Opinion
Case No. 04-40017-01-RDR.
June 2, 2004
MEMORANDUM AND ORDER
On May 27, 2004, the court held a hearing on the pretrial motions filed by the defendant. The purpose of this memorandum and order is to memorialize the rulings made by the court and resolve those matters that were taken under advisement.
The defendant is charged, along with co-defendant Jesus R. Mejia, with two counts. She is charged with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. The charges arise from a traffic stop on February 13, 2004. The defendant filed two pretrial motions: (1) motion for discovery related to drug detection dog; and (2) motion to suppress statement.
MOTION FOR DISCOVERY RELATED TO DRUG DETECTION DOG
The defendant seeks a variety of information concerning Targo, the drug detection dog that was used during the traffic stop of the defendant on February 13, 2004. The defendant seeks the following information: (1) any and all training, testing, or certification; (2) records of job performance; (3) names and addresses of his veterinarian and his veterinarian records; (4) name and address of present owner, and past owners; (5) copies of search warrant affidavits where he was cited; (6) copies of all traffic citations where he was used; (7) copies of all news reports, including video tapes, involving him; and (8) copies of police dispatch logs related to him or his handler. She seeks this information pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Fed.R.Crim.P. 16.
The government objects to the production of any of this material. The government argues that this information is not discoverable under Rule 16. It points out that the defendant has not indicated why this information is material and relevant.
Based upon the arguments of the parties, the court is convinced that the defendant is only entitled to the records that show that Targo is trained and currently certified. See United States v. Wood, 915 F. Supp. 1126, 1133-36 (D.Kan. 1996), rev'd on other grounds, 106 F.3d 942 (10th Cir. 1997). This will require the government to produce the dog's training records and certification information. The remainder of the motion shall be denied.
MOTION TO SUPPRESS STATEMENT
The defendant seeks to suppress a statement allegedly made to law enforcement officers on February 13, 2004. The defendant contends that she was not advised of her Miranda rights before she was questioned. Based upon the evidence presented by the parties, the court now makes the following findings of fact and conclusions of law.
Findings of Fact
1. On February 13, 2004, a vehicle driven by the defendant was stopped around 8:30 a.m. by Kansas Highway Patrol Trooper Scott Morris. A subsequent search of the car revealed the presence of cocaine. The defendant and her passenger, Jesus Mejia, were arrested and transported to a nearby Kansas Highway Patrol garage. 2. During the afternoon of February 13th, Craig Wurdeman, a special agent with the Drug Enforcement Administration, initiated a conversation with the defendant. At the time, Wurdeman had been a DEA special agent for approximately five years. Prior to that time, he had worked as a police officer in Houston, Texas.
3. Agent Wurdeman initially sought some biographical information from the defendant. Another officer was present during the interview. Agent Wurdeman got some information and then left for a few minutes to talk with Mr. Mejia. When Agent Wurdeman returned, he advised the defendant of her Miranda rights. He read the standard Miranda warning to her from a card he always carries with him. The defendant indicated that she understood her rights. She further indicated that she was willing to talk with Agent Wurdeman. Agent Wurdeman made no threats and engaged in no coercion to get the defendant to talk with him. The defendant readily acknowledged at the hearing before this court that Agent Wurdeman did not pressure her and that she was aware of her Miranda rights.
4. There were no audiotape or videotape recordings made of Agent Wurdeman's discussion with the defendant. Moreover, there was no written document of a Miranda waiver offered to the defendant.
Conclusions of Law
1. It is now well-settled that the police must advise a person of her Miranda rights before conducting a custodial interrogation. Michigan v. Tucker, 417 U.S. 433, 443-44 (1974). A statement taken during a custodial interrogation in violation of the Miranda rule cannot be admitted at trial to establish the defendant's guilt. Berkemer v. McCarty, 468 U.S. 420, 429 (1984).
If a defendant talks to police after being advised of her right to remain silent, the government bears the burden of proving by a preponderance of the evidence that the waiver of the right was voluntary. Colorado v. Connelly, 479 U.S. 157, 168 (1986). To establish a voluntary waiver of Fifth Amendment rights, the government must show (1) that the waiver was the product of free and deliberate choice rather than intimidation, coercion, or deception; and (2) that the waiver was made in full awareness of the nature of the right being waived and the consequences of waiving. Moran v. Burbine, 475 U.S. 412, 421 (1986). Only if the totality of the circumstances surrounding the interrogation shows both an uncoerced choice and the requisite level of comprehension can a waiver be effective. Id.; United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir. 1996).
2. There is little question that the defendant was in custody when Agent Wurdeman began to question her. The initial questioning did not require the giving of the Miranda warning because the questions were administrative in nature. Questioning related to booking or other administrative pretrial matters does not constitute "interrogation" for purposes of Miranda. See Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990). "Routine booking questions do not constitute interrogation because they do not normally elicit incriminating responses." United States v. Parra, 2 F.3d 1058, 1068 (10th Cir. 1993). The questions that began after the preliminary administrative questions did constitute custodial interrogation.
3. The court finds that Agent Wurdeman did provide the defendant with a Miranda warning prior to any custodial interrogation. The court further finds that the defendant did waive her rights and agree to talk with him. In reaching these conclusions, the court was forced to consider testimony that conflicted. Agent Wurdeman testified that he did provide the defendant with the Miranda warning, and the defendant testified that he did not. After a careful review of the surrounding circumstances, the court is persuaded that Agent Wurdeman testified truthfully. As an interested person, the defendant had an incentive to testify that no Miranda warning was given. The credibility issue would have been much easier if (1) the interrogation had been recorded through the use of an audiotape or a videotape; (2) the defendant had been offered and signed a written waiver; or (3) the other officer who was present had testified. Nevertheless, despite these problems, the court finds Agent Wurdeman's testimony credible.
4. With these findings, the court shall deny defendant's motion to suppress.
IT IS THEREFORE ORDERED that defendant's motion for discovery related to drug detection dog (Doc. # 29) be hereby granted in part and denied in part. The court shall require the government to produce Targo's training records and certification information. The remainder of the motion shall be denied.
IT IS FURTHER ORDERED that defendant's motion to suppress statement (Doc. # 30) be hereby denied.