Opinion
CRIMINAL ACTION NO. 02-148, SECTION: I
July 19, 2002
ORDER AND REASONS
This matter is before the Court pursuant to a motion by defendant, Enoch Dan Banks, IV, to suppress evidence of a Glock .9 mm semi-automatic handgun, seized on April 18, 2002, subsequent to movant's arrest for violation of conditions of supervised release. Defendant also moves to suppress certain statements made by him in connection with his arrest. For the following reasons, the motion is DENIED.
An evidentiary hearing was held in connection with defendant's motion to suppress on July 17, 2002.
FACTUAL BACKGROUND
On January 5, 2000, Enoch Dan Banks, IV ("Banks") pled guilty to a one-count indictment which charged him with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922 (g)(1). Banks received an eighteen-month prison sentence along with three years of supervised release. On April 9, 2002, an arrest warrant was issued for Banks for violating the terms of his supervised release. Specifically, it alleged that Banks had continued drug usage, failed to submit monthly reports, failed to notify his probation officer of his change of address and failed to make payments towards his special assessment. Banks is 33 years old and a high school graduate.
R.Doc. No. 1.
In addition to the federal conviction, defendant has two prior state convictions and eleven (11) arrests for both state and federal felony and misdemeanor offenses.
R.Doc. No. 10, p. 2.
R.Doc. No. 9, p. 2.
On April 18, 2002, United States Deputy Marshals Dysart, Boudreaux, Hartman and Farrell, attempted to locate Banks at 2200 Clio Street, Apartment 4A, New Orleans, Louisiana. At approximately 6:40 a.m., the deputies knocked on the door of the apartment and identified themselves as law enforcement officers. Several minutes later, Kim Woods, defendant's girlfriend, answered the door and allowed the deputies to enter the premises. The deputies asked her about Banks' whereabouts and Woods was at first reluctant to answer. Eventually', she stated that Banks was in the bedroom to the right. The deputies, guns drawn, called for Banks to come out with his hands up, but there was no response.
Although this was the residence of Banks' girlfriend, Kim Woods, the parties do not dispute that Banks spent the night there regularly.
The deputies conducted a security sweep of the apartment in an effort to locate Banks and any other individuals who might be hiding. Their sweep revealed two teenage girls, Quinyata and Siara Woods, and Quinyata's eleven month old child. The deputies removed the girls and Kim Woods to the living room where they would be safe from any danger.
After sweeping all the rooms, the deputies focused their search on the bedroom on the right hand side where Woods had indicated that defendant was located. Standing outside the bedroom, Deputy Dysart once again called to Banks to come out. Receiving no response, the deputies proceeded to enter the room. Deputy Dysart was first to enter, followed by Deputies Boudreaux and Farrell. As Deputy Dysart was entering the bedroom, he saw the curtain by the closet move. Announcing that he knew defendant was hiding behind the closet curtain, he again called for Banks to come out. Banks responded and he stepped from behind the curtain.
Deputy Dysart testified that the room was fairly dark and small, approximately 8'x10', and furnished with a bed, a dresser, and a chest of drawers.
Deputy Hartman remained with the other occupants in the front of the apartment.
Instead of having doors, the closet had a curtain across the front.
Deputy Dysart told Banks to lay face down on the ground while Deputy Farrell handcuffed him. Once handcuffed, Deputies Farrell and Dysart holstered their guns and assisted Banks to his feet. Deputy Boudreaux had not yet completed his sweep and he was in the process of looking under the bed when Banks, standing by Deputies Farrell and Dysart, stated that there was not anything in the room. Deputy Boudreaux immediately responded, "If you have something in here, just tell us." Banks replied, "I have a nine under the mattress." Understanding Banks' statement not only refer to a nine millimeter handgun, but also as giving him permission to retrieve the same, Deputy Boudreaux raised the mattress and recovered a loaded Glock Model 17, semi-automatic pistol. The firearm contained a hollow-point bullet in the chamber.
