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

Transcription

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, Case Number BC v. Honorable David M. Lawson KAREN LOPEZ, Defendant. / ORDER GRANTING DEFENDANT S MOTION TO SUPPRESS STATEMENTS AND DENYING MOTION TO SUPPRESS EVIDENCE This matter is before the Court on motions filed by the defendant, Karen Lopez, to suppress statements given during an interrogation that was not preceded by the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and to suppress evidence seized during a warrantless search of her home conducted upon her consent to search. On November 17, 2003, the Court held a hearing and heard evidence on the motions to suppress. The Court continued the hearing because one of the government s witnesses, Dianne Poindexter, a postal inspector located in another state, was unable to attend the hearing and testify due to health reasons, and both parties contended that her testimony was critical to the decision of these motions. Testimony of witness Poindexter was taken in open court via video conferencing equipment on December 22, 2003, and the matter was taken under advisement. The parties agree that postal inspector Poindexter did not give the defendant Miranda warnings before interrogating her. The contested issue in the case is whether the defendant was in custody so as to trigger the requirement that the warnings be given. The Court finds from the testimony that the defendant was confined to her residence on August 15, 2002 and not free to leave,

2 and therefore she was in custody during her interrogation. The failure of the government agents to advise the defendant of her rights under the Fifth Amendment as required by Miranda and Dickerson v. United States, 530 U.S. 428, 440 (2000), mandates suppression of her statement given that day. However, the Court also finds that the defendant and her husband voluntarily consented to the search of their home that day, and therefore the fruits of the search need not be suppressed. Furthermore, a statement given by the defendant in February 2003 at the Saginaw, Michigan Drug Enforcement Agency (DEA) office was proper despite the lack of Miranda warnings because the defendant was not in custody. The motion to suppress statements will be granted as to the August 15, 2002 statements and denied as to the February 2003 statement, and the motion to suppress evidence will be denied. I. Karen Lopez is charged along with her husband, Paul Lopez, and eight other persons in an eleven-count second superseding indictment with various controlled substance offenses. The government alleges that the Lopezes conspired with David Goward, Karen s brother, and others to distribute marijuana in the mid-michigan area. The Lopezes role in the conspiracy allegedly was to store marijuana in their residence for Goward. A quantity of marijuana was discovered at the Lopezes home in St. Charles, Michigan during a warrantless search there on August 15, Karen Lopez was home at the time of the search and she gave a statement. John Jewett, a Special Agent with the Drug Enforcement Agency (DEA), testified that he was involved with an investigation into the drug trafficking activity of David Goward and Armondo Contreras. Based on information he obtained from other sources, Jewett went to the defendant s home located at 1103 Bell Avenue, St. Charles, Michigan at approximately 5 p.m. on the evening of -2-

3 August 15, 2002 with Michigan State Police Detective Daniel King, Michigan State Police Trooper Scott Taylor, and Postal Inspector Deanne Poindexter. Jewett had received information that marijuana was being stored there. Jewitt, Taylor, and King drove there in the same vehicle. Jewitt was wearing his DEA vest and jacket and was armed, but his weapon was in its holster. King was dressed in plain clothes wearing a bullet-proof vest; he did not remember if he was displaying his badge, but he did carry a side arm in its holster. Taylor was also in plain clothes. Poindexter arrived in a separate vehicle. Neither vehicle displayed and police markings. Jewett described the neighborhood as residential with houses close together. Bell Avenue is located just off St. Charles main street. Jewett testified that when he alighted from his vehicle, he first encountered Paul Lopez sweeping the driveway. Jewitt and the others identified themselves as police officers and explained that they had come to the house because they had information that marijuana was being stored there. He asked Lopez for permission to search the house. Paul Lopez said he had nothing to hide. Jewett said that Paul Lopez then invited the officers into his house. Mr. Lopez may have been drinking beer but Jewett did not find him intoxicated. No one patted down Paul Lopez. Karen Lopez was in the house. Jewett described her as a woman in her mid-30s having average intelligence. She did not appear to be under the influence of drugs or alcohol. She exhibited shock and surprise at the allegation that marijuana was stored at the house. Jewitt, Taylor, and Mr. Lopez originally entered the house while at least two other officers waited outside. Paul and Karen Lopez then sat at the kitchen table, a 20-by-20-inch booth-type table. Jewitt was standing, and when Paul Lopez said that the house could be searched, Jewett called -3-

4 for Detective King, who had retrieved a consent-to-search form. King presented the form while sitting at the table. The consent form reads: I willingly give my permission/consent: To conduct a complete search of the premises and property including all buildings and vehicles, both inside and outside the property located at 1103 W. Belle Ave. St Charles MI Saginaw County... I give permission freely and voluntarily. I have not been coerced or threatened in any manner. No promises have been made to cause this grant of permission. I know that I am not required by law to give permission and that the results of the above searches or analysis may be used as evidence in possible court proceedings. Hearing Ex. 1 (Consent Form). 1 Both Lopezes signed the consent form at 8:19 p.m. Jewett said that none of the officers made any threats or promises to obtain the signatures. Jewett then began to interview Paul Lopez, and Karen Lopez was taken outside by postal inspector Poindexter. Jewett did not participate in Karen Lopez s interview. He remained in the kitchen with Paul Lopez for approximately 30 minutes. During the interview, Jewett was interrupted by Trooper Taylor who reported finding 65 pounds of marijuana. Mr. Lopez then stated that he was storing the marijuana for a person named Michael Joseph. Neither Paul nor Karen Lopez were arrested that day. Jewett said that he believed that Karen Lopez could have left the premises at any time despite the presence of seven law enforcement officials at the residence, although he acknowledged that she was never told this, nor was she verbally informed of her right to refuse to consent to the house search. Jewett had no further contact with defendant Karen Lopez that day. He testified that he stopped at her house some time later to tell her that her parent s house was searched, that no one was 1 Due to a scrivener s error both the consent form and the defendant s two-page written statement were marked as the Government s Hearing Exhibit

5 home, and they had not secured the door. Jewett also called the Lopezes to request another interview that eventually occurred on February 10, The interview took place at the DEA office in Saginaw, Michigan during business hours. The defendant and her husband voluntarily drove themselves to the office, and they came to the fourth floor interview room, which is a relatively small 12 by 12 or 14 foot room with a desk and chairs. Fellow task force agent, Margo Anderson, was also present during the second interview. Jewett began by explaining the federal conspiracy laws to them, how they were potentially involved, what that meant to them, and that he wanted to speak to them about the marijuana being stored at their residence. He told them they were facing a potential sentence of approximately five years. Jewitt then interviewed the defendant and her husband separately beginning with Paul Lopez. While Jewitt interviewed him, Karen left the room and waited in the hallway for about an hour. She was next interviewed for less than hour. No Miranda warnings were given. During the interview, Karen Lopez appeared upset and reluctant to give Jewitt any information. Jewitt states that he made no threats or promises, and that neither he nor officer Andersen raised their voices. The defendant again did not appear to be under the influence of any substance, nor was she acting unusually. Jewett described the atmosphere as friendly, but agreed that Karen Lopez did appear to be upset in a sad sort of way. The interview was not tape-recorded. Lopez made statements at the interview that the government seeks to introduce in evidence at her trial. Detective King testified that he initially remained in the car while Agent Jewett and Trooper Taylor entered the Lopez residence on August 15, He entered when summoned by Jewett who told him that the Lopezes had agreed to the search. King testified that he sat at the kitchen table with the Lopezes and he obtained their signatures on Hearing Exhibit 1 (consent form). According -5-

6 to King, neither Lopez was under stress or influenced by alcohol or drugs, they were not confused, and they possessed average intelligence. King said that Trooper Taylor then went to search the basement and King remained in the kitchen with Paul Lopez. He advised Paul Lopez that he was not under arrest, nor would he be arrested that day. King saw Karen Lopez walk in and out of the house, and she eventually went to the garage to visit with family members who had arrived. King did not remember where Karen was when Paul was told he was not under arrest. King said that postal inspector Poindexter was also present at the residence, and Michigan State Police Officer Richard Mainprize came on the scene after the consent form was signed. King did not participate in the entire interview with defendant Karen Lopez, but he was present for part of it and asked her a few questions. She stated to him that she did not know that marijuana was stored on the premises, nor was she aware of an agreement with Michael Joseph to hold the contraband in safekeeping in exchange for $1000. Michigan State Police Sergeant Richard Mainprize testified that he arrived at the residence in St. Charles on August 15 after the others had been there for a time. Mainprize remained at the scene for approximately one hour. His main duty was to keep an eye on folks while others were interviewed. He saw Karen Lopez in the garage with one or two others. Those individuals were not under arrest. However, Mainprize said that he made sure the defendant didn t leave. He also stated that if the defendant had asked to leave the area that he wouldn t have allowed [her] to leave. Mainprize eventually left the area to go to another investigation site. Other officers also came on the scene at various points. -6-

7 The parties agreed that Dianne Poindexter s testimony could be taken from Greensboro, North Carolina via video-conference equipment. She testified that on August 15, 2002 she was employed as a postal inspector and was part of the investigative team that arrived at the Lopez residence to conduct the search and interrogations. Initially she was asked to search the residence, but later she was assigned to take the defendant out and get a statement from her. Poindexter accompanied Karen Lopez from the kitchen to a picnic table in the back yard. Poindexter did not consider Lopez to be in custody. They were alone at the picnic table at first, but the defendant s children came over shortly thereafter. The defendant exhibited apprehension about her children s welfare, and Poindexter testified that she told Lopez more than once that she was not under arrest, she was not going anywhere that night, and she should not worry about the children. Poindexter said that Lopez never asked to leave the area, nor did she say that she did not want to make a statement. In response to Poindexter s questions, Karen Lopez initially made a statement to Poindexter disclaiming any knowledge of the stored marijuana. No Miranda warnings were given. Lopez wrote the statement at Poindexter s request. Lopez was then confronted by another interviewer who said he knew the story, and Lopez then wrote a second page to her statement acknowledging some awareness of the storage arrangement. See Hearing Ex. 1 (Two-Page Written Statement). Poindexter described the atmosphere as relaxed, comfortable, and casual. She said there were relatives sitting in lawn chairs chatting amongst themselves while she interviewed Karen Lopez. When the interview was finished, Lopez returned to the garage and began talking to relatives there. Poindexter testified that Karen Lopez was not under arrest at the time, and that if she would have left Poindexter would have informed other police personnel but she would not have tried to stop her. Poindexter does not recall telling Lopez that she had to give a statement, and Poindexter testified -7-

8 that if Lopez had posed the question, Poindexter would have told her that the statement was voluntary. Karen Lopez testified to a somewhat different version of her encounter with inspector Poindexter. She said that she observed the first three police officers arrive and then enter the house with her husband. Karen Lopez stated that she was nervous anticipating the arrival of her children, and she voluntarily consented to the search of her home because she did not believe she had much choice. Lopez said that she was escorted from the kitchen by postal inspector Poindexter and she was not allowed to leave or go anywhere. She said she was ordered out of the house, and she wanted to talk with her mother but police officers would not let her do that. Lopez testified that Poindexter told her that she needed to give a statement. Lopez said that she asked Poindexter if she was required to speak because Lopez did not want to make a statement. She did so, she insists, only after Poindexter told her that she had to do so. Lopez acknowledged that her nervousness at the time was also due to her knowledge of marijuana being in the house, and she agreed that no one threatened her. Lopez also never tried to leave the area, although she said that she asked Poindexter if she could go next door to check on her children, and Poindexter said she would ask Lopez s mother, who arrived after Lopez was already outside the house, to do that. Poindexter remained with the defendant for over an hour. Lopez was not formally placed under arrest that day. She was never advised of her rights to silence and an attorney, or that her statements could be used against her in court. II. The Court turns first to the defendant s motion to suppress the marijuana uncovered during the warrantless search of her home on August 15, Only reasonable searches are allowed by -8-

9 the Fourth Amendment, and searches and seizures without a warrant are per se unreasonable except in a few well-defined and carefully circumscribed instances. Payton v. New York, 445 U.S. 573, 586 (1980); Katz v. United States, 389 U.S. 347, 357 (1967). One of those instances occurs when the search of property is accomplished with proper consent voluntarily obtained. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The government bears the burden of demonstrating 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). That burden must be met with clear and positive testimony. United States v. Hurst, 228 F.3d 751, 757 (6th Cir. 2000). However, the government need not prove that it was the defendant herself who gave consent to search. A search does not violate the Fourth Amendment where police obtain consent to search from one who possesses common authority over the premises. United States v. Clutter, 914 F.2d 775, 777 (6th Cir. 1990), cert. denied, 499 U.S. 947 (1991); see also United States v. Matlock, 415 U.S. 164, 171 (1974) (holding that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that the consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected ); Van Shutters, 163 F.3d at 335. The Court determines the validity of consent by evaluating the totality of circumstances surrounding the alleged consent given. Ibid. Relevant factors include the age, intelligence, and education of the individual; whether the individual understands the right to refuse to consent; whether the individual understands his or her constitutional rights; the length and nature of [any] -9-

10 detention; and the use of coercive or punishing conduct by the police. United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999). However, the Supreme Court recently has reaffirmed the proposition that there is no requirement that in specific terms... 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. United States v. Drayton, 536 U.S. 194, (2002) (holding that warrantless search of two passengers on a bus is not invalid under consent exception even though the officers did not specifically tell the passengers that they could refuse consent). The defendant in this case argues that the police officers arrived in large numbers around 5 p.m. on August 15, 2002, and the Lopezes did not sign the consent form until 8:19 p.m. She contends that the coercive atmosphere surrounding the giving of consent militates against a finding that it was free and voluntary. The Court, however, disagrees. The government has demonstrated by clear evidence that consent to search the house was freely and voluntarily given. The testimony is uncontradicted that Paul Lopez told the officers well before the consent form was presented that they could search the house because he had nothing to hide. The Lopezes were told in writing that they were not required to agree to the search, and that the results could be used against them in court proceedings. There is no evidence of threats or promises, and although the show of force inherent in -10-

11 the number of police officials on the scene might create a doubt about the occupants freedom of movement, there is no evidence of coercion or punishing conduct by the police. The Court finds that both Paul and Karen Lopez had authority over the premises, and both of them freely and voluntarily consented to the search of the house on August 15, The motion to suppress the fruits of the search, therefore, will be denied. III. The defendant also seeks suppression of her statements because the interrogations were not preceded by Miranda warnings. The government does not dispute the constitutional rule derived from the Fifth Amendment that before a suspect in custody may be interrogated, she must be informed prior to any questioning that she has a right to remain silent, that any statement [s]he does make may be used as evidence against [her], and that [s]he has a right to the presence of an attorney, either retained or appointed. Miranda, 384 U.S. at 445. These warnings are constitutionally required in order to combat the compelling pressures inherent in custodial police interrogation and to permit a full opportunity to exercise the privilege against self-incrimination guaranteed by the Fifth Amendment. Dickerson, 530 U.S. at 440 (quoting Miranda, 384 U.S. at 467). According to Miranda, the accused must be adequately and effectively apprised [sic] of his rights and the exercise of those rights must be fully honored. Miranda, 384 U.S. at 467. Statements obtained from a suspect in custody who has not been apprized of his rights are inadmissible to prove guilt at trial. Id. at ; United States v. Swanson, 341 F.3d 524, 528 (6th Cir. 2003). The government correctly argues, however, that Miranda warnings are limited to custodial interrogations, which the Supreme Court defines as, questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in -11-

12 a significant way. Oregon v. Mathiason, 429 U.S. 492, 494 (1977) (quoting Miranda, 384 U.S. at 444). Indeed, the Sixth Circuit has held that in order for Miranda to apply, the suspect must either actually be taken into custody or the restraint on his freedom must rise to the level associated with a formal arrest. See United States v. Salvo, 133 F.3d 943, 948 (6th Cir. 1998). The government contends that Karen Lopez was not placed under arrest, she was interviewed in her home, and her movement was not significantly restricted, and therefore the government insists that she was not in custody. In Salvo, the court of appeals referred to language in Oregon v. Mathiason to reaffirm the notion that the questioning of an individual in a coercive environment alone does not constitute custodial interrogation. The Supreme Court explained: [A] noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a coercive environment. Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Mathiason, 429 U.S. at 495. The Salvo court maintained, however, that courts, in considering whether a suspect is in custody for the purposes of triggering the Fifth Amendment protections, may inquire as to whether a reasonable person in that suspect s particular circumstances would have felt free to leave. In other words, this is one permissible inquiry, among others, which courts may consider in making Fifth Amendment custody determinations. Salvo, 133 F.3d at 950. The court also suggested factors for district courts to use in making that determination: In these cases, the factors that courts have relied upon include: (1) the purpose of the questioning; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the -12-

13 suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so; whether the suspect possessed unrestrained freedom of movement during questioning; and whether the suspect initiated contact with the police or voluntarily admitted the officers to the residence and acquiesced to their requests to answer some questions. Ibid. The August 15, 2002 interrogation in this case took place on the premises of the defendant s home, a setting that militates against a finding of custody. See United States v. White, 270 F.3d 356, 366 (6th Cir. 2001). Inspector Poindexter testified that she told that defendant that she was not under arrest. However, the defendant stated that she tried on at least one occasion to leave the area to check on her children, and that she was rebuffed by Poindexter s reference of that task to the defendant s mother. The purpose of the questioning was to locate marijuana that was reportedly stored at the residence. The statements were obtained from the defendant at approximately 9 p.m., about four hours after officers arrived at the Lopezes home. Karen Lopez testified that she believed that she was not free to leave based on her interaction with inspector Poindexter, the presence of several officers at her home for many hours, and the rebuffed attempt to check on her children. The Court credits this testimony as accurate. The Court also finds that the reasonableness of the defendant s belief is fortified by the testimony of Sergeant Richard Mainprize who described his task that evening as keep[ing] an eye on folks during the interviews and making sure the defendant didn t leave; Mainprize confirmed that if the defendant had asked to leave the area, he wouldn t have allowed [her] to leave. Despite the absence of a formal arrest, the Court finds that the defendant has established by a preponderance of evidence that her freedom of movement was significantly restricted during the August 15, 2002 interrogation and that she was in custody for the purpose of triggering the -13-

14 requirements of Miranda. Before questioning Karen Lopez, inspector Poindexter should have told Lopez that she had the right to remain silent and the right to an attorney, that an attorney would be appointed for her if she could not afford one, that her statements would be used against her in court, and that she could cut off questioning at any time. See Miranda, 384 U.S. at Since no warnings were given, the statements made by the defendant that day must be suppressed. The interrogation on February 10, 2003 presents a different picture. That encounter took place at a DEA office, not at the defendant s home. However, there is no evidence in this record that suggests that the defendant s freedom of movement was restrained in any way. The police did not come to her. Rather, it was the defendant who transported herself to the DEA s Saginaw office. The defendant was left on her own during the preceding interview of her husband. There is no indication that the defendant was dissuaded from the idea that she could terminate her interview at any time and leave. The discussion with agent Jewett and officer Andersen took less than an hour. The defendant does not contend that she was compelled to give a statement at that time. The Court finds, therefore, that the defendant was not in custody during the February 10, 2003 interrogation, and the failure to give Miranda warnings on that occasion does not require suppression of that statement. IV. The Court finds that the search of the Lopez home on August 15, 2002 was based on valid consent of persons with authority to give such consent. The failure to give Miranda warnings to Karen Lopez before interrogating her on that date requires suppression of her statements. There was no legal requirement, however, to give warnings before the February 10, 2003 interrogation. Accordingly, it is ORDERED that the defendant s motion to suppress evidence discovered during the search of the Lopez home on August 15, 2002 [dkt# 138] is DENIED. -14-

15 It is further ORDERED that the defendant s motion to suppress statements [dkt# 139] is GRANTED as to the August 15, 2002 statements, and DENIED as to the February 10, 2003 statement. Dated: February 5, 2004 /s/ DAVID M. LAWSON United States District Judge Copies sent to: Michael J. Hluchaniuk, Esquire David B. Herrington, Esquire James F. Piazza, Esquire Rod O Farrell, Esquire George Bush, Esquire Oscar Alvarez, Esquire Steve Jacobs, Esquire Amy Gierhart, Esquire Eric Proschek, Esquire Robert Rhead, Esquire USM Pretrial Probation -15-