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denying defendant's motion to suppress where two FBI officers questioned him without first providing Miranda warning
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No. SA-02-CR-527-RF
November 12, 2003
ORDER DENYING DEFENDANT PEÑA'S MOTION TO SUPPRESS
Before the Court are Defendant's Motion to Suppress ("Motion"), filed on August 14, 2003, and the Government's Response to Defendant's Motion ("Response"), filed on August 29, 2003. Defendant PeÑa seeks to suppress both statements made at the time of arrest as well as evidence seized from the his computer and office. After reviewing the arguments of the parties and having held a hearing on the matter, the Court is of the opinion that the Motion (Docket No. 158) should be DENIED.
BACKGROUND
Defendant is charged with bribery and conspiracy to commit bribery in relation to the City Council of San Antonio's January 2002 grant of a contract to the law firm of Heard Linebarger Goggan Blair PeÑa Sampson ("Heard Linebarger"). PeÑa's conduct allegedly occurred during the period of January 2002 through April 2002, when the City Council voted to award the contract to collect outstanding fines and fees to Heard Linebarger. PeÑa was one subject of a collaborative and extensive law enforcement investigation. On the morning of October 9, 2002, agents from the Federal Bureau of Investigation ("FBI") arrived at PeÑa's home in Pharr, Texas and approached PeÑa regarding the allegations. At that time, Defendant made several statements which he now seeks to suppress. The following day, a warrant was issued to search Defendant's law firm office and computer for evidence. Defendant objects to the admission of both his arrest statements and the office and computer evidence, on the grounds that they were both obtained in violation of his federal constitutional rights. A hearing was held on this matter on November 3, 2003 ("November 3rd hearing"). The Court's findings of fact and conclusions of law are discussed below.
FINDINGS OF FACT
At approximately 7:30 in the morning on October 9, 2002, FBI agents approached the door of Defendant's home, acting on the information provided from months of investigation into a possible conspiracy to bribe votes of the San Antonio City Council in order to win a contract for Heard Linebarger's services. Defendant answered the door of his home to find plain-clothed agents who identified themselves as such by showing badges. The agents told PeÑa that he was the target of an investigation, specifically that he would be accused of paying bribes to public officials. Agent Proctor told PeÑa that PeÑa would be indicted and, most likely, convicted on the charges. The agents played an audio tape of an incriminating conversation between PeÑa and another. PeÑa merely nodded while listening. The agents told PeÑa that the tape was only a portion of the evidence that the government had against him.
PeÑa stated that he had hired Jack Pytel as a lobbyist, but that he did not know about what had occurred in San Antonio. The agents told PeÑa that their purpose in coming to the home was to seek PeÑa's cooperation with the government's ongoing investigation. PeÑa responded that he might have information that the government did not have on some issues and might also have no knowledge about which the government believes he has information. PeÑa asked for clarification about what the agents meant by "cooperation." The agents informed him that among other things, cooperation would involve recording conversations between himself and his partners or public officials with whom he allegedly conspired to make illegal payments. At no time did the agents inform PeÑa that by agreeing to cooperate, PeÑa would prevent his own arrest. PeÑa responded to the explanation by raising his hands, shaking his head to indicate "no," and saying "not my partners." The agents provided warnings of PeÑa's fifth amendment rights, in accordance with Miranda v. Arizona and arrested PeÑa. PeÑa asked to telephone his attorney, and the agents denied him permission, stating that PeÑa would be permitted to telephone his attorney later in the day. Defendant now seeks to suppress all of the aforementioned statements as coercively induced custodial statements, obtained in violation of the Fifth and Fourteenth Amendments. PeÑa does not challenge the agents denial of his request to telephone counsel, although that fact was discussed at the November 3rd hearing.
384 U.S. 436 (1966). The sufficiency of the Miranda warning, once given, is not challenged.
PeÑa also objects to the search of his office and computer. On the day before agents approached PeÑa's home, at nearly 3:00 in the afternoon, a Magistrate Judge in McAllen, Texas issued a search warrant. The search warrant permitted the seizure of computers and other electronic storage devices, any the information contained therein, and all records and documents relating to information of an effort by Heard Linebarger to obtain the City of San Antonio's fines and fees contract. The November 3rd hearing addressed both of PeÑa's objections.
