SCM NEWS & OPINIONS

Government Entities, Case Law Update – Law Enforcement, April 2020

All summaries are written by Heather White and are for informational purposes only. 

 

Bailey v. Twomey

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Bailey’s husband, Robert Hamborg, was arrested for assaulting her.  Hamborg returned the next day with Officer Twomey to gather some belongings.  Because she was afraid of Hamborg, Bailey maneuvered away from Hamborg and behind Twomey.  When she did, she brushed or touched Twomey’s back or belt.  In response, Twomey immediately grabbed Bailey’s left wrist, pulled her around, and hit her hard in the chest, knocking her to the floor.  Twomey arrested Bailey and transported her to jail, claiming in a probable-cause affidavit that Bailey grabbed for his gun.  The district attorney’s office initiated criminal charges against Bailey but the jury acquitted her.

Bailey filed suit against Twomey under § 1983 asserting three Fourth Amendment claims:  excessive force, illegal detention, and malicious prosecution.  The district court granted Twomey’s motion for summary judgment, and Bailey appealed.  The Tenth Circuit Court of Appeals affirmed.  As to the excessive force claim, the court concluded clearly-established law did not put reasonable officers on notice that reacting as Twomey did would violate the Fourth Amendment.  As to the illegal detention claim, it reasoned Twomey had arguable probable cause to arrest Bailey for interfering with an officer because Bailey moved behind Twomey and touched his back while he was supervising an interaction between Bailey and her husband, who had recently been arrested for assaulting Bailey and who was therefore subject to a restraining order.

While the court found in favor of Twomey, in hindsight it might have been advisable for Twomey not to arrest her under the circumstances.

 

Donahue v. Wihongi

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Kevin Donahue was walking home one night when he saw a woman outside his neighbor’s house.  Donahue thought she was trespassing, and a heated conversation ensued.  The two approached Officers Wihongi and Bennett, who were investigating an incident a few houses away.  The woman told Officer Wihongi her name was Amy LaRose, which later turned out to be untraceable.  She claimed Donahue was drunk and had insulted her.  Donahue refused to provide his name but admitted he had been drinking and said the woman had hit him.  The officers eventually arrested and handcuffed Donahue.  He sued alleging Wihongi violated his Fourth Amendment rights by arresting him without probable cause, using excessive force during the arrest, and detaining him unnecessarily long. The district court granted Officer Wihongi’s motion for summary judgment and dismissed the case. Donahue appealed.

The Tenth Circuit Court of Appeals affirmed the dismissal.  Responding to Donahue’s argument that Officer Wihongi did not have probable cause to arrest him, the court ruled Officer Wihongi had reasonable suspicion that Donahue violated Utah’s public intoxication statute, Utah Code Ann. § 76-9-701(1), based on Larose’s statements, as well as Donahue’s admission to Wihongi that he had been drinking and had shouted an epithet at her.  Therefore, Officer Wihongi had authority to demand Dr. Donahue’s name under the stop-and-question, Utah Code Ann. § 77-7-15.  When Donahue refused, Officer Wihongi had probable cause to believe that Donahue violated Utah’s failure-to-identify statute, Utah Code Ann. § 76-8-301.5 and therefore was justified in arresting him under the arrest-with-probable-cause statute, Utah Code Ann. § 77-7-2(4).

Donahue argued he was not “lawfully subjected to a stop.”  However, the court concluded that a reasonable person in Dr. Donahue’s position would not have felt free to leave.  While the officers’ questioning may not have been especially accusatory and intrusive, the body camera recording showed they used a “commanding manner or tone” and permitted Ms. LaRose to leave but continued questioning Dr. Donahue.

The court also concluded the officers did not use excessive force in handcuffing Donahue pursuant to the arrest.  All they did was pull Donahue’s arms behind his back and place the handcuffs on his wrists.  The body camera recording confirmed Officer Wihongi used only minimal force permissible to effect the arrest.

The court finally concluded the officers’ conduct was not unduly long when they questioned him for thirteen minutes, which gave them reasonable suspicion he had violated the public intoxication statute.  Moreover, Officer Wihongi requested Donahue’s name only one minute after that.  Interestingly, the Court noted, “Even if reasonable suspicion for public intoxication dissipated after Dr. Donahue was arrested, by that point he had failed to identify himself . . . [which] supplied a fresh basis for his detention.”

 

Gukeisen v. DPS

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When asked to submit to a chemical test, Gukeisen asked for his lawyer.  The Utah Court of Appeals ruled that under applicable statutes and case law, such conditional consent is considered a refusal to test for which revocation of his driver’s license was appropriate.

