Opinion
No. 03-40055-01-SAC
September 30, 2003
MEMORANDUM AND ORDER
The case comes before the court on the following pretrial motions filed by the defendant Richard Wayne Delay: Notice of Demand for Rule 404(b) and Rule 807 Evidence (Dk. 23), Motion to Disclose Expert Testimony (Dk. 24), and Motion to Suppress Evidence (Dk. 25). The government has filed a consolidated response. (Dk. 28). On September 16, 2003, a hearing was held. The parties informed the court that the defendant's 404(b) demand and motion for disclosure of expert testimony were moot in light of the government's response. The parties also presented argument and evidence on the motion to suppress and were provided additional time to file supplemental briefs following the hearing. The government subsequently filed a motion to supplement the record with evidence (Dk. 35) to which the defendant has no objection. Having reviewed all matters now submitted and researched the law relevant to the issues, the court is ready to rule.
INDICTMENT
Count one charges the defendant Richard Wayne Delay and his co-defendant Travis Jevon Jackson with possession with the intent to distribute in excess of five grams of cocaine base on March 15, 2003. Count two charges the same two defendants with conspiracy to possess with the intent to distribute in excess of five grams of cocaine base on March 15, 2003.
MOTION TO SUPPRESS (Dk. 25).
ARGUMENTS
In his initial motion, the defendant seeks to suppress all evidence, especially drugs, drug paraphernalia, cellular telephones and currency, seized from room 244 of the Ramada Inn, in Junction City, Kansas on March 15, 2003. In his post-hearing brief, the defendant specifically adds his verbal responses to Officer Espy's questions to the list of evidence to be suppressed.The defendant contends the officers unlawfully entered the motel room and then unlawfully searched the room without a warrant and without the defendant's consent. The defendant further argues that the search exceeded the lawful scope of a search incident to arrest or a protective sweep. The defendant also asserts his statements in response to Officer Espy's questions are involuntary and in violation of Miranda. The government argues the officers' entry into the motel was lawful, and the subsequent search of the room was justifiable and lawful as either a search incident to arrest or a protective sweep. The government disputes that Officer Espy's questions as to ownership of the money amount to interrogation in violation of Miranda and that the defendant's statements were nevertheless voluntary and not the product of coercion.
FACTS
On March 14, 2003, Officer Joseph Espy with the Junction City Police Department was informed through the department that an arrest and detain warrant for parole violations had been issued for the defendant Richard Wayne Delay and that the defendant Delay was staying at the Ramada Limited in Junction City. Officer Espy testified that he knew the defendant Delay in part because he had been involved in at least three prior arrests of the defendant for drug offenses. Officer Espy also knew that the defendant's criminal history included drug trafficking offenses, arrests for violent crimes, and the possession of firearms. Officers attempted to execute the warrant at the motel on the evening of March 14th, but the defendant was not located.
Around 7:30 a.m. on March 15, 2003, Officer Espy and Sergeant Nimmo with the Junction City Police Department went to Ramada Limited and knocked on the door to the motel room registered to the defendant. Officer Espy estimated waiting about one minute before the defendant answered the door. The defendant wearing pants but no shirt opened the door. He was standing in the doorway but inside the room as the officer informed him of the arrest and detainorder for parole violations. Officer Espy told the defendant he was under arrest and instructed him to turn around and place his hands behind his back. The officer then took two steps inside the room, patted down the defendant, and handcuffed him. The officer did not provide the Miranda warning at this time nor at any point relevant to this motion to suppress.
While the defendant was being handcuffed, the officers noticed a women lying in bed under the covers and the co-defendant Travis Jackson also walked out of the bathroom. The woman, who was later identified as Ajiaga Hudson, was directed to get out of bed, and Travis Jackson was told to sit down beside the bed so that officers had a better view of both individuals. Neither Hudson nor Jackson resisted the officers' orders.
Officer Espy found a small amount of cash on the defendant during the pat down. When the officers stepped back from handcuffing Delay, they saw cash in an open drawer. Believing the defendant would need cash to post bail, Officer Espy asked to whom the money belonged. The defendant answered that it was his money, that the cash totaled approximately $140, and that he wanted to take it with him.
