Opinion
Criminal No. 03-245 (JRT/FLN)
January 23, 2004
Lisa A. Biersay, Minneapolis, MN, for plaintiff
Jordan S. Kushner, Minneapolis, MN, for defendant
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Defendant Eugene Carl Hathaway was indicted for bank robbery, forcible accompaniment to avoid apprehension for bank robbery, and intimidation of a witness to hinder communication with law enforcement. Hathaway moved to suppress evidence and statements and moved to dismiss one count of the indictment for failure to state an offense. In a Report and Recommendation dated December 23, 2003 ("RR"), United States Magistrate Judge Franklin L. Noel recommended that defendant's motion to suppress fruits of an unlawful search and seizure be denied and that defendant's motion to suppress statements be granted as to a statement made on June 14, 2003 and denied as to a statement made on June 16, 2003. Finally, the Magistrate Judge recommends that the motion to dismiss the indictment for failure to state an offense be denied. The Court has conducted a de novo review of defendant's objections pursuant to 28 U.S.C. § 636 (b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the Report and Recommendation of the Magistrate Judge.
The Recommendation portion of the RR mistakenly refers to the June 15 statement. It is clear from record that the disputed statement was taken on June 16.
The Magistrate Judge also recommends that defendant's oral motion to suppress photo identification be denied. There being no objection to this portion of the Report and Recommendation, the Court adopts that recommendation.
BACKGROUND
The Court will discuss only the background relevant to the instant motion. The Magistrate Judge thoroughly discussed the background in this matter, and the Court incorporates that discussion by reference. See RR at 1-11.
On June 14, 2003, a robbery was reported near Highways 7 and 101 in Minnetonka. Law enforcement officers received information about the bank robbery and a general description of the suspect. The suspect was described as a black male, wearing a bandana, a white glove, and a black shirt. Sergeant Jerry Cziok of the City of Minnetonka Police Department responded to the notification by proceeding to the intersection of Highway 7 and Williston Road. Cziok observed a man he thought might fit the description of the suspect driving a blue Tahoe. Cziok followed the Tahoe; and as he was doing so, Officer Christine Mack radioed information that the suspect vehicle was a black Suburban. Cziok continued to follow the Tahoe, which he testified is similar in appearance to a Suburban. Cziok also ran the license plates of the Tahoe and requested assistance. Cziok observed that the Tahoe was speeding and the right tire kept going over the lane line (the Tahoe was traveling in the left lane). Cziok also testified that he believed the driver had seen him, because the driver kept looking back at Cziok. Cziok was driving a marked police car, but the car did not have lights on top.
Once Cziok had backup, he put his lights up to stop the Tahoe. The driver briefly applied the brakes and then attempted to evade the police by speeding away and driving erratically. After a chase, the left tires of the Tahoe blew out and the vehicle stopped. The driver opened the door, ran across the median and across a railroad track, over a fence, and into a lumberyard. Cziok followed the suspect into the lumberyard. Other law enforcement personnel were brought in from Hopkins, St. Louis Park, Edina and Minnetonka. Officers searched the lumberyard for about 45 minutes, but did not find the suspect.
During this time, Mack was holding a perimeter around Washington Avenue between the lumberyard and a Supervalu store. Mack spoke to individuals leaving the store to verify identities. A man approached her and told her his car had broken down, but he did not want any help. When Mack saw the man from behind, she thought she recognized him and told him not to leave. In response, the man swung or swore at Mack and started running away. Mack called for help; she pursued the man and had brief physical contact with him, but ultimately lost him in the neighborhood surrounding the lumberyard.
Hopkins police officer Matthew Thomas Struck was involved in the search and arrest of Hathaway. Struck indicated that he was one of the officers to establish a perimeter around the neighborhood where the suspect was last seen. As the officers positioned themselves around the neighborhood, a taxi approached and asked an officer where the address 319 Adams could be found. The officers requested that the taxi driver pick up the passenger at 319 Adams and then allow the police to stop him. The officers then began monitoring the house at 319 Adams.
