Case No. 00-40068-01-DES.
November 1, 2000.
MEMORANDUM AND ORDER
This matter is before the court on defendants' Motion to Suppress Statement (Doc. 19) and Motion to Suppress Evidence (Doc. 22). The court heard oral arguments on the motions at the October 26, 2000, hearing. Both parties have filed briefs in this matter. For the reasons set forth below, the motion to suppress statement is granted and the motion to suppress evidence is denied.
On July 12, 2000, the grand jury returned a three count indictment against defendant. Count 1 alleges that defendant knowingly and intentionally possessed with intent to distribute approximately 65.6 grams of cocaine hydrochloride, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). Count 2 alleges that defendant knowingly and intentionally possessed firearms in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924 (c)(1)(A). Count 3 alleges that defendant, having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly and intentionally receive and possess firearms which had been shipped or transported in interstate or foreign commerce, in violation of 18 U.S.C. § 922 (g)(1).
On January 25, 2000, officers of the Topeka Police Department obtained a search warrant for the search of defendant's residence at 722 N.E. Emmett, Topeka, Kansas. At approximately 10 p.m. officers entered the house and encountered defendant, who was subsequently placed in handcuffs. Officer Bruce Voigt identified himself and commenced an interview with defendant. Defendant immediately informed Officer Voigt that there was no need to read him the Miranda warnings because he refused to answer any questions which could be used against him in court. Officer Voigt did not read defendant the Miranda warnings and told defendant that anything he said would be "off the record."
At this point, defendant requested to speak with FBI Agent Ron Elder, whom defendant knew from past experiences. Defendant expressed an interest in cooperating with the police once he talked to the FBI. FBI Agent Hundertfund contacted Agent Elder, but it is unclear from the testimony presented at the hearing whether defendant actually spoke to Agent Elder. Officer Voigt told defendant that his cooperation (statement) was voluntary, and defendant subsequently made incriminating statements. Officer Voigt never told defendant that his statements would be "on the record."
II. MOTION TO SUPPRESS STATEMENT
Defendant seeks to suppress the statement taken from him on January 25, 2000, following the execution of a search warrant for his home. Defendant argues the statement was involuntary and inadmissible for any purpose because it was induced by the unlawful promise of Officer Voigt. The government agrees that the statements may not be used in the government's case in chief, however, it argues the statements may be used for impeachment purposes. At the hearing, defense counsel stated that defendant's main concern was that the statements not be used against him as "relevant conduct" at sentencing.
Several courts have held that an officer's promise to a defendant that his statement would be "off the record" or not used against him is unlawful, rendering the statement involuntary. United States v. Swint, 15 F.3d 286 (3rd Cir. 1994) (promise that statement would be "off the record"); United States v. Walton, 10 F.3d 1024 (3rd Cir. 1993) (promise that statement would be "off the cuff"); United States v. Rogers, 906 F.2d 189 (5th Cir. 1990) (promise that defendant would not be charged with criminal conduct if he cooperated). Defendant was not read the Miranda warnings. Defendant told Officer Voigt that the officer did not need to read the Miranda warnings because he would say nothing that could be used against him. Officer Voigt then told defendant that his statements would be "off the record." Defendant expressed interest in cooperating with the government, and Officer Voigt believed he was cooperating. No one told defendant that his statement would be "on the record" or used against him. Under these circumstances, the court finds defendant's statement was not voluntary. Therefore, defendant's motion to suppress his statement is granted.
The government argues that the statements are admissible for impeachment purposes although they are not admissible in its case in chief. The government contends that a statement, which is not the result of duress or coercion in the classic Fourteenth Amendment sense, is available for impeachment purposes. The Supreme Court has stated, "[i]t does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards." Harris v. New York, 401 U.S. 222, 224 (1971). The Court cited many reasons to support the use of a trustworthy statement for impeachment purposes, including that (1) "[t]he impeachment process here undoubtedly provided valuable aid to the jury in assessing [defendant's] credibility and the benefits of this process should not be lost;" (2) "[a]ssuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief;" and (3) "the shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." Id. at 225-26.