DISCUSSION
I. Statements at the time of arrest
As discussed above, Defendant made various statements to the FBI agents at his home about the time of his arrest. At the November 3rd hearing, the testimony established that PeÑa had not received Miranda warnings prior to making the statements, but that the agents had identified themselves and informed PeÑa that charges would eventually be brought against PeÑa. Defendant argues that these statements were made pursuant to a custodial interrogation without Defendant receiving his Miranda warnings. The government's Response asserts that PeÑa was not in custody, and any statements made were instigated voluntarily by him, not by police interrogation.
"The Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during `custodial interrogation' without a prior warning." The primary issue is whether PeÑa was "taken into custody or otherwise deprived of his freedom of action in any significant way." In Miranda, the Court explained in a footnote that custody or significant deprivation of freedom of action was what the Court had meant in a prior case by "an investigation which had focused on an accused." At the November 3rd hearing, Defendant argued that the circumstances of his arrest and the time immediately before it indicated that the FBI agents clearly focused on him as the accused. PeÑa argued that because of this focus, akin to a bull's eye on a suspect's shirt, the exchange was custodial in nature. Therefore, he argued, the agents violated PeÑa's constitutional rights in failing to give Miranda warnings prior to the exchange.
Illinois v. Perkins, 496 U.S. 292, 296 (1990); U.S. v. Gonzalez, 121 F.3d 928, 939 (5th Cir. 1997).
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Id. at 445, n. 4 (citing Escobedo v. Illinois, 378 U.S. 478 (1964).
See Beckwith v. U.S., 425 U.S. 341, 347-48 (1976) (discussing when an investigation has "focused" on an identifiable suspect and clarifying that Miranda had implicitly defined focus as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444.).
The Fifth Circuit defined a "reasonable person test" to determine the scope of custody for purposes of triggering the need for Miranda warnings.
A suspect is therefore "in custody" for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest. The reasonable person through whom we view the situation must be neutral to the environment and to the purposes of the investigation — that is, neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.
U.S. v. Bengivenga, 845 F.2d 593 (5th Cir. 1988).
Id. at 596.
The parties do not dispute the fact that at the time PeÑa was formally arrested, the agents promptly gave Miranda warnings and PeÑa invoked his right to counsel. Therefore, PeÑa urges the Court to view the period of time between when he opened the door of his home to the agents and the moment when he was formally arrested as custodial because a reasonable person would have understood that situation to be a restraint on freedom of movement equivalent in degree to formal arrest. The final factor critical to the analysis of PeÑa's argument is that neither the subjective intent of the agents, nor the subjective belief of PeÑa himself is relevant.
See id. See also U.S. v. Gonzalez-DeLeon, 32 F. Supp.2d 925, 926 (W.D. Tex 1998) ("The United States Court of Appeals for the Fifth Circuit considers a person `in custody' for Miranda purposes when she is placed under formal arrest, or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 77 L.Ed.2d 1275, 103 S.Ct. 3517 (1983); U.S. v. Gonzales, 121 F.3d 928, 940 n. 6 (5th Cir. 1997); U.S. v. Garcia, 11 F.3d 857, 859 (5th Cir. 1996); U.S. v. Bengivenga, 845 F.2d 593 (5th Cir. 1988).")
Bengivenga, 845 F.2d at 597; U.S. v. Galberth, 846 F.2d 983, 990 (5th Cir. 1988) (cert denied).
With the above in mind, this case presents the scenario of a suspect voluntarily allowing law enforcement into his home, listening to the reality of the evidence already obtained against him and responding to the presentation of such, rather than to a direct investigatory question posed. Unlike the typical challenge to a custodial interrogation, here law enforcement did not primarily seek evidence against the suspect. Rather, with evidence already in their possession, the agents sought to secure the suspect's cooperation in continued investigative efforts or the suspect's arrest. However, neither the agents' nor PeÑa's subjective considerations are relevant to the instant analysis.
The government cites Illinois v. Perkins for the proposition that Miranda warnings are required only when the suspect is both in custody and subjected to interrogation. In Perkins, the Supreme Court held that "Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement." Perkins dealt with the factual scenario of an incarcerated suspect revealing inculpatory information to an undercover government agent who was placed in the same cell. The case is inapposite to the instant dispute. The parties have not identified, nor on independent review has the Court uncovered, an authoritative case on precise factual point.
496 U.S. 292(1990).
Id. at 294.
Id.
