Opinion
Crim. No. 02-57 ADM/RLE
May 14, 2002
John R. Marti, Esq., Assistant United States Attorney, Minneapolis, MN, for Plaintiff.
Andrew H. Mohring, Esq., Federal Public Defender, Minneapolis, MN, for Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Defendant Erasto Rivera-Ruiz's ("Defendant") Objections [Doc. No. 24] to the April 17, 2002, Recommendation ("Rec.") of Magistrate Judge Raymond L. Erickson [Doc. No. 23]. The recommendation is that Defendant's Motion to Suppress Evidence Obtained as a Result of the Search and Seizure [Doc. No. 16] be denied, and Defendant's Motion to Suppress Statements, Admissions and Answers [Doc. No. 15] be granted in part and denied in part. For the reasons set forth below, the Recommendation is adopted in part. The factual background for this matter is adequately set forth in the Recommendation and is incorporated by reference for the purposes of Defendant's present objections.
II. DISCUSSION
A district court shall make an independent, de novo evaluation of those portions of a Magistrate Judge's recommendation to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations. See 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.1(c)(2).
Defendant objects to four portions of the Recommendation. First, he claims that his statements to Deputy Ross C. Lapp ("Lapp") and Border Patrol Agent Brent Zimmerman ("Zimmerman") on the roadside of Interstate 94 on January 31, 2002, were made in violation of the constitutional protections of Miranda v. Arizona, 384 U.S. 436, 473 (1966). Defendant argues that Deputy Lapp's questioning at this time exceeded the permissible scope of the traffic stop. Second, Defendant argues that because the scope of the questioning on the roadside was overly broad, the seizures resulting from the impoundment of his van should be suppressed. Third, Defendant claims that his waiver of Miranda rights at the Clay County Jail while being questioned by Deputy Lapp and Deputy Bruce Fleury ("Fleury") was not knowing and intelligent because his rights were read to him too rapidly. Fourth, Defendant asserts that the statements made on February 5, 2002, to ATF Special Agent Burton Rutter ("Rutter") while in transit to the Federal Courthouse in Fargo, North Dakota, must be suppressed because they were the result of an improper interrogation made after Defendant had invoked his constitutional right to remain silent.
A. Statements Made to Lapp and Zimmerman
For Miranda purposes, a suspect is considered in custody if the totality of the circumstances indicate a restraint on freedom of movement of the degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121, 1125 (1983). In making this determination, "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442 (1984). Defendant's objections focus on the time during which he was inside Deputy Lapp's squad car waiting for the Border Patrol to assist Deputy Lapp. Defendant argues that a reasonable person in Defendant's position would not conclude he was free to leave.
Defendant relies on United States v. Griffin, 922 F.2d 1343 (8th Cir. 1990), which lists six indicia of custody:
(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.
Griffin, 922 F.2d at 1349. Defendant argues that neither Deputy Lapp nor Agent Zimmerman read him Miranda warnings or told him he was not under arrest. Defendant asserts that he was not free to leave because he was detained by the roadside, and that the officers did not tell him he was free to leave. "[T]he absence of police advisement that the suspect is not under formal arrest, or that the suspect is at liberty to decline to answer questions, has been identified as an important indicium of the existence of a custodial setting." Griffin, 922 F.2d at 1350. Defendant argues that once inside the squad car his freedom was further restrained. Because he was initially pulled over for speeding Defendant also argues he did not initiate the contact with the police. Defendant asserts that the scenario was dominated by the police, and that he was arrested after being questioned in Deputy Lapp's squad car.
Defendant concedes the reasonable justification to stop his vehicle initially based on his observed driving behavior. Once stopped, a police officer may conduct a "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." United States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995) (citation omitted). "Likewise, an officer may engage in similar routine questioning of the vehicle's passengers to verify information provided by the driver." Id. Deputy Lapp questioned Defendant about his identity and vehicle registration. Defendant identified himself with a valid Oregon driver's license.
Defendant's passenger could not speak English, and identified himself only with a Mexican voter registration card. Deputy Lapp noticed that the vehicle was a van containing a bed roll and gas can, with paneling on the inside of the van and weighted front tires. At the Suppression Hearing, Deputy Lapp expressed that he had some concern for his safety because these factors are often present in drug trafficking, and guns are frequently found in drug trafficking situations. Deputy Lapp asked Defendant's passenger to sit in his patrol car during further questioning of Defendant. Moving the passenger to the patrol car under these circumstances was proper, and does not rise to the level of "custody." Id.