A black male left the house at 319 Adams and got into the cab. Officers immediately stopped the cab and told the passenger to exit the vehicle. The passenger exited the vehicle; he was ordered to stop, but officers testified that it was clear to them that the passenger was not going to stop. Upon exiting the taxi, the passenger lifted his fists and assumed a "fighting stance." The officers testified that it looked like the passenger was going to flee, and in fact, he ran about five to ten feet before the officers attempted to restrain him. The officers endeavored to physically restrain the passenger. After about a minute-long struggle, during which an officer used his taser to subdue the suspect, the suspect acquiesced to having his hands cuffed behind his back.
At the time the officers apprehended the suspect, they had a description of him that included race, height, and build. The suspect was reported to have been wearing black windbreaker-type pants, a gray shirt, and a red bandana. When officers arrested defendant after he exited the taxi, he was wearing several layers of pants, and a white shirt.
Defendant was then transported to the Minnetonka Police Department. Defendant initiated a conversation with one of the transporting officers. The officer told defendant that he had not been advised of his rights, and that she was not interested in his story. However, defendant kept talking, and asked questions about bank robberies, and asked if the FBI usually became involved in bank robbery investigations. Defendant was booked at the Minnetonka Police Department. Later that afternoon, defendant was questioned by Investigator Saba and Sergeant Kuyper. The Magistrate Judge suppressed the statements made by defendant during this interrogation. The Magistrate Judge determined that defendant invoked his right to remain silent, and the government did not meet its burden that the defendant's invocation of his Fifth Amendment rights were "scrupulously honored" by the investigating officers. The Magistrate Judge found that the audio and videotape demonstrated that the officers did not cease to question the defendant after he invoked his Fifth Amendment rights.
Defendant was questioned on June 16 by Special Agent Steven Sims of the FBI. Agent Sims testified that he interviewed defendant at the Hennepin County Adult Correctional Facility around 10:00 a.m. Agent Sims testified that he first read defendant his Miranda rights from a form. Sims testified that as he read each right, he asked defendant if he understood. Sims testified that defendant indicated he understood each right, and further that defendant indicated he wanted to waive his rights and speak to Sims. Sims testified that his usual practice is to ask interviewees to sign a waiver form, which indicates that the interviewee understands his or her Miranda rights, and waives them. On this occasion, however, Sims testified that he forgot the form.
ANALYSIS
I. Probable Cause to ArrestDefendant first argues that the police did not have probable cause to arrest him on June 14. As the Magistrate Judge noted, probable cause to arrest exists when police "have knowledge of facts and circumstances grounded in reasonably trustworthy information sufficient to warrant a belief by a prudent person that an offense was being committed or had been committed by the person to be arrested." United States v. Oropesa, 316 F.3d 762, 768 (8th Cir. 2003) (citation omitted); United States v. Wajda, 810 F.2d 754, 758 (8th Cir. 1987). Defendant suggests that although the Magistrate Judge announced the correct legal standard, the Magistrate Judge erred when he found that the standard was met in this instance. Specifically, the defendant suggests that the Magistrate Judge's conclusion that defendant "fit the general description of the bank robber" was not supported by the record. Defendant suggests that the only thing he had in common with the description of the bank robber was his race. The Court disagrees with defendant's characterization of the record, and finds that the standard for probable cause for a warrantless arrest was met in this case.
