Opinion
Case No. 2:03-CR-858 DKW.
July 1, 2004
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO SUPPRESS
This matter came before the Court for an evidentiary hearing on Defendant Gerald Simpson's Motion to Suppress. Defendant was present and represented by Scott S. Kunkel. The Government was represented by Assistant United States Attorney Trina A. Higgins. The Court having heard oral argument on multiple occasions, having read the respective memoranda, transcripts and relevant case law, hereby enters the following report and recommendation.
Tr. 1 refers to the hearing held on February 23, 2004. Tr.2 refers to the hearing on March 15, 2004, and Tr.3 refers to the hearing held on May 27, 2004.
FACTUAL BACKGROUND
After a careful review of the somewhat contradictory testimony as to the sequence of events, the Court relies in part on the testimony of all witnesses and presents the facts in what the Court finds to be the most reliable sequence of events based on the credibility of the witnesses. See United States v. Taverna, 348 F.3d 873, 877 (10th Cir. 2003) ("At a hearing on a motion to suppress, the [magistrate] judge assesses the credibility of witnesses and determines the weight to be given to the evidence.").
Reid Bean, an Utah agent with Adult Probation and Parole, was given Defendant's Interstate Compact Application. Tr.1: 9-10. Bean had the responsibility to handle the interstate compact procedure which required Defendant to make contact with Bean and for Bean to visit Simpson at his home to verify residence and employment. Tr.1: 11-18. Home visits are done without making an appointment because an agent is to "make sure that they are in compliance with their probation." Tr.1: 18.
Prior to the home visit, Detective Dan Watson of the Kane County Narcotics Strike Force, informed Bean about an ongoing investigation Watson had regarding an informant who purchased some controlled substance from Mr. Simpson. Tr.1: 32. Bean often works with Watson and Watson has gone with Bean on home visits in the past. Tr.1: 19-20. On this particular visit, Watson accompanied Bean as backup and because he wanted to meet Simpson due to the ongoing drug trafficking investigation that involved Simpson. Tr.1: 19, 46. Both Bean and Watson testified that they did not intend to arrest Defendant. Tr.1: 20, 46. The purpose of their visit was to verify Defendant's residence not "to investigate concerning [the prior] drug buy" in which Defendant had allegedly participated. Tr.1: 20, 46.
On Saturday, August 30, 2003, both officers went to visit Defendant. Tr.1: 19-20. After arriving at approximately 10:00 a.m., they knocked on Defendant's front door a couple of times. Tr.1: 20-21, 47. Defendant, who was not fully dressed, eventually opened the door and allowed Bean and Watson into the residence. Tr.1: 20-21, 47. "As [Bean] walked in the door [he] observed numerous beer cans in the trash." Tr.1: 22. This concerned Bean because Defendant has a "no alcohol clause" in his probation agreement. Tr.1: 22. Bean, Watson and Defendant all walked into the livingroom and Bean asked Defendant questions about compliance with his probation agreement. Tr.1: 21-23, 48. This included questioning Defendant about whether he would test positive for controlled substances if Bean were to give him an urinalysis test. Tr.1: 22. Defendant was evasive and tried to change the topic of conversation, but after being pressed on the issue by Watson, Defendant stated that he would test positive. Tr.1: 23, 48. Defendant's wife, Angela Simpson, was also questioned about taking an urinalysis test. Tr.1: 23, 48.
At the hearing on March 15, 2004, Angela Simpson testified that she also goes by the name of Angela Feldman. Tr. 2: 4. The Court uses Ms. Simpson throughout its decision.
After Defendant admitted that he would test positive, he was questioned about the presence of controlled substances in the residence. Tr.1: 23-24, 49. Defendant replied that there were controlled substances in the residence. Tr.1: 23-24. Defendant and his wife took the officers back into the bedroom on different occasions and retrieved or showed the officers the controlled substances in the house. Tr.1: 24-26, 49-50; Tr.2: 49-52.