While standing outside the cars, Deputy Lapp then asked Defendant if his passenger was an illegal alien. Defendant asked Deputy Lapp to give his friend a break, and explained that they were traveling from St. Paul, Minnesota to Oregon. Deputy Lapp then placed Defendant in the squad car with the passenger, and contacted the Border Patrol to get assistance in translating so that he could communicate with the passenger. Again, the circumstances do not involve the degree of restraint on freedom consonant with a formal arrest. Id. Reasonable investigation does allow placing a driver inside the patrol car during questioning. Johnson, 58 F.3d at 357. While waiting about 15 minutes for Border Patrol assistance, Deputy Lapp discussed a consent search of Defendant's van with Defendant. When Agent Zimmerman of the Border Patrol talked with Defendant's passenger about his and Defendant's immigration status, Zimmerman learned that both were illegal aliens.
After Agent Zimmerman ascertained they were illegal aliens, he instructed Deputy Lapp to detain both individuals. It is at this juncture that custodial rights attach. The Defendant was then handcuffed and frisked. An inventory search of the van was conducted, and a bag containing a gun was found. The Defendant's statements after being handcuffed and arrested, including Defendant's statement that he owned the bag containing the gun, must be suppressed because no Miranda warning was given. Accordingly, Part III(B)(2)(b) of the Recommendation is adopted, and Defendant's statements made after he was handcuffed and detained are suppressed.
The remaining question is whether or not the responses to questioning up until the decision to detain was made should also be suppressed. The scope of such questioning is limited to the circumstances that justify the stop. United States v. Johnson, 64 F.3d 1120, 1124 (8th Cir. 1995) (citation omitted). Police conduct after a traffic stop must be "reasonably related in scope to the circumstances which justified" the initial stop. United States v. Terry, 392 U.S. 1, 20 (1968). Defendant asserts that Deputy Lapp exceeded the scope of the stop by inquiring about Defendant's legal status in the United States after determining that Defendant had a valid driver's license, was driving a licensed and registered vehicle, had no outstanding warrants, and was not intoxicated. However, "if the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions." Johnson, 58 F.3d at 357; United States v. Foley, 206 F.3d 802, 806 (8th Cir. 2000) ("An officer may properly expand the scope of his investigation as reasonable suspicion dictates.").
The totality of the circumstances in this case, viewed "in light of the officer's experience," justified Deputy Lapp's questioning. Foley, 206 F.3d at 806. While Defendant had produced a valid United States driver's license, the passenger in Defendant's van had not. The passenger's only identification document was a Mexican voter registration card. It is reasonable during a vehicle stop for an officer to make an initial request for identification from the driver and any passengers. United States v. Morris, 910 F. Supp. 1428, 1441 (N.D. Iowa 1995) (citing United States v. Dawdy, 46 F.3d 1427, 1430 (8th Cir. 1995), cert. denied, 15 U.S. 872 (1995)). Upon learning that Defendant's passenger did not speak English and had only foreign identification, Deputy Lapp's reasonable questioning led to his suspicion of illegal alien status. When Deputy Lapp asked Defendant about his passenger's legal status, the Defendant asked Deputy Lapp to give his friend a break, further bolstering his suspicions. Therefore, Deputy Lapp's continued detention of Defendant and his passenger, to investigate their legal citizenship status was supported by probable cause and suspicion. Parts III(A)(1)(b) and III(B)(2)(a) of the Recommendation are adopted.
Defendant argues that his case is akin to Knowles v. Iowa, 525 U.S. 113 (1998), where an officer searched the defendant's car during a traffic stop for speeding. The Supreme Court held that upon issuance of a citation, rather than an arrest, no incident search of the car was allowed under the Fourth Amendment. Knowles, 525 U.S. at 114. However, in Knowles, the officer did not have probable cause to conduct the search. Id. at 115. Here, Deputy Lapp did have probable cause and suspicion to conduct the questioning that led to Defendant's arrest, and the vehicle search occurred after arrest upon execution of an inventory search so that the van could be towed and impounded. Thus, Knowles is inapposite.
