. United States, 512 U.S. 452, 458 (1994). Nevertheless, "[i]f the suspect effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him." Id., citing North Carolina v. Butler, 441 U.S. 369, 372-376 (1979); see also, United States v. Jones, 23 F.3d 1307, 1313 (8th Cir. 1994). The burden rests with the Government to prove, by a preponderance of the evidence, that the Defendant knowingly and voluntarily waived his Miranda rights. See, Colorado v. Connelly, 479 U.S. 157, 168 (1986); United States v. Dougherty, 810 F.2d 763, 773 (8th Cir. 1987).
Whether or not Miranda is implicated, however, a statement must be voluntary to be valid. See, Colorado v. Connelly, supra at 168. For understandable reasons, the Courts have recognized that pressures may be brought to bear upon an accused which have overborne his will, and have caused him to confess. See, Michigan v. Mosley, 423 U.S. 96, 105-06 (1975). Such coercion may be found if there has been "lengthy interrogation or incommunicado incarceration before a statement is made." Miranda v. Arizona, supra at 476. "In applying the `overborne will' doctrine, a reviewing court must consider the conduct of the law enforcement officials and the capacity of the suspect to resist pressure to confess." United States v. Jones, 23 F.3d 1307, 1313 (8th Cir. 1994), citing United States v. McClinton, 982 F.2d 278, 282 (8th Cir. 1992).
2. Legal Analysis. a. The Defendant's Statements to Lapp and Zimmerman Prior to Zimmerman's Instruction to Lapp to Detain Both Individuals.
Prior to Zimmerman's instruction to Lapp to detain both the Defendant and the passenger, the Defendant spoke to Lapp on at least two occasions — once at the initiation of the traffic stop, and once after Lapp had taken the passenger to his squad car. On the second occasion, Lapp questioned whether the passenger was an illegal alien, and the Defendant asked Lapp to go easy on his friend. The Defendant was further questioned by Zimmerman on the telephone, at which time he explained that he was a legal alien, and that he had documents. None of these statements were preceded by a Miranda warning. Thus, the Defendant asserts that the statements must be suppressed, as they were the product of custodial interrogation without the provision of Miranda rights. We disagree.
In determining whether a suspect was "in custody" at a particular time, we are to examine whether the extent of the physical or psychological restraints, that were imposed upon a defendant during an interview, would have been understood by a "reasonable person in the [defendant's] position," as being consonant with the condition of being in custody. Berkemer v. McCarty, supra at 442; see also, United States v. Carter, 884 F.2d 368, 370 (8th Cir. 1989). Paraphrasing the Court in United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990): If the Defendant believed his freedom of action had been curtailed to a "degree associated with formal arrest," and that belief was reasonable from an objective viewpoint, then the Defendant was being held in custody during the interrogation. See also, Stansbury v. California, supra at 1529; California v. Beheler, 463 U.S. 1121, 1125 (1983).
Under the law of this Circuit, "the relevant factors to be considered in making a determination of custody include an accused's freedom to leave the scene, and the purpose, place and length of the interrogation." United States v. Griffin, supra at 1348; United States v. Sutera, 933 F.2d 641, 646 (8th Cir. 1991); United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir. 1985). Other relevant factors include "the subjective intent of the interrogating officer, the age and experience of the person interviewed, and the mode and manner of the questioning." United States v. Rorex, 737 F.2d 753, 756 (8th Cir. 1984). The most comprehensive list of factors — although admittedly not exhaustive — was enumerated as follows in United States v. Griffin, supra:
[The] inquiry into the indicia of custody has generally focused on an examination of (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning.
Id. at 1349.
The Court has regarded the first three of the Griffin factors as mitigative in their effect upon the ultimate determination, for the presence of one or more of these factors during questioning would tend to mitigate the existence of a custodial interrogation. Id. On the other hand, the remaining three factors have been characterized as coercive in their effect, since these factors would tend to accentuate the existence of a custodial interrogation. Id. As noted in Griffin, however:
It is not necessary to a finding of custody that all of the foregoing indicia be presented by the factual circumstances of the case * * * and a particularly strong showing with respect to one factor may compensate for a deficiency with respect to other factors.
Id. [citation omitted].