Watson testified that after finding some initial controlled substances he gave both Defendant and his wife Miranda warnings. Tr.1: 56-58. Bean testified he believes that the Miranda warnings were given approximately one-half hour after the officers arrived. Tr.1: 29. Following the Miranda warnings, Defendant agreed to continue answering questions and was separated from his wife because Ms. Simpson requested an attorney. Tr.1: 57-58. Ms. Simpson returned with Bean to the living room. Tr.1: 25, 57. While questioning Defendant further, Watson saw a knife in plain view while he was standing with Defendant. Tr.1: 61. This prompted Watson to ask Defendant if there were any other weapons in the residence. Tr.1: 61. Defendant said he had a "gun that belonged to a friend of his son's and he was just holding it for him" in a tackle box to which Defendant pointed. Tr.1: 61. Bean testified that after he had taken Ms. Simpson into the living room then Defendant and Watson came out of the bedroom with a handgun. Tr.1: 25.
Allegedly near the end of the encounter Watson prepared a written consent to search form that according to the testimony of Bean, Simpson "freely and voluntarily signed." Tr.1: 28. The officers then searched the residence finding some additional drug paraphernalia and some hunting knives. Tr.1: 28.
The Government does not rely on the consent to search form in its arguments. This document is also unnecessary to the Court's decision. Therefore, the Court does not consider the validity or timing of the consent to search form.
Defendant was subsequently arrested but never placed under arrest for a probation violation. Tr.1: 30. On cross examination, Bean admitted that Defendant never signed any papers allowing Utah to supervise Defendant. Tr.1: 30-31. Defendant's application for supervision by Utah was ultimately denied. Tr.1: 30-31.
FINDINGS
1. Defendant voluntarily and knowingly signed a probation agreement in the state of Arizona. Tr.2: 41-42. The probation agreement included a provision that Defendant would not drink any alcoholic beverage or go to bars. Tr.2: 42; Gov. Ex. 1. The agreement also stated that Defendant would "[s]ubmit to search and seizure of your person or property by the APD [Arizona Probation Department] without a search warrant." Gov. Ex. 1. Finally, this agreement provided that Defendant would "[a]pply for Interstate Compact supervision in the state of Utah." Gov. Ex. 1.
2. Defendant voluntarily and knowingly signed an application for supervision by the State of Utah pursuant to interstate compact. Tr.2: 43; Gov. Ex. 1. The interstate compact agreement states that Defendant "will comply with the conditions of supervision agreed upon by both the state of Arizona and the state of Utah." Gov. Ex. 1 (emphasis in original). Defendant also accepted any differences that may occur in the "course and character of supervision under the Compact" due to supervision by Utah instead of Arizona. Gov. Ex. 1.
3. A search for purposes of the Fourth Amendment depends on an individual's legitimate expectation of privacy. The Supreme Court has uniformly held that:
the application of the Fourth Amendment depends on whether the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been invaded by government action. This inquiry, . . ., normally embraces two discrete questions. The first is whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy, — whether . . ., the individual has shown that he seeks to preserve [something] as private. The second question is whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable, whether, . . ., the individual's expectation, viewed objectively, is justifiable under the circumstances.Smith v. Maryland, 442 U.S. 735, 740 (1979) (internal quotations and citations omitted); see also United States v. Nicholson, 144 F.3d 632, 636 (10th Cir. 1998) ("A search for purposes of the Fourth Amendment occurs when government officials violate an individual's legitimate expectation of privacy."). "When a defendant moves to suppress evidence obtained as a result of an allegedly unconstitutional search, he has the burden of demonstrating a subjective expectation of privacy that society is prepared to recognize as reasonable." Nicholson, 144 F.3d at 636.
The Government argues that "the controlled substances and firearm were obtained in response to questioning and not as a result of a search." Gov. Rep. P. 4. As support for this argument the Government cites to the testimony of both Bean and Watson who testified that the controlled substances and firearm at issue in this case were given to them before they searched the residence. Tr.1: 24-26, 28, 49-51, 73. For example, Watson testified that Defendant "pulled open the top drawer and removed a box that had the pipe in it" and then Defendant handed it to him. Tr.1: 49.