B. The Search of the Van
Defendant argues that the evidence seized from his van must be suppressed because the seizure resulted from illegal questioning on the roadside of Interstate 94 by Deputy Lapp prior to the van search. In light of the above finding that Deputy Lapp's questioning prior to Defendant's detainment was proper, Defendant's objection is denied. Part III(A)(2) is adopted.
C. Statements at the Clay County Jail to Lapp and Fleury
After Defendant was taken to the Clay County Jail, Deputies Lapp and Fleury advised Defendant of his Miranda rights. Defendant indicated that he waived his Miranda rights and wished to talk to the Deputies. The Deputies then questioned Defendant about his immigration status and the gun found in his van. Defendant argues that the statements made during this interrogation must be suppressed because the advice of rights process administered by Deputy Fleury was invalid. See Mapp v. Ohio, 367 U.S. 643, 654 (1961) ("[A]ll evidence obtained by an unconstitutional search and seizure [is] inadmissible in a federal court regardless of its source."). "[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda, 384 U.S. at 475. "[T]he waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986). Defendant alleges that his Miranda rights were read too quickly, and that he did not understand his rights because of the difficulties Defendant and the Deputies had in understanding each other. Defendant relies on the audio recording of the session to reveal the reality of the circumstances surrounding Defendant's waiver.
On the tape, Deputy Fleury informed Defendant that he was required to read something to Defendant before he could talk to him. The tape reflects that Defendant had apparently wanted to talk to Deputy Fleury in the car on the way to the police station, but that Deputy Fleury had told Defendant he had to wait until they arrived at the police station to talk so that he could read the Defendant his Miranda rights. Defendant said "Mm-hmm." Deputy Fleury told Defendant that he was going to read him the Miranda rights, then ask if he understood them, and that then Deputy Lapp would ask him some questions. Defendant replied "yeah, fine." Deputy Fleury then told Defendant that he was recording the conversation so that "everybody knows that what we say is . . . what we mean." He then proceeded to read the Miranda rights to Defendant. Deputy Fleury's voice on the tape is calm, even and audible. His words were clear, and he spoke at a reasonably slow pace. He then asked Defendant if he understood the rights as they were explained to him. Defendant replied with a nondescript noise, and presumably a head gesture. Deputy Fleury then asked Defendant to "say yes or no." Defendant said "Mm-hmm," and then Deputy Fleury added "so I can hear you." Defendant then said "yes," after which Deputy Fleury said "Yes? Okay. Because the tape recorder doesn't know if you're just nodding your head up and down." Defendant then said "Yes, okay." This exchange of dialogue is evidence of Deputy Fleury's attempt to insure Defendant understood his rights. After waiting for Defendant to state audibly on the tape that he did understand the Miranda rights, Deputy Fleury asked Defendant "do you wish to talk to us right now?" To this Defendant replied, "Of course. Yeah, I do."
The rest of the tape reveals that Defendant's ability to speak English was somewhat broken, and therefore during the course of questioning the Deputies frequently repeated what Defendant stated to make sure that they understood what he was saying correctly. However, there is no evidence Defendant was having difficulty understanding what was said by the Deputies, nor did any of his answers to the Deputies' questions reflect that he failed to understand them. The audio tape establishes that the government in this case has satisfied its burden to demonstrate that Defendant knowingly and intelligently waived his Miranda rights. Defendant's objections are denied, and Part III(B)(2)(c) is adopted.
D. Statements to Rutter During Transport
On February 5, 2002, five days after Defendant was taken to the Clay County Jail, a federal arrest warrant was executed against Defendant, and he was transported by ATF agents to the Federal Courthouse in Fargo, North Dakota. In transit, Agent Rutter's partner read Defendant his Miranda rights from a card. The government does not dispute that Defendant stated to Agent Rutter that he chose to remain silent. Rutter responded that if Defendant remained silent, the United States Attorney would simply have to use the information he already had, whether he had Defendant's version of the events or not. Within one minute of this statement, Defendant began to talk, stating that the gun belonged to his boss and he was transporting it. Rutter then asked Defendant who owned the van, and Defendant replied that his boss owned it also. The government asserts that the statements made by Defendant were not the product of interrogation, and that Miranda is not implicated in the absence of a custodial interrogation. See Thompson v. Keohane, 516 U.S. 99, 107 (1995).
