Opinion
Case No: 2:04-CR-153 DB.
November 8, 2004
REPORT AND RECOMMENDATION
Defendant's motion to suppress evidence seized and motion to suppress Defendant's statements. The court held a hearing on the motions. At the end of the hearing, Defendant requested additional time to research and brief the issues, and the court set a briefing schedule for both parties. Now, having conducted a hearing on the motion, and after carefully reviewing the briefs submitted by the parties, the facts of this case and the relevant law, the court enters this Report and Recommendation to deny Defendant's Motions to Suppress.
Motion to Suppress, filed July 27, 2004, docket no. 119-1.
Motion to Suppress, filed April 13, 2004, docket no. 31-1.
Hearing on Motions, August 23, 2004.
Defendant's Preliminary Memorandum in re: Motion to Suppress, filed August 9, 2004, docket no. 129-1; Memorandum of Points and Authorities in Support of Defendant Cyndi Street's Motions for Suppression, filed September 17, 2004, docket no. 151-1; Government's Preliminary Response to Defendant's Motion to Suppress, filed July 29, 2004, docket no. 126-1; Government's Response to Defendant Cyndi Street's Motion to Suppress, filed October 8, 2004, docket no. 159-1.
Facts
The facts recited are as found by the magistrate judge from the testimony at the hearing. The testimony was not disputed in any material respect.
Defendant's interview was not the first one conducted nor the last, but began about 3:20 a.m., just a little less than three hours after the officers' entry into the home. Officers Coleman and Boelter escorted Ms. Street into a small bedroom off of the living room, where she was seated during the interview. The officers were still dressed in the balaclava-type hood that concealed their face and the black clothing they wore when they entered, although they had shed the heavy vest and the helmet, and at least in Coleman's case, the gloves. Their weapons were holstered during that interview.
Officer Boelter testified regarding the administration of the Miranda warnings. He said that he gave each part of the Miranda warning, followed by a question as to whether the rights were understood. He then asked a final question, as he phrased it, whether the individual being interrogated, having those rights in mind, wanted to talk with the officers. Ms. Street answered, "yeah," and then a short discussion ensued. There was no indication that Ms. Street did not understand the Miranda warnings given. She showed no apparent confusion with the warning and was able to answer the questions in a responsive manner. The interview was terminated somewhere before 3:35 a.m. because that is the time that the next interviewee was given Miranda warnings.
Analysis
Defendant argues that her statements should be suppressed because they were not made voluntarily and she was given defective Miranda warnings. Defendant also asserts that any evidence seized should be suppressed because the search warrant was overly broad.
Defendant's Statements
It is well established that under Miranda v. Arizona, "law enforcement officers must administer prophylactic warnings regarding the privilege [against self-incrimination] to any person subjected to `custodial interrogation.'" However, " Miranda itself indicated that no talismanic incantation was required to satisfy its strictures." In this case, the government concedes that Defendant was in custody and subject to interrogation at the time she made her statements. Officer Boelter testified about the administration of the Miranda warnings in this case:
384 U.S. 436 (1966).
United States v. Erekson, 70 F.3d 1153, 1156 (10th Cir. 1995) (quoting Miranda, 384 U.S. at 444).
California v. Prysock, 453 U.S. 355, 359 (1981) ( per curiam).
The way I give Miranda, I go through, initially, as they sit down, and I identify myself, who I'm with, explain to them that I'm serving a narcotics search warrant in the house. First thing I state to them I say, "Before I talk to you I have to advise you of your rights because you do know you have rights, right?" I get an affirmative answer. At that point in time is when I start and I go through with the Miranda. The first thing I tell them is I say, "You have the right to remain silent. Anything that you tell me will be put in a police report. That police report can be used in a court of law at a later date and time if need be. Do you understand that?" They give an affirmative answer. I tell them they have the right to an attorney. "If you can't afford one, the government gives you one free of charge. You know that right?" I get the answer. I say that, "You have the right to request an attorney at any time while we're talking." I say, "Basically what it comes down to is you can answer some of my questions, none of my questions or all of my questions. Having all that in mind, do you want to talk to me now?" And that's when she stated the answer, "Yeah."
