UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION. Plaintiff, Case Number BC v. Honorable David M.

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1 UNITED STATES OF AMERICA, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION Plaintiff, Case Number BC v. Honorable David M. Lawson MARK HOLLAND ROBERTS a/k/a CHARLES NOWARD ROBERTS, Defendant. / OPINION AND ORDER GRANTING DEFENDANT S MOTION TO SUPPRESS EVIDENCE A federal grand jury has returned a four-count indictment charging Mark Holland Roberts, the defendant, with unlawful possession of a false identification document that appeared to be issued by United States contrary to 18 U.S.C. 1028(a)(6); receiving stolen or converted Social Security benefits exceeding $1000 contrary to 18 U.S.C. 641; and two counts of making false statements in an application for public housing to an agent of the U.S. Department of Housing and Urban Development on two separate dates in violation of 18 U.S.C The evidence on which most of these charges are based was seized from Roberts by F.B.I. agents without a warrant during a noncustodial interview on July 21, Roberts has moved to suppress the evidence, and the government defends the seizure by claiming that the defendant consented to it. The Court held an evidentiary hearing on February 25, 2004, and the parties filed post-hearing memoranda. The Court now finds that the seizure of the evidence violated the Fourth Amendment and requires that the seized items be excluded from evidence at trial. The motion to suppress, therefore, will be granted. I.

2 At the evidentiary hearing, Diane Lipinski testified that In July 2001 she was a police officer with the Bay City Police Department, where she had been employed for the previous five years. Her department had received a telephone call from Jill Jacobs, the apartment manager at the Bradley House, which is a government subsidized housing project for handicapped and elderly individuals. Jacobs was concerned that the defendant may have provided false information to obtain an apartment in the name of Charles Noward Roberts because the defendant received mail under a few different names including Mark Holland Roberts. Jacobs also expressed concern that the defendant might be a sex offender because of complaints by another resident relating to the defendant s conduct. Lipinski said that she processed through the National Criminal Information Center data bank the various names under which the defendant received mail. She learned that Charles Noward Roberts was an alias used by Mark Holland Roberts. Roberts in fact had a prior conviction for a sex offense that required that he register his address, but Lipinski found that he had not registered as required by law. Lipinski brought this information to the attention of her supervisor who told her to contact the F.B.I. because the federal authority would handle the issue relating to potential fraudulent receipt of government benefits. Thereafter, Lipinski contacted F.B.I. Special Agent Dallas C. Kunkle, who at the time worked in the Saginaw resident agency with Agent Brett Banner. Lipinski sought Kunkle s assistance and related her suspicion that the defendant was fraudulently receiving government benefits. Kunkle in turn requested Banner s assistance. At midday on July 17, 2001, Lipinski, Kunkle and Banner went to Bradley House to continue the investigation where Kunkle spoke to Jacobs in the lobby. The entrance to the building opened into this area and is forty-five feet from the elevator. While Kunkle was speaking to Jacobs, the -2-

3 defendant by happenstance walked through the lobby and Jacobs pointed him out. There was no warrant for the defendant s arrest at the time nor did Kunkle have any plan to arrest or even make contact with him on that day. Nonetheless, all three officers approached Roberts in the lobby area. Lipinski was in uniform that included a gun belt with a gun. Kunkle and Banner were in civilian attire. They testified that they displayed their F.B.I. credentials. Lipinski asked the defendant, Do you mind if we speak to you? The defendant agreed. One of the officers asked the defendant if they could meet in his apartment to conduct an interview. The defendant consented and invited the officers up to his apartment. The group proceeded to the elevator and rode together to the defendant s floor. Banner, Lipinski and Kunkle all testified that the defendant did not appear to be nervous. They exited the elevator and walked down the hallway to Roberts apartment. He led the way and unlocked the door, and the three others followed him in. Kunkle stated that when they entered, Lipinski and Banner briefly conducted a safety sweep of the apartment to see if anyone else was there. Kunkle described the apartment as small with a livingroom, kitchen and bedroom. The defendant stated that he needed some water, and he invited the officers into the living room area. From the living room area, one could see into every other room in the apartment. The defendant sat down; he was not told where he should sit. Lipinski sat down to the defendant s right side while Kunkle sat in close proximity to the defendant. Banner stood off to the side and listened to the discussion. Kunkle and Banner testified that Roberts was not frisked and his movements were not restricted during the interview. Kunkle testified that he again showed Roberts his credentials and then conducted the interview at a normal conversational distance. He explained that they were there conducting an -3-

