Opinion
Case No.: 2:19-cr-110-MHH-GMB
07-10-2019
UNITED STATES OF AMERICA, v. ERICK DEWAYNE DENSMORE, Defendant.
MEMORANDUM OPINION
Defendant Erick Dewayne Densmore is charged in the indictment in this case as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Pursuant to the Fourth Amendment, Mr. Densmore has asked the Court to suppress evidence that law enforcement officers found when they searched his residence. In addition, pursuant to the Fifth Amendment, Mr. Densmore asks the Court to suppress inculpatory statements that he made during a custodial interrogation after he invoked his right to remain silent. (Doc. 11).
The magistrate judge who held an evidentiary hearing on Mr. Densmore's motion issued an opinion in which he recommended that the Court deny Mr. Densmore's motion to suppress. (Doc. 23). Mr. Densmore has objected to multiple factual findings and to the magistrate judge's conclusions of law and recommendation. (Doc. 24). This opinion resolves Mr. Densmore's objections.
STANDARD OF REVIEW
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). A district judge must "make a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also FED. R. CRIM. P. 59(b)(3) ("The district judge must consider de novo any objection to the magistrate judge's recommendation."). A district court's obligation to "'make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made,'" 447 U.S. at 673 (quoting 28 U.S.C. § 636(b)(1)), requires a district judge to "'give fresh consideration to those issues to which specific objection has been made by a party,'" 447 U.S. at 675 (quoting House Report No. 94-1609, p. 3 (1976)). United States v. Raddatz, 447 U.S. 667 (1980) (emphasis in Raddatz).
Although § 636(b)(1) "does not require the [district] judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 154 (1985). That is because for dispositive motions, like motions to suppress, "the ultimate adjudicatory determination is reserved to the district judge." Raddatz, 447 U.S. at 675.
FACTUAL BACKGROUND
The Court accepts the following factual findings in the magistrate judge's report:
On January 2, 2018, members of the Jefferson County Sheriff's Office's warrant detail went to 913 Burwell Street in the Bessemer Cut-Off of Birmingham to serve three warrants for the arrest of Mr. Densmore for distribution of controlled substances. (Doc. 23, p. 2, ¶ 1; see also Docs. 18-1, 18-2, 18-3). Deputies Machen, May, and Metcalf were assigned to this task. (Doc. 23, p. 2, ¶ 2). When the deputies arrived at Burwell Street, it was mid- to late-morning. Deputies Machen and May went to the front door, while Deputy Metcalf went to the rear of the house. (Doc. 23, p. 2, ¶ 4).
According to Deputy Machen's and Detective Bowden's reports, it was approximately 11:30 a.m. (Doc. 18-6, p. 1) ("EVENT" entry); (Doc. 18-6, p. 3) ("NARRATIVE," line 1); (Doc. 18-7, p. 1).
Mr. Densmore does not object to the factual findings in this paragraph. (Doc. 24, p. 1).
When Deputy Machen knocked on door, Mr. Densmore opened the door. (Doc. 23, p. 2, ¶ 5). Deputy Machen informed the defendant he was under arrest on the basis of three arrest warrants. Mr. Densmore indicated that his "little girl" was inside, and he needed to make arrangements for her care. Deputy Machen replied, "Okay, we'll handle it but let me put you in custody first." Deputy Machen then turned Mr. Densmore in the doorway, so that he (Deputy Machen) was facing Mr. Densmore's back, and Deputy Machen handcuffed Mr. Densmore behind the back. While he cuffed Mr. Densmore, Deputy Machen did not see or hear anyone in the house. (Doc. 23, p. 3, ¶¶ 7-8).
Mr. Densmore objects to some of the findings in paragraph 5, but he does not object to this finding in paragraph 5. (Doc. 24, p. 1).
Mr. Densmore does not object to these factual findings. (Doc. 24, p. 1).
Deputy Machen entered the house with Mr. Densmore to find the "little girl." Deputies Machen and May quickly looked into each room they passed, trying to see if anyone else was in the house. (Doc. 23, p. 4, ¶ 9); (see also Doc. 19, pp. 18-19).
Mr. Densmore does not object to these factual findings. (Doc. 24, p. 1). Implicit in these findings is the fact that Deputy May entered the house with Deputy Machen and Mr. Densmore. The record supports this finding of fact. (See, e.g., Doc. 19, p. 44).
At this juncture, the Court makes findings of fact to supplement the magistrate judge's findings. When Deputies Machen and May entered the house with Mr. Densmore, the deputies had no information about Mr. Densmore's daughter. (Doc. 19, pp. 17, 22). They knew that Mr. Densmore referred to his daughter as his "little girl," and they knew that Mr. Densmore was approximately 24 years old. (Doc. 19, pp. 33, 40, 41; Docs. 18-1, 18-2, 18-3 (arrest warrants)). Mr. Densmore did not mention the age of his daughter, and there is no evidence that the deputies requested the information. (Doc. 19, p. 17).
Deputy Machen explained that he and Deputy May followed Mr. Densmore into the house for "[s]afety reasons, as well as a possible escape." (Doc. 19, p. 20; see also Doc. 19, p. 37). Once an individual is under arrest, there never is a time that law enforcement officers will allow the individual to reenter a residence unaccompanied. (Doc. 19, p. 20; see also Doc. 19, p. 37). On the rare occasions when officers reenter a residence with an arrestee, for safety reasons, they look into rooms as they go to make sure that no one else is in the residence. (Doc. 19, pp. 20-21, 43). In this instance, no one other than Mr. Densmore's daughter was in the house. (Doc. 19, p. 21).