The officers then began a protective sweep of the room looking for weapons. Officer Espy saw a bag next to the bed where Ms. Hudson was sitting. In response to the officers' inquiry, the defendant said it was his bag and asked the officers what they were looking for. Upon learning that officers were concerned about weapons, the defendant Delay said his bag contained no weapons and the officers could look through it. Officer Espy searched the bag finding a roll of money in it. Between the beds, Officer Espy saw a second bag to which Travis Jackson admitted ownership and gave consent for its search. Additional cash was found in Jackson's bag.
Upon completing his search of Jackson's bag and setting it on the bed, Officer Espy's gaze fell upon a plastic baggie in the same open drawer where the officer had seen the $140 cash. The plastic baggie contained a substance which Officer Espy recognized as crack cocaine based upon his training and experience. Officer Espy informed the defendant he was under arrest for the crack cocaine as it was located in the same drawer where the officer had found cash which the defendant claimed as his.
Officer Espy then completed his protective sweep by checking for additional persons in the bathroom. Officer Espy observed plastic bags contained crack cocaine protruding from a stack of towels in the bathroom. Upon seeing these drugs in plain view, the Officer Espy arrested Travis Jackson.
STANDING
A person may have a reasonable expectation of privacy in a motel room. See United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991). To demonstrate standing, the defendant must show either that he was the registeredoccupant in lawful control of the room or that he was an invited guest of theregistered occupant. United States v. Gordon, 168 F.3d 1222, 1226 (10th Cir.), cert. denied, 527 U.S. 1030 (1999). There appears to be no dispute that the defendant was a registered occupant of this motel room.
OFFICERS' ENTRY INTO ROOM
The defendant insists the officers did not have consent and did not faceany exigent circumstances that would justify their entry into the room to effectuate the arrest. In a footnote, the defendant summarily argues that the arrest and detain order would not justify entry as demonstrated by the relevant statute, K.S.A. 75-5217(a), it is not the equivalent of a warrant issued by a magistrate. The government responds that motel room threshold is a public place, that the arrest commenced in this public place, and that the officers were justified in completing the arrest inside the motel room. Alternatively, the government argues the arrest and detain order authorized the officers to exercise the same authority possessed byparole officers to arrest without a warrant for parole violations. Finally, the government contends that by statute and case law, the defendant's parole statustranslates into a diminished expectation of privacy insofar as parole officers and those officers acting in their stead pursuant to an arrest and detain order may enter a parolee's residence to make an arrest for a parole violation.
The defendant's challenges to the legality of the officer's entry into the motel room are not well taken. The cursory challenge to the officer's authority pursuant to an arrest and detain order for a parole violation ignores a rather extensive body of law. The defendant is correct that in Payton v. New York, 445 U.S. 573, 590 (1980), the Supreme Court stated the general rule that absent exigent circumstances or consent officers may not enter a defendant's residence to execute an arrest without a warrant. Consent and exigent circumstances, however, are not the only exceptions. There is an exception for "parolees and persons on probation." United States v. Winchenbach, 197 F.3d 548, 553 (1st Cir. 1999) (citing United States v. Cardona, 903 F.2d 60, 67, 69 (1st Cir. 1990), cert. denied, 498 U.S. 1049 (1991)); see United States v. McCarty, 82 F.3d 943, 947 (10th Cir.), cert. denied, 519 U.S. 903 (1996). The Supreme Court in Griffin v. Wisconsin, 483 U.S. 868, 873-75 (1987), recognized that the states' special needs in operating a probation system results in a probationer enjoying only conditional liberty rather than the absolute liberty accorded every citizen. The expectation of privacy of parolees and probationers "is significantly limited by the supervisory relationship and restrictionsimposed on the individual by the State." United States v. Jones, 152 F.3d 680, 686 (7th Cir. 1998) (citing in part Griffin, 483 U.S. at 873-75), cert. denied, 526 U.S. 1059 (1999); see United States v. Knights, 534 U.S. 112 (2001) (holding that the Fourth Amendment requires no more than reasonable suspicion before governmentofficials may search the residence of a probationer who is subject to a probation condition allowing warrantless searches)). Thus, "no less an authority then the Supreme Court has told us straightforwardly that the `special needs' of a state's probation system can justify an intrusion into the home without either a judicial warrant or a demonstration of probable cause." United States v. Cardona, 903 F.2d at 67 (citing Griffin, 483 U.S. at 873-77).