 

Lech v. Jackson

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Plaintiffs sued the City of Greenwood Village and several of its police officers alleging violations of the Takings Clause of the Fifth Amendment of the United States Constitution.  They claimed the defendants violated their constitutional rights by damaging their home during an attempt to apprehend a criminal suspect, and later by refusing to compensate the Lechs for this alleged taking.  The district court granted the defendants’ motion for summary judgment, concluding that when a state acts pursuant to its police power, rather than the power of eminent domain, its actions do not constitute a taking.  It also concluded because the officers damaged the plaintiffs’ home while attempting to enforce the state’s criminal laws, they acted pursuant to the state’s police power and, therefore, any damage to the home fell outside the ambit of the Takings Clause.  Plaintiffs appealed.

The Tenth Circuit Court of Appeals affirmed the district court’s decision explaining the defendants’ law-enforcement actions fell within the scope of the police power and actions taken pursuant to the police power do not constitute takings.

 

Smart v. City of Wichita

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In the early morning hours of March 10, 2012, as hundreds of people emptied out of bars and concert venues in Wichita’s Old Town neighborhood at closing time, two Wichita Police Officers fatally shot Marquez Smart. Smart’s estate and heirs sued alleging the officers used excessive force.  The district court granted summary judgment in favor of the officers based on qualified immunity, reasoning that although the jury could find they had violated Smart’s right to be free from excessive force, the officers had not violated clearly established law.

The Tenth Circuit Court of appeals affirmed in part but reversed in part.  It distilled the excessive force claim into three issues:  1) shooting an unarmed man; 2) failing to warn Smart before opening fire; and 3) shooting Smart after he was no longer a threat.  The court framed the first issue as whether the officers could have reasonably concluded the Smart was an active shooter.  It stated that, considering all the evidence in the light most favorable to the plaintiffs, a jury could conclude the officers unreasonably determined Smart was the active shooter and, therefore, used excessive force in shooting him.  It also concluded, however, that the law at the time of the shooting did not provide fair warning to the officers that it was unconstitutional for them to open fire on a fleeing person they believed (reasonably or not) was armed in an active shooter situation.

On the second issue, the court noted, “We have not previously had occasion to address whether officers must give a verbal warning before engaging a suspect in a situation involving, as this one did, an active shooter in a crowded public place.”  It went on to explain that “other courts have not required such a warning when officers are faced with rapidly evolving circumstances involving deadly threats.”  It is important to note that the Court did not rule whether the conduct here actually violated the constitution, only that there was no clearly established law under the circumstances.  Therefore, the law based on these circumstances, in this case, is still not clearly established in the Tenth Circuit.

On the third issue, the court ruled a reasonable jury could conclude the officers shot Smart after it became clear he no longer posed a threat.  It reasoned that one witness described Smart as lying on the ground with him arms outstretched “like I give up or something” when the final shots were fired.  The court also cited the opinion of the plaintiff’s biomechanics expert that the bullet wounds could not have been inflicted while Smart was positioned as the officers claimed, but indicated he had been shot three times in the back while on the ground.

Therefore, the court affirmed summary judgment on the first two claims but reversed and remanded for trial the claim that the officers shot after Smart was no longer a threat.

 

State v. Burzak and State v. Nihells

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A state trooper stopped a car for an expired registration.  Nihells was the driver.  Burzak was the passenger and owner.  The trooper obtained a driver license from each and had Nihells accompany him to his patrol car while he ran a records check.  Burzak declined to speak with Trooper and appeared nervous, breathing heavily.  As soon as the Trooper and Nihells were in the patrol car, the Trooper noticed a strong odor of marijuana coming from Nihells.  He also described Nihells’s demeanor as “overly nervous” and “uneasy with the [Trooper’s] presence.” The Trooper testified Nihells avoided eye contact and was “breathing heavily,” and noticed Nihells’s “carotid artery was pumping in his neck.” Nihells told the Trooper that he and Burzak were returning home from San Francisco, where they had spent a few weeks visiting friends.  He also told the Trooper they had both been unemployed for some time but paid for the trip with savings.  When the Trooper told Nihells he could smell marijuana, Nihells said “it was probably coming from his clothes.” The Trooper asked whether had used recently, to which Nihells answered that “it had been a little bit – a little while,” but denied having marijuana on him.

While still waiting for dispatch to respond on the records check, the Trooper deployed his canine around Burzak’s car.  The canine alerted on the front passenger door and the driver’s side door, but not on the trunk.  The Trooper asked Nihells and Burzak whether the contents of the vehicle belonged to them, and they “said everything belonged to them.”  A subsequent search of the car revealed two backpacks in the trunk surrounded by other belongings.  In the backpacks, the Trooper found marijuana totaling 11.15 pounds, which the Trooper testified represented a distributable amount.  The search also revealed marijuana fragments throughout the car as well as rolling papers.  The Trooper did not ask who owned the backpacks, and they did not contain any tags or other markings identifying their owner.  The Trooper assumed that the backpacks belonged to both of them and placed the two under arrest.