Whether an accused was subjected to custodial interrogation is to be determined from the totality of the circumstances. See, United States v. Helmel, supra at 1320.
In Berkemer v. McCarty, supra, the Supreme Court specifically considered the question of whether a person who is detained pursuant to a routine traffic stop was "in custody" for purposes of Miranda. While the Court acknowledged that such a detention does curtail the freedom of movement of the stopped motorist, the Court ultimately held that such a detention is "temporary and brief," and typically public, and does not pose a "danger that a person will be induced `to speak where he would not otherwise do so freely.'" Id. at 436. Consequently, the Fifth Amendment concerns, that fostered the Miranda requirement, are not implicated by the ordinary traffic stop. Id., citing Miranda v. Arizona, supra at 467. As a result, "Miranda warnings are not necessary during ordinary Terry stops because they generally do not amount to custodial interrogation." United States v. Tillmon, supra at 1126; see also, United States v. Rodriguez-Arreola, 270 F.3d 611, 616 (8th Cir. 2001).
Clearly, in this case, the Defendant was not in custody at the time that he spoke to Lapp, and while he was still located in his van, or when they spoke outside of the van, and in between the van and the squad car. In both instances, the stop was still just a routine traffic stop and, in fact, was in the early stages of the stop. The Defendant was not handcuffed, and was not even in the squad car at that point. The stop occurred in a public place — along the side of I-94 — and, viewing the circumstances objectively, we have no reason to conclude that a reasonable individual would feel that he was under "formal arrest" at that time. Indeed, we think the facts here parallel those presented to our Court of Appeals, in United States v. Rodriguez-Arreola, supra at 617, where the Court held that inquiring into a suspect's alienage, during the course of a traffic stop, and upon reasonably articulable suspicions, did not violate the Fourth Amendment. Thus, to the extent that the Defendant is contesting the initial statements he made to Lapp, prior to being escorted to the back of Lapp's car, we recommend that his Motion to Suppress be denied.
The Defendant further contends, however, that he was in custody at the time he made his statement to Zimmerman because he was being held in the rear seat of Lapp's squad car. We are not persuaded that the placement of the Defendant, in the back of the squad car, was the equivalent of a formal arrest. As we have noted, the Defendant was not in handcuffs, and he was engaged in conversation with Lapp concerning a consented search of the vehicle the Defendant was driving. While the Defendant, and his passenger, were detained for what appears to be approximately 15 minutes, while awaiting Zimmerman's return telephone call, under the totality of the circumstances, the delay was not unconstitutionally inordinate. As we have noted, Lapp had concerns for officer safety, he observed signs which suggested to him, as a trained officer, that illicit drugs may be involved, and he was presented with a passenger who could not communicate in English, displayed no identification other than a Mexican voters card, as coupled with the Defendant's response that Lapp should give the passenger a break when Lapp questioned the Defendant about the passenger's legal entry into this country. We find that Lapp used appropriate means, and dispatch, to resolve the articulated concerns which the circumstances at the traffic stop presented to him.
Necessarily, there is no "hard-and-fast time limit" for investigatory stops. See, United States v. Sharpe, 470 U.S. 675, 686, 688 (1985). As a consequence, a more flexible standard is applied, which requires that a detention following a traffic stop be reasonable and, in applying that standard, the Court "must consider the length of the detention and the efforts of the police to conduct their investigation quickly and unintrusively." United States v. Foley, 206 F.3d 802, 806 (8th Cir. 2000) (finding an investigatory stop of something less than thirty minutes reasonable, and citing decisions accepting delays of as much as one hour and twenty minutes). Here, there is no evidence that Lapp delayed his call to the Border Patrol, or that less intrusive means were available to him in securing translator services.