A coffee table sat immediately to the left of the front doorway through which Deputies Machen and May entered the house. (Doc. 19, p. 18). The officers saw two Suboxone strips sitting on the coffee table in plain view. (Doc. 19, pp. 17-18, 43-45). As he walked through the house with Mr. Densmore and Deputy May, Deputy Machen called Detective Bowden and reported the Suboxone strips. (Doc. 19, p. 19). Detective Bowden indicated that he would apply for a search warrant based on what Deputy Machen and Deputy May saw. (Doc. 19, p. 22).
Deputy Machen stated that he could smell marijuana in the house, but the search warrant affidavit does not mention marijuana. (Doc.19, p. 62; Doc. 17-1, pp. 1-3).
Continuing with the adopted findings of fact, Mr. Densmore found his daughter, and he, his daughter, and the deputies left the house and went into the front yard. Mr. Densmore (still handcuffed) and his daughter were placed in the back of a marked police car. The deputies did not attempt to talk to Mr. Densmore or to reenter the house. (Doc. 23, p. 4, ¶ 11); (see also Doc. 19, p. 22).
Mr. Densmore does not object to the factual findings in this paragraph. (Doc. 24, p. 1).
Meanwhile, a state circuit judge issued a search warrant for controlled substances at 913 Burwell Street. (Doc. 23, p. 5, ¶ 13). The search warrant affidavit states:
On January 2nd 2018, I spoke to Deputy Patrick May and Deputy Caleb Machen who stated while executing an arrest warrant for Erick Dewayne Densmore, Jr.,... for Unlawful Distribution of a controlled substance, While [sic] at the residence deputies observed in plain view a quantity of Suboxone Strips located on the table in the living room.(Doc. 23, p. 5, ¶ 14). Eventually, Detective Bowden arrived at the Burwell residence with the search warrant in hand, and a search of the residence began. (Doc. 23, p. 5, ¶ 15).
Mr. Densmore does not object to the factual findings in this paragraph. (Doc. 24, p. 1).
The Court makes the following additional findings of fact. While Deputies Machen, May, and Metcalf waited for officers to arrive with a search warrant for Mr. Densmore's house, members of Mr. Densmore's family arrived. Two additional officers, Deputies Jackson and Sorenson, arrived to help secure the scene. (Doc. 18-6, p. 3). Detective Bowden and "other members of the narcotics unit" - including Sergeant DeRamus, Detective Craton, and Detective Bradley - eventually arrived to execute the search warrant that Judge Carpenter issued at 12:39 p.m. (Doc. 17-1, p. 4; Doc. 18-7, p. 1).
While officers searched Mr. Densmore's house, Detective Bowden and Sergeant DeRamus went to the police car where Mr. Densmore was in custody to question Mr. Densmore. (Doc. 18-7, p. 1; GX4, track 1). Detective Bowden told Mr. Densmore that he was "narcotics," and he read Mr. Densmore his Miranda rights from a waiver of rights form. (GX4, track 1, 00:20-1:00; Doc. 19, pp. 51-52). Mr. Densmore asked Detective Bowden and Sergeant DeRamus questions about the search of his house. (GX4, track 1; Doc. 19, p. 52). Sergeant DeRamus and Detective Bowden told Mr. Densmore that he was under arrest on three controlled substances warrants relating to drug crimes. (GX4, track 1, 1:12-1:18). Mr. Densmore asked the officers for the time, but they refused to answer. (GX4, track 1, 3:56-3:58). Mr. Densmore asked, "How long is this process going to last?" and stated he was "ready to go." (GX4, track 1, 4:49-4:52). Detective Bowden asked: "Would you like to speak with me any further about anything?" Mr. Densmore replied, "No, sir." (GX4, track 1, 4:55-4:58; Doc. 19, p. 55). Detective Bowden responded: "Well that concludes that." (GX4, track 1, 4:58-5:00). Mr. Densmore continued to ask the officers to respect his property during their search. (GX4, track 1, 5:03-5:24; Doc. 19, p. 55). When asked during the suppression hearing if he questioned Mr. Densmore about the illegal drugs found in Mr. Densmore's house, Detective Bowden replied, "he never gave me the opportunity to." (Doc. 19, p. 52). That is an accurate statement. (GX4, track 1).
References to time stamps in GX4, tracks 1 and 2, are approximate.
Mr. Densmore objects to the magistrate judge's finding that he (Mr. Densmore) continued to speak to Detective Bowden after he told Detective Bowden that he did not want to speak to him. (Doc. 23, pp, 5-6, ¶¶ 16-17; Doc. 24, p. 3). Mr. Densmore argues that the conversation regarding potential damage to his house during the search took place before he told Detective Bowden that he did not want to speak to him. (Doc. 24, p. 3). The audio recording of the interaction between Detective Bowden and Mr. Densmore reveals that Mr. Densmore discussed potential damage to his house both before and after he told Detective Bowden that he did not want to speak to him. (GX4, track 1). The Court overrules Mr. Densmore's objection to this finding.