Defendant, in opposition, also offers the testimony of Watson arguing that a search did take place. For example, Watson testified that Defendant lifted up the bed and Watson saw a pipe underneath it, which he retrieved. Tr.1: 50. Defendant's arguments are well taken by the Court and the Court finds that whether there was a search of Defendant's residence is a close call. Defendant does however, fail to consider the possible reasons behind Watson's actions given Defendant's physical limitations, see Tr.2: 25-26, and the inherent danger of letting a suspect retrieve weapons. Watson did not go rummaging through Defendant's possessions without permission and he was told or shown where the contraband was located. Furthermore, allowing Defendant to retrieve weapons would have placed not only the officers in greater danger but would have also jeopardized the safety of Defendant. See Tr.1: 51 (retrieving gun after Defendant admitted to having a gun and pointed to tackle box where it was located).
Based on the facts in this case, a court could find that there was no search of Defendant's residence because of a failure by Defendant to establish an expectation of privacy. Therefore, under Smith, there would be no need to apply the Fourth Amendment to this case. See Smith, 442 U.S. at 740. The Court however, looks to United States v. Knight, 534 U.S. 112 (2001) for guidance and finds that this case is controlled by Knight.
In Knight, the defendant moved to suppress evidence found in his apartment during a search that was conducted pursuant to a probation condition allowing warrantless searches. Id. at 114. The district court and Court of Appeals for the Ninth Circuit both concluded that because the search was for investigatory, rather than probationary purposes, the evidence should be suppressed. Id. at 116. The Court of Appeals agreed with the defendant's argument that "a warrantless search of a probationer satisfies the Fourth Amendment only if it is . . . a `special needs' search conducted by a probation officer monitoring whether the probationer is complying with probation restrictions." Id. at 117. The Supreme Court, however, rejected this view and concluded that the evidence should not be suppressed based on "ordinary Fourth Amendment analysis that considers all the circumstances of a search." Id. at 122. The Supreme Court stated:
When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable.Id. at 121-22.
This Court finds it proper to engage in ordinary Fourth Amendment analysis pursuant to Knight given the factual similarity between Knight and this case. Therefore, the Court presumes that a search occurred and considers this case based on ordinary Fourth Amendment analysis.
4. In determining the validity of a search or seizure under the Fourth Amendment, the key touchstone is reasonableness. The reasonableness of a search is determined by comparing the degree to which it intrudes upon an individual's privacy with the degree to which it is needed to promote a legitimate government interest. See Wyoming v. Houghton, 526 U.S. 295, 299-300 (1999). Defendant appropriately recognizes that "[w]hile a probationer . . . retains their Fourth Amendment rights, the Supreme Court has also indicated that an expectation of privacy may be diminished under some circumstances." Def.'s Memo in Supp. P. 21.
In the instant case, Bean testified that upon entering the residence he "observed numerous beer cans in the trash." Tr.1: 22. These concerned Bean because the likelihood of a no alcohol clause in Defendant's probation agreement. Tr. 1: 22. Defendant was then evasive about whether he would test positive for controlled substances if he took an urinalysis test. Tr.1: 22. In fact, Defendant only answered after being pressed on the issue by Watson. Tr.1: 23, 48. These probation violations created "reasonable suspicion that [Defendant was] engaged in criminal activity." Knight, 534 U.S. at 121. Therefore, the "intrusion on [Defendant's] significantly diminished privacy interests [was] reasonable" if Defendant was subject to a search condition in his probation agreement. Id.
Defendant's probation agreement states that Defendant is to "[s]ubmit to search and seizure of your person or property by the APD without a search warrant." Gov. Ex. 1. Defendant argues that "person or property" is not the equivalent to consenting to a search of one's residence. Def.'s Mem. in Supp. p. 22. The Court disagrees. In Black's Law Dictionary, property is defined as "[a]ny external thing over which the rights of possession, use, and enjoyment are exercised." Black's Law Dictionary 1232 (7th ed. 1999). Based on this definition and the intent of the probation agreement that Defendant willingly signed, the Court finds that the term "property" as used in Defendant's probation agreement includes a search of Defendant's residence for "[a]ny external thing over which" he exercises control. Id.
Accordingly, although Defendant's search clause does not specifically mention residence like the clause in Knight, the Court finds that it is sufficient to enable a search of Defendant's residence without a search warrant. The "probation condition . . . significantly diminished [Simpson's] reasonable expectation of privacy." Knight, 534 U.S. at 119-20.