The only circumstances which had changed, since Lapp initially spoke with the Defendant, is that the Defendant had been placed in Lapp's patrol car. As our Court of Appeals has reasoned, "Miranda warnings are not imposed because the questioning is conducted in a certain place, i.e., a patrol car, or because the person being questioned is suspected of having committed some offense." United States v. Boucher, 909 F.2d 1170, 1174 (8th Cir. 1990). The location of the investigation continued to be in the public view, at the side of a freeway, and the Defendant's freedom of movement was constrained only by the fact that he was in the squad car, as he was not handcuffed, shackled, or otherwise physically restrained. We recognize that, at the end of Zimmerman's questioning of the passenger, both the passenger and the Defendant were arrested at Zimmerman's instruction, but that arrest was supported by probable cause — the passenger's admission to Zimmerman that both he, and the Defendant, were illegal entrants to this country. Further, there is no evidence that strong arm tactics, or deception, were employed, and the scene was not police-dominated, as Lapp was the lone officer at the time that these questionings were completed. Given these circumstances, viewed in totality, we conclude that a reasonable person, under the same circumstances, would not have regarded himself to be in custody at the time he spoke with either Lapp, or Zimmerman, and that Miranda warnings were not required to legitimatize those interviews. Therefore, we recommend that the Defendant's Motion to suppress the statements he made prior to Zimmerman's instruction to Lapp to take the individual's into custody be denied.
b. The Defendant's Statement to Lapp After Being Taken Into Custody, But Prior to His Interview at the Cook County Jail.
After Zimmerman had requested that Lapp detain both the Defendant and his passenger, upon probable cause that they were illegal aliens, Lapp handcuffed the two, and then proceeded to conduct an inventory search of the Defendant's van, at which time he located a bag containing a firearm. Lapp then returned to the Defendant, who was now outside of the squad and being frisked by other officers who had arrived on the scene, and asked to whom the bag belonged. Once the Defendant replied that it was his, Lapp asked why the Defendant had not informed him about the gun. The Defendant again claimed ownership. The Defendant seeks to suppress these statement, as he contends that they violated his rights as recognized in Miranda.
The Defendant's argument is persuasive on this point. There can be no question but that the Defendant was "in custody," after he was arrested and handcuffed. While in that state, and without the provision of a Miranda warning, Lapp asked the questions about the ownership of the gun. Given the circumstances presented, we find that the Defendant, at this point, was subjected to "official interrogation," while in custody. "Interrogation includes express questioning or its functional equivalent, and the Supreme Court has further defined functional equivalent as "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." United States v. Allen, supra at 765, quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).
While Lapp was not questioned on his knowledge of whether possession of a firearm by an illegal alien would constitute either a State or Federal crime, we are persuaded that the purpose of the question had to be recognized as being reasonably likely to elicit an incriminating response from the suspect. Lapp did not need an answer to complete the inventory he was preparing, nor are we provided with any other basis to accredit the question as being the type that has a legitimate non-incriminating basis. Accordingly, we recommend that the Defendant's response to Lapp's questions, concerning the ownership of the gun found in the Defendant's car, be suppressed as the product of official interrogation of a suspect, who was in custody at the time, without benefit of a Miranda warning.
c. The Defendant's Statement to Lapp and Fleury at the Clay County Jail.
The Defendant next seeks to suppress the statement he made to Lapp and Fleury, after being advised of his Miranda rights, while at the Clay County Jail. He first asserts that the statements must be suppressed as the fruit of the illegalities of his traffic stop, and the questioning of Zimmerman and Lapp, and also contends that, even if the statement was not the fruit of the "poisoned tree," then the Defendant's waiver of his Miranda rights was not knowing, intelligent, and voluntary.
We first address the Defendant's assertion that Lapp and Zimmerman's questioning of him at the traffic stop, and prior to any Miranda warning, tainted his subsequent statement, after he received a Miranda warning, at the Clay County Jail. We disagree. As our Supreme Court has stated:
If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.
Oregon v. Elstad, 470 U.S. 298, 308 (1985).
Thus, even in light of what we regard as the improper attempt by Lapp, however inadvertent it may have been, to obtain a response to his question concerning the ownership of the weapon, without having provided the Defendant with a Miranda warning, to suppress the Defendant's subsequent statement, at the Clay County Jail, as impermissibly tainted, the Defendant must show that his initial statements were the product of coercion, or abusive police tactics. See, United States v. Fellers, ___ F.3d ___, 2002 WL 518326 at *1-2 (8th Cir. 2002); United States v. Williams, 136 F.3d 547, 552 n. 2 (8th Cir. 1998). There has been no such allegation here, let alone a competent evidentiary showing. Consequently, we reject the notion that the Defendant's statements, at the Clay County Jail, were tainted so as to warrant their suppression.