The court finds defendant's statement is trustworthy for impeachment purposes. Defendant was attempting to cooperate with the police at the time he made the statements. Defendant had a motive to be truthful from self-interest, as he would gain nothing by giving the officer false information. Although the officer promised the statement would be "off the record," the officer did not threaten or intimidate defendant or use force against the defendant. At the hearing, the officer testified that he informed defendant that his cooperation (statement) was voluntary. Under these circumstances, the court finds the statement is trustworthy and not the product of coercion or duress. Therefore, although the statement may not be used in the government's case in chief, it may be used for impeachment purposes.
Whether defendant's statement may be used against him as "relevant conduct" at sentencing is a question the court need not address at this time. The court will address this issue at the appropriate time when both parties have fully briefed the issue.
MOTION TO SUPPRESS EVIDENCE
Defendant filed a motion to suppress all evidence seized from his residence on the ground that the warrant was issued without a sufficient showing of probable cause and the officers executing the warrant knew or should have known that there was insufficient probable cause. The warrant was substantially based on information from an unnamed confidential informant. Defendant argues that the informant was not sufficiently reliable, the information relied upon was stale, and there was no showing of the basis for the informant's knowledge.
The affidavit of Officer Tom Pfortmiller in support of the warrant provides, in relevant part:
I have an informant, I have received information from this informant for over (3) weeks. This informant is providing information for consideration on pending District Court charges. The informant has no convictions for dishonesty that I am aware of. The informant has provided me with at least (3) pieces of information that have been proven to be true and correct.
The informant advised me that a Ron Winters is selling powder cocaine from 722 N.E. Emmett in Topeka Kansas. The informant advised that the informant has observed Ron Winters sell powder cocaine on at least (5) occasions over the last (3) months from his residence at 722 N.E. Emmett. The informant advised that when someone comes to the residence to buy cocaine that Ron would always go to his bedroom to retrieve the cocaine for the sale. The informant advised that Ron lives alone and has no dogs or children in the residence. The informant advised that the informant has never seen any weapons or any type of fortification in the residence.
I have been able to positively identify Ron Winters as Ronald Duane Winters Sr. white male, 6'04", 240 pounds, with gray hair and blue eyes, DOB 11-28-1935. . . .
I found that Ronald Winters has been arrested for possession of cocaine, possession of drug paraphernalia, and criminal possession of a firearm on 7-25-1995, I also found that Ronald Winters was arrested for a domestic battery on 11-18-1992.
The informant advised that within the last 48 hours the informant has been notified via phone that Ron Winters had recently just re-upped and that the informant could get anything the informant wanted up to ounces of cocaine.
"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). The task of this court is "simply to ensure that the magistrate had a `substantial basis for concluding that probable cause existed.'" Id. (citing Jones v. United States, 362 U.S. 257, 271 (1960)).
The issuing magistrate had a substantial basis for determining probable cause existed in this case. The informant provided information to the police in order to reduce his punishment in a pending criminal case. The informant had a motive to be truthful from self-interest, as he would gain nothing by giving the officers false information. In addition, the informant had no known convictions for dishonesty. The informant had provided the police with at least (3) pieces of information which proved to be true. Although the affidavit does not state the nature of the information, a reading of the affidavit suggests this information included defendant's identity, address, and criminal history. The informant gave the officer detailed information as to how the drugs were sold inside the residence. The informant had observed defendant engage in a continued course of conduct over a three month period, selling cocaine on five separate occasions. Looking at the affidavit in its entirety in a common sense manner, there is sufficient information to find that the confidential informant was reliable.
The court also finds the affidavit sufficiently demonstrated the basis for the informant's knowledge. Defendant argues the following paragraph is ambiguous: "The informant advised that within the last 48 hours the informant has been notified via phone that Ron Winters had recently just re-upped and that the informant could get anything the informant wanted up to ounces of cocaine." While this paragraph does not specifically state who advised the informant, common sense dictates that the information came from either the defendant or someone defendant trusted with the information. This information is sufficiently specific.
The issuing magistrate had a "substantial basis" for determining probable cause existed. Therefore, defendant's motion to suppress evidence is denied.
IS THEREFORE BY THE COURT ORDERED that defendants' Motion to Suppress Statement (Doc. 19) is granted. Defendant's motion to Suppress Evidence (Doc. 22) is denied.