The arresting officers had information that the bank robbery suspect was a black man, approximately six feet in height. The Magistrate Judge took notice that defendant is under five feet ten inches. However, a description that a suspect is approximately six feet tall fairly encompasses individuals who are a few inches shy of six feet. See Pasiewicz v. Lake County Forest Pres. Dist., 270 F.3d 520, 522, 524-25 (7th Cir. 2001) (probable cause to arrest suspect who "resembl[ed]" but did not exactly match witnesses' descriptions as to age, height, weight, and hairstyle); United States ex rel. Hollman v. Rundle, 461 F.2d 758, 759 (3d Cir. 1972) (probable cause to arrest suspect who matched physical description of bank robber). The arresting officers also had information regarding what the bank robbery suspect was wearing. That description did not match what defendant had on at the moment of arrest. However, the officers knew that the suspect had been at large for a sufficient amount of time to change his clothing. In addition, the officers noted that defendant had on more than one layer of pants at the time of arrest. United States v. Carpenter, 342 F.3d 812, 814 (7th Cir. 2003) (noting that "the fact that the clothing [defendants] were wearing when [police] spotted them several hours after the robbery did not more specifically match the police report's description of the robbers' clothing does not undermine probable cause. On the contrary, it is generally assumed that robbers will change their clothes after the crime to avoid being recognized.").
The officers knew that the suspect was in the neighborhood in which defendant was arrested, and also knew that he had fled on foot. Therefore, the fact that defendant apparently summoned a taxicab contributed to the "facts and circumstances" that could lead a reasonable officer to believe the defendant was the suspect. Finally, the defendant attempted to flee when confronted by the officers. Although flight, standing alone, cannot satisfy probable cause required for arrest, in this case, defendant's attempt at flight contributed to the totality of the circumstances. United States v. Matthews, 278 F.3d 560, 562 (6th Cir. 2002) (noting that "`flight in the face of a clear showing of lawful authority supplie[s] . . . a reasonabl[e] susp[cion] that [the suspect] was engaged in criminal activity.'") (alterations in original) (quoting United States v. Pope, 561 F.2d 663, 668 (6th Cir. 1977)).
The Magistrate Judge correctly concluded that the arrest was lawful. Defendant's objection on this ground is overruled, and the Court adopts the Magistrate Judge's recommendation.
II. June 16, 2003 Statement
Defendant argues that the statement he made to FBI Agent Sims on June 16 must be suppressed because he did not receive the Miranda warning before Sims instigated the conversation. The Magistrate Judge determined that Sims had given the Miranda warning, and that defendant waived his rights, because defendant did not argue that he had not received the Miranda warning. Defendant was present and represented by counsel at the August 6 hearing, and was again present and represented by counsel at the November 20, 2003 hearing. Defendant did not indicate at either hearing that the June 16 statement was taken in violation of Miranda. Defendant requests that the Court reopen the hearing to allow him to introduce evidence in support of his position that Agent Sims failed to administer the Miranda warning.
28 U.S.C. § 636(b)(1) provides: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. . . . The judge may also receive further evidence or recommit the matter to the magistrate with instructions." The Supreme Court, citing extensive legislative history, determined that this language permitted, but did not require, a district court to re-hear evidence before adopting or rejecting a magistrate's recommendation as to a dispositive matter. See United States v. Wipf, No. 03-111(JRT/RLE), 2003 WL 22283380, *4 (D. Minn. Sep 25, 2003) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
Several circuits have held that a district court may, in its discretion, consider evidence presented for the first time in a party's objection to the magistrate judge's recommendation. See Wipf, 2003 WL 22283380 at *4 (citing United States v. Howell, 231 F.3d 615, 622 (2000)); Freeman v. County of Bexar, 142 F.3d 848, 850-53 (5th Cir. 1998); United States v. Meyer, 157 F.3d 1067, 1078 (7th Cir. 1998); Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988)). Courts emphasize that to find otherwise would "effectively nullify the magistrate judge's consideration of the matter," "would not help to relieve the workload of the district court," and "might encourage sandbagging." Howell, 231 F.3d at 622 (quoting Paterson-Leitch, 840 F.2d at 990). See also Morris v. Amalgamated Lithographers of America, Local One, 994 F. Supp. 161 (S.D.N.Y. 1998); Anna Ready Mix, Inc. v. N.E. Pierson Const. Co., Inc., 747 F. Supp. 1299, 1302 (S.D. Ill. 1990) (all finding decision to admit supplemental evidence discretionary and generally disfavored).