Nihells and Burzak were each charged with one count each of possession of a controlled substance with intent to distribute and possession of drug paraphernalia. A district court judge, acting as a magistrate, held a joint preliminary hearing, at which the Trooper was the only witness.  Burzak’s counsel argued that insufficient evidence supported bind over on the charges against his client because “this is a construct[ive] possession case where it’s multiple passengers in the vehicle and it seems with [Burzak] all the state has been able to present has been mere presence” of marijuana and rolling papers because no contraband was “near [Burzak’s] immediate control or where he had immediate access.”  He also argued that Nihells’s and Burzak’s answer to the Trooper’s “blanket question” of whether they owned everything in the vehicle was insufficient to establish the element of intent. Nihells’s counsel joined those arguments and added for Nihells “there’s simply nothing tying [Nihells] to those backpacks.”

The magistrate concluded there was “[n]o probable cause as to any of the charges” because “it’s probably a legal impossibility for each of [the defendants] to own everything in the vehicle” and “[t]here isn’t anything tying either defendant to the materials found in the trunk.” He stated that the “vague reference to fragments [of marijuana] without any quantification or location within the car other than to say it’s throughout the car” was insufficient to establish knowledge and that “[o]dor by itself doesn’t reflect knowledge of the contraband being there or raise an inference of that.”  The magistrate also determined that “nervousness” does not raise an inference of guilt. Accordingly, the magistrate declined to bind either defendant over for trial on either charge, and the State appealed.

The Utah Court of Appeals reversed the dismissal of both cases and remanded them with instructions to the trial court to bind both defendants over for trial.  It explained the probable cause standard applied at preliminary hearings is identical to the probable cause standard applied on review of arrest warrants, and went on to examine the facts as to each defendant under that standard.

The court of appeals explained that Nihells was driving the vehicle at the time the Trooper stopped the car.  Therefore, it was entirely reasonable to infer, at least for determining probable cause, that Nihells had access to the trunk and constructively possessed the drugs either individually or jointly with Burzak.  Moreover, (1) his belongings were located in the trunk; (2) along with Burzak, he stated that he owned everything in the vehicle; (3) he and Burzak were on a long trip together; (4) he was unusually nervous; (5) he smelled of marijuana; (6) the passenger compartment of the car contained rolling papers and marijuana fragments; and (7) he admitted to recently using marijuana.

As to Burzak’s argument that the marijuana was not accessible to him, the court explained the law (Pringle) does not require that the contraband be “within reach” of the vehicle’s occupants to be accessible, only that the occupants of the vehicle have general access to the area of the vehicle in which the contraband is discovered.  Burzak had access to the contents of the trunk by virtue of the fact he owned it.  Moreover, the Trooper testified the more than eleven pounds of marijuana he found was a distributable amount rather than a quantity consistent with personal use.  Therefore, Burzak’s presence in the vehicle with Nihells is sufficient to suggest a common enterprise between the two, especially given their joint travels on a long trip. Moreover, as in

Pringle, no “singling out occurred” because neither occupant “provided information with respect to [exclusive] ownership of the [contraband],” he acknowledged he “owned the vehicle; he was in the car when the drugs were found . . . ; and he presumably had access to the trunk.” Finally, (1) the Trooper’s canine alerted on the front passenger’s side door next to where Burzak had been sitting, (2) the Trooper found fragments of marijuana and rolling papers throughout the vehicle, (3) the backpacks were comingled with Burzak’s and Nihells’s belongings, (4) Burzak and Nihells claimed ownership of everything in the vehicle, and (5) Trooper testified that Burzak “was breathing really heavily and just seemed uneasy.” When viewing these facts in their totality, it was not unreasonable to infer that Burzak possessed the drugs either individually or jointly with Nihells, even though certain factors may point more strongly toward Nihells.

 

State v. Mitchell

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While on patrol, police officers noticed a car make two turns without signaling.  The officers began following the car and, by checking its license plate number in their database, discovered it was uninsured.  The officers decided to make a traffic stop, but the car turned into a convenience store parking lot, and the shirtless front-seat passenger, who turned out to be Mitchell, stood up in his seat and yelled, “Come here, you mother fucker[!]”  Officers testified Mitchell looked “very upset” and “aggressive,” and that he began to open the door of the car before it stopped.  The officers pulled in behind the car and activated their lights.  One of the officers immediately recognized the shirtless passenger as Mitchell, a person the officer already knew to be a felon and member of the Soldiers of Aryan Culture (SAC), a violent white supremacist gang.  The officer had interacted with Mitchell on multiple prior occasions, and Mitchell had openly acknowledged his membership in SAC.  Additionally, Mitchell had many visible tattoos identifying him as a SAC member.