In lieu of precise authority, the Court looks to persuasive guidance from the Fifth Circuit. In United States v. Harrell , the Fifth Circuit suggested the appropriate outcome in the instant analysis of custody. Factually, the Harrell case does not parallel the instant one, but, in explicating the scope of custody, the Fifth Circuit offered the following guidance generally: "A reasonable person questioned within his own home, would not suffer `a restraint on freedom of movement of the degree which the law associates with formal arrest.' This is especially true where, as here, [the agent] announced that he would leave at any time upon request by Harrell." In this case, the Court finds that neither agent stated that they would leave if PeÑa so requested. The mere lack of such an offer, however, is insufficient to make the situation custodial in nature. The discussion in Harrell did not address what effect, if any, the presentation of inculpatory evidence to the defendant prior to questioning would have upon custody.
894 F.2d 120 (5th Cir. 1990).
In Harrell, the defendant was questioned by INS agents after he was named as the responsible party in importing illegal aliens. The INS agents detained Harrell in an INS office, separated from the public by glass walls. Harrell was not, as is the case here, told he was suspected of a crime. The interrogation lasted for about an hour, and Harrell was never given Miranda warnings. Harrell challenged this interrogation, as well as a subsequent one conducted at his home, during which the INS agent "tended to give . . . the classic Miranda warning." Id. at 122.
Id. at 125.
See also Beckwith v. U.S., 425 U.S. 341, 347 (1976).
Based upon the Fifth Circuit's dicta in Harrell the Court finds that PeÑa was not in custody when he admitted two FBI agents into his home in the early morning, heard inculpatory evidence in the government's possession against him, and then made statements relating to his potential cooperation with the government agency and his potential knowledge or lack thereof regarding related events. The conversation between the agents and PeÑa prior to their informing PeÑa that he was going to be arrested was not a custodial interrogation. PeÑa's Fifth Amendment protection against self-incrimination was not violated in these circumstances.
The Court held that the home interrogation of Harrell was valid because a Miranda warning was given, even though the warning included superfluous language. After so holding, the Court went on to discuss that if the warning were to have fallen short of constitutional requirements, the interrogation was noncustodial. U.S. v. Harrell, 894 F.2d at 125. Because of this structure to the Court's opinion, the relevant passage is termed dicta.
In this case, regardless of the subjective purposes of the agents or of Perm's subjective beliefs, the situation indicated to a reasonable person that the government possessed considerable inculpatory evidence against PeÑa. The Court notes a reasonable person, presented with compelling inculpatory evidence against him in the possession of two FBI agents who present themselves unexpectedly at the door would not feel free to leave, nor feel in any sense at ease. On the contrary, a reasonable person would feel fearful, under investigation, and likely detained. A reasonable person would likely suspect that his arrest was imminent. For these reasons, law enforcement is well advised to err on the side of caution in determining whether to issue Miranda warnings early in such circumstances. However, the relevant standard is whether the "restraint on freedom of movement" is "of the degree which the law associates with formal arrest," and the Fifth Circuit's position on this standard provides the outcome in this instance. The Motion to Suppress statements made at the time of arrest will be denied.
II. Evidence seized from Defendant's office and computer
PeÑa complains that the search warrant with regard to his office was facially overbroad in permitting the seizure of all computer and electronic media which might be used for any purpose, rather than just the fruits or evidence of crimes. PeÑa cites Maryland v. Garrison, Stanford v. Texas, and U.S. v. Leon in support of his arguments. The government responds that it does not intend to offer into evidence any items seized pursuant to the search warrant for PeÑa's office. At the November 3rd hearing, PeÑa did not expound on any of his briefed arguments with respect to his challenge to the search warrant.
480 U.S. 79(1987).
379 U.S. 476 (1965).
468 U.S. 897(1984).
The Court finds that the search warrant issued properly and met the requirement of particularity, that is, it described the place to be searched and the items to be seized with sufficient particularity as to prevent a "wide-ranging exploratory search." While true that the computers and other electronic media in PeÑa's office might have been used for general purposes and true that the search warrant may have permitted the seizure of more information than eventually used by law enforcement, the warrant was nonetheless sufficiently particular. In the absence of any further argument, the Court finds that PeÑa's motion to suppress evidence seized should be denied.
See Maryland v. Garrison, 480 U.S. at 80-81.
CONCLUSION
Based upon the foregoing, it is ORDERED that Defendant's Motion to Suppress Statements and Evidence (Docket No. 158) be DENIED.