Opinion
No. 04-40035-SAC.
October 22, 2004
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion to suppress post-Miranda statements, (Dk. 34) and the government's motion for reconsideration and evidentiary hearing (Dk. 38). Also pending is defendant's motion for discovery (Dk. 33). The government has filed no response to defendant's motion for discovery, but both parties agreed at the evidentiary hearing held on October 15 that this motion is moot.
Defendant has filed no motion to suppress post-Miranda statements, but says he is so doing in his supplemental post-hearing brief in support of motion to suppress. (Dk. 34.) The government has fully responded, and the court will excuse defendant from the requirement that he file a motion in this instance, but notes that defendant's earlier motion to suppress did not include the post-Miranda statements.
On August 24, 2004, after a previous evidentiary hearing which focused upon officers' manner of execution of a search warrant, this court filed an order which, among other matters, granted defendant's motion to suppress pre-Miranda statements. The court's ruling was based upon the government's concession that defendant's unwarned statements were made while defendant was subject to custodial interrogation. The government now takes the opposite position and contends that such statements are admissible because they were not the product of interrogation. Additionally, defendant has timely filed a motion to suppress post-Miranda statements.
FACTS
Pre-Miranda statements
Deputy Phil Higdon testified that after defendant's residence was secured, he entered and spoke to defendant, who was handcuffed and sitting in a chair in his living room on the first floor of the residence. Deputy Higdon did not recall whether defendant was questioned while wearing only his boxer shorts, or whether defendant was more fully clothed at the time.
Deputy Higdon admitted that the following conversation, contained in his report of the event, occurred before he Mirandized defendant:
Once Arlie was positioned in a chair in the living room, I explained to Arlie that no[t] only was his house being raided but officers were executing numerous search warrants, which included his business and a storage unit. At that time Arlie made the comment about not knowing anything about a storage unit. I asked Arlie if he knew where the keys to his business were. I explained to him that I did not want to cut the chains and locks to his fence around his business and did not want to damage any doors. Arlie at that time said that his keys to his business should be located in his pants that were upstairs. I asked Lt. Christie if he could retrieve the keys and he said he would. I asked Arlie if he had the key to the storage unit, #156 located on Button Road. Arlie said he did not know about any storage unit or key. A few seconds later Lt. Christie informed me that he found no business keys in Arlie's pants pocket but did find a key with a key tag attached and on the tag was the numbers 156.
The government concedes that defendant was in custody during this conversation.
Post-Miranda statements
Deputy Higdon then Mirandized the defendant and interviewed him. In addition to asking about the key and defendant's connection to the storage locker, Deputy Higdon asked defendant about his wife, her location, his work, his age, whether anyone had been cooking methamphetamine on the property, defendant's knowledge of his uncle Bill Price, defendant's level of education, whether defendant could read and write or was taking any medications, and the last time defendant did drugs. Defendant's responses to most of these questions are not included in the record, but the parties agree that neither the pre-Miranda nor the post-Miranda questioning produced a confession.
Other facts included in the government's brief or argument, but not in evidence, are: 1) defendant stated that the key found in his pants pocket was given to him by two guys at a bar approximately a week ago, that he did not know what the key went to and did not know the guys who gave him the key; 2) while conducting one of the interviews, Deputy Higdon was contacted by Officer Soto of the Topeka Police Department, who reported that Lt. Christie had provided the key to him and his partner, and that they had used the key successfully to open the lock on the storage locker; 3) the only items in the locker were four large black trash bags, which were later inspected and found to contain a total of 37 individually-wrapped bags of marijuana.
Government's motion to reconsider
The government asks the court to reconsider its previous ruling that the pre-Miranda statements should be suppressed. The government currently contends that defendant was not interrogated because the pre-Miranda questions asked by Deputy Higdon about the keys to his business and storage locker were merely words normally attendant to arrest or custody. See Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980).
The government fails to address the standard for motions to reconsider, choosing instead to address the issue as though it had never gone on record with its conflicting position.