The Defendant continues to argue, however, that his statement must be suppressed as he did not knowingly, voluntarily, and intelligently waive his Miranda rights. He asserts that the tape, and the transcript of his interview, evidence that he only verbalized a waiver of his rights after being prompted "do you understand" three times by the officers. Moreover, the Defendant suggests that the interview tape, and related transcript, reveal the difficulties that the officers were having in understanding the Defendant, often repeating his answer to determine if they understood what he was saying, or else explaining concepts to him a number of times to ensure his understanding. Yet, the Defendant maintains, the officers breezed through the Miranda warning, that they had provided to him, without any further explanation. In sum, the Defendant claims that he did not knowingly, voluntarily and intelligently waive his rights.
After reviewing the transcript, and listening to the tape recording of the Defendant's interview, it is clear that he effectively waived his rights under Miranda. We cannot agree with the Defendant's assessment, that the officers hurriedly advised the Defendant of his Miranda rights. Rather, Fluery advised the Defendant of his Miranda rights in a normal tone of voice, and at an average speed. The Defendant made an inaudible statement, and Fluery asked him to repeat his response to the question of whether he understood his rights, as "[t]he tape recorder doesn't know if you're just nodding you[r] head up and down." Government Exhibit 2a, at p. 2. The Defendant then confirmed that he waived his rights and, when asked if he wished to speak with the officers, he stated, "Of course yeah." Our review of the conversation persuades us that the officer were deliberative in order to assure that the Defendant was agreeing to waive his rights, and was expressing his consent to speak with them further. Moreover, apart from the fact that the Defendant's English was difficult to understand at times, which required the officers to repeat the Defendant's statement back to him so as to ensure that they understood what he was saying, we can find no instance in which the Defendant seemed confused, or sought clarification, or further explanation.
In sum, the Defendant plainly acknowledged that he understood his rights, and that he agreed to waive them. Further, at no time during his questioning did he assert his rights. The officers made no threats or promises to the Defendant, and the conversation appears to have been conducted in a normal speaking tone. Importantly, the interview lasted less than one-half hour. On this Record, therefore, we conclude that the Defendant was provided a Miranda warning, and that he knowingly, intelligently, and voluntarily waived his rights, as they were recited in the warning that was read to him. Accordingly, finding no competent basis upon which to suppress the Defendant's statement to Lapp and Fluery, we recommend that his Motion to Suppress that statement be denied.
d. The Defendant's Statement to Rutter and Erickson.
Lastly, the Defendant asserts that the statement he made to Rutter and Erickson, while he was being transported to Fargo for his Initial Appearance, was taken in violation of his expressed desire to invoke his right to silence, and must be suppressed. In contrast, the Government does not dispute that the Defendant initially invoked his right to silence, after he had been advised of his Miranda rights by Erickson, but argues that, nonetheless, the statements are admissible, as they were not the product of interrogation. We agree.
"Once a person in custody has invoked his right to remain silent, law enforcement officers must scrupulously honor his assertion of that right." Simmons v. Bowersox, 235 F.3d 1125, 1131 (8th Cir. 2001), citing United States v. Cody, 114 F.3d 772, 775 (8th Cir. 1997). "An invocation of the right to remain silent does not mean that questioning can never be resumed," however, "nor does it mean that a defendant cannot later waive this right." United States v. Cody, supra at 775. Rather, "an invocation of the right to remain silent can be waived by subsequently making a voluntary confession to the police." Id.
Simply stated, Miranda is not implicated if the statements are not the result of custodial interrogation. See, Thompson v. Keohane, supra at 106 ("Custodial interrogation" is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."), quoting Miranda v. Arizona, supra at 444. As we have previously noted, our Court of Appeals has explained the concept of official interrogation as follows:
Interrogation includes express questioning or its functional equivalent, and the Supreme Court has further defined functional equivalent as" any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Determining whether particular statements or practices amount to interrogation depends on the circumstances of each case, particularly whether the statements are objectively and reasonably likely to result in incriminating responses by the suspect, as well as the nature of the police statements and the context in which they are given.
United States v. Allen, supra at 765.