At the hearing, Deputy Boudreaux testified that he conducted the sweep to make certain that there were no other individuals hiding in the room who could harm the deputies.
Deputy Boudreaux testified at the hearing that he had not yet completed his protective sweep and that he was concerned about individuals hiding in the room as well as any concealed weapons that could be accessed by any of the apartment occupants.
Deputies Dysart and Boudreaux testified that defendant's statement was completely spontaneous and uncoerced. At the time defendant made his statement, there were no guns pointing at him and defendant had not been subjected to any threats or physical violence.
Significantly, the evidence at the hearing established that it was only a matter of seconds from the time defendant stated that there was not anything in the room to the time defendant identified the gun's location.
Deputy Farrell moved Banks to the kitchen area where Deputy Hartman was interviewing Kim Woods and the other occupants of the apartment. Banks, hearing the interview, stated, "She's got nothing to do with it. The gun is mine."
Although there was no testimony presented at the hearing regarding defendant's second statement, the parties stipulated that the statement was made by the defendant.
Thereafter, the deputies transported Banks to a holding cell at the United States Marshal's Office. Deputy Hartman advised Banks of his Miranda rights in his holding cell and asked if he wished to make a statement. Banks answered in the affirmative. Again, Banks made an oral statement claiming ownership of the firearm. Deputies Dysart and Hartman prepared a waiver of rights form for Banks in an attempt to obtain a written confession. Banks stated that he understood his rights, but he refused to sign the form. Banks refused to make a written statement and the deputies terminated the interview. Banks was subsequently indicted for violating 18 U.S.C. § 922 (g)(1).
It is undisputed by the parties that this was the first time that the defendant was read his Miranda rights that day.
The parties stipulated that this statement was made and, therefore, no testimonial evidence was presented at the hearing regarding the same.
LAW AND ANALYSIS
By virtue of the fact that Banks was an overnight guest at Woods' apartment, the parties do not dispute that Banks is entitled to assert the protections of the Fourth Amendment and its prohibition against unreasonable searches and seizures. See Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 473, 142 L.Ed.2d 373 (1998)("[A]n overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not"). As such, the parties agree that Banks has standing to challenge the admissibility of the evidence obtained in this case.
The parties also do not dispute that the deputies' entrance into Woods' apartment for the purpose of executing the arrest warrant was lawful. See Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)("[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within); United States v. Route, 104 F.3d 59, 62 (5th Cir. 1997).
Warrantless searches are presumed to be unreasonable and the government bears the burden of proving that such a search was necessary. United States v. Blount, 123 F.3d 831, 841-42 (5th Cir. 1997), United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir. 1977), cert. denied, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977) (In general, on a motion to suppress, the burden lies with the defendant to show that his constitutional rights were violated. If the defendant shows that he was subjected to a search without a warrant, the burden shifts to the government to justify the warrantless search).
Upon finding Banks in the bedroom, Deputies Dysart and Farrell handcuffed Banks while Deputy Boudreaux conducted a "protective sweep" of the bedroom. Permission from Woods or the defendant to conduct the sweep was unnecessary. "[A] protective sweep is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officer or others." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L.Ed.2d 276 (1990). Any evidence obtained while properly conducting a protective sweep is admissible. Maryland v. Buie, 494 U.S. at 327-28, 110 S.Ct. at 1094-95. In this case, the government does not allege that the gun in question was found as a result of a protective sweep.
The government further concedes that the gun was not found pursuant to a "search incident to an arrest" given that the gun was found outside of the defendant's immediate reach. See United States v. Johnson, 18 F.3d 293 (5th Cir. 1994) (holding that for evidence to be properly seized pursuant to a search incident to an arrest, the evidence must be in the "area within immediate control" of the suspect). The government maintains, however, that the gun was found while a protective sweep was being conducted.
