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holding that probable cause existed to support a search warrant of a residence because it was likely that it contained evidence of an armed robbery
Summary of this case from United States v. GillomOpinion
No. 00-40093-01-RDR.
January 10, 2001.
MEMORANDUM AND ORDER
Defendant is charged in a three-count indictment arising from an armed robbery of a pawn shop on September 7, 2000 in Topeka, Kansas. Count one alleges a violation of the Hobbs Act, 18 U.S.C. § 1951, in robbing the pawn shop. Count two alleges use of a firearm in relation to the Hobbs Act offense, in violation of 18 U.S.C. § 924(c)(1)(A). Count three alleges possession of an unregistered firearm, i.e., a sawed-off shotgun, in violation of 26 U.S.C. § 5861(d).
On January 3, 2001, this court conducted a hearing upon two motions to suppress which were taken under advisement at the conclusion of the hearing. In this order, the court shall rule upon those motions.
The court shall also reaffirm our decision to deny defendant's motion to dismiss the Hobbs Act count. The court based this decision upon U.S. v Bolton, 68 F.3d 396, 398 (10th Cir. 1995). We shall also restate our finding that defendant's motion to disclose expert testimony is moot.
MOTION TO SUPPRESS CUSTODIAL INTERROGATION
Defendant has moved to suppress statements he made during his custodial interrogation following his arrest in this matter. After due consideration, the court shall grant this motion.
After defendant was arrested and placed in custody, he was interrogated by police intermittently over several hours. The interrogation was videotaped. Defendant made many incriminating statements during the interrogation. Before the questioning began, defendant was made to empty his pockets. The contents, including defendant's keys, were confiscated. Then, some questions regarding defendant's name, address and phone number were asked before the following exchange, beginning with a Miranda warning, took place.
Q. I'll advise you of your rights. You have the right to be silent. Anything you say can be used against you in court. You have the right to an attorney and to have them present during questioning. If you cannot afford an attorney, one can be appointed for you before the questioning. Do you understand these rights?
• Uh-huh.
Q. With these rights in mind, will you speak with me?
• No.
• Excuse me?
• No.
• Okay.
• Will it make it worse or better?
• It's your call.
A. Well, I have nothing to say. All I know is we found the car. The car was sitting on the corner of 8th and Taylor. That's all I know. What would you do if you seen a car just sitting there? At a young age like this, what would you do? You have nothing. All you want to do is joy ride. What would you do?
Q. I don't know, I've never been in that position.
A. Then I can't talk to you then. Thank you. (Detective begins to leave.) Could I have my keys back?
• We'll see.
(Detective leaves room.)
(Detective reenters room approximately five minutes later.)
Q. Well, Herman, we've got a problem. You go by Herman? Herman is what you would like to be called? Or do you go by Mike?
• What's the problem?
Q. We've got you positively identified in an armed robbery yesterday.
There is no contention that, if defendant invoked his right to silence, the conditions for resuming questioning set forth in Michigan v. Mosley, 423 U.S. 96 (1975), were followed by the police officers.
The groundwork for resuming questioning was discussed in U.S. v. Glover, 104 F.3d 1570, 1580 (10th Cir. 1997):
In [Michigan v. Mosley, 423 U.S. 96 (1975)], the Supreme Court addressed whether a resumption of questioning is permissible where a person in custody has invoked his right to remain silent. Id. at 101, 96 S.Ct. at 325. The court indicated that the resolution of this issue was governed by the following passage from Miranda: "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Id. at 100, 96 S.Ct. at 325 (quoting Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627). Thereafter, officers can reinitiate questioning only if: 1) at the time the defendant invoked his right to remain silent, the questioning ceased; 2) a substantial interval passed before the second interrogation; 3) the defendant was given a fresh set of Miranda warnings; and 4) the subject of the second interrogation was unrelated to the first. See id. at 104-05, 96 S.Ct. at 326-327.
In this case, after defendant said "no" the detective started to gather his notepad and keys, but set them back down when defendant equivocated by asking whether speaking to the detective would make it worse or better. Then, after making the comments regarding "finding" the car and asking the detective what he would have done, defendant said "I can't talk to you then, thank you." The detective appeared to consider this as a refusal to answer questions because he left his chair and began to leave the room. Defendant then asked if he could have his keys back and the detective said, "We'll see," as he exited the room. Approximately five minutes later, the detective renewed his questioning without giving a Miranda warning or trying to clarify what defendant had previously said.
An "objective inquiry" is employed to determine whether an accused has actually invoked his rights under Miranda. See Davis v. United States, 512 U.S. 452, 459 (1994). In the context of invoking the right to counsel, the Supreme Court stated in Davis:
"Invocation of the Miranda right to counsel `requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.' . . . [I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Id., quotingMcNeil v. Wisconsin, 501 U.S. 171, 178 (1991).