The United States offered a copy of the audio recording of the Bowden interview into evidence as GX2. (Doc. 19, pp. 54-55); (Doc. 17 docket entry). Mr. Densmore introduced a copy of the Bowden audio recording into evidence as DX 9. (Doc. 18 docket entry). When the undersigned obtained the discs that the United States and Mr. Densmore placed in the record at the suppression hearing, the undersigned found that neither set of discs contained audio recordings of the Bowden interview. The same was true of the discs (GX3, DX10) that purported to have recordings of the Barbin interview (discussed below). After notice to the parties, the United States provided a disc that contains the complete audio recordings of the Bowden and Barbin interviews. Track 1 is the Bowden interview, and track 2 is the Barbin interview. The Court strikes from the record GX2, GX3, DX9, and DX10 and substitutes for those exhibits GX4. The United States played the audio recordings of the Bowden and Barbin interviews during the suppression hearing, so the magistrate judge had an opportunity to hear the recordings in court. (Doc. 19, pp. 54-55, 90).
Returning to the magistrate judge's findings, the search of the house turned up incriminating evidence such as heroin, digital scales, marijuana, and cash. Under a bed, law enforcement officers found a loaded AR-15 .223 caliber Bushmaster pistol with a "forward grip." Deputies also found a Glock extended magazine in a kitchen drawer. (Doc. 23, p. 6, ¶ 18; see also Doc. 19, p. 86).
Mr. Densmore does not object to the factual findings in this paragraph. (Doc. 24, p. 1).
When officers found the pistol, Detective Bowden called Detective Jeremy Barbin, a Jefferson County sheriff's deputy assigned to the Alcohol, Tobacco & Firearm Task Force. Detective Barbin ran a background check and determined that Mr. Densmore had a prior felony conviction. (Doc. 23, pp. 6-7, ¶ 19). Detective Barbin joined the other investigating officers at Mr. Densmore's house. (Doc. 19, p. 56). Detective Barbin examined the pistol and determined that, because of the "forward grip," the pistol was an illegal short-barreled firearm. (Doc. 23, p. 7, ¶ 20).
Mr. Densmore does not object to the factual findings in this paragraph. (Doc. 24, p. 1).
Detective Barbin decided to interview Mr. Densmore, who still was handcuffed in the police car. Detective Barbin asked Detective Bowden if Mr. Densmore had been advised of his constitutional rights, and Detective Bowden replied that he had, but advised: "he ain't said nothing." (Doc. 23, p. 7, ¶ 21; see also Doc. 19, pp. 56, 89, 94, 95).
Mr. Densmore does not object to the factual findings in this paragraph. (Doc. 24, p. 1).
The Court makes the following additional findings of fact. While the search of Mr. Densmore's house continued, Detective Barbin went to the police car where Mr. Densmore was being held and had officers adjust Mr. Densmore's handcuffs so that his arms were cuffed in front rather than behind him. (GX4, track 2, 1:15). In a calm, conversational voice, Detective Barbin stated that he was not the dope police. He explained that he was ATF, made a couple of remarks about the gun that officers found in Mr. Densmore's house, and stated "I want to talk to you about it [the gun]. Hope you'll talk to me." (GX4, track 2, 1:50-2:21). Detective Barbin continued: "It's my understanding that they've already advised you of your constitutional rights, is that correct?" (GX4, track 2, 2:27-2:30). Mr. Densmore replied that he "ain't signed that." (GX4, track 2, 2:32-34). Detective Barbin re-advised Mr. Densmore of his Miranda rights. (GX4, track 2, 2:43-3:00). Detective Barbin asked: "Erick, do you understand your constitutional rights?" (GX4, track 2, 3:01-3:03). Mr. Densmore's response is inaudible. Detective Barbin next asked: "Want to talk to me about the gun?" (GX4, track 2, 3:05-3:10). Again, Mr. Densmore's response is inaudible.
Detective Barbin then asked Mr. Densmore a series of questions about the gun. He asked, for example:
• "Where did it come from 'cuz I know you can't buy it?"
• "Who lives here with you?"
• "Did your girlfriend buy the gun?"
• "How long ago did you get the gun?"
• "Who you bought it from?"
• "How much did you pay for it?"
• "Did they say it was stolen?"(GX4, track 2, 3:08-5:23). Mr. Densmore eventually told Detective Barbin that he bought the gun on the street for $700, but he stated that he did not know the individuals who sold the gun to him, and he did not know where the individuals got the gun. (GX4, track 2; see also Doc. 19, p. 97; Doc. 23, p. 7, ¶ 22).
• "Have you used it?"
Approximately five minutes into the interview, Detective Barbin asked Mr. Densmore if anything in the house belonged to him like the weed or the money that officers had found. (GX4, track 2, 5:40). Detective Barbin asked Mr. Densmore to identify his drug of choice. Mr. Densmore stated that he used hydrocodone, and he sometimes sniffed heroin. (GX4, track 2, 6:09-6:21). Mr. Densmore told Detective Barbin that he was trying to overcome his drug addiction, and he used Suboxone to fight his addiction. Detective Barbin asked: "The Suboxone prescribed by a doctor?" (GX4, track 2, 6:21-6:23). Mr. Densmore stated that he got the Suboxone on the street. (GX4, track 2, 6:23-6:28). After returning to the gun topic, Detective Barbin told Mr. Densmore again: "I'm not the dope police." (GX4, track 2, 7:53-7:55). Less than one minute later, Detective Barbin asked: "So as far as narcotics, those guys (meaning the officers searching Mr. Densmore's house) going to find anything in there?" (GX4, track 2, 8:38-8:40). Detective Barbin remarked three times that the officers conducting the search were thorough, and stated "if you're certain there ain't nothing in there . . . ." (GX4, track 2, 8:40-9:06). Detective Barbin stated again that he was not "part of the dope guys." (GX4, track 2, 9:22). Less than two minutes later, Detective Barbin asked Mr. Densmore how much money was in the house. (GX4, track 2, 10:55-11:00). Mr. Densmore answered "$2,000." Detective Barbin asked Mr. Densmore how he got the money. (GX4, track 2, 11:01-11:02).
