Opinion
A05-065 CR (JWS), Docket No. 15.
September 30, 2005
RECOMMENDATION REGARDING MOTION TO SUPPRESS
Defendant Edward Ted McDonald moves to suppress statements taken from him by an Alaska State Trooper on or about April 13, 2005 in Ketchikan, Alaska. Docket No. 15. The motion is opposed by the government, Docket No. 23. McDonald contends that the statements were elicited in violation of Miranda v. Arizona, 384 U.S. 436 (1966). For reasons stated below I conclude that no violation of Miranda occurred and the motion to suppress should be denied. It is further recommended that the court adopt findings of fact and conclusions of law as set forth below.
Findings of Fact
On April 11, 2005 Alaska State Trooper Mark Finses stationed at Ketchikan, Alaska, received a telephone call from Kelli Thrush of the Division of Motor Vehicles (DMV) stating that two individuals had left the office using what she thought were fraudulent California drivers licenses to apply for Alaska drivers licenses. She identified the vehicle they drove including its license plate number. Trooper Finses ran a computer check on the plate that revealed that the vehicle was registered to the Alaska Car Rental.
Trooper Finses proceeded to the DMV where he viewed the documents described by Ms. Thrush. DMV provided the name of Joseph McDonald and his Alaska driver's license number. Trooper Finses visited the car rental agency and determined that the name of the renters did not match that name allegedly used on fraudulent documents. The car was rented to a Joseph McDonald. The rental car agency provided a local address of the Super 8 Motel but the suspects were not there.
The trooper was able to determine that two men had rented a room at the Captain's Quarters Bed and Breakfast using the name Thomas Woods. Later that day Alaska State Trooper Nelson who was assisting in the investigation observed two males driving a vehicle with the license plate number provided by the rental agency. The two men pulled into the Safeway parking lot and entered the store. Trooper Patrick Nelson had spotted the vehicle on the Tongass Highway and followed it to the Safeway parking lot. The two individuals parked in the lot without either trooper stopping them.
Trooper Finses parked his vehicle behind the Safeway and the two officers walked into the store. There, they spotted two individuals meeting the description of the suspects on the identifications. The troopers wore uniforms and carried pistols holstered on their belts. The officers approached the two suspects near Starbuck's coffee stand about 20-feet inside Safeway. They asked to speak with the two suspects, McDonald and co-defendant Edward James Jennings.
McDonald asked if he could pay for his coffee and was allowed to do so. The group walked about ten feet from the front door where they could converse out of the lane of pedestrian traffic. The suspects gave different responses to the question of where they were from. The troopers separated so they could speak to the suspects one-on-one separately. The troopers were still in visual sight of each other but were far enough away so that each trooper could engage in a private conversation.
While Trooper Finses spoke with McDonald, McDonald continued to drink his coffee. At no time during the conversations did either officer draw a weapon.
Trooper Finses asked questions inquiring whether McDonald and his companion had been to the Department of Motor Vehicles. The trooper asked McDonald what he was doing and what was going on. At no time during the interview was McDonald given the Miranda warnings. McDonald never asked to leave the premises nor was he told that he could not leave the premises. After McDonald had given incriminating statements in response to the trooper's questions he was placed under arrest along with Jennings.
The two arrestees were placed in Trooper Nelson's police vehicle. While he interviewed McDonald, Trooper Finses was fairly sure that the two suspects matched the Alaska photographs provided him by DMV and the information provided from the rental car agency. Based on information from Ms. Thrust the trooper also suspected that McDonald had a fraudulent Social Security card as it bore the name "Woods."
Discussion
It is a violation of Alaska law to attempt to obtain a driver's license using false information. At the time Trooper Finses asked McDonald questions he suspected McDonald of a crime. McDonald argues that because he was questioned by a uniformed officer who had articulable suspicion to believe that he had committed a crime, he should have been given theMiranda warnings before the officer elicited any incriminating statements. Miranda, supra holds "a person questioned by law enforcement officers after being `taken into custody or otherwise deprived of his freedom of activity in any significant way' must first `be warned that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney either retained or appointed.'" Stansbury v. California, 511 U.S. 318 (1994), quoting Miranda, 384 U.S. at 444.