The court acknowledges that some controversy may exist as to whether the clear articulation rule announced in Davis applies to invocations of the right to remain silent. See, e.g., Coleman v. Singletary, 30 F.3d 1420 (11th Cir. 1994) cert. denied, 514 U.S. 1086 (1995) (applying Davis to the right to be silent); U.S. v. Ramirez, 79 F.3d 298, 305 (2nd Cir.)cert. denied, 519 U.S. 850 (1996) (assuming arguendo that Davis applies); Holly, Ambiguous Invocations of the Right to Remain Silent, 29 SETON HALL L. REV. 558 (1998). Assuming the Davis rule is applied to these facts, we believe an objectively reasonable construction of defendant's statements in their context demands a finding that he invoked his right to remain silent. A declaration that, "I cannot talk to you then, thank you," is not ambiguous. The government contends that defendant was simply expressing a reluctance to speak to someone who could not share his perspective. We agree with defense counsel that defendant was explaining why he did not want to talk to the detective. His answer was still "no."
Obviously, the facts in Davis are quite different from those here. There, the suspect being questioned had made an oral and written waiver of his Miranda rights. He answered questions for an hour and a half. Then he said, "Maybe I should talk to a lawyer." After this statement, the questioning agents made it clear that they would stop questioning if he truly wanted an attorney. The suspect said "no" and then, after a break and another Miranda warning, the interview continued. In the instant case, there was no "maybe," much less a prior waiver of defendant's rights under Miranda.
In a case cited by the government, U.S. v. Sanchez, 866 F. Supp. 1542 (D.Kan. 1994), the statement "I can't say nothing" was considered ambiguous. However, in that case the officer listening to the suspect testified that he considered the comment to mean the suspect was afraid of reprisal if he talked to police. In contrast, in the instant case, the detective left the room after defendant said "I cannot talk to you then, thank you," signaling he thought defendant had refused to answer questions and the interview was over. The detective's response confirms what we believe is the only objectively reasonable construction of defendant's statements.
"[N]o ritualistic formula or talismanic phrase is essential in order to invoke the privilege against self-incrimination." Emspak v. United States, 349 U.S. 190, 194 (1955). It is clear to this court, and we believe it was clear to the detective who left the room after the exchange, that defendant had invoked his right to silence. Defendant's rights under Miranda were violated when the police officers returned to question him shortly after he said he would not talk to them. Therefore, the statements defendant made in the custodial interrogation shall be suppressed.
MOTION TO SUPPRESS SEARCH OF 632 S.W. CLAY
After defendant and other persons suspected to be involved in the armed robbery were arrested, a search warrant was obtained for defendant's residence: 632 S.W. Clay. This address is divided into upstairs and downstairs apartments. Defendant had the upstairs apartment, but another person who was also a suspect had the downstairs apartment.
The affidavit for the warrant states that: guns, ammunition and jewelry were stolen during the pawn shop robbery; defendant was identified (by the owner of the pawn shop) as holding a gun to the owner's head during the robbery; a Crime Stoppers tip listed defendant as involved in the robbery; defendant's address was 632 S.W. Clay; defendant was seen leaving in a car from 632 S.W. Clay when he was arrested the day after the robbery; two stolen guns from the robbery were in the car; defendant confessed and gave his address as 632 S.W. Clay; and another person (Jonathan Powell) who was in the car and arrested with defendant, admitted involvement in the robbery and said he lived at 632 S.W. Clay.
Defendant argues that the affidavit does not establish probable cause that any evidence from the armed robbery would be found at 632 S.W. Clay. We disagree.
When reviewing a finding of probable cause for the issuance of a search warrant, we "must consider the totality of the circumstances and determine whether the affidavit established the probability that evidence of criminal activity would be located in the desired search area." United States v. Wittgenstein, 163 F.3d 1164, 1171 (10th Cir. 1998), cert. denied, 527 U.S. 1012 (1999). The issuing magistrate judge's determination that probable cause exists is entitled to "great deference such that we ask only whether the issuing magistrate had a substantial basis for determining probable cause existed." Id. at 1172 (quotation marks and citations omitted).
Here, even if we strip away defendant's confession from the rest of the information in the affidavit, we believe there was a substantial basis for the issuance of a warrant to search defendant's residence. See United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988) cert. denied, 488 U.S. 1031 (1989) (reasonable to believe that defendant's gun and silencer would be found in his residence in spite of a lack of direct evidence of their location); U.S. v. Shomo, 786 F.2d 981 (10th Cir. 1986) (reasonable to search house for gun defendant had been seen with 10 days earlier); United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir. 1977) (evidence that a defendant has stolen material which one normally would expect to hide at his residence will support a search); United States v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975) (people who own firearms generally keep them at home or on their persons); United States v. Rahn, 511 F.2d 290, 293 (10th Cir.) cert. denied, 423 U.S. 825 (1975) (it was reasonable to assume that individuals keep weapons in their homes);United States v. Maneti, 781 F. Supp. 169, 177 (W.D.N.Y. 1991) (reasonable to assume that silencers would be kept at home of person who had purchased ten of them).
Even if the probable cause determination was not correct in this case, suppression would not be warranted because the officers' reliance upon the judge's determination of probable cause was not objectively unreasonable. See United States v. Leon, 468 U.S. 897 (1984).
For these reasons, the motion to suppress the evidence obtained from the search of 632 S.W. Clay shall be denied.
IT IS SO ORDERED.