Defendant claims that the home visit was simply a "subterfuge for the officers investigative purposes." Def.'s Rep. Memo p. 5. Therefore, the Court should consider this "stalking horse" objective and suppress the evidence. Id. In support of his argument, Defendant cites to portions of Watson's testimony and then alleges that "Watson admits . . . the real purpose of the home visit was to further his criminal investigation." Id. at p. 7. Defendant's argument, however, becomes irrelevant because the Court's decision rests on ordinary Fourth Amendment analysis.See Knight, 534 U.S. at 122. Unless this search falls within one of the limited exceptions mentioned in Knight, then the intent of the investigating officers is not at issue. See id. ("With the limited exception of some special needs and administrative search cases, . . ., `we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.").
In Indianapolis v. Edmond, 531 U.S. 32, 45 (2000), the Supreme Court lays out the administrative search exception. "[W]hile `subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,' . . ., programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme withoutindividualized suspicion. Id. (internal citation omitted) (emphasis added). In the instant case there were no "Fourth Amendment intrusions undertaken pursuant to a general scheme."Id. Defendant applied for an interstate compact that was for his benefit. See Gov. Ex. 1. Part of this application procedure to which Defendant agreed required a home visit. Based on the testimony offered, there was "individualized suspicion" that Defendant was in violation of his probation agreement.Indianapolis, 531 U.S. at 45; Tr.1: 21-23, 48. Accordingly, this search does not fit within the parameters of an administrative search. Therefore, the Court finds that this was not an administrative search and rejects Defendant's argument that the officer's motivations should be considered. Tr.3: 11.
Defendant next contends that because he was never accepted for supervision in the State of Utah, Bean and Watson lacked the authority at the time of the visit to perform a search. Def.'s Mem. in Supp. p. 22-23. According to Defendant, he was still subject to the Arizona terms and conditions in his probation agreement although he lived in Utah. Tr.3: 6-8. Arizona could have Simpson extradited and he "still had to . . . comply with Arizona [conditions] until such time as Utah accepted him." Tr.3: 6. However, because he was living in Utah, Arizona authorities would have problems conducting a search because he was in another jurisdiction, i.e., Utah. Tr.3: 7.
The fact that this search occurred in the middle of the interstate compact process does create an interesting problem. According to Defendant's logic, Defendant was essentially in an administrative abyss in between two jurisdictions. Although he had to comply with his Arizona probation agreement no one could supervise his compliance. Utah authorities could not perform a search and Arizona authorities would need to extradite him because of the problems of doing a search in another jurisdiction. Tr.3: 6.
The Court appreciates Defendant's arguments and candor about this issue, however, the Court rejects this approach because it would create a veritable vacuum whereby defendants are free to do as they wish until their compact procedure was completed. Essentially, no one could adequately supervise a defendant's compliance with their probation agreement until the compact process was complete. Instead of this approach, the Court finds it best to look at the overall reasonableness of the situation as suggested by the Government. Tr.3: 21. Such an approach is consistent with the fabric of Fourth Amendment jurisprudence that examines the reasonableness of a search. See Wyoming v. Houghton, 526 U.S. 295, 299-300 (1999).
In the instant case, Defendant willingly signed an application for compact services and agreed to comply with the conditions of supervision by both Arizona and Utah. See Gov. Ex. 1. In the application Defendant "urge[s] the authorities to whom this application is made, . . ., to recognize that supervision in another state, if granted . . ., will be a benefit to me and will improve my opportunities to make a positive adjustment." Gov. Ex. 1. A change in supervision was beneficial to Defendant because he lived in Utah and he consented to the compact procedure that included a required home visit. Therefore, based on Defendant's consent in the application, and the search provision of Defendant's probation agreement that he voluntarily signed, the Utah officers did have the authority to conduct a search of his home after they determined that Defendant was in violation of his probation agreement.
"Inherent in the very nature of probation is that probations do not enjoy the absolute liberty to which every citizen is entitled." Knight, 534 U.S. at 119 (citations and quotations omitted). Based on the foregoing, the Court finds that the search in this case complied with the diminished expectations of privacy under the Fourth Amendment. See Id.