The Court went on to hold, in Allen, that even though the defendant had invoked his right to counsel, officers "scrupulously honored" that right, and did not interrogate the defendant, there, when they advised him about the results of a line-up in which the defendant had just participated. Id. Rather, as the Court stated, the officer's statement "was a simple description of the status of the ongoing investigation," and "it was not designed to, nor was it reasonably likely to, elicit an incriminating response," as it was "a statement of fact and not a plea to conscience." Id.
The same is true here. While the Defendant had informed Rutter that he wished to invoke his right to silence, Rutter's next statement, that the United States Attorney' office would simply have to act on the information it already had, with or without the Defendant's statement, did not constitute "interrogation." As was the case in Allen, Rutter was simply advising the Defendant about the status of the case, and the reality of what the Federal prosecutors would be required to do — that is, make a judgment on what the officers were able to present for the prosecutor's consideration. His statement was in no way designed to, or could reasonably be expected to, elicit an incriminating response that the Defendant had not wanted to volunteer. Rather, even though he had just invoked his right to silence, the Defendant voluntarily, and of his own volition, began to speak to the officers about the gun. His resuming of his comments, not withstanding his earlier invocation of silence, was a volitional act, which was informed by the immediately preceding recitation of a Miranda warning. Accordingly, Miranda does not apply, and the statement is not subject to suppression.
As our Court of Appeals explained, in Allen, advising the defendant, there, of the results of his lineup, after he had invoked his right to silence, was not an improper act of further interrogation. As the Court elaborated:
This was a statement of fact and not a plea to conscience. * * * Rather, the officer simply described the results of the lineup, unaccompanied by any threats or other compelling pressure. * * * Informing a suspect that he has been identified in a lineup contributes to the intelligent exercise of his judgment and may likely make firm his resolve to talk to the police without counsel. * * * Moreover, keeping a suspect informed of the progress of the investigation and the status of the charges against him should be encouraged rather than discouraged, so long as the communication is truthful, and not designed, nor is it likely to elicit, an incriminating response.
United States v. Allen, 247 F.3d 741, 765-66 (8th Cir. 2001).
The very same may be said here. The ostensibly offending statement was of fact, not a plea to conscience, and no one has suggested that the statement of fact was not true. If the Defendant, here, was satisfied that the judgment of the Federal prosecutor would only be informed by the results of the officers' investigation, without any input from the Defendant, and his defenses would be augmented by that fact, then the Defendant could make firm his resolve not to assist in the Federal prosecutor's case.
Moreover, even though the officers had not rewarned the Defendant, concerning his Miranda rights, after he recommenced conversing with the officers, we find that such a procedure was not necessary here. The officers had just previously advised the Defendant of his Miranda rights less than moments before, and none of their actions, or words, would have erased that recitation from the Defendant's mind. Indeed, if the Defendant had wanted to stop speaking, we have no reason to doubt that he would have registered that desire, by invoking his right to silence, and he had previously, done. Rather, the Record persuades us that the Defendant understood his Miranda rights, and decided to waive them, without improper inducement from law enforcement. Therefore, we conclude that there is no basis for the suppression of the Defendant's statement to Rutter and Erickson, and we recommend that his Motion to suppress these statements be denied.
NOW, THEREFORE, It is —
ORDERED:
1. That the Defendant's Motion for Discovery of Expert Under Rule 16(a) (1)(E) [Docket No. 10] is GRANTED.
2. That the Defendant's Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant [Docket No. 11] is GRANTED, as more fully explained in the text of this Order.
3. That the Defendant's Motion for Discovery of Statements, Admissions or Answers [Docket No. 12] is GRANTED.
4. That the Defendant's Motion for Pretrial Disclosure of 404 Evidence [Docket No. 14] is GRANTED, as more fully explained in the text of this Order.
5. That the Defendant's Motion for Early Disclosure of Jencks Act Material [Docket No 13] is GRANTED, as more fully explained in the text of this Order.
AND, It is —
RECOMMENDED:
1. That the Defendant's Motion to Suppress Evidence Obtained as a Result of the Search and Seizure [Docket No. 16] be DENIED.
2. That the Defendant's Motion to Suppress Statements, Admissions and Answers [Docket No. 15] be GRANTED, in part, and DENIED, in part, as more fully explained in the text of this Order and Findings and Recommendation.