While Deputy Boudreaux was conducting a sweep and attempting to look under the bed, Banks voluntarily stated that there was not anything in the room to which Deputy Boudreaux responded, "If you have something in here, just tell us." Banks replied, "I have a nine under the mattress." Because this incriminating statement was offered in response to a question by Deputy Boudreaux without the benefit of Miranda warnings, defendant claims that it is inadmissible. The government, however, argues that the statement is admissible as it was made pursuant to a spontaneous dialogue initiated by the defendant. The government further argues that Miranda warnings do not apply and need not precede such spontaneous statements as such statements were not the result of custodial interrogation.
It is well established that "the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during `custodial interrogation' without a prior warning." United States v. Gonzales, 121 F.3d 928, 939 (5th Cir. 1997) (quoting Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 2396-97, 110 L.Ed.2d 243 (1990). The Supreme Court has defined "custodial interrogation" as "`questioning initiated by law enforcement officers after a person has been taken into custody . . .'" Gonzales, 121 F.3d at 939 (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966) (emphasis in original). On the other hand, volunteered statements do not violate the Fifth Amendment and, therefore, are not subject to Miranda warnings. See Miranda v. Arizona, 384 U.S. at 478, 86 S.Ct. at 1630. Consequently, "when a suspect spontaneously makes a statement, officers may request clarification of ambiguous statements without running afoul of the Fifth Amendment." Gonzales, 121 F.3d at 940.
In this case, the deputies handcuffed Banks while Deputy Boudreaux was conducting a protective sweep of the bedroom. Although it is conceded that Banks was in custody when he made the incriminating statement about the gun and its location, the Court finds that his comments were not in response to "questioning initiated by law enforcement officers." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). To the contrary, Banks voluntarily initiated the colloquy, eliciting a response from Deputy Boudreaux who, at the time, was conducting a protective sweep for the very purpose of determining whether there was anything or anybody in the room that could harm the deputies. Under these circumstances, Deputy Boudreaux's request for confirmation that there was not anything in the room was not a "custodial interrogation" for purposes of the Miranda doctrine. It was intended to obtain a clarification and confirmation of defendant's spontaneous statement as the deputies were attempting to secure the residence. Defendant's statement, therefore, should not be suppressed.
Notwithstanding the above, even if Deputy Boudreaux's statement to Banks constituted custodial interrogation, the Court finds that the gun and all subsequent statements should not be suppressed because Bank's reply, which led to the seizure of the gun, was voluntary and uncoerced. In Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 1291, 84 L.Ed.2d 222 (1985), the U.S. Supreme Court emphasized that a violation of the Miranda rule "differs in significant respects" from a violation of the Fourth Amendment which mandates a "broad application of the "fruits' doctrine." "The purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches, no matter how probative their fruits." Id. A Fourth Amendment violation, therefore, taints a subsequent confession unless it can be shown not only that the confession was voluntary, but also that a sufficient break in the events occurred "to undermine the inference that the confession was caused by the Fourth Amendment violation." United States v. Crowder, 62 F.3d 782, 786 (6th Cir. 1995) (quoting Elstad, 470 U.S. at 306, 105 S.Ct. at 1291). In Crowder, the Court went on to state that:
By comparison, unwarned statements made during a custodial interrogation are not admissible, regardless of whether the statements were voluntary or whether a constitutional violation occurred. This automatic exclusion, however, does not extend to evidence obtained as a result of the unwarned statement, because the failure to deliver Miranda warnings is not itself a constitutional violation, and the Miranda presumption "does not require that the statements and their fruits be discarded as inherently tainted." Instead, so long as the unwarned statement was voluntary under the Fifth Amendment, the other evidence is admissible.
A suspect's warned confession, given after he made unwarned and inculpatory statements, is admissible if the unwarned statements were voluntary. In Elstad, the Supreme Court stated that "[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.
Id. (citations omitted).