5. There is some dispute and confusion about the timing of Miranda warnings in this case. Defendant argues that if they were given at all, then it was after "there was an admission" a confrontation about the prior drug buy and after the situation became custodial." Tr.3: 36. The Government argues that Miranda was given at the time the situation became custodial and before any incriminating statement were made about the firearm. Tr.3: 30. During oral argument the Government represented that the only incriminating statements likely to be introduced at trial were Defendant's statements regarding the firearm. Tr.3: 30. Therefore, it becomes important to determine when Miranda was given if there was no applicable exception to the Miranda requirement.
In certain settings there is not a requirement that Miranda must be given. For example, Miranda warnings are usually unnecessary when interviewing a suspect. See United States v. Monia, 317 U.S. 424, 417 (1943). Or, if a suspect is not in custody then they do not have to be informed of their right to remain silent. See Miranda v. Arizona, 384 U.S. 436, 467 (1966).
"A person is `in custody' for the purposes of Miranda if he `has been deprived of his freedom of action in any significant way,' . . ., or his freedom of action has been curtailed to a `degree associated with a formal arrest.'" United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994) (citations omitted). In the instant case, Defendant was not placed in handcuffs, restrained or told that he was under arrest or not free to leave. Tr.1: 21-24, 36, 51-52. The fact that he was asked potentially incriminating questions did not make the situation custodial. See Minnesota v. Murphy, 465 U.S. 420, 431 (1984) ("The mere fact that an investigation has focused on a suspect does not trigger the need for Miranda warnings in non-custodial settings and the probation officer's knowledge and intent have no bearing on the outcome of this case."). The officers were invited into Defendant's home and the questions centered around Defendant's compliance with his probation agreement. In connection with these questions were Defendant's responses that drugs, paraphernalia and a firearm were in the residence. Based on these circumstances the Court finds that Defendant was not in custody during the initial questioning in his home. See Ritchie, 35 F.3d at 1485 ("`Courts are much less likely to find the circumstances custodial when the interrogation occurs in familiar or at least neutral surroundings,' such as the suspect's home.) (citation omitted).
Unfortunately, the witnesses largely differ as to the timing of the Miranda warnings. However, each witness does recall thatMiranda warnings were discussed at some point. Tr.1: 26-27, 58; Tr.2: 12, 32. After assessing the credibility of the witnesses, and weighing the evidence, the Court finds that the sequence of events given by Watson to be most credible. See United States v. Taverna, 348 F.3d 873, 877 (10th Cir. 2003) ("At a hearing on a motion to suppress, the [magistrate] judge assesses the credibility of witnesses and determines the weight to be given to the evidence.").
Watson testified that he gave Miranda warnings to Defendant and his wife at approximately the same time when Watson informed Defendant about the other investigation. Tr.1: 56-57. This was also the time when Watson believed there was enough evidence to charge Defendant. Tr.1: 56-57. Therefore, the Miranda warnings were given at a time when Defendant would be considered in custody according to United States v. Rith, 164 F.3d 1323 (10th Cir. 1999) (concluding that the defendant was not in custody until he was confronted with the illegal shotgun). Following the Miranda warning, both Defendant and his wife stated that they understood their rights and would still talk to the officers. Tr.1: 57. Shortly thereafter, Defendant and his wife were separated because Ms. Simpson requested an attorney. Tr.1: 57. Ms. Simpson then returned to the living room with Bean. Tr.1: 25, 57. After Defendant had received a Miranda warning and voluntarily agreed to continue speaking with Watson, Watson discovered a knife. Tr.1: 61. This prompted Watson to ask Defendant about other weapons in the house. Tr. 1: 61. Defendant then told Watson about the gun located in the tackle box. Tr.1: 61. This sequence of events is verified by Bean who testified that after he returned to the living room with Ms. Simpson, Defendant and Watson came out of the bedroom with a gun. Tr.1: 25. Therefore, the Court finds that the incriminating statements about the firearm should not be suppressed because these statements were given after Defendant received and waived hisMiranda rights.
RECOMMENDATION
For the foregoing reasons:It is HEREBY RECOMMENDED that Mr. Simpson's Motion to Suppress be DENIED.
Copies of the foregoing report and recommendation are being mailed to all parties who are hereby notified of their right to object. The parties must file any objection to the Report and Recommendation within ten days after receiving it. Failure to object may constitute a waiver of objections upon subsequent review.