"Because the special needs of parole systems mirror those of probation systems, subsequent courts logically extended the Griffin exception to the warrant and probable cause requirement to searches of parolees as well." United States v. Loney, 331 F.3d 516, 520 (6th Cir. 2003) (citations omitted).
In its uncontested motion to supplement the record, the government supplies the document evidencing the conditions of the defendant's parole or post-release supervision, which included his consent to a search by parole officers of his "person, residence, and any other property." (Dk. 35, Ex. 1, p. 2, ¶ 12).
Pursuant to K.S.A. 75-5217(a), a parole officer in Kansas may arrest a parolee for a parole violation or "may deputize any other officer with power of arrest to do so by giving such officer a written arrest and detain order setting forth that the released inmate, in the judgment of the parole officer, has violated the conditions of the inmate's release." The defendant does not challenge the lawfulness of the arrest and detain order in this case or the statutory authority of Officer Espy in executing it. Considering the defendant's diminished expectation of privacy as a parolee in Kansas, which appears to employ many of the same conditions and procedures for parole used in other states, and considering the defendant's failure to give the court any reason to question the general rule as stated by the First Circuit and cited by the Tenth Circuit with apparent approval in United States v. McCarty, 82 F.3d at 947, the court will follow the rule as stated in Cardona:
Having completed this journey into fourth amendment jurisprudence, we hold that a parolee may be arrested in his own home by a police officer not possessing a judicial warrant when the police officer acts in good faith at the request of parole authorities who, in accordance with a parole regulation, have found reasonable cause to order the individual's detention as a suspected parole violator.
. . . .
. . . [P]olice officers and parole officers are fungible when the former serve as mere implementers of decisions already made by the latter.
. . . .
. . . If police officers function merely as instruments of the parole system, not as law enforcers per se, they should be accorded the same privileges available to other operatives in the system. . . . There is no constitutionally sufficient reason to deny to police officers what is permitted to parole officers when the former limit themselves to serving as functionaries within the system. To hold otherwise would both skew Griffin's holistic focus and discommode the delicate arrangement of policies and concerns which underlie that focus.
. . . The implications of our discussion for the case at bar are inescapable: Griffin governs. Given that the Rhode Island police did nothing more than implement the PVW [parole violation warrant] in good faith as agents, and at the request, of duly constituted parole authorities, acting in pursuance of valid parole regulations, their entry into defendant's dwelling place, and their consequent seizure of contraband in plain view, was unexceptionable.
903 F.2d at 60, 66, 69. Officers Espy and Sergeant Nimmo, as deputized parole officers, lawfully entered the defendant's motel room to execute the arrest and detain order issued for the defendant's violation of his parole conditions. The government has established the officers' lawful entry.
Alternatively, the officers had authority to execute the warrant at the threshold to the motel room, and the officers' entry inside the room to complete the arrest was appropriate under the circumstances. See United States v. Santana, 427 U.S. 38, 42-43 (1976); United States v. Alvarez, 6 F.3d 287, 290 (5th Cir. 1993), cert. denied, 511 U.S. 1010 (1994).
WARRANTLESS SEARCH
The general rule is that a search conducted without a warrant violates the Fourth Amendment subject to certain well-established exceptions. United States v. Karo, 468 U.S. 705, 717 (1984). The burden is with the government to prove that one of the exceptions applies. United States v. Edwards, 242 F.3d 928, 937 (10th Cir. 2001). The Supreme Court recognizes an exception for a search incident to arrest: "[A] lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area." New York v. Belton, 453 U.S. 454, 457 (1981). Another recognized exception is for a protective sweep, that is, "a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327 (1990). The last exception at issue here is the plain view doctrine which allows seizure of evidence without a warrant if "`(1) the officer was lawfully in a position from which to view the object seized in plain view; (2) the object's incriminating character was immediately apparent — i.e., the officer had probable cause to believe the object was contraband or evidence of a crime; and (3) the officer had a lawful right of access to the object itself.'" United States v. Sparks, 291 F.3d 683, 690 (10th Cir. 2002) (quoting United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999)).Search Incident to Arrest
"[T]he scope of a search [incident to arrest] must be strictly tied to and justified by the circumstances which rendered its initiation permissible." Chimel v. California, 395 U.S. 752, 762 (1969) (citations and quotations omitted). Because such a search is intended to further the discovery of concealed weapons and theprotection of evidence from destruction, it "may extend only to the area within the suspect's `immediate control,' as that is the only area from which the suspect could draw a weapon or damage evidence." United States v. Edwards, 242 F.3d at 937(citing Chimel, 395 U.S. at 763, and United States v. Franco, 981 F.2d 470, 472(10th Cir. 1992) ("The scope of the warrantless search under this exception is restricted to the person of the arrestee and to any area into which the arrestee could reach.")).