Elstad's holding has been applied on numerous occasions by the U.S. Fifth Circuit Court of Appeals to prevent the suppression of evidence seized as a result of an "unMirandized," yet uncoerced, statement made by the defendant. See United States v. Mendez, 27 F.3d 126 (5th Cir. 1994) (holding that although the prophylactic rule of Miranda was violated, there was no constitutional violation where the officers' tactics in interrogating the defendant were not coercive and, therefore, the nontestimonial evidence could not be suppressed); United States v. Barte, 868 F.2d 773, 774 (5th Cir. 1989)("A mere violation of Miranda's "prophylactic' procedures does not trigger the fruit of the poisonous tree doctrine. The derivative evidence rule operates only when an actual constitutional violation occurs, as where a suspect confesses in response to coercion."); United States v. Bengivenga, 845 F.2d 593, 600 (5th Cir. 1988)("A violation of Miranda rules, rules fashioned to secure the Fifth Amendment's privilege during custodial interrogation, necessitates only the exclusion of testimonial evidence from the prosecution's case in chief. The . . . nontestimonial physical evidence . . . would not be excludable even if they had been obtained in violation of Miranda."); United States v. Cherry, 794 F.2d 201, 208 (5th Cir. 1986) (holding that Miranda violation did not result in a violation of the defendant's Fifth Amendment right against self-incrimination where statement was voluntary and, therefore, murder weapon was not to be suppressed as "fruit" of the violation).
The proper standard for determining whether the deputies in this case employed coercive tactics for the purpose of eliciting an incriminating statement from Banks is whether the tactics "were so offensive to a civilized system of justice that they must be condemned." Mendez, 27 F.3d at 130; Barte, 868 F.2d at 774 (quoting Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985)). The Supreme Court has further stated, "There is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect's will and the uncertain consequences of disclosure of a "guilty secret' freely given in response to an unwarned but noncoercive question . . ." Estad, 494 U.S. at 312, 105 S.Ct. at 1295.
The Court finds that Banks' statement with respect to the gun and its location was not coerced. The testimony of Deputies Dysart and Boudreaux establish that the deputies legally arrested Banks, he did not resist arrest upon surrendering and he was handcuffed without incident. The testimonial evidence shows that the deputies did not verbally threaten Banks, nor did they use any physical violence against Banks throughout the entire arrest process. Banks initiated the verbal exchange that took place. Banks was familiar with the arrest process having been previously arrested eleven times and convicted three times. Additionally, the statement did not come as a result of a lengthy interrogation. To the contrary, the entire dialogue, from the time Banks made his initial comment that there was not anything in the room to the time he identified the gun and its location, was spontaneous, lasting only a matter of seconds.
In United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598, the Supreme Court stated that, "the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to a search."
In light of the foregoing, it can hardly be argued that the deputies' tactics "were so offensive to a civilized system of justice that they must be condemned." Mendez, 27 F.3d at 130. Considering the totality of the circumstances, the Court finds that Bank's initial confession was voluntary and not the product of police coercion. Accordingly, the facts of this case do not warrant application of the derivative evidence rule.
Banks' second and third statements are admissible in their own right. The second statement was issued in a spontaneous manner, without custodial interrogation, upon Banks hearing Deputy Hartman's interview with Kim Woods. The third statement was also constitutionally obtained, having been made only after being properly Mirandized.
Notwithstanding the Court's finding that Banks' statement was voluntary and uncoerced, the government still has to prove that Banks consented to a search underneath the mattress which resulted in a seizure of the loaded firearm. A search conducted pursuant to consent is one of the well-settled exceptions to the Fourth Amendment's warrant requirement. United States v. Tompkins, 130 F.3d 117, 121 (5th Cir. 1997). The government "always bears the burden of proof to establish the existence of effective consent." Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). Consent to a warrantless search must be voluntary and may be express or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); Unites States v. Jaras, 86 F.3d 383, 390-91 (5th Cir. 1996), rehearing en banc denied, 96 F.3d 764 (5th Cir. 1996). Consent to a warrantless search may be implied by the circumstances surrounding the search or by a person's failure to object to the search. See, e.g., United States v. Varona-Algos, 819 F.2d 81, 83 (5th Cir. 1987), overruled on other grounds, United States v. Jaras, 86 F.3d 383 (5th Cir. 1996); Johnson v. Smith County, 834 F.2d 479, 480 (5th Cir. 1987).
