Opinion
CR 05-0264-PHX-SMM (Defendant 14).
November 27, 2006
ORDER
Pending before the Court is Defendant Marcy Harvill's ("Defendant") Motion to Suppress Evidence (the "Motion"). (Dkt. 322.) After carefully considering the briefs filed by the parties, the testimony of witnesses who appeared at the October 31, 2006 hearing, and the oral arguments of counsel, the Court makes the following ruling.
BACKGROUND
Defendant is one of nineteen defendants charged in a 69-count indictment that contains numerous money laundering and drug smuggling charges. Defendant is charged with one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), and one count of making a false statement in a matter within the jurisdiction of a governmental agency, in violation of 18 U.S.C. § 1001. (Dkt. 554 at 5-20, 46.) The false statement was allegedly made by Defendant during an interview held on October 12, 2005, when investigators from the Drug Enforcement Administration (the "DEA"), the Scottsdale Police Department (the "SPD"), and the Internal Revenue Service (the "IRS") executed a search warrant at the home of the Defendant and her husband, Julian Harvill. (Id. at 46.) Defendant's Motion seeks to suppress all of her statements during the October 12 interview, particularly the statement that is the basis of the false statement charge.
The primary purpose of the search warrant executed on October 12 was to obtain documentary evidence related to a drug investigation. Entry into the residence was initially made at approximately 9:20 a.m. by an SPD SWAT team. Although the search warrant was a "no-knock" warrant, a SWAT team member knocked, announced, and then directed Defendant, her husband, her daughter, and a second adult male to the front porch of the residence while the house was cleared for weapons. Neither Defendant nor her daughter were handcuffed at any time, but her husband, a convicted felon, and the second adult male were handcuffed.
At approximately 9:30 a.m., DEA Special Agent Ruben Garcia and other DEA and IRS agents arrived at the residence. The handcuffs were removed from the second adult male and he left the premises. The agents began searching the residence for items in the search warrant and weapons that would present a risk to officer safety. When Agent Garcia arrived, he noticed that the armed SWAT team members wore tactical clothing, but were not brandishing their weapons.
After the living room was cleared of weapons, at approximately 9:45 a.m., Agent Garcia told Defendant and her husband that they were not under arrest. In a conversational tone, Agent Garcia then asked the Defendant whether she would join him in the living room to answer some questions. The Defendant agreed, and followed Agent Garcia and IRS Agent Cory Jenkins into the living room. Agent Garcia sat next to the Defendant on the couch, and Agent Jenkins sat across from them. The other officers were conducting the search and securing the residence, and thus were not present during the interview. Although both were armed, neither Agent Garcia nor Agent Jenkins brandished their firearms. Instead, Agent Garcia took steps to minimize the appearance of his weapon. He was not able to see Agent Jenkins's gun during the interview.
Agent Garcia chose to question the Defendant in the living room because he wanted her to be comfortable and it was a shaded area.
The Defendant was not a suspect at the time of the interview. As a result, Agent Garcia asked the Defendant basic background questions, such as where she grew up, her age, how long she had lived at the residence, and whether she and her husband were employed. When Defendant admitted knowing Alicia Cavallero since grade school, Agent Garcia asked whether the Defendant knew the current location of Cavallero or her boyfriend, Martin Gonzalez, who was a fugitive. Agent Garcia also asked the Defendant whether she had seen Cavallero or Gonzalez in August 2005 when she was in Guadalajara, Mexico with her family. The Defendant denied knowing the current location of Gonzalez and Cavallero and denied seeing them in Mexico in August 2005.
Approximately ten minutes into the interview, Agent Garcia decided to administer Miranda warnings to the Defendant because he doubted the veracity of some on her answers and his goal was to obtain truthful information pertaining to the location of Cavallero and Gonzalez. Agent Garcia read Defendant her Miranda rights and explained that lying to federal agents was a crime. The Defendant agreed to keep talking to the agents, but continued to deny knowledge of the whereabouts of Gonzalez and Cavallero.
The interview ended at approximately 10:05 a.m., because Agent Garcia concluded that the Defendant was not providing truthful information. Agent Garcia did not tell the Defendant he thought she was lying or that he suspected her answers were untruthful, but simply ended the interview. The interview lasted a total of twenty minutes, and the Defendant was an active participant throughout. She never refused to answer a question or asked to terminate the interview, but instead initiated her own questions, such as why the agents wanted to know where Cavallero and Gonzalez were and what charges were pending against them. The Defendant was not permitted to retrieve her cigarettes from the kitchen before the interview, because it had not been cleared for weapons.