McDonald claims that he was deprived of his freedom of action in a significant way thereby precipitating the application ofMiranda. The court disagrees. McDonald was not in actual custody or constructive custody when the officers asked him questions about their investigation. A stop and brief detention is permissible under Terry v. Ohio, 392 U.S. 1 (1968) whereby a police officer encounters a suspect during a brief and valid investigatory detention. The officers did not order McDonald to remain or accompany them to a particular location. Moving out of the path of the pedestrian traffic at the entrance to the grocery store in order to carry on a conversation with McDonald did not place McDonald in custody for the purposes of Miranda. The troopers did not know McDonald's true name and even though they had an ID that had been left at DMV under the name of "Woods," and the photo on the driver's license appeared to be the same person in the picture under the name McDonald. Miranda warnings are not implicated in a valid investigative stop because the typical police-citizen encounter envisioned by Terry usually involves no more than a very brief detention, no weapons or handcuffs and a few questions relating to identity and the suspicions circumstances.
McDonald does not argue that the officer exceeded the bounds of a permissible Terry stop. Rather his argument is that he was in a police dominated surrounding that was tantamount to custody. Police may ask generic preliminary questions to ascertain the facts of the situation without violating Miranda. The movement to the side was also intended to separate McDonald from Trooper Nelson and Jennings in order to carry on a private conversation.
The procedure outlined in Miranda was intended to protect a suspect individual from police tactics designed to overcome his will. McDonald was contacted in a public place. It is well established that "mere" questioning does not constitute a seizure. Under Florida v. Bostick, 501 U.S. 429 (1991) police may ask questions of an individual so long as they do not convey the message that the individual is not free to ignore the officer's questions and go about his own business. Looking at the totality of the circumstances surrounding the questioning of McDonald I conclude that there was no custodial interrogation. In such a public environment where the suspect is asked if he is willing to talk to the officers and consents to do so there is no implied custodial environment.
In United States v. Knox, 839 F.2d 285 (6th Cir. 1988) the court held that despite "inherently coercive" atmosphere, three travelers who were detained by federal agents at an airport on suspicion of drug possession were not "in custody" for purposes of Miranda by virtue of the fact that the agents escorted them to the airport security office and then questioned them separately in different rooms. The court noted that the Supreme Court has indicated that "custody" in the Miranda context does not necessarily occur merely because questioning takes place in "an inherently coercive" environment such as a station house. Investigatory detention is not custodial interrogation triggering the protections afforded by Miranda. United States v. Woods, 720 F.2d 1022 (9th Cir. 1983).
The Supreme Court has drawn a distinction between a coercive environment and custodial surroundings. See Oregon v. Mathiason, 429 U.S. 492 (1977) (per curium). There, the court said: ". . . a non custodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a `coercive environment.' Any interview of one suspected of a crime by a police officer will have coercive aspects to it. . . .Miranda warnings are required only when there has been such a restriction on a person's freedom as to render him `in custody.' It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited." 429 U.S. at 495.
To determine whether an individual was in custody, the court must, after examining all of the circumstances surrounding the interrogation, decide "whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Stansbury v. California, 511 U.S. 318, 322 (1994). Such an inquiry focuses on the objective circumstances of the interrogation not the subjective views of the officers or the individual being questioned. Id. at 323. The court must determine whether the officers established a setting from which a reasonable person would believe that he was not free to leave.United States v. Beraun-Panez, 812 F.2d 578, 580 (9th Cir.), modified by 830 F.2d 127 (9th Cir. 1987). Factors that the court may consider as relevant include the following: (1) the language used to summon the individual; (2) the extent to which the individual was confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detection; and (5) the degree of pressure applied to detain the individual. See United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001). In the instant case McDonald was asked if he would talk with the officers. He was not confronted with evidence of guilt nor was he pressured to talk with the officer. The physical surroundings of the interrogation were in a public area of a grocery store and the challenged questioning was not lengthy in duration. I find the testimony by Trooper Finses credible and conclude that a reasonable person in McDonald's circumstances would have concluded that he was free to leave had he chosen to do so.
For the foregoing reasons defendant McDonald's motion to suppress his statements to the troopers on April 11, 2005 should be DENIED. IT IS SO RECOMMENDED. The Clerk shall give telephonic notice regarding entry of this report and recommendation.
Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than NOON, October 5, 2005, to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before NOON, October 10, 2005. The parties shall otherwise comply with provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).