Opinion
8:02CR374
September 11, 2003
MEMORANDUM AND ORDER
Introduction
The defendant is charged in an Indictment with possession of a firearm and ammunition after being convicted of three previous felonies in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1). The matter before the court is the defendant's objection, Filing No. 41, to the report and recommendation of the magistrate, Filing No. 34, in which Magistrate Judge Thalken recommends that the court deny the defendant's motion to suppress statements made by Lillard during an interview on July 2, 2002. Lillard contends that motion should be granted because (1) the interview was conducted in violation of Lillard's Sixth Amendment right to counsel, and (2) the statement was not knowingly and voluntarily given. See Filing No. 42. The government did not respond to the defendant's objection.
Standard of Review
Under 28 U.S.C. § 636(b)(1)(C), the court makes a de novo determination of those portions of the report or recommendations to which the parties object. United States v. Lothridge, 324 F.3d 599, 600-01 (8th Cir. 2003). The court has conducted a careful de novo review of the entire record pursuant to 28 U.S.C. § 636(b)(1)(A). The court finds the magistrate's report and recommendation is neither contrary to law nor clearly erroneous. Therefore, the court will adopt the report and recommendation, overrule defendant's objections thereto, and deny the motion to suppress.
Background
The court will specifically adopt the facts as set forth in the magistrate's report and forgo a lengthy rehearsal of events leading to the interview at issue. See Filing No. 34 at 1-3. Briefly, the evidence adduced at the hearing shows that on June 15, 2002, Lillard was brought into the Lancaster County Jail on a charge unrelated to the offense of which he is accused in this case. Lincoln Police Department Officer Brandl contacted the defendant approximately 45 minutes later and asked Lillard to submit to a buccal swab for DNA testing in connection to the current charge. After Lillard refused, Officer Brandl gave Lillard his card and told Lillard to call if he wanted talk. Lillard was appointed counsel at his arraignment on June 17, 2002. Following this initial contact, Lillard testified that he attempted to call Officer Brandl several times. On June 22, 2002, Lillard finally left a voice mail for Brandl stating that he wanted to talk about "the gun thing." Another officer approached Lillard on June 23, 2002, to discuss the current charge, but Lillard refused to speak to him. On July 2, 2002, Officer Brandl went to the jail to conduct an interview with Lillard. Officer Brandl began the interview by explaining and filling out a LPD Miranda warning and waiver form. Lillard signed the waiver and made the statements he now seeks to suppress.
Analysis
The court agrees with Magistrate Thalken's analysis and conclusions in the report and recommendation. Accordingly, the court adopts the report in its entirety and offers only a supplemental analysis to address the defendant's objections.
Right to Counsel
Lillard contends that following the state court's appointment of counsel for him on June 17, his Sixth Amendment right to counsel prohibited any unsolicited post-arraignment interrogation. Lillard argues that when he refused to speak to LPD Officer Staley on June 23, he invoked his right to counsel and any further unsolicited contact was thereafter prohibited, including Officer Brandl's July 2 interview. Nothing in the record, however, indicated that Lillard invoked his right to an attorney on June 23. According to the testimony and the defendant's brief, Lillard did refuse to speak to Officer Staley on June 23. But if Lillard invoked his right to remain silent, then the analysis is more appropriate under the Fifth Amendment, making the matter of whether Lillard solicited Brandl's contact on July 2 moot.Invocation of one's right to silence does not mean that questioning can never be resumed. United States v. House, 939 F.2d 659, 662 (8th Cir. 1991) (citing Michigan v. Mosley, 423 U.S. 96, 106 (1975)). Continued questioning after a defendant's initial refusal to answer questions is not improper if 1) questioning immediately ceases upon the defendant's request, 2) a "significant amount of time" has passed since the last questioning and the officer gives the defendant a new set of warnings, and 3) the second inquiry is about a separate crime. Id. (quoting Michigan v. Mosley, 423 U.S. at 106).
The record firmly establishes that the first two factors are met. The report discussed at the hearing shows Officer Staley's attempted interview on the 23rd ended when Lillard refused to talk. The record also establishes that Officer Brandl conducted his interview on July 2, 2002, ten days later, but only after he gave Lillard his Miranda warnings. Although it appears the officers wished to ask about the same subject matter on both dates, the second interrogation is not rendered unconstitutional simply because it involves the same subject. Id. See also United States v. Finch, 557 F.2d 1234, 1236 (8th Cir. 1977) (statements on the same subject are admissible as long as the right to remain silent is "scrupulously honored"). Furthermore, the defendant testified that Officer Brandl's questioning was not focused only on the gun charges, but also on other criminal activity involving ATM machines. Regardless of the interview's content, Officer Brandl did not engage in the unrelenting, repeated questioning this third factor attempts to prevent. See Jackson v. Wyrick, 730 F.2d 1177, 1180 (8th Cir. 1984). Despite Lillard's previous invocation of his right to remain silent on the 23rd, the second interview on July 2 did not violate the defendant's Fifth Amendment rights. His statements are thus admissible.