After the interview ended, the Defendant joined her husband and daughter on the front porch. Agents attempted to interview Julian Harvill, but he invoked his right to remain silent and returned to the porch. During the following ninety minutes, the Defendant asked more questions and made statements such as, "I hope you're not making a mess in there." The Defendant was accompanied to the restroom by a female agent during this time because the house still had not been cleared of weapons.
Agent Garcia credibly testified that, although the Defendant never asked whether she could leave the premises, she was free to leave at anytime (like the second adult male). If she elected to leave, however, the Defendant would not be permitted to return until the search was concluded. Agent Garcia also presented credible testimony that the Defendant was never threatened by anyone with arrest or physical violence. During the execution of the search warrant, Defendant's daughter primarily remained with her parents on the porch, but was also seen playing with the family dog and interacting with her grandmother, who appeared at the residence during the execution of the search warrant.
Approximately ninety minutes after the interview concluded, Agent Garcia informed Defendant that firearms were found in the residence. The Defendant, who had originally denied the presence of firearms in the residence, stated that her husband had taken the firearms from neighborhood kids for safekeeping. This statement is not the basis for the false statement charge.
Agent Garcia testified that a reservation code was also found during the search, after Defendant had been interviewed. According to Agent Garcia, the code allegedly corresponded to a flight Cavallero was on that was scheduled to arrive in Phoenix that day. This information, as well as the Defendant's statements to Agent Garcia that she did not know the whereabouts of Cavallero, is the basis of the false statement charge. There is no evidence that Agent Garcia or anyone else confronted the Defendant with the information found concerning the alleged arrival of Cavallero in Phoenix.
DISCUSSION
Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny govern the admissibility of statements made during custodial interrogation in both state and federal proceedings. Statements made while a defendant is in "custody or otherwise deprived of [her] freedom of action in any significant way" which are not preceded by Miranda warnings are inadmissible in evidence.Id. at 444."When a claim is made that a person has been subjected to custodial interrogation, [courts] are required to consider whether, under the totality of circumstances, 'a reasonable person in such circumstances would conclude after brief questioning he or she would not be free to leave.'" United States v. Hudgens, 798 F.2d 1234, 1236 (9th 1986), quoting,United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1982). The following five factors are considered in determining an issue of custodial interrogation: (i) the language used by officers in summoning the individual interviewed; (ii) the extent to which the person was confronted with evidence of her guilt; (iii) the physical characteristics of the place where the interrogation occurred; (iv) the duration of the detention; and (v) the degree of pressure applied to detain the individual. United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985); Hudgens, 798 F.2d at 1236. Whether a person is in custody is measured by an objective standard. Berkemer v. McCarty, 468 U.S. 420, 442 (1984) ("only relevant inquiry is how reasonable man in suspect's position would have understood situation").
Language Used to Summon the Interviewee
Agent Garcia credibly testified that he used conversational language to initiate the interview with the Defendant. That is, he asked her whether she would join him in the living room to answer some questions. The evidence is undisputed that, not only did the Defendant agree to answer questions, but she actively participated in the interview by posing her own questions to Agents Garcia and Jenkins.
Contrary to the argument of defense counsel, there is no evidence that the Defendant was directed, ordered or marshaled into the living room to answer questions. Moreover, at no time during the interview did the Defendant refuse to answer questions or ask to leave. Instead, it appears from all of the evidence presented, that she chose to remain in the living room in order to both ask and answer questions.
The Extent to Which the Person Was Confronted with Evidence of Guilt
Even before he asked whether he could talk to her, Agent Garcia informed the Defendant and her husband that they were not under arrest. Although the agents told the Defendant that lying to federal officers was a crime, at no time during the twenty-minute interview did they accuse her of lying or providing false answers. Cf. United States v. Kim, 292 F.3d 969, 977 (9th Cir. 2002) (defendant reasonably could have believed that she was a suspect because police had earlier warned her of criminal aspects of pseudoephedrine sales, they were searching her store and they previously came to her home looking for an employee);United States v. Beraun-Panez, 812 F.2d 578, 580-82 (9th Cir. 1987) (repeated accusations that Defendant was lying supported court's finding that defendant was in custody at time of interrogation). Moreover, given that the primary focus of the agents' questions was the location of Cavallero and Gonzalez, a reasonable person would conclude that the agents suspected those persons of criminal activity.