When the search of Mr. Densmore's house was complete, Deputies Machen, May, and Metcalf brought Mr. Densmore to the Jefferson County jail in Bessemer, Alabama. (Doc. 18-6, p. 3; Doc. 18-7, p. 1). Detective Bowden took custody of all of the evidence from Mr. Densmore's house, including the gun. The Bessemer Narcotics Office tested the drugs and packaged them for testing by the state. The preliminary drug tests indicated that narcotics officers confiscated less than one gram of heroin and less than three grams of marijuana. The gun was placed in the Jefferson County Property Room in anticipation of federal charges. (Doc. 18-7, p. 1).
As stated, Mr. Densmore is charged in this case as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Doc. 1, p. 1).
DISCUSSION
I. Fourth Amendment
Mr. Densmore's Fourth Amendment challenge rests on his contention that Deputies Machen and May would not have seen the Suboxone strips that provided the basis for the search warrant for his house if they had not entered his house, and he argues that the deputies did not have a legitimate basis for entering his house after the deputies arrested him on his front porch. The magistrate judge found that Deputies Machen and May lawfully entered the house. (Doc. 23, p. 13). The Court agrees.
While Deputy Machen arrested and handcuffed Mr. Densmore on the front porch, Mr. Densmore indicated that his "little girl" was in the house, and he stated that he needed to make arrangements for her. To help Mr. Densmore care for his daughter, Deputies Machen and May allowed Mr. Densmore to enter his house to get her, but they could not allow him to enter the house unaccompanied. Common sense dictates that law enforcement officers cannot allow a handcuffed arrestee to enter a house (or a building) unaccompanied. An unaccompanied, handcuffed arrestee could be hurt, or he could attempt to flee or destroy evidence. Officers might endanger themselves or bystanders by waiting outside while an unaccompanied arrestee entered a house. Deputy Machen's testimony that he and Deputy May entered the house with Mr. Densmore for safety reasons is credible and entirely reasonable.
"[R]easonableness is always the touchstone of Fourth Amendment analysis." Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016). It was eminently reasonable for Deputies Machen and May to accompany Mr. Densmore into his house to find his daughter, and it was equally reasonable for the officers to scan the rooms through which they walked to make sure that no one else was in the house. The Suboxone strips that the officers saw in plain view in the process are fair game. The search warrant based on the Suboxone strips is constitutionally sound. The Court denies Mr. Densmore's Fourth Amendment challenge.
The Fourth Amendment analysis seems just that simple, but the Court accepts the magistrate judge's additional finding that the exigent circumstances exception to the warrant requirement applies here. (Doc. 23, pp. 14-15). "The exigent circumstances exception allows a warrantless search [or a warrantless entry] when an emergency leaves police insufficient time to seek a warrant." Birchfield, 136 S. Ct. at 2173. The Supreme Court has emphasized that district courts must assess exigencies on a case-by-case basis. Birchfield, 136 S. Ct. at 2174. And the Supreme Court has indicated that the exigent circumstances exception to the warrant requirement may apply in situations other than the three areas in which the Supreme Court has recognized the exception so far. Birchfield, 136 S. Ct. at 2173 (exception "permits, for instance, the warrantless entry of private property when there is a need to provide urgent aid to those inside, when police are in hot pursuit of a fleeing suspect, and when police fear the imminent destruction of evidence"). Though the officers here did not necessarily confront an emergency, they were in a situation in which they needed to act to help a child. The circumstances justified warrantless entry into Mr. Densmore's house. The officers did not run afoul of the Fourth Amendment when they accompanied Mr. Densmore into his house to get his daughter. The Court overrules Mr. Densmore's objection regarding the exigent circumstances exception to the warrant requirement. (Doc. 24, pp. 4-5).
II. Fifth Amendment
As the magistrate judge explained, when an individual in police custody asserts his Fifth Amendment right to remain silent or to have the assistance of counsel, "the police must cease interrogation and 'scrupulously honor[]' the defendant's desire to cut off the interrogation." (Doc. 23, p. 18) (quoting Michigan v. Mosley, 423 U.S. 96, 103 (1975), in turn quoting Miranda v. Arizona, 384 U.S. 436, 479 (1966)). "[W]hether a suspect's right to cut off questioning was scrupulously honored requires a case by case analysis." Jackson v. Dugger, 837 F.2d 1469, 1472 (11th Cir.), cert. denied, 486 U.S. 1026 (1988).
The Supreme Court first described an individual's right to cut off custodial questioning in Miranda. There, the Supreme Court held that law enforcement officers must give certain warnings before questioning a person in custody. The Supreme Court explained after an officer provides the requisite warnings:
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. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.Miranda, 384 U.S. at 473-74. The Supreme Court stated that if an individual requests counsel and "interrogation continues without the presence of an attorney and a statement is taken," then "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. By extension, the government bears a heavy burden to prove a knowing and intelligent waiver of the right to remain silent if an individual invokes that right, interrogation continues, and a law enforcement officer takes a statement from the individual. Since Miranda, the Supreme Court has held that "this 'heavy burden' is not more than the burden to establish waiver by a preponderance of the evidence." Berghuis v. Thompkins, 560 U.S. 370, 384 (2010) (citing Colorado v. Connelly, 479 U.S. 157, 168 (1986)).