The district court is not obligated to accept new evidence; the decision to reopen a suppression hearing lies within the district court's discretion. United States v. Tzakis, 736 F.2d 867 (2d Cir. 1984). Courts consider factors such as whether the moving party has proffered newly discovered evidence that was unknown to the party and could not through due diligence reasonably have been discovered by the party at the time of the original hearing. United States v. Oates, 445 F. Supp. 351, 353 and n. 2 (E.D.N.Y. 1978); see also Tzakis, 736 F.2d at 872 (denying motion to reopen for defendant's failure to adduce "any significant, new factual matters that would have been developed at such a hearing"); United States v. Quiroz-Carrasco, 565 F.2d 1328 (5th Cir. 1978) (trial court acted within its discretion in refusing to reopen matter of suppression of evidence to hear additional evidence that could have been presented at previous hearing).
In Howell, the defense moved for an evidentiary hearing regarding suppression of the confession on Miranda grounds, but provided no factual information to support the motion. The magistrate judge refused to hold the hearing and recommended denial of the motion to suppress. The defense then objected to the magistrate judge's recommendation and provided, attached to the objection, factual information supporting the motion to suppress. The district court properly refused to consider the supplemental evidence because the evidence had been presented for the first time in the objection but was available to the defense well before the proceedings before the magistrate judge. Howell, 231 F.3d at 623.
This case presents a similar situation, but here, the Magistrate Judge did in fact hold a hearing on the issue, and the defendant had an opportunity to cross-examine the FBI Agent regarding the disputed statement. On the other hand, unlike in Howell, counsel for the defendant notes that he was not the attorney of record during the initial hearing. He reviewed the transcript of the initial hearing, but due to an oversight by the court reporter, the transcript was not complete, and contained no testimony of Agent Sims. Counsel suggests that because he was unaware that the government had offered testimony regarding the constitutionality of the June 16 statement, he did not consult with his client about the statement, and did not bring up this argument during the November 20 hearing.
The Court does not doubt counsel's recitation of events. Nonetheless, the defendant has not indicated what newly discovered evidence would be offered if the Court allowed the hearing to be reopened. Defendant's knowledge of whether he was Mirandized is not dependent upon what counsel represents him. Defendant has not indicated that the evidence is in any way "new" or that it was not available to him at the earlier hearing. It appears that the "evidence" would be testimony from defendant that he was not, in fact, Mirandized before the June 16 statements was taken. Such evidence cannot fairly be characterized as "newly discovered." Defendant was represented by experienced counsel at both hearings. He had an opportunity to testify, and to alert counsel that he believed Agent Sims was misrepresenting what occurred during the interview. His failure to do so does not warrant the re-opening of the hearing.
Defendant also argues that the Eighth Circuit has misconstrued Supreme Court precedent regarding Miranda warnings. Specifically, defendant critiques the Eighth Circuit's interpretation of the Supreme Court's opinion in Michigan v. Mosely, 423 U.S. 96, 104-07 (1979). The defendant in Mosely was arrested for robbery. A police officer advised Mosely about his Miranda rights, and then began to question him about the robbery. The defendant responded by saying that he did not want to answer any questions, and the officer promptly ceased the interrogation. Two hours later another police officer met with the defendant and, after advising the defendant of his Miranda rights, began to question the defendant about a shooting that was entirely unrelated to the robbery. The defendant then made a statement implicating himself in the shooting. The defendant moved to suppress his incriminating statement on the grounds that, under Miranda, it was constitutionally impermissible for one police officer to question him about a murder after he had told another officer that he did not want to answer any questions about a robbery. The trial court denied the motion and the state appellate court reversed, holding that the second officer's interrogation was a per se violation of the Miranda doctrine because any subsequent communication between a police officer and a suspect was unconstitutional after the suspect had invoked a right to remain silent.