"[A] search incident to arrest may `encompass a room from which the arrestee has been removed.'" United States v. Hudson, 100 F.3d 1409, 1419 (9th Cir. 1996) (quoting United States v. Turner, 926 F.2d 883, 887-88 (9th Cir.), cert. denied, 502 U.S. 830 (1991)), cert. denied, 522 U.S. 939 (1997). Thus, when the occupant of a motel room is arrested at or near the entrance to the room, officers may conduct "a limited, warrantless search of a motel room incident to the lawful arrest of its occupants." United States v. Burns, 624 F.2d 95, 101 (10th Cir.) (officers searched the room with a narcotics dog), cert. denied, 449 U.S. 954 (1980); see United States v. Anthon, 648 F.2d 669, 676 (10th Cir. 1981), cert. denied, 454 U.S. 1164 (1982). On the other hand, when the occupant of a motel isarrested in the hallway or outside of the room, the arresting officers acting without the occupant's consent or request may not forcibly move the occupant to the motel room in order to justify a warrantless search of the motel room. United States v. Anthon, 648 F.2d at 674-676.
"[A] search incident to arrest may justify the opening of containers found within the physical area covered by the search." United States v. Hudson, 100 F.3d at 1419. As to the area within an arrestee's control, the Tenth Circuit has said the following:
"[T]he fact that the defendants were handcuffed by the time the second pillow was removed is only one of the factors to be considered. The question whether an area searched is within the arrestee's immediate control also depends on a number of other factors, such as the relative numbers of officers and arrestees on the scene, the relative positions of the arrestees and officers vis-a-vis the place to be searched, and the ease or difficulty the arrestee will encounter in attempting to gain access to the searched area. 1 Wayne R. LaFave Jerold R. Israel, Criminal Procedure § 3.6(c), at 265-66 (1984); see also United State v. Lucas, 898 F.2d 606, 609-10 (8th Cir.) (employing "totality of circumstances approach" to case involving handcuffed arrestee), cert. denied, 498 U.S. 838 (1990). Moreover, in determining whether an officer has correctly gauged the chances of an arrestee reaching hidden weapons or evidence, we must remember that
[c]ustodial arrests are often dangerous; the police must act decisively and cannot be expected to make punctilious judgments regarding what is within and what is just beyond the arrestee's grasp. Thus, searches have sometimes been upheld even when hindsight might suggest that the likelihood of the defendant reaching the area in question was slight.United States v. Lyons, 706 F.2d 321, 330 (D.C. Cir. 1983).
United States v. Parra, 2 F.3d 1058, 1066 (10th Cir.), cert. denied, 510 U.S. 1026 (1993). The Supreme Court in Chimel authorized officers to search for and seize evidence from the immediate area "into which an arrestee might reach in order to grab a weapon or evidentiary items." 395 U.S. at 763. Indeed, "[a] gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested." Id. "`Chimel does not require the police to presume that an arrestee is wholly rational. Persons under stress may attempt actions which are unlikely to succeed.'" United States v. Parra, 2 F.3d at 1066-67 (quoting United States v. McConney, 728 F.2d 1195, 1207 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984)).
Besides geographical limitations, a search incident to arrest is subject to a temporal restriction. United States v. Edwards, 242 F.3d at 937. If the rationale no longer exists because the defendant was removed from the scene or otherwise secured away from the area, then a search incident to arrest is not a validexception to the warrant requirement. United States v. Edwards, 242 F.3d at 937; see United States v. Myers, 308 F.3d 251, 266-67 (3rd Cir. 2002). To fall within this exception, the search must be "substantially contemporaneous." United States v. Morgan, 936 F.2d 1561, 1580 (10th Cir. 1991) (quotation omitted), cert. denied, 502 U.S. 1102 (1992).