In Miranda, the Supreme Court did not indicate when, after an individual invokes his right to cut off questioning, law enforcement officers may attempt another custodial interrogation of the individual. In Mosley, the Supreme Court explained that "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'" Mosley, 423 U.S. at 104 (quoting Miranda, 364 U.S. at 474, 479).
Law enforcement officers arrested Mr. Mosley in April 1971 in connection "with robberies that had recently occurred at the Blue Goose Bar and the White Tower Restaurant" in Detroit. 423 U.S. at 97. After his arrest, officers took Mr. Mosley to the fourth floor of the Detroit police department where the burglary unit was housed. After Mr. Mosley refused to answer questions about the burglaries, the interrogating officer stopped his investigation and moved Mr. Mosley to a holding cell on the ninth floor. 423 U.S. at 97. Hours later, an officer from the department's homicide unit brought Mr. Mosley to the fifth floor of the police department where the homicide unit was housed "for questioning about the fatal shooting of a man named Leroy Williams. Williams had been killed on January 9, 1971, during a holdup attempt outside the 101 Ranch Bar in Detroit." 423 U.S. at 98. After the homicide officer read Mr. Mosley his rights, and Mr. Mosley signed a waiver form, Mr. Mosley made inculpatory statements about the murder. 423 U.S. at 98.
To determine whether law enforcement officers scrupulously honored Mr. Mosley's assertion of his right to remain silent, the Supreme Court evaluated the length of time between the first attempted interview and the second interview, the identity of the officers involved in each interview, the location in which the interviews took place, the topics that officers covered in the two interrogations, and the extent of the Miranda warnings given before each attempt to question Mr. Mosley. The Supreme Court held that the second interrogation of Mr. Mosley did not violate his initial assertion of his right to remain silent because:
[t]he police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.Mosley, 423 U.S. at 106. The Supreme Court also noted that officers from different divisions of the Detroit Police Department were involved in the two interviews with Mr. Mosley. Mosley, 423 U.S. at 97-98. The Supreme Court found that the circumstances surrounding the two interviews did not reflect an attempt by police to "persist[] in repeated efforts to wear down [the defendant's] resistance and make him change his mind" about his decision to invoke his Fifth Amendment right to remain silent. Mosley, 423 U.S. at 105-06.
Applying the analysis that the Supreme Court used in Mosley, the magistrate judge concluded that Detective Bowden's and Detective Barbin's interview sessions with Mr. Densmore did not violate Mr. Densmore's right to remain silent. The magistrate judge found that immediately after Mr. Densmore told Detective Bowden that he did not want to talk to him, Detective Bowden stopped questioning Mr. Densmore. (Doc. 23, p. 24). There appeared to the magistrate judge "to have been a significant lapse of time, perhaps an hour or more, before Detective Barbin approached the defendant for a second interview." (Doc. 23, p. 24). The magistrate judge found that Detective Barbin only questioned Mr. Densmore about guns and not about conduct that would interest the narcotics officers. The magistrate judge described Detective Barbin's interaction with Mr. Densmore this way:
Detective Barbin identified himself as the "gun police," saying he was not interested in "weed" or other drugs found in the house. Detective Barbin limited his question to gun only, a crime separate from that of interest to Detective Bowden of the Vice & Narcotics squad. Finally, as in Mosely, Detective Barbin's questioning about the Bushmaster pistol did not undercut the defendant's invocation of his right not to speak Detective Bowden about drugs. As in Everett, there was a proper cessation of the first interview, then the passage of "a significant period of time," a fresh advisement of rights by Detective Barbin, and the second interview was limited to a different crime than the first. The
court notes also, of course, that the defendant did not invoke any Miranda rights during the Barbin interview even though he had done so earlier that day.(Doc. 23, pp. 24-25).
Mr. Densmore objects to the magistrate judge's application of the Mosley factors to the evidence in this case and to the magistrate judge's conclusion that Detective Barbin's interview of Mr. Densmore did not violate Mr. Densmore's Fifth Amendment right to remain silent. (Doc. 23, pp. 17-25; Doc. 24, pp. 5-7). The Court examines each of the magistrate judge's findings concerning the Mosley factors.
• Responsiveness to Mr. Densmore's initial exercise of his right to remain silent
The Court adopts the finding that Detective Bowden stopped questioning Mr. Densmore as soon as Mr. Densmore indicated that he did not want to talk to Detective Bowden. When Mr. Densmore refused to answer questions, Detective Bowden replied, "Well that concludes that." (GX4, track 1, 4:58-5:00). Mr. Densmore continued to urge the police to respect his property while they searched, and Detective Bowden replied courteously, but he did not question Mr. Densmore. (GX4, track 1, 5:03-5:28). When Detective Barbin asked Detective Bowden if he had advised Mr. Densmore of his Miranda rights, Detective Bowden stated that he had, but, referring to Mr. Densmore, advised "he ain't saying nothing." (Doc. 19, pp. 89, 94). See United States v. Muhammad, 196 Fed. Appx. at 882, 885-86 (11th Cir. 2006) ("Muhammad's unequivocal statement during the interrogation that 'he did not want to talk to [Inspector Willis] anymore' was a clear invocation of his constitutionally protected right to cut off questioning and to remain silent.").