In this case, the government submits that defendant's statement directing them to the location of the gun constituted an implied consent to search underneath the mattress. In United States v. Shannon, 21 F.3d 77, 82, n. 1 (5th Cir. 1994), a case relied upon by the government, the Fifth Circuit addressed this issue and held that the defendant's identification of the exact location of the gun in the room may have led the officers to reasonably believe in good faith that defendant had consented to their entry into defendant's motel room and their seizure of defendant's weapon. The Court cited an earlier decision in United States v. De Leon-Reyna, 930 F.2d 396, 399 (5th Cir. 1991), in which it held that a search is valid if the officers' belief that they had consent, in light of all the circumstances, is objectively reasonable. See also United States v. Stewart, 93 F.3d 189, 192 (5th Cir. 1996)("The standard for measuring the scope of the suspect's consent is objective reasonableness. Recitation of magic words is unnecessary; the key inquiry focuses on what the typical reasonable person would have understood by the exchange between the officer and the suspect.")
R.Doc. No. 12, p. 3.
The evidence presented at the hearing established that the deputies were legally in the bedroom when Banks made the statement, "I have a nine under the mattress." Deputy Boudreaux testified that he understood that statement to mean that there was a nine millimeter gun between the mattress and the boxspring and that he had Banks' permission to retrieve it. Banks did not object to the search. In light of all the circumstances, this Court finds that it was objectively reasonable for Deputy Boudreaux to believe that he had Banks' consent to search for and seize the gun under the mattress, a location identified by the defendant.
Deputy Boudreaux had not yet completed a sweep of the bedroom and he was in the process of looking under the bed when Banks made the statement. Deputy Boudreaux stated that he did not know at that time whether any other suspects who could obtain the gun were hiding in the bedroom or elsewhere in the apartment.
Similarly, the Court finds that Banks' consent was voluntary. Voluntariness is also determined from the totality of the circumstances surrounding the search. United States v. Rivas, 99 F.3d 170, 175 (5th Cir. 1996); United States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995). A court must look to six relevant factors. They include:
(1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found.
United States v. Watson, 273 F.3d 599, 604 (5th Cir. 2001). "No one of the six factors is dispositive or controlling of the voluntariness issue." Tompkins, 130 F.3d at 121. Additionally, "[w]hile knowledge of the right to refuse consent is one fact to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent." Schneckloth v. Bustamente, 412 U.S.218, 219, 93 S.Ct.2041, 2043, 36 L.Ed.2d 854 (1973); Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996) (rejecting the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search); United States v. Drayton, 536 U.S. ___, 122 S.Ct. 2105, 2113 (2002).
The evidence in this case shows that although defendant was clearly in custody at the time of his statement, his consent to the search was nevertheless voluntary. The deputies did not employ any coercive tactics in obtaining the location of the gun. Banks did not resist arrest and, outside of hiding in the closet, he fully cooperated with the deputies. In fact, it was Banks who initiated the verbal exchange that ultimately led to the seizure of the gun.
Banks is a high-school graduate who is familiar with the arrest process having been previously arrested on numerous occasions. Finally, there is no evidence that Banks believed that the deputies would discover the firearm underneath the mattress had he not had told them about its location.
In light of all the evidence presented, the Court finds that Banks' consent to the seizure of the weapon was voluntary. See United States v. Yeagin, 927 F.2d 789 (5th Cir. 1991) (finding consent to be voluntary where, despite the fact that the defendant was handcuffed, the officers were armed, the defendant knew that incriminating evidence would be found if he agreed to the search, and there was no evidence that the officers used any coercion in obtaining defendant's consent to search the room. Defendant was advised of his right to counsel, he was cooperative, and he was a person of average intelligence, capable of making a voluntary choice to consent to the search). Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of defendant, Enoch Dan Banks, IV, to suppress evidence is DENIED.