Assuming arguendo that Lillard did invoke his right to counsel on the 23rd when refusing to speak with Officer Staley, his claims that the July 2 interview violated the Sixth Amendment are similarly unavailing. Lillard claims his refusal to speak to Officer Staley on June 23 nullified his attempt to initiate contact with Officer Brandl on June 22; Brandl's subsequent interview on July 2 was hence unsolicited and in violation of the Sixth Amendment.
When a suspect "having expressed his desire to deal with the police only through counsel, [the defendant] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). See also United States v. Arrington, 215 F.3d 855, 856 (8th Cir. 2000); Holman v. Kemna, 212 F.3d 413, 417 (8th Cir. 2000). After a defendant invokes the right to counsel, the government cannot establish a valid waiver of that right "`by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.'" Holman, 212 F.3d at 417 (quoting Edwards v. Arizona, 451 U.S. at 484). The purpose behind the rule is "to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Id. See also Michigan v. Harvey, 494 U.S. 344, 350 (1990); Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983).
Lillard contends that once he was afforded counsel the Sixth Amendment prevented any unsolicited contact. However, the Edwards rule does not prohibit all unsolicited contact but rather only "police-initiated custodial interrogation." Holman, 212 F.3d at 417. Brandl's contact with Lillard prior to the waiver is not the badgering, unrelenting interrogation tactic Edwards and Miranda seek to prevent.
A defendant may initiate contact by "evinc[ing] `a willingness and a desire for a generalized discussion about the investigation.'" Id. (quoting Oregon v. Bradshaw, 462 U.S. at 1045-1046). According to the testimony, Officer Brandl, without mentioning the subject of the conversation, asked Lillard if he would talk to him. Lillard testified that he thought Brandl was there to discuss the gun charge since he had called Brandl "to talk to him about this gun situation, the gun thing in other words." TR 49:12-13. After agreeing to speak with Brandl, Lillard signed the waiver form and made the inculpatory statements. Brandl did not use any compulsive tactics or even ask any questions before Lillard signed the Miranda form.
The defendant's arguments that Brandl's contact with him was unsolicited are also unavailing. Brandl, an officer who was not involved with the gun investigation, received a call from Lillard requesting to speak with him. Brandl responded to the call by going to the jail and asking Lillard if he wanted to speak with him. Lillard's refusal to speak with Officer Staley ten days earlier does not imply a refusal to speak with all law enforcement, effectually revoking Lillard's initiated contact. For whatever reason, Lillard chose to speak with Officer Brandl but not Officer Staley, as is made clear by Lillard's waiver of rights after going over the Miranda form. Accordingly, the court finds Brandl's contact with Lillard prior to signing the form did not contravene the holding in Edwards nor the Sixth Amendment.
Waiver
The court must also determine whether subsequent events indicate that the defendant waived the right to counsel. Holman, 212 F.3d at 420. A valid waiver must be both voluntary and knowingly and intelligently made. Id. A voluntary waiver is "the product of a free and deliberate choice rather than intimidation, coercion, or deception. A waiver is knowing and intelligent if it has been made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. "If an accused can voluntarily, knowingly, and intelligently waive his right to counsel before one has been appointed, there seems no compelling reason to hold that he may not voluntarily, knowingly, and intelligently waive his right to have counsel present at an interrogation after counsel has been appointed." Moore v. Wolff, 495 F.2d 35, 37 (8th Cir. 1974).
Lillard claims he thought that he was required to speak with Officer Brandl and that he was led to believe that Officer Brandl would help him out with the firearm charge. Lillard also contends that the jail staff told him that he had an attorney visitor when in fact the visitor was Officer Brandl. He argues that if he had known the visitor was an officer, he likely would have refused to speak with Brandl. The record shows that Officer Brandl gave Lillard his card on the 15th, and told him to call if wanted to talk to him about anything. On approaching Lillard on July 2, Officer Brandl asked Lillard if he wanted to speak with him. There is no evidence that in this approach Officer Brandl engaged in intimidating, coercive, or deceptive conduct. Regardless of what Lillard believes of Officer Brandl's intentions prior to the interview, Lillard agreed to speak with him freely and deliberately. Lillard testified that when Brandl asked if he would talk, Lillard said, "Yeah I'd talk to him," and then went on to sign the waiver. Accordingly, the court finds Lillard's waiver of rights was voluntary.
The court also finds that Lillard's waiver was knowing and intelligent for the same reasons set forth in the report and recommendation. Based on Lillard's previous invocation of rights and his extensive involvement in the criminal justice system, the court finds it hard to believe that Lillard was unaware of the rights he was forgoing in agreeing to speak with Brandl. Furthermore, Lillard's claim that he was misinformed about who his visitor was prior to the interview is inconsequential. Lillard testified that he knew Officer Brandl was an officer and not his attorney, and the Miranda form expressly states that the statements can be used in a criminal proceeding.
Accordingly,
IT IS ORDERED:
1. The defendant's objection, Filing No. 41, to the report and recommendation, Filing No. 34, is overruled;
2. The report and recommendation, Filing No. 34, is adopted in its entirety; and
3. The defendant's motion to suppress, Filing No. 16, is denied