Indeed, the Defendant even asked the agents what criminal charges were pending against Cavallero and Gonzalez. The only time Defendant was questioned about her answer to a question is when Agent Garcia told her that weapons were found on the premises, which was approximately ninety minutes after the interview concluded. After the Defendant explained that her husband had confiscated the weapons from neighborhood kids for safety reasons, the issue was dropped. The Defendant was not questioned about her other answers, and her earlier statement that there were no firearms in the house is not the basis of the false statement charge against her. See dkt. 554 at 46.
The Court specifically rejects the Defendant's argument that the second prong of the five-factor test is whether the Defendant felt like she was the target of the investigation. Berkemer, 468 U.S. at 442 (whether a person is in custody is measured by reasonable person standard). Moreover, no evidence was presented with respect to whether Defendant felt like she was the target of the investigation. Although the SPD SWAT team did make the initial entry in order to secure the premises, no reasonable person would have concluded that the house was "under siege" when the SWAT team arrived. Indeed, the search warrant was a "no-knock" warrant due to a variety of unusual security risks associated with the premises, but the SWAT team knocked, announced, and then directed the Defendant and her family to the front porch.
These risks included the large lot, the layout of the property, the number of vehicles on the lot, Mr. Harvill's prior felony conviction, and the fact that the Defendant raised pit bull dogs.
Physical Characteristics of the Place Where Interrogation Occurred
The interview at issue here was conducted in the Defendant's living room, while she was seated on the couch. Only two agents were present during the interview, and neither of the agents' firearms were visible during the interview. Although the Defendant was alone during the interview, her husband and daughter were nearby (on the front porch), and there is no evidence that she had difficulty understanding the questions posed to her or that she was in distress. To the contrary, Agent Garcia credibly testified that the Defendant actively participated in the interview by asking her own questions, and that she did seem nervous either before the Miranda warnings were given or afterwards. In addition, he stated that the Defendant's demeanor never changed. These findings weigh against a finding of custodial interrogation. See Hudgens, 798 F.2d at 1236 (finding no custodial interrogation despite fact that interview occurred in "police-looking" vehicle); cf. Beraun-Panez, 812 F.2d at 580-82 (defendant's interview in remote, rural location supported finding that he was in custody).
Contrary to the argument of defense counsel, there is no evidence that the Defendant was "under guard" while she remained on the front porch. Agent Garcia credibly testified that the officer who remained on the front porch was there for security reasons; there is no evidence that the officer was there to prevent the Defendant from leaving. Similarly, the fact that Defendant was not permitted to get her cigarettes from the kitchen does not demonstrate that the physical characteristics of the place where the interrogation occurred were coercive. Rather, when the interview began, the Defendant was not permitted to enter the kitchen because it had not yet been cleared of weapons.
Duration of the Detention
Defendant was detained for less than an hour, from approximately 9:20 a.m., when the SWAT team members directed her to the front porch, until 10:05 a.m., when the interview with Agent Garcia concluded. The actual interview itself lasted approximately twenty minutes. Agent Garcia credibly testified that the Defendant was permitted to leave the premises, but never asked to do so. This testimony is undisputed, and there is no evidence that Defendant was told she could not leave the premises. Given the fact that her residence was being searched, it can reasonably be concluded that Defendant chose to stay in order to make certain that nothing was destroyed and to see whether any evidence was removed from her home. See Michigan v. Summers, 452 U.S. 692, 701-02 (1981) (detention of resident while house was searched was less intrusive because most people would elect to remain during search "in order to observe the search of their possessions"). Although there are no hard and fast rules with respect to the length of a detention, the approximate two hour duration, twenty minutes of which consisted of the interview, weighs in favor of finding no custodial interrogation. See Summers, 452 U.S. at 701-02 (detention of resident while house searched was less intrusive); Hudgens, 798 F.2d at 1237 (finding that interrogation lasted only 45 minutes weighed against finding that defendant's statement was the product of custodial interrogation); cf. Kim, 292 F.3d at 977-78 (finding custodial interrogation when defendant isolated for three hours and interrogated for fifty minutes, thirty minutes of which were without an interpreter and defendant could not speak or understand English well). Degree of Pressure Applied to Detain the Individual
At no time during the search of her residence or during the interview was the Defendant restrained, patted down, physically moved, or verbally threatened with violence or harm to her family. Rather, the Defendant was interviewed in her own living room, and spent the remainder of her time on the front porch with her husband and near her daughter. Although the Defendant was not permitted to get her cigarettes from the kitchen, and was escorted to the restroom by a female agent, both circumstances resulted from the fact that the house had not been cleared of weapons.