Rarely do parties in criminal proceedings file motions to reconsider rulings on pretrial motions. This court believes that the standards for evaluating a motion to reconsider in the civil context are relevant for evaluating a motion to reconsider in a criminal case. "A motion to reconsider shall be based on (1) an intervening change in controlling law, (2) availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." D.Kan. Rule 7.3. "A motion to reconsider is not a second chance for the losing party to make its strongest case or to dress up arguments that previously failed." Voelkel v. General Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan.), aff'd, 43 F.3d 1484, 1994 WL 708220 (10th Cir. Dec. 21, 1994) (Table).
A court's rulings "are not intended as first drafts, subject to revision and reconsideration at a litigant's pleasure." Quaker Alloy Casting v. Gulfco Industries, Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988). A motion to reconsider is appropriate if the court has obviously misapprehended a party's position, the facts, or applicable law, or if the party produces new evidence that could not have been obtained through the exercise of due diligence. Comeau v. Rupp, 810 F. Supp. 1172, 1175 (D. Kan. 1992); see Refrigeration Sales Co. Inc. v. Mitchell-Jackson, Inc., 605 F. Supp. 6, 7 (N.D. Ill. 1983), aff'd, 770 F.2d 98 (7th Cir. 1985). A motion to reconsider is not appropriate if the movant only wants the court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. Comeau v. Rupp, 810 F. Supp. at 1175. Koch v. Koch Industries, Inc., 6 F. Supp.2d 1207, 1209 (D. Kan. 1998). The decision whether to grant or deny a motion to reconsider is committed to the court's sound discretion. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988).
United States v. D'Armond, 80 F. Supp.2d 1157, 1170-1171 (D. Kan. 1999).
Applying this standard, the court finds that the government's motion to reconsider is solely for the purpose of presenting an argument that could have been presented originally, but for tactical or other reasons, was not. However, even had the court reached the merits of the government's latest position, its decision would be no different, given the fact that the pre-Miranda exchange consisted of express questions by the police, and not merely words or actions which were normally attendant to arrest or custody. See Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980) (finding that "the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.") This motion shall be denied.
Defendant's motion to suppress
On a motion to suppress statements as allegedly obtained in violation of defendant's Miranda rights, the government bears the burden of proving by a preponderance of evidence that the waiver of Miranda rights was voluntary. United States v. Gell-Iren, 146 F.3d 827 (10th Cir. 1998).
Defendant contends that the post-Miranda statements, or at least the portion of them that relates back to the inadmissible pre-Miranda statements, should be excluded because the inadmissible pre-Miranda statements and the post-Miranda statements were close in time, were given under similar stressful circumstances in defendant's house, were elicited by the same examiner, and addressed the same subject matter.
Defendant does not contend that either the key or the marijuana should be suppressed, however. See United States v. Patane, ___ U.S. ___, 124 S.Ct. 2620, 159 L.Ed.2d 667 (June 28, 2004) (holding failure to Mirandize does not require the suppression of reliable, nontestimonial physical evidence derived from the suspect's voluntary but unwarned statements).
Defendant relies upon the recent case of Missouri v. Siebert, ___ U.S. ___, 124 S. Ct. 2601 (2004). Seibert held that Miranda warnings given mid-interrogation, after defendant gave an unwarned confession, were ineffective, and thus defendant's confession, repeated after warnings were given, was inadmissible at trial. In Seibert, the officer testified that he made a "conscious decision" to withhold Miranda warnings and used an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question until he got the answer the suspect had already given before being warned. 124 S. Ct. at 2606. The officer acknowledged that the suspect's post-Miranda statement was "largely a repeat of information . . . obtained" prior to the warning. Id.
The government invites the court to rely upon Oregon v. Elstad, 470 U.S. 298, 314 (1985). There, a suspect was briefly questioned in his home where he confessed, then was taken to the police station where he was Mirandized before again confessing. Elstad held that "a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Id., at 318. The Supreme Court concluded:
. . . . absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.Elstad, 470 U.S. at 314.