The United States Supreme Court reversed. The Court endeavored to strike a balance between the idea that "permit[ting] the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda", and the notion that invoking one's right to silence might irrationally create "a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation." Id. at 102. The Court concluded "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.'" Id. at 104. In determining that Mosley's right was "scrupulously honored," the Court noted three factors in support: (1) the police immediately ceased interrogation when defendant invoked his right to remain silent, (2) questioning was resumed only after the passage of a significant period of time and only with the provision of a fresh set of warnings, and (3) the second interrogation was restricted to a crime that had not been a subject of the earlier interrogation. Id. at 105-06.
In Brown v. Caspari, 186 F.3d 1011, 1014-15 (8th Cir. 1999) the Eighth Circuit applied the Michigan v. Mosley factors and held that a second interrogation did not violate the defendant's Fifth Amendment right to remain silent. The Eighth Circuit first noted that the police immediately ceased the interrogation once the defendant invoked his right to remain silent and did not resume questioning petitioner until a significant period of time had expired and provided a fresh set of Miranda warnings before resuming the interrogation. Id. at 1014-15. Although the second interrogation involved the same subject matter, the Eighth Circuit held that the second interrogation did not violate the defendant's rights. The Court reiterated that "a second interrogation is not rendered unconstitutional simply because it involves the same subject matter discussed during the first interview." Id. (citation and quotation marks omitted).
This case presents a nearly indistinguishable issue — the only disputed Michigan v. Mosley factor is whether the second interrogation involved the same subject matter. Although it is clear to the Court that both interrogations related to the bank robbery, as the Eighth Circuit consistently holds, simply involving the same subject matter is not enough to render a second interrogation unconstitutional. The Magistrate Judge correctly applied Michigan v. Mosley as that case has been interpreted by the Eighth Circuit. Therefore, defendant's motion to suppress the June 16 statement is denied.
III. Count III of the Superseding Indictment
Count III of the indictment alleges that defendant, "did, by using intimidation, intend to hinder, delay, and prevent R.A. (a minor) from communicating to a law enforcement officer information . . ." in violation of 18 U.S.C. § 1512(b)(3). Defendant claims that Count III must be dismissed because the indictment does not mention that the interference was with a federal officer. Section 1515 defines "law enforcement officer" as "an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an advisor or consultant." Defendant argues that despite the definition provided in § 1515, the indictment fails to plead an essential element.
The Magistrate Judge rejected this argument and reasoned that the indictment was specific enough for defendant to prepare a defense to the Count. The Magistrate Judge further noted that it is the statute, not the indictment, that provides the definition of law enforcement officer. Finally, the Magistrate Judge noted that the government must establish, at trial, that defendant interfered with a federal officer.
After considering the issue de novo, the Court agrees with the Magistrate Judge's analysis and conclusion. It would have been preferable for the indictment to explicitly state "federal officer" but the failure to do so does not require dismissal of the Count. "[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Zangger, 848 F.2d 923, 925 (8th Cir. 1988). Further, a defect in the indictment gives rise to the constitutional right not to be tried only when it is "so fundamental that it causes . . . the indictment no longer to be an indictment . . ." Midland Asphalt Corp. v. United States, 489 U.S. 794, 802 (1989). Defendant's motion to dismiss Count III is denied.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES defendant's objections [Docket No. 46] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 43]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's motion to suppress fruits of an unlawful search and seizure [Docket No. 13] is DENIED,
2. Defendant's motion to suppress statements [Docket No. 14] is DENIED as to the June 16, 2003 statement and GRANTED as to the June 14, 2003 statement;
3. Defendant's oral motion to suppress photo identification is DENIED; and
4. Defendant's motion to dismiss Count III for failure to state an offense [Docket No. 33] is DENIED.