Protective Sweep
A protective sweep is a brief search of premises during an arrest to ensure the safety of those on the scene. Maryland v. Buie, 494 U.S. at 327. It is constitutional if the officers had "a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others. " Id. (internal quotations omitted). The justification for this intrusion is the "interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack." Id. at 333. The search must be "narrowly confined to a cursory visual inspection of those places in which a person might be hiding," id. at 327, and may last "no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises," id. at 335-36.
Plain View
There are three requirements to the plain view doctrine which allows an officer to seize evidence without a warrant: "`(1) the officer was lawfully in a position from which to view the object seized in plain view; (2) the object's incriminating character was immediately apparent — i.e., the officer had probablecause to believe the object was contraband or evidence of a crime; and (3) the officer had a lawful right of access to the object itself.'" United States v. Sparks, 291 F.3d at 690 (quoting United States v. Carey, 172 F.3d at 1272).
Consent to Search
"Consent to search may be voluntary even though the consenting party is being detained at the time consent is given." United States v. Doyle, 129 F.3d 1372, 1377 (10th Cir. 1997) (citation omitted). Voluntariness is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). The burden is with the government to prove the consent was voluntary. United States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999). "The government must show there was no duress or coercion, express or implied, that the consent was unequivocal and specific, and that it was freely and intelligently given." United States v. Hernandez, 93 F.3d 1493, 1500 (10th Cir. 1996) (citations omitted).
Analysis
As a lawful part of the arrest, the officers searched the area within the defendant's immediate control from which he could access weapons or destroy evidence. The officers properly looked into an open dresser drawer near the defendant and found money. During the arrest, the two officers learned that the motel room was occupied by not only the defendant but by at least two other persons. The officers also asked about ownership of bags within the immediate vicinity of the other occupants in order to determine if concealed weapons were found there. Based on the known history of the defendant, the officers were justified in their concern for concealed weapons. The uncontested evidence at the hearing establishes that the defendant acknowledged ownership, denied the presence of weapons, and voluntarily consented to Officer Espy's search of his bag. The defendant has not shown standing to challenge the consensual search of Jackson's bag.
After completing the search of Jackson's bag, Officer Espy observed in plain view in an open drawer a package that appeared to contain cocaine. Since the defendant Jackson had emerged from the bathroom during Delay's arrest, the officers would have a reasonable belief that the bathroom could contain other persons who could pose a risk to them. They were justified in entering the bathroom and making a cursory visual inspection for other occupants. Of course, the officers could seize any incriminating evidence in the bathroom that was in plain view. From Officer Espy's testimony at the hearing, the court concludes that at all times relevant here the officer was lawfully in the position from which he viewed the items that he immediately recognized as plastic bags containing illegal drugs. The court denies the defendant's motion to suppress the physical evidence obtained during the searches of the two bags and found in plain view during the search incident to arrest and during the protective sweep of the motel room.
DEFENDANT'S STATEMENTS
After handcuffing the defendant, Officer Espy asked the defendant several questions. Upon seeing some cash in an open dresser drawer, Officer Espy asked to whom the money belonged. The defendant said the money was his and estimated the money totaled $140.00. Officer Espy testified that he asked about this money, because he believed the defendant would need the cash for bail. The defendant seeks to suppress this statement as a Miranda violation and involuntary statement. When Officer Espy as part of his protective sweep subsequently asked who owned the bag nearest the bathroom, the defendant answered it was his bag and consented to the officer's search of it. After later spying the drugs in the same drawer, Officer Espy accused the defendant of knowing about the drugs, and the defendant seeks to suppress any statement he made in response to this interrogative statement.
The defendant does not refer to this question or answer in his motion to suppress.
In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." There are two requirements that trigger Miranda: (1) "the suspect must be in `custody,' and [(2)] the questioning must meet the legal definition of `interrogation.'" United States v. Ritchie, 35 F.3d 1477, 1484 (10th Cir. 1994) (quoting United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993)). There is no question that the first requirement is met here, but the government argues that Officer Espy's inquiry about ownership of the money found in the drawer does not amount to interrogation.
For purposes of Miranda, interrogation "refers not only to expressquestioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). It is said that "Miranda applies only if an individual is subject to `either express questioning or its functional equivalent.'" United States v. Davis, 40 F.3d 1069, 1078 (10th Cir. 1994) (quoting Rhode Island v. Innis, 446 U.S. at 300-01), cert. denied, 514 U.S. 1088 (1995).
"Volunteered statements of any kind are not barred by the FifthAmendment." Miranda, 384 U.S. at 478. Thus, absent a showing of coercion or other misconduct by law enforcement, an arrestee's volunteered statements made before receiving the Miranda warning may be used against him. Rhode Island v. Innis, 446 U.S. at 300-02. "If a person voluntarily speaks without interrogation by an officer, the Fifth Amendment's protection is not at issue, and the statements are admissible." United States v. Muniz, 1 F.3d 1018, 1022 (10th Cir.), cert denied, 510 U.S. 1002 (1993).
Even when a defendant's Miranda rights are not violated, the court must still conduct a Fifth Amendment inquiry into the voluntariness of any statements. United States v. Roman-Zarate, 115 F.3d 778, 783 (10th Cir. 1997). The court looks to the totality of the circumstances in determining whether the statements were voluntary. United States v. Glover, 104 F.3d 1570, 1579 (10th Cir. 1997). In considering whether a statement is of free will, the courts look to several factors, including: "(1) the characteristics of the defendant: age, education, intelligence, and physical and emotional attributes; (2) the circumstances surrounding the statement, including the length of detention and questioning and the location of questioning; and (3) the tactics, if any, employed by officers. (citationsomitted). In no case, however, is any single factor determinative." United States v. Chalan, 812 F.2d 1302, 1307 (10th Cir. 1987), cert. denied, 488 U.S. 983 (1988). Coercive police activity is a necessary predicate to a finding that a confession is not voluntary within the meaning of the due process clause. See Colorado v. Connelly, 479 U.S. 157, 167 (1986).
Upon arresting the defendant for a parole violation, Officer Espy would not have know that ownership inquiries about a relatively small amount of cash found in an open drawer would be reasonably likely to elicit any incriminating response. Considering that several persons occupied the motel room and the resulting need to protect the arrestee's property rights and himself from later accusations about lost property, Officer Espy was justified in making this inquiry that was more informational in purpose than inculpatory. See United States v. Conley, 156 F.3d 78, 84 (1st Cir. 1998). In answering the ownership inquiries, the defendant would not have perceived his admission to owning the money or the bag as implicating himself in any criminal conduct. Nor do these inquiries appear to have been designed to induce an inculpatory remark or to implicate the defendant in any criminal activity. If anything, the circumstances indicate that Officer Espy asked these questions for the benefit of the defendant and not to elicit any incriminating response. It would be unreasonable under the circumstances to hold Officer Espy accountable for the unforeseen incriminatory nature of the defendant's response to a straightforward, non-incriminating question. See United States v. Mullen, 2003 WL 21774016 (10th Cir. Aug. 1, 2003). Thus, the court concludes that the defendant's responses to the ownership inquires were not the product of interrogation and that there was no Miranda violation. As for any response by the defendant to the officer's subsequent statement about finding drugs, the court finds such a statement to have been reasonably likely to elicit an incriminating response. The court suppresses any statement made in response to that interrogation about the drugs.
The court finds that the defendants' ownership statements were voluntary. There is no evidence of coercive police activity. The circumstances of the defendant's responses show they were a product of his free will. Considering all the relevant facts and circumstances, the court finds no basis or cause for questioning the voluntariness of the defendant's statements. The officers' actions and words were not coercive. They did not use physical force, threatening words, or intimidating gestures.
IT IS THEREFORE ORDERED defendant Richard Wayne Delay's Notice of Demand for Rule 404(b) and Rule 807 Evidence (Dk. 23) and Motion to Disclose Expert Testimony (Dk. 24) are denied as moot;
IT IS FURTHER ORDERED that the defendant Delay's Motion to Suppress Evidence (Dk. 25) is granted as to his post-arrest statements made at the motel room in response to the officers' interrogation about drugs and is denied in all other respects.
IT IS FURTHER ORDERED that the government's uncontested motion to supplement the record (Dk. 35) is granted.