Despite the defendant's custodial interrogation and the officer's violation of Miranda procedures, the court found that the incident had "none of the earmarks of coercion." Id, at 316. The court then stated the governing rule in such cases:
Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative.Elstad, 470 U.S. at 318.
Defendant does not contend that the officer in this case used deliberately coercive or improper tactics in obtaining the initial denial of knowledge, and the facts would not support such a contention. Thus no presumption of compulsion arises as to the pre-Miranda statements, which the court finds to have been made voluntarily. See Elstad, 470 U.S. at 310.
The appropriate analysis as to admissibility of the post-Miranda statements is not whether the officer acted in good faith, see Elstad, 470 U.S. at 317, but whether the facts of record are sufficient to show that a reasonable person in defendant's shoes could have understood the Miranda warnings to convey a message that he retained a choice about continuing to talk. See Seibert, 124 S. Ct. at 2613. No bright line rule establishes whether midstream Miranda warnings are effective in accomplishing their object. Rather, the court must examine all the facts, including the completeness and detail of the questions and answers to the first round of questioning, the two statements' overlapping content, the timing and setting of the first and second rounds, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first. Seibert, 124 S. Ct. at 2612.
Analysis
Deputy Higdon admitted that the second round of questioning took place approximately five or ten minutes after the first. Defendant was seated in the same chair in the same room, remained handcuffed, and was questioned by the same officer both times. Deputy Higdon's stated purpose in asking defendant, pre-Miranda, if he knew where the keys were to his business and storage locker, which were the objects of separate search warrants, was to minimize damage to defendant's property. The fact that search warrants had already been issued for those places demonstrates that officers had previously established a link between this defendant and those places, lessening the chances that the pre-Miranda questioning was intended to coerce a confession, and increasing the chances that the questioning was for its stated purpose of preserving property. Although Deputy Higdon never left the room between the two rounds of questioning, he stopped questioning defendant at some point and gave directions to officers who were searching defendant's residence, before beginning the second round of questions. The second round of questioning began only after the key to the storage locker was found. Deputy Higdon thus did not treat the second round of questions as continuous with the first.
The court next examines the completeness and detail of the questions and answers, and the two statements' overlapping content. The questions and answers in the first round of questioning were limited and succinct. Deputy Higdon asked defendant, pre-Miranda, only two questions — whether he knew where the keys to his business were, and whether he had the key to the storage unit, #156 located on Button Road. Defendant told the officer where his business key could be found, but denied all knowledge of any storage locker or key.
The post-Miranda questions were more expansive and more intrusive, as the officer asked defendant about his wife, her location, defendant's work and age, whether anyone had been cooking methamphetamine on the property, defendant's knowledge of his uncle Bill Price, defendant's level of education, whether defendant could read and write, whether defendant was taking any medications, and the last time defendant did drugs. The above questions, none of which were asked pre-Miranda, were complete, detailed, and designed to elicit an incriminating response from defendant. The pre-Miranda and post-Miranda questions do overlap in content to the extent both asked about the location of a key and defendant's knowledge of a storage locker. Defendant answered at least some of the post-Miranda questions, but made no confession, thus exercising his choice to speak after having been informed of his rights.
Given the totality of the circumstances, the court finds that a reasonable person in defendant's shoes could have understood the Miranda warnings to convey a message that he retained a choice about continuing to talk, thus the post-Miranda statements shall not be suppressed. The dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are satisfied in the circumstances of this case by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing "taint" to subsequent statements obtained pursuant to defendant's voluntary and knowing waiver. See Elstad at 318.
IT IS THEREFORE ORDERED that the government's motion to reconsider (Dk. 38) is denied, and that defendant's motion to suppress post-Miranda statements (Dk. 34) is denied.
IT IS FURTHER ORDERED that defendant's motion for discovery (Dk. 33) is moot.