The Court agrees with the magistrate judge's conclusion that Mr. Densmore's statements concerning his belongings are not a waiver of his Fifth Amendment right to remain silent with respect to police questioning. See Jacobs v. Singletary, 952 F.2d 1282, 1294 (11th Cir. 1992) (defendant's question to officer about her children was not an expression of her interest in participating in police questioning).
• Significant period of time
The Court accepts the magistrate judge's finding that "perhaps" an hour elapsed between Detective Bowden's attempt to question Mr. Densmore and Detective Barbin's interrogation of Mr. Densmore. (Doc. 23, p. 24). The United States has not established by a preponderance of the evidence anything more than "perhaps."
During the suppression hearing, the testifying officers were very vague about timing, and when, during Detective Bowden's attempted interrogation, Mr. Densmore asked Detective Bowden for the time, Detective Bowden refused to answer. (See, e.g., Doc. 19, p. 92) (Detective Barbin's testimony that he received a call regarding Mr. Densmore's residence between 11:00 a.m. and 3:00 p.m.); (GX4, track 1, 3:56). The record establishes that Detective Barbin was not on the scene when Detective Bowden attempted to question Mr. Densmore. (Doc. 19, p. 56). Detective Bowden obtained a search warrant for Mr. Densmore's house from the District Court of Jefferson County at 12:39 p.m, (Doc. 17-1, p. 4), and then he drove to Mr. Densmore's house in Bessemer, (Doc. 19, p. 92). Detective Bowden could not have arrived at Mr. Densmore's house before 1:00 p.m. At some point after he arrived at Mr. Densmore's house, Detective Bowden called Detective Barbin to tell him about the gun that officers had found in Mr. Densmore's house, but the record provides no information about the time of that call. Before he left his office, Detective Barbin checked Mr. Densmore's criminal history, a brief exercise. Detective Barbin testified that it was "standard drive time" from his office to Mr. Densmore's house, "somewhere between 10 and 45 minutes." (Doc. 19, p. 93). Detective Barbin testified that he began interviewing Mr. Densmore approximately 10 minutes after he arrived at Mr. Densmore's house. (Doc. 19, p. 95). The search that was in progress when Detective Bowden tried to question Mr. Densmore still was underway when Detective Barbin interrogated Mr. Densmore. (Doc. 19, pp. 86, 97).
Officers Machen and May executed the arrest warrants at approximately 11:30 a.m. (Doc. 18-6, p. 1) ("EVENT" entry); (Doc. 18-6, p. 3) ("NARRATIVE," line 1); (Doc. 18-7, p. 1). Detective Barbin did not receive a call about the Densmore case before 11:30 a.m.
Before he began his interaction with Mr. Densmore, Detective Barbin recorded an introduction to his interview in which he indicated the date of the interview. The Court observes in passing that Detective Barbin could have recorded the time of the interview as well to assist those who later would be called upon to review the events surrounding Mr. Densmore's arrest and the statements Mr. Densmore made to law enforcement officers. Detective Barbin's written report of his interaction with Mr. Densmore does not provide information about the time of the interview. (Doc. 20-1, p. 2).
On the record before it, the Court cannot say with confidence what amount of time passed between Detective Bowden's decision to stop trying to question Mr. Densmore and Detective Barbin's effort to question Mr. Densmore, but the period was perhaps an hour. But that vague approximation is not the end of the "significant period of time" analysis. The Eleventh Circuit Court of Appeals has held that the Mosley time factor is not simply a mathematical calculation:
We would eviscerate Miranda were we to hinge our evaluation of scrupulous observance on only the passage of a discrete amount of time from the suspect's invocation of her right to remain silent until a given round of subsequent questioning.Jacobs v. Singletary, 952 F.2d 1282, 1294 (11th Cir. 1992). "Determination of the 'significant period' following an invocation of the right to remain silent, as an inquiry merely corollary to that of determining scrupulous observance, [] involves careful scrutiny of the totality of the circumstances." Jacobs, 952 F.2d at 1294.
Thus, the Court factors into its analysis of the significance of the time between the Bowden and Barbin interviews the fact that Mr. Densmore's encounter with police began at approximately 11:30 a.m., his refusal to speak to Detective Bowden occurred after 1:00 p.m., and Mr. Densmore spent almost all of the time between his arrest shortly after 11:30 a.m. and his interrogation by Detective Barbin handcuffed in the back seat of a police car outside of his house. While Mr. Densmore was handcuffed in a police car, at least 10 officers were at his house (Machen, May, Metcalf, Jackson, Sorenson, Bowden, DeRamus, Craton, Bradley, and Barbin), some of them searching, some interrogating, and some securing him and the premises. When Detective Bowden attempted to question Mr. Densmore, Mr. Densmore asked, "How long is this process going to last?" and stated that he was "ready to go." (GX4, track 1, 4:49-4:52). Thus, before Detective Barbin approached Mr. Densmore, Mr. Densmore had refused to talk to the police and had communicated that he was tired of being held handcuffed in the back seat of a police car. The setting of the Barbin in-custody interrogation could operate on Mr. Densmore to overcome free choice in producing a statement after Mr. Densmore invoked the privilege to stop questioning. Miranda, supra.