Transcript of Hearing on August 23, 2004 at 30.
It is clear that Officer Boelter fully conveyed to Defendant her rights as required under Miranda. She was told of her right to remain silent. She was told of her right to request a lawyer at any time during the questioning, as well as her right to have a lawyer appointed at no cost if she could not afford one. She was even told she did not have to answer any of the officer's questions. Officer Boelter clearly communicated these rights to Defendant in full compliance with the Miranda requirements.
Defendant also argues that under the totality of the circumstances, her statements were not voluntary because (1) the totality of the circumstances of the forced entry into the home during the middle of the night, and being seated for several hours in handcuffs created a coercive environment, and (2) she was given implied inducements to talk after seeing another woman at the scene allowed to leave with her children.
Defendant's Memorandum at 14, docket no. 151.
Once Miranda warnings are given, a defendant may waive the rights conveyed by in the warnings "provided the waiver is made voluntarily, knowingly and intelligently." Requirements for a valid waiver include:
Miranda, 384 U.S. at 444, 475.
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
Moran v. Burbine, 475 U.S. 412, 421 (1986).
Under this standard, all of the factors in this case weigh in favor of a voluntary waiver. Although the forced entry into the home may have been a frightening event, the tenseness of that event had been allow to dissipate prior to the interview. Even while seated in the living room for several hours, she had watched others leave the room to be interviewed by the officers, and return to the room following the interview. Despite the fact that one woman at the scene was released with her children prior to the interviews, all the other suspects remained seated in the living room, in custody, awaiting interviews.
In this case, there is no evidence that police resorted to physical or psychological pressure to elicit any statements. There is also no evidence to show that Defendant did not understand her rights. There was no language barrier, and Defendant responded appropriately to the questions posed. Defendant was specifically informed that she did not have to answer any questions, yet her waiver was explicit. Although this environment may have seemed subjectively coercive to Defendant, "[t]hese types of personal psychological pressures do not amount to official coercion rendering a [waiver] involuntary." Accordingly, under the totality of the circumstances, Defendant's waiver was voluntary.
United States v. Glover, 104 F.3d 1570, 1580 (10th Cir. 1997) (citing Colorado v. Connelly, 479 U.S. 157, 170 (1986).
Search Warrant
Defendant argues that the search warrant was unconstitutionally overbroad because after a specific detailed description of many items to be seized, it contained the following language:
. . . and any other fruits or instrumentalities of the crimes of possession or distribution of a controlled substance. And that said property or evidence was unlawfully acquired or is unlawfully possessed; or has been used to commit or conceal a public offense; or is being possessed with the purpose to use it as a means of committing or concealing a public offense and consists of an item or constitutes evidence of illegal conduct possessed by a party to the illegal conduct.
Search Warrant at 1-2, attached to Government's Preliminary Response, docket no. 126-1.
Defendant asserts that the language, "fruits or instrumentalities of the crimes of possession or distribution of a controlled substance" authorizes the seizure of any item in the home of an alleged drug dealer, since anything possessed by a drug dealer might be a "fruit" of the drug crimes because it might have been purchased with the money derived through the drug operation.
See Defendant's Memorandum at 3, docket no. 151-1.
Defendant relies on United States v. Clark to argue that the inclusion of the "fruits or instrumentalities" language requires suppression of all the evidence seized pursuant to the warrant. The Clark court found that a "fruits and instrumentalities" phrase could render a search warrant facially overbroad because it provided no guidance to the officers regarding the items to be seized. However, the court also noted that the warrant's overbreadth could be cured by an accompanying affidavit that describes the items to be seized with more particularity. While the court concluded that the remedy for an overbroad search warrant required suppression of the evidence seized, it held that a court needs to suppress "only those items seized pursuant to the invalid portion of a search warrant."
31 F.3d 831 (9th Cir. 1994).
See id. at 836.
See id. (citing United States v. Luk, 859 F.2d 667, 676 (9th Cir. 1988).
Id.
The search warrant at issue in this case was issued by a judge of the Third District Court of the State of Utah. The government contends that the language following "fruits and instrumentalities" is simply statutory language found in Utah Code Ann. § 77-23-202 that provides the specific grounds for issuance of a warrant that "must be alleged in the affidavit and found by the issuing judge in the warrant in order to create a valid, lawful search warrant in Utah." Therefore, the magistrate judge recommends that this language from the statute simply be disregarded. That leaves only the language of "other fruits or instrumentalities" tied directly to "the of the crimes of possession or distribution of a controlled substance."
77-23-202. Grounds for issuance.
Property or evidence may be seized pursuant to a search warrant if there is probable cause to believe it:
(1) was unlawfully acquired or is unlawfully possessed;
(2) has been used or is possessed for the purpose of being used to commit or conceal the commission of an offense; or
(3) is evidence of illegal conduct.
Government's Response at 3, docket no. 159-1.
Search Warrant at 1-2.
This case is different from Clark because the affidavit supporting the search warrant specifically refers to items contained in a meth lab that the officers expect to find at the home to be searched. The warrant itself also contains a specific list of drug paraphernalia and chemicals associated with a meth lab. Moreover, the "fruits and instrumentalities" language in the warrant is specifically linked to "the crimes of possession or distribution of a controlled substance," limiting the search to any alleged violations of those particular crimes. All these constraints operate to prevent the "fruits and instrumentalities" language from making the warrant overbroad.
Id.
The Tenth Circuit has repeatedly upheld search warrants cast in comparably broad terms when the subject of the search is related to an illegal drug business, and where circumstances permitted only a more general listing of the items to be seized. "`When the circumstances of the crime make an exact description of the fruits and instrumentalities a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking.'"
See, e.g., United States v. Robertson, 21 F.3d 1030, 1033-34 (10th Cir. 1994) (holding search warrant for "fruits and instrumentalities" of carjacking sufficiently particular). See also, Andresen v. Maryland, 427 U.S. 463, 479-82 (1976) (holding a warrant authorizing seizure of "other fruits, instrumentalities and evidence of crime at this [time] unknown" was sufficiently specific because in context it only referred to the fruits or instrumentalities of the particular crime).
See United States v. Janus Indus., 48 F.3d 1548, 1554 (10th Cir. 1995). See also United States v. Wicks, 995 F.2d 964, 973 (10th Cir.), cert. denied, 510 U.S. 982 (1993) (listing cases)
United States v. Emmons, 24 F.3d 1210, 1216 (10th Cir. 1994) (quoting United States v. Harris, 903 F.2d 770, 775 (10th Cir. 1990)).
The type of criminal activity under investigation in the present case, a drug manufacturing and distribution business, makes it difficult to list with great particularity the precise items desired to be seized which would evidence such activity. Here, the warrant and accompanying affidavit described the items to be seized as specifically as possible under the circumstances. It was limited to materials, documents and other items specifically related to the manufacturing, distribution and possession of methamphetamine. And as a result of the court's inquiry at the hearing, defense counsel was unable to identify any item seized in the search which was not enumerated in the warrant or affidavit — except for weapons seized, which the court was informed have been returned to their lawful owners. Therefore the only practical effect of the "fruits and instrumentalities" language was to seize weapons, which undoubtedly could qualify as instrumentalities of criminal activity. Consequently, it is recommended that the evidence seized pursuant to the warrant not be suppressed.
See Janus Indus., 48 F.3d at 1554; Harris, 903 F.2d at 775.
See id.
Transcript of August 23, 2004 Hearing at 18-19.
RECOMMENDATION
Based upon this report, it is recommended that the court:
1. DENY Defendants Motions to Suppress Evidence Seized and
2. DENY the Motion to Suppress Defendant's Statements.
Docket no. 119-1.
Docket no. 31-1.
Copies of the foregoing Report and Recommendation are being mailed to the parties, who are hereby notified that they have the right to object to the Report and Recommendation. The parties are further notified that they must file any objections to the Report and Recommendation with the clerk of the district court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.