"Once [Miranda] warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, 384 U.S. at 473-74. For Miranda purposes, interrogation includes not only express questioning, but also "any words or actions . . . that the police should know are reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Judge Erickson found that the statement made by Rutter was merely meant to advise the Defendant about the status of his case, and could in no way be reasonably expected to elicit an incriminating response. Rec. at 36-37. The government relies on United States v. Allen, 247 F.3d 741 (8th Cir. 2001), where the Eighth Circuit held that police advising a defendant, after he had invoked his right to counsel, about the results of a line-up in which the defendant had just participated, did not constitute interrogation. Allen, 247 F.3d at 765. The government argues that here, like Allen, Agent Rutter's statement was just a "simple description of the status of the ongoing investigation," and that as such it was "a statement of fact and not a plea to conscience." Id.
"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." Allen, 247 F.3d at 765. The statement made by Agent Rutter can reasonably be expected to imply that silence on the part of the Defendant would result in an imbalanced, unfair charging decision because the United States Attorney would not be aware of Defendant's version of events. The Defendant's foreign status and likely unfamiliarity with U.S. constitutional rights increases the likelihood of confusion.
The short amount of time Defendant began to speak after stating he wished to invoke his right to silence is probative that Agent Rutter's words functioned to elicit Defendant's statement. The purpose of the Miranda rule against interrogation after invocation of the right to silence is precisely that an individual should not have to invoke his rights multiple times. Defendant invoked his right to silence once, and once is enough. Therefore, Agent Rutter's statement to Defendant constitutes conduct likely to elicit an incriminating response, and it was improper immediately after Defendant had invoked his right to silence. Accordingly, Defendant's objections to Part III(B)(2)(d) are sustained, and the statements made by Defendant to Agent Rutter and his partner while in transit to the Federal Courthouse in Fargo, North Dakota on February 5, 2002, will be suppressed.
III. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's Objections [Doc. No. 24] to Parts III(A)(1)(b) and III(B)(2)(a) of the Rec. regarding the statements made to Lapp and Zimmerman on the roadside of Interstate 94 on January 31, 2002, are DENIED,
2. The Rec. Parts III(A)(1)(b) and III(B)(2)(a) [Doc. No. 23] are ADOPTED,
3. Defendant's Motion to Suppress Statements, Admissions and Answers [Doc. No. 15] is DENIED with respect to the statements made to Lapp and Zimmerman on the roadside of Interstate 94 on January 31, 2002,
4. The Rec. Part III(B)(2)(b) [Doc. No. 23] is ADOPTED,
5. Defendant's Motion to Suppress Statements, Admissions and Answers [Doc. No. 15] is GRANTED with respect to Defendant's responses to Deputy Lapp's questions after Defendant was handcuffed concerning the ownership of the gun found in Defendant's van, and these statements will be SUPPRESSED accordingly,
6. Defendant's Objections [Doc. No. 24] to the Rec. Part III(A)(2) regarding the search of the van and seizure of the gun are DENIED,
7. The Rec. Part III(A)(2) [Doc. No. 23] is ADOPTED,
8. Defendant's Motion to Suppress Evidence Obtained as a Result of the Search and Seizure [Doc. No. 16] is DENIED,
9. Defendant's Objections [Doc. No. 24] to the Rec. Part III(B)(2)(c) regarding statements made at the Clay County Jail to Lapp and Fleury are DENIED,
10. The Rec. Part III(B)(2)(c) [Doc. No. 23] is ADOPTED,
11. Defendant's Motion to Suppress Statements, Admissions and Answers [Doc. No. 15] is DENIED with respect to the statements made at the Clay County Jail to Lapp and Fleury,
12. Defendant's Objections [Doc. No. 24] to the Rec. Part III(B)(2)(d) regarding statements made to Rutter during transport on February 5, 2002, are GRANTED,
13. The Rec. Part III(B)(2)(d) [Doc. No. 23] is REJECTED,
14. Defendant's Motion to Suppress Statements, Admissions and Answers [Doc. No. 15] is GRANTED with respect to the statements made to Rutter during transport on February 5, 2002, and these statements will be SUPPRESSED accordingly.