Separating a subject from other persons can sometimes be considered psychological coercion, but the Defendant was only separated from her husband during the twenty minute interview and the fact that she felt confidant enough to ask the agents about their investigation and did not appear to be nervous indicate a lack of coercion. In addition, there is absolutely no evidence that any of the agents or officers present at the scene used psychologically coercive tactics to elicit a "confession" from her. Cf. Beraun-Perez, 812 F.2d at 580-82 (defendant subjected to psychological restraints which created an environment from which a reasonable person would believe they were not free to leave). There is no evidence that Defendant's child was "wandering" the premises; the evidence shows that the child remained close to her parents except when she was playing with the dog and her grandmother. Finally, Agents Garcia and Jenkins primarily asked questions about individuals other than the Defendant, and actually provided her an opportunity to retract false statements by telling her that making false statements to federal agents was a crime. See United States v. Bautista-Avila, 6 F.3d 1360, 1364-65 (9th Cir. 1993) (defendant's confession was not rendered involuntary by agent's informing defendant of potential penalty for crime for which he was suspected).
Conclusion
Balancing the five factors set forth in Hudgens, the Court finds that the statements provided by Defendant were not the product of "custodial interrogation."
Relying on Mississippi v. Seibert, 542 U.S. 600, 616 (2004) (trial court must suppress postwarning confessions obtained during a deliberate two-step interrogation where the midstreamMiranda warning was objectively ineffective), and United States v. Williams, 435 F.3d 1138 (9th Cir. 2006), the Defendant argues that her post-Miranda statements should be suppressed because the mid-stream Miranda warnings did not effectively apprise her of her rights. The Court disagrees.
In the present case, the Defendant allegedly made incriminating statements to Agent Garcia during the first ten minutes of the interview. She was then told that lying to federal agents was a crime and was administered Miranda warnings. Questioning resumed immediately thereafter, when the Defendant allegedly provided the same false statements to the same questions. Although the interview was thus a "two-step" procedure, there is no evidence in the record that Agents Garcia and Jenkins deliberately withheld the Miranda warnings during the first ten minutes of the interview in order to undermine Miranda, or that they employed the two-step tactic "to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed." Seibert, 542 U.S. at 611. Indeed, the Defendant here never "confessed" to anything, and Agent Garcia testified without dispute that he administered Miranda warnings and told the Defendant that lying to federal agents was a crime in order to persuade her to provide truthful answers so they could locate Cavallero and Gonzalez.
Moreover there is no evidence that the midstream Miranda warning in the present case failed to effectively apprise the Defendant of her rights. Cf. Williams, 435 F.3d at 1157 (trial court must suppress post-warning confessions obtained during a deliberate two-step interrogation where the midstreamMiranda warning, in light of the objective facts and circumstances, did not effectively apprise the suspect of his rights). Nor is there any evidence that questioning Defendant in her home resulted in involuntary statements.
The Court rejects the Defendant's argument that her statements were involuntary, under 18 U.S.C. § 3501. Under § 3501, in determining the issue of voluntariness, a trial court must consider all of the circumstances surrounding a confession, including (i) the time elapsing between the arrest and arraignment of the defendant making the confession; (ii) whether such defendant knew the nature of the offense with which she was charged or suspected at the time of making the confession; (iii) whether the defendant was advised or knew that she was not required to make any statement and that such statement could be used against him; (iv) whether the defendant had been advised prior to questioning of his right to the assistance of counsel; and (v) whether such defendant was without the assistance of counsel when questioned and confessing.
In the present case, defense counsel conceded that the first factor is inapplicable because the Defendant was not arrested. With respect to the second factor, the evidence is undisputed that the Defendant was not suspected of committing any crime when she was interviewed. Finally, given the Court's finding that the Defendant was not in custody at the time her statements were made, the third, fourth, and fifth factors are not applicable. Moreover, as previously stated, no "confession" is at issue here.
For all of the reasons set forth above, the Court concludes that the Defendant provided voluntary statements during a non-custodial interrogation.
Accordingly,
IT IS HEREBY ORDERED DENYING Defendant Marcy Harvill's Motion to Suppress. (Dkt. 322.)
IT IS FURTHER ORDERED that excludable delay under 18 U.S.C. § 3161(h)(1)(F) is found to commence on June 26, 2006 for a total of 154 days.