The officers discovered the backseat passenger had two arrest warrants, so they had all occupants exit the car to conduct the search and arrest the passenger.  When Mitchell exited the car, one of the officers frisked him. During the pat-down, the officer discovered a switchblade-style knife in the pocket of Mitchell’s shorts.  Because he was a convicted felon, Mitchell was not allowed to possess the knife, so the officers arrested him.  During a search of his person incident to arrest, the officers discovered “a ball of a black tar-like substance” that was later confirmed to be heroin.

The State charged Mitchell with possession of a controlled substance with intent to distribute, and possession or use of a dangerous weapon by a restricted person.  Mitchell moved to suppress any evidence of the knife and the heroin, which the court denied.  Mitchell appealed.

The Utah Court of Appeals affirmed the denial of Mitchell’s motion to suppress.  It concluded the officers had reasonable suspicion to confirm Mitchell was armed and dangerous.  While gang affiliation alone is not a basis for an investigative detention, it can be a factor that, paired with other factors, may contribute to a reasonable suspicion that a person is armed and dangerous.  Here, Mitchell’s tattoos identified him as a member of SAC, and he admitted in his prior interactions with them that he was a member of SAC, a violent white supremacist gang.

Moreover, Mitchell’s behavior suggested he was armed and dangerous.  Utah courts recognize that loud and boisterous behavior is a factor that supports reasonable suspicion a suspect may be armed and dangerous, and “common sense tells us that a person trying to start a fight is at least somewhat more likely to have a weapon than a person trying to avoid one . . . .”  Additionally, Mitchell yelled profanely and aggressively at the bystander, stood up in the seat of the car, and acted as though he was about to initiate a physical altercation.

While officers cannot Terry frisk all occupants of a vehicle simply for safety reasons, the circumstances of a particular traffic stop may give rise to specific concerns.  Officer safety concerns are a factor to determine, particularly where the arrest is conducted in a public place, such as here.  Additionally, Mitchell was known to be a gang member, and the officers were going to arrest one of Mitchell’s fellow passengers, whose exact relationship to Mitchell was at the time unknown.

The court called the case close one, because Mitchell was cooperative and did not act aggressively toward him.  Moreover, they did not see a bulge in his pockets, and he did not act as though he were going to retrieve a weapon.  It reiterated that “Mitchell’s status as a member of SAC is not enough by itself, and neither is Mitchell’s profane salutation toward the individual in the parking lot.  But under the unique circumstances of this case, those two factors, viewed together, gave rise to a reasonable suspicion that Mitchell might be armed” and dangerous.

 

United States v. Berg

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Kansas Highway Patrol Trooper Seiler was patrolling a section of I-70 when he saw three vehicles traveling east, none with a Kanas license plate, all traveling approximately ten miles per hour below the speed limit.  His observations led Trooper Seiler to believe the vehicles were traveling together.  Trooper Seiler checked the trailing vehicle’s registration with his in-car computer and determined it was registered to a rental company in California.  As he was doing so, he noticed the two other vehicles, a red minivan and a light-colored pickup truck, speed up and begin to travel at approximately the speed limit.  He passed the trailing car and began following the minivan, which was registered to a rental company in Arizona.  While Trooper Seiler was following the minivan and running its registration, he saw it commit a traffic violation.  Trooper Seiler then saw the truck accelerate to approximately ten miles per hour over the speed limit.  He ran the plates and learned the truck was registered to a private individual in California.

Trooper Seiler believed the compact car and the pickup truck were escort vehicles used to divert attention from a vehicle transporting illegal drugs.  He believed the truck had tried to divert his attention from the minivan by speeding when it noticed he was following the minivan.  Trooper Seiler stopped the minivan believing it was more likely the load vehicle because of its larger capacity.  As Trooper Seiler approached the minivan, he saw a large amount of cargo and asked the driver, defendant Berg, if he was moving.  Berg said he was moving from Las Vegas to Minnesota.  While Trooper Seiler checked Berg’s license and the rental agreement, he questioned Berg about his travel plans.  Berg told Seiler he had been temporarily living in Las Vegas and was moving his possessions back to his home in Minnesota.  Berg said his minivan was loaded with clothes and a television. Trooper Seiler testified he doubted the veracity of Berg’s explanation because the way Berg’s items were packed was inconsistent with what he typically sees when interacting with motorists who are moving.  Moreover, Berg’s route