The Densmore scenario is unlike the scenario in which Mr. Mosley was interviewed. Mr. Mosley was removed from the scene of his arrest and taken to the Detroit police station. At the police station, after he refused to answer questions about his suspected role in burglaries that had just occurred, he spent time in a holding cell. Hours after the first attempted interview, a homicide detective took him to the homicide unit for questioning about a murder that occurred months before the burglaries for which he had been arrested. No doubt, Mr. Mosley felt the anxiety inherent in police custody, but by his second interview, he had had time to decompress in a holding cell. In contrast, both the Bowden and Barbin interviews took place in the police car in which Mr. Densmore had spent hours in handcuffs. The time factor favors Mr. Densmore, not the United States.
In his objections, Mr. Densmore contends that the magistrate judge could not properly find that Mr. Densmore's situation was like the situation in Mosley because "the second interview occurred at the same location as the first: the backseat of the police vehicle." (Doc. 24, p. 6). For the reasons discussed, the Court sustains the objection.
• Second advice of rights
The Court agrees with the magistrate judge's finding that Detective Barbin advised Mr. Densmore of his right to remain silent before Detective Barbin began questioning Mr. Densmore. (GX4, track 2, 2:40-2:46). The Court qualifies the magistrate judge's finding that "the defendant did not invoke any Miranda rights during the Barbin interview." When Detective Barbin told Mr. Densmore that he understood that Detective Bowden already had advised Mr. Densmore of his rights, Mr. Densmore responded that he had refused to sign an advice of rights waiver. (GX4, track 2, 2:32-2:33); (Doc. 20-1, p. 2) (ATF report, NARRATIVE, ¶ 3 - "Investigator Barbin advised DENSMORE of his Miranda Rights, and he acknowledged that he understood, but refused to sign the rights waiver."). Detective Barbin told Mr. Densmore that he would advise him of his rights again. After doing so, Detective Barbin asked Mr. Densmore if he understood his rights. Mr. Densmore's response was inaudible, but the Court finds, based on Mr. Densmore's interaction with Detective Bowden, that Mr. Densmore understood his rights. Mr. Densmore did not refuse to talk to Detective Barbin.
• Topics of examination and officers involved in first and second interviews
The Court agrees with the magistrate judge's finding that "Detective Barbin identified himself as the 'gun police' and stated that he 'was not interested in 'weed''" found in the house. The Court does not accept the magistrate judge's finding that Detective Barbin "limited his question[s] to gun only" or his finding that the crime in which Detective Barbin was interested was "a crime separate from that of interest to Detective Bowden of the Vice & Narcotics squad." (Doc. 23, p. 24). The Court sustains Mr. Densmore's objection in this regard. (Doc. 24, pp. 6-7).
The record demonstrates that Detective Barbin questioned Mr. Densmore about the drugs, the money, and the gun that officers found when they searched Mr. Densmore's house. Based on his conversation with narcotics officers before he began his interview with Mr. Densmore, Detective Barbin knew that the narcotics officers had "recovered Suboxone strips, Marijuana, Heroin, Digital scales, .9 mm ammunition, [and] $2887.00 in assorted U.S. currency." (Doc. 20-1, p. 2) (ATF report, NARRATIVE, ¶ 2). As noted above, Detective Barbin began his interview with Mr. Densmore with a host of questions about the gun. Then, Detective Barbin shifted gears and questioned Mr. Densmore about drugs and money. Detective Barbin asked Mr. Densmore if the weed or the money that the officers had found in his house belonged to him. (GX4, track 2, 5:40). Detective Barbin also asked:
• "So as far as narcotics, those guys (meaning the officers searching Mr. Densmore's house) going to find anything in there?"(GX4, track 2). When Detective Barbin asked Mr. Densmore what the officers who were searching the house would find by way of narcotics, Detective Barbin stated three times that the officers were thorough, and remarked "if you're certain there ain't nothing in there . . . ." (GX4, track 2, 8:40-9:06).
• "How much money is in the house?" (Mr. Densmore stated that there was $2,000 in the house.)
• "How did you get the money?"
• "What is your drug of choice?" (Mr. Densmore stated that he used heroin, one of the controlled substances found in the house.)
• "The Suboxone prescribed by a doctor?
Officers found money in Mr. Densmore's pockets during a pat down, and they found money in the house. (Doc. 18-7). Officers recovered a total of $2,887.00.
Detective Barbin did not ask questions about drugs and money to break up the conversation about guns. He asked the questions to gather information for his colleagues in Narcotics & Vice with whom Mr. Densmore had refused to speak. Detective Barbin shared the audio recording of his interview with Mr. Densmore with Detective Bowden, and Detective Bowden included many of the details from the recording in his report, including the fact that Mr. Densmore bought Suboxone strips "from the streets" - information that was available to Detective Bowden only from the Barbin interview. (Doc. 18-7, p. 1). Detective Bowden also discussed in a supplement to his narcotics report details about the firearm that he received from Detective Barbin a few days after Mr. Densmore's arrest. (Doc. 18-7, p. 3). The gun, drugs, and money that officers found during their search of Mr. Densmore's house were part of a single police investigation. That investigation was unfolding as Detectives Bowden and Barbin took turns trying to interview Mr. Densmore.
This is unlike the situation in Mosley in which a burglary detective asked Mr. Mosley about burglaries that occurred in April 1971, and a homicide detective asked Mr. Mosley about a murder that occurred in January 1971. As Mr. Densmore argues, the Mosley crimes were discrete crimes, and the crimes occurred at different times. (Doc. 24, p. 6). The gun and drugs attributed to Mr. Densmore are part of a single scenario.