4 investigation because it was pretty obvious that the defendant was not seventy years old, which was a required condition for the subsidized housing, and thus he was improperly receiving government benefits (i.e., his apartment). Further, Kunkle told Roberts that the officers wanted to determine his identity to see if there were other outstanding warrants against him. Kunkle testified that his goal, which was conveyed to the defendant, was simply to find out who the defendant was. The defendant shook Kunkle s hand and said that he wanted to get things cleared up. Kunkle asked the defendant who he was to which the defendant answered Charles Noward Roberts. Kunkle then asked the defendant when he was born to which the defendant replied Later during the interview, Roberts provided several inconsistent statements relating to his age. For example, he stated later that he was born in 1940 and that the Bradley House office had messed up his application for housing. He then told Kunkle that he had a twin born in 1945 in another state. Roberts also told Kunkle that he wanted to correct the problem but that the apartment complex did not want to do so. Due to these inconsistencies, Kunkle asked him if had any documentation to support his identity and age. The defendant answered affirmatively and told Kunkle he had baptism records in his possession. However, when asked if he would produce them, the defendant stated that they were actually in Texas and that he would have to get them. Kunkle then told the defendant that he thought he was Mark Holland Roberts from Jackson, Michigan born in 1945, but the defendant denied it and claimed that was his twin. Kunkle testified that he asked the defendant additional questions and received inconsistent answers concerning the defendant s criminal history and military career. Kunkle then asked the defendant if he had any military discharge papers, specifically Form DD-14; the defendant denied having one in his possession. -4-

5 Finally Kunkle asked the defendant for identification. When the defendant answered, Yes, Kunkle said, Let s see it. The defendant then started going through his wallet. He was standing at that time; Kunkle was sitting. A card fell out of the defendant s wallet and landed on the floor. Kunkle saw that it was a Michigan Bridge Card in the name of Mark Roberts. Kunkle also observed a white piece of folded paper in the defendant s wallet. Kunkle finally said, Let me see your wallet, and the defendant handed Kunkle his wallet. Kunkle looked through the wallet and found Michigan driver s license and identification cards in the name of Charles Noward Roberts, a Social Security card in the same name, a fishing license and voter registration card purportedly signed by Charles N. Roberts, and a military Form DD-214 in the name of Charles N. Roberts, Sr. showing a date of birth of November 1, After this occurred, the defendant arose and went to the bedroom, explaining that he had more documents there to prove who he was. Lipinski and Banner followed the defendant into his bedroom for safety reasons. The defendant then admitted to Lipinski and Banner that he had changed his name from Mark Holland Roberts to Charles Noward Roberts twenty years earlier because of his past. At that point, Lipinski suggested that the defendant could resolve the matter by agreeing to go to the police station with the officers to have his fingerprints taken. The defendant consented, and approximately twenty minutes after the agents first encountered him, Roberts accompanied Banner and Kunkle to the Bay City Police Station. All three officers testified that Roberts was not placed under arrest, searched or handcuffed. Kunkle, Banner and the defendant rode to the station in the same vehicle. Lipinski followed along in a separate vehicle. -5-

6 When they arrived, Kunkle, Banner and the defendant remained outside while Lipinski went into the station to locate an evidence technician. When she did, the defendant went it and had his fingerprints taken. Lipinski remained in the room while the prints were being obtained. She then escorted the defendant outside. Lipinski told the defendant if he was who she thought he was, she would be seeking a warrant against him for not registering as a sex offender, and he would probably lose his apartment at Bradley House. The defendant replied that he was planning on moving anyway. Kunkle then drove the defendant home. On the way, however, the defendant asked to be dropped off at a gas station near his apartment. Kunkle complied with the defendant s request. II. The defendant contends that evidence adduced does not demonstrate that he consented to the warrantless seizure of his papers on July 21, The government, however, argues that characterizing the encounter as a search or a seizure miscasts the issue; rather it must be viewed as a noncustodial interrogation in which the production of identification documents was a feature of the answers to the questions. The government cites no authority for this novel proposition and the Court has found none. The defendant does not advance an argument that his rights under Miranda v. Arizona, 384 U.S. 436 (1966), were violated and he does not seek to suppress any statements. He asks the Court to exclude evidence of the identification cards and other documents turned over to Agent Kunkel during the encounter in his apartment. This is an issue that must be analyzed under Fourth Amendment jurisprudence. The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and -6-

7 particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. While the Fourth Amendment protects citizens against unreasonable searches and seizures, a search is not unreasonable if a person with a privacy interest in the item to be searched gives free and voluntary consent. United States v. Ivy, 165 F.3d 397, 402 (6th Cir. 1998); see Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Kelly, 913 F.2d 261, 265 (6th Cir.1990). The government bears the burden of proving through clear and positive testimony that the consent to search was given voluntarily. Ivy, 165 F.3d at 402; United States v. Tillman, 963 F.2d 137, 143 (6th Cir.1992) (holding that [c]onsent must be proved by clear and positive testimony and must be unequivocally, specifically, and intelligently given, uncontaminated by any duress and coercion ). To meet this burden, the government must demonstrate that consent was freely and voluntarily given without influence of duress, coercion, or mere submission to authority. United States v. Van Shutters, 163 F.3d 331, 335 (6th Cir. 1998). Proof must consist of clear and positive testimony. United States v. Hurst, 228 F.3d 751, 757 (6th Cir. 2000). [W]hether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. Schneckloth, 412 U.S. at 227. The totality of circumstances test in determining whether consent to search is voluntary mirrors the factors used to evaluate the voluntariness of a statement under the Fifth Amendment. First, a court should examine the characteristics of the accused, including the age, intelligence, and education of the individual; whether the individual understands the right to refuse to consent; and whether the individual understands his or her constitutional rights. See United States v. Jones, 846 F.2d 358, 360 (6th Cir.1988). Second, a court should consider the details of the detention, including the length and nature of detention; the use of coercive or punishing conduct by the police, see Bustamonte, 412 U.S. at 226; and indications of more subtle forms of coercion that -7-

8 might flaw [an individual s] judgment. United States v. Watson, 423 U.S. 411 (1976). Ivy, 165 F.3d at 402. Of all the factors listed above, the Sixth Circuit has identified as a key test of the validity of a consent to a search given by a person in custody... whether the person was informed consent could be refused. United States v. Haynes, 301 F.3d 669, 682 (6th Cir. 2002) (quoting United States v. Calhoun, 49 F.3d 231, 235 n.4 (6th Cir. 1995)). It is not the sole test, however, as the Supreme Court has recently reiterated. See United States v. Drayton, 536 U.S. 194 (2002) (holding that warrantless search of two passengers on a bus was not invalid under consent exception even though the officers did not specifically tell the passengers that they could refuse consent). In that case, the Court noted that there is no requirement that in specific terms... that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of effective consent. Nor do this Court s decisions suggest that even though there are no per se rules, a presumption of invalidity attaches if a citizen consented without explicit notification that he or she was free to cooperate. Instead, the Court has repeated that the totality of circumstances must control, without giving extra weight to the absence of this warning. Id. at 206. In this case, the defendant was a mature adult who had prior encounters with the criminal justice system. He was not detained and the government agents used no overtly coercive tactics. Nevertheless, conspicuously absent from this record is any positive indication that the defendant affirmatively agreed to relinquish custody of the documents that he handed over in response to agent Kunkle s demand. He never expressed his consent in words, and his conduct demonstrates at most an acquiescence to the agent s request for his wallet. -8-

9 The Sixth Circuit has consistently held that consent to a search exists only when it is unequivocally, specifically, and intelligently given, uncontaminated by any duress and coercion. United States v. Worley, 193 F.3d 380, 385 (6th Cir. 1999). The grant of permission to search must exhibit more than the mere expression of approval to the search. United States v. Jones, 641 F.2d 425, 429 (6th Cir. 1981). For instance, in United States v. Worley, the court held that the government failed to establish consent to search when the defendant, confronted by two police officers at an airport who asked to examine his ticket and identification and then to look into the bag he was carrying, responded, you ve got the badge, I guess you can. 193 F.3d at 383. The court recognized that there was no overt evidence of duress or coercion, the officers wore plain clothes and did not brandish weapons, the encounter occurred in a public place, the parties spoke in conversational tones, the defendant was cooperative, and Worley s intelligence and age suggested the ability to freely consent. Id. at 386. Nevertheless, the court found that the government had failed to demonstrate that Worley s response was an unequivocal statement of free and voluntary consent, not merely a response conveying an expression of futility in resistance to authority or acquiescing in the officers request. Ibid. Likewise, in this case Roberts act of handing over his wallet was not accompanied by a clear and unequivocal expression of consent. Rather, the gesture was made in response to agent Kunkle s statement, Let s see it, after Roberts told him that he had identification,and Kunkle s ultimate demand to give him the wallet. The absence of oral acquiescence or written consent is a factor the appellate courts consider in determining whether consent to a search or seizure has been proved. See United States v. McCaleb, 552 F.2d 717, 721 (6th Cir. 1977). When viewed in the context of the other circumstances, including the presence of three government agents in Roberts small apartment, -9-

10 Roberts inability to move about his apartment without a police officer in tow, and the lack of any statement that he had a right to refuse to turn over his wallet, the absence of a clear statement by Roberts that he consented to the seizure of his papers is a critical factor the weighs heavily against the government. Based on the totality of the circumstances, the Court is constrained to find that the government has not met its burden of proving that Roberts consented to the seizure of the documents. III. The defendant does not contend, and the Court does not find, that proof of consent to have fingerprints taken was wanting. Nor is there any argument that Roberts statements ought to be suppressed. However, the Court concludes that the government has not established by clear proof that the seizure of evidence from the defendant at his apartment on July 21, 2001 was justified by the defendant s voluntary consent. Accordingly, it is ORDERED that the defendant s motion to suppress evidence [dkt # 9] is GRANTED. Dated: May 17, 2004 s/david M. Lawson DAVID M. LAWSON United States District Judge Copies sent to: James A. Brunson, Esquire Kenneth R. Sasse, Esquire -10-