Opinion
Criminal Case No. 1:05-CR-0272-WSD.
October 14, 2005
REPORT AND RECOMMENDATION
Pending before the court is Defendant Anthony Opoku's motion [Doc. 28] to suppress statements he made to Special Agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") in May of 2005. An evidentiary hearing was held on the motion on August 11, 2005. Defendant contends that the statement that he made should be suppressed because he was not advised of his Miranda rights prior to the interview. [Doc. 40]. The Government opposes the motion to suppress on the ground that Defendant was not custody at the time of the interview; therefore, Miranda warnings were not required. [Doc. 43]. After consideration of the totality of the circumstances and argument of counsel, the court recommends that the motion to be suppress be denied.
The court notes that the docket identifies Defendant's post-hearing brief also as a motion; however, it is captioned, "Brief in Support of Motion to Suppress Statements" and will be treated as such by the court. [Doc. 40].
Citations to the transcript of the hearing: (Tr. at).
1. Statement of Facts
In November of 2004, ATF Special Agent Benjamin Gibbons began conducting an investigation of Defendant Opoku and his co-Defendant, George Appiah, in connection with possible firearms trafficking. (Tr. at 3, 11). In the course of the investigation, agents spoke with Appiah about his purchase of multiple firearms, and Appiah advised that he purchased the firearms for Defendant Opoku, who was subsequently delivering the firearms to family members in Ghana, Africa. Appiah cooperated with the agents by engaging in recorded conversations with Defendant Opoku about the firearms purchases. (Tr. at 11-14).
In May of 2005, Agent Gibbons, accompanied by Special Agent Gray, went to Defendant Opoku's residence located in Norcross, Georgia, for the purpose of interviewing him about his involvement in trafficking firearms. (Tr. at 4-5, 16-17). The agents did not have an arrest warrant for Defendant nor, prior to conducting the interview, did they intend to arrest him. The agents intended to indict Defendant Opoku at a later time. (Tr. at 6-7, 13-14). When the agents went to Defendant Opoku's residence, they were aware that he was a citizen of Ghana and living legally in the United States. They knew that he had traveled recently to Ghana and had a passport. (Tr. at 7-8, 12).
The agents did not advise Defendant Opoku of the intention to indict him. (Tr. at 8-7).
At Defendant Opoku's residence, the agents knocked on the door and, when answered by Defendant, advised him that they were ATF agents and asked to speak with him about some firearms that he might have in his possession. Defendant invited the agents into his residence and agreed to speak with them. (Tr. at 4, 7). All three (3) men sat at the dining room table. Defendant Opoku was not handcuffed. The agents did not make any promises to Defendant Opoku nor threaten him during the course of the interview. (Tr. at 5-6). The agents' weapons were not drawn but were concealed on their persons. (Tr. at 5). The agents did not advise Defendant Opoku that he could not leave the residence nor did Defendant Opoku ask or attempt to leave. (Tr. at 9). Defendant Opoku was not prevented from moving around the residence; however, the agents accompanied Defendant Opoku when he left the room as a safety precaution. (Tr. at 9, 18-19).
Before the interview, the agents did not advise Defendant of his Miranda rights. (Tr. at 10). During the interview, Defendant Opoku advised the agents that he planned to return to Ghana in a few weeks. Defendant explained that when he made trips to Ghana, he remained for a month or more. (Tr. at 7, 14). Because of this information and being concerned that Defendant Opoku may not return to the United States, the agents arrested Defendant at the end of the interview. (Tr. at 7-8, 13-14).
2. Discussion
As noted, Defendant contends that, although he was not formally arrested until the conclusion of the interview, the facts support a finding that he was in custody during the interview, and therefore, his statements made without benefit of Miranda warnings should be suppressed. [Doc. 40]. In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court held that "a person questioned by law enforcement officers after being `taken into custody or otherwise deprived of his freedom of action 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 as evidence 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, 322, 114 S. Ct. 1526, 1528, 128 L. Ed. 2d 293 (1994) (quotingMiranda, 384 U.S. at 444, 86 S. Ct. at 1612). Miranda "`warnings are required before any statement may be admitted into evidence at trial which was elicited from a person in custody through interrogation.'" United States v. Adams, 1 F.3d 1566, 1575 (11th Cir. 1993) (quoting Endress v. Dugger, 880 F.2d 1244, 1248 (11th Cir. 1988)). "An officer's obligation to administer Miranda warnings attaches, however, `only where there has been such a restriction on a person's freedom as to render him in custody.'" Stansbury, 511 U.S. at 322, 114 S. Ct. at 1528 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977) (per curiam)).
When no warnings are given prior to questioning, the ultimate issue for the court to decide is whether "`under the totality of the circumstances, a reasonable man in the suspect's position would feel a restraint on his freedom of movement fairly characterized as that degree associated with a formal arrest to such extent that he would not feel free to leave.'" United States v. Muegge, 225 F.3d 1267, 1270 (11th Cir. 2000) (quoting United States v. Phillips, 812 F.2d 1355, 1360 (11th Cir. 1987)); see also California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275 (1983) ("[T]he ultimate inquiry is simply whether there [was] a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest.") (citation omitted). This determination "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury, 511 U.S. at 323, 114 S. Ct. at 1529.
However, "[a]n officer's knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned." Stansbury, 511 U.S. at 325, 114 S. Ct. at 1529-30.
In this case, the facts do not support a finding that Defendant Opoku was in custody at the time of the interview. The interview was conducted at Defendant Opoku's residence, not at a police station or other government office. (Tr. at 4-5). Defendant Opoku was never restrained during the interview nor advised that he was not free to leave. (Tr. at 5-6, 9). The agents did not threaten Defendant Opoku. (Tr. at 6). The interview lasted less than hour. (Tr. at 6). The only arguable restraint on Defendant's freedom of movement was the fact that, for their safety, one of the agents would accompany Defendant Opoku if he left the room where the interview was being conducted. (Tr. at 18-19). This relatively minor restriction of Defendant Opoku's freedom of movement is insufficient to convert the consensual interview into a custodial interrogation requiring Miranda warnings.
In United States v. Blackman, 66 F.3d 1572 (11th Cir. 1995), FBI agents, possessing a reasonable suspicion that four (4) individuals were involved in armed bank robberies, asked the individuals to exit an apartment one-by-one with their hands above their heads. As the individuals exited the apartment, they were handcuffed for officer safety. As this was occurring and prior to Miranda rights being given, one of the individuals made incriminating statements that were relied upon to establish probable cause to place all of the defendants under arrest. See id. at 1576-77. The court stated that the "[Eleventh Circuit Court of Appeals] has said that the fact that police handcuff the person or draw their weapons does not, as a matter of course, transform an investigatory stop into an arrest." Id. at 1576; see also United States v. Leshuk, 65 F.3d 1105, 1109-10 (4th Cir. 1995) (Finding that statements made during a Terry stop were admissible, the court noted that "we have concluded that drawing weapons, handcuffing a suspect, placing a suspect in a patrol car for questioning, or using or threatening to use force does not necessarily elevate a lawful stop into a custodial arrest for Miranda purposes."). In this case, Defendant Opoku was not handcuffed; no weapons were drawn; he was not threatened; and his freedom of movement was not restricted. There is no objective evidence supporting a finding that Defendant Opoku was in custody.
It is not disputed that the agents conducted the interview being fully aware of Defendant Opoku's involvement in firearms trafficking and with the intent of obtaining truthful information, which would be incriminating, about his involvement during the interview. (Tr. at 5, 11, 16-17). However, the fact that Defendant was the "focus" or target of the agents' investigation did not require that Miranda warnings be given to him prior to the questions being asked. See United States v. Manor, 936 F.2d 1238, 1241 (11th Cir. 1991) ("The Supreme Court has clearly stated that Miranda is not implicated simply because an individual is the subject or target of an investigation.") (citing Minnesota v. Murphy, 465 U.S. 420, 431, 104 S. Ct. 1136, 1144, 79 L. Ed. 2d 409 (1984)). The Supreme Court has stated that "[e]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest." Stansbury, 511 U.S. at 325, 114 S. Ct. at 1530. In this case, the agents did not advise Defendant Opoku that he was going to be indicted, and the record is devoid of any other statements by the agents about Defendant Opoku's culpability. (Tr. at 7-8).
The fact that, because of information provided by Defendant Opoku during the interview, the agents decided to arrest him as the interview concluded does not alter this court's determination that his statement is admissible. (Tr. at 7-8, 14). And, even if, as Defendant Opoku suggests, the agents planned and conducted the interview with the intent to arrest him at its conclusion, that fact — if left unvoiced by word or deed — does not impact the court's decision. See Phillips, 812 F.2d 1361 (". . . `[a] policeman's unarticulated plan has no bearing on the question whether a suspect was `in custody' at a particular time. . . .'") (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3152, 82 L. Ed. 2d 317 (1984)). Nothing in the record evidences that the agents expressed, in any manner, an intent to arrest Defendant. The interview was consensual.
3. Conclusion
For the foregoing reasons and cited authority, the court RECOMMENDS that Defendant Opoku's motion [Doc. 28] to suppress statements be DENIED.
There are no other pending matters before the Magistrate Judge, and the undersigned is aware of no problems relating to the scheduling of this case.
IT IS THEREFORE ORDERED and ADJUDGED that this action be and the same is hereby, declared Ready for Trial.
Defendant Appiah has entered a plea of guilty and is awaiting sentencing. [Doc. 41 and 42].
SO RECOMMENDED AND ORDERED.