The Court notes that while Mr. Densmore is charged in the federal indictment in this case under 18 U.S.C. § 922(g)(1) as a felon in possession of a firearm, based on the information that Detective Barbin developed during his interview with Mr. Densmore, the United States could have charged Mr. Densmore under 18 U.S.C. § 922(g)(3) which makes it "unlawful for any person . . . who is an unlawful user of . . . any controlled substance (as defined in section 102 of the Controlled Substances Act)" to possess a firearm. The government's charging decision does not change the character of the conduct at issue.
Thus, the Court respectfully disagrees with the magistrate judge's conclusion that "the facts related to Detective Barbin's interview of the defendant are [] strikingly similar to those" in Mosley. (Doc. 23, p. 22). Applying the Mosley factors, the Court finds that the officers involved in the Densmore investigation did not scrupulously honor Mr. Densmore's right to cut off questioning.
The Eleventh Circuit Court of Appeals has held that "the absence of a single Mosley factor is [not] dispositive." Gore v. Secretary for the Dept. of Corrections, 492 F.3d 1273, 1298 (11th Cir. 2007). But in this case, the United States has established by a preponderance of the evidence only that Detective Bowden and Sergeant DeRamus stopped questioning Mr. Densmore when Mr. Densmore said that he did not want to talk about anything, and Detective Barbin re-advised Mr. Densmore of his rights before he began questioning Mr. Densmore. If that were enough to demonstrate that law enforcement officers had scrupulously honored an individual's right to cut off questioning, then there never would be an occasion in which an individual could control custodial questioning. Officers would be licensed to stop questioning the individual for a period of time (which, as in this case, officers would not record) and then to resume questioning after the officers re-advised the individual of his rights. This is not what the Supreme Court had in mind when it issued Miranda or Mosley.
If the record in this case suggested that Mr. Densmore initiated the conversation with Detective Barbin, then the Court would have to consider whether Mr. Densmore waived his right to control custodial questioning. See Jacobs, 952 F.2d at 1294 ("Because Weber's questioning occurred during the 'significant period,' this questioning triggers the prophylactic rule requiring suppression of elicited statements unless the suspect both 'initiated' the round of questioning and voluntarily waived her right to silence."); Muhammad, 196 Fed. Appx at 885 ("[A]t a minimum, the scrupulously honored standard requires that the government refrain from questioning a suspect unless he both (1) initiates further conversation; and (2) waives the previously asserted right to silence."); compare Everett v. Sec'y, Fla. Dep't of Corrections, 779 F.3d 1212, 1246 (11th Cir. 2015) (holding that defendant's statement to police days after he invoked his right to remain silent was admissible because the defendant "himself initiated his November 19 statement about pointing Sergeant Tilley in the right direction. And, before taking his November 19 statement in that regard, Officer Murphy again read Everett his Miranda rights, and Everett stated that he understood his rights and was willing to speak with Murphy") (emphasis in Everett); United States v. Nash, 910 F.2d 749, 752 (11th Cir. 1990) (affirming district court's finding that defendant initiated second interview after officials honored defendant's decision to cut off first interview).
Here, there is no evidence that suggests that after he told Detective Bowden that he did not want to talk to him about anything, Mr. Densmore signaled to the police that he wanted to talk to them about guns or drugs. Mr. Densmore did not call Detective Barbin over to the police car where he was detained; Detective Barbin approached Mr. Densmore and told Mr. Densmore that he hoped Mr. Densmore would answer his questions. (GX4, track 2, 3:00). Mr. Densmore responded that he had refused to sign a waiver of rights. Rather than honor that statement or the fact that Detective Bowden told him (Detective Barbin) that he (Detective Bowden) had advised Mr. Densmore of his rights and that Mr. Densmore had refused to answer questions, Detective Barbin read Mr. Densmore his rights and then began questioning Mr. Densmore. Because Mr. Densmore did not initiate the conversation with Detective Barbin, Mr. Densmore did not waive his refusal to talk to law enforcement officers.
Were the Court to examine the Barbin interview in isolation, under Berghuis, the Court likely would find that Mr. Densmore's statement that he had refused to sign a waiver of rights would not qualify as an unambiguous assertion of rights. Berghuis, 560 U.S. at 381. But the Berghuis decision concerns an initial interview, not an interview following an invocation of rights. Here, Mr. Densmore clearly communicated his refusal to talk to Detective Bowden about anything. Detective Bowden understood that his interrogation of Mr. Densmore was concluded. Unlike the defendants in Jacobs, Muhammad, and Nash, Mr. Densmore did not volunteer information to law enforcement officers. Mr. Densmore did not provide information about drugs or guns until Detective Barbin questioned him. Because Detective Barbin did not scrupulously honor Mr. Densmore's right to control questioning and because Mr. Densmore did not initiate the conversation with Detective Barbin, the inculpatory statements that Mr. Densmore made to Detective Barbin are inadmissible.
Thus, Mr. Densmore's inculpatory statements about the gun are inadmissible.
CONCLUSION
For the reasons stated, the Court denies Mr. Densmore's motion to suppress the evidence found during the search of his house and grants his motion to suppress the inculpatory statements he made to Detective Barbin.
DONE and ORDERED this 10th day of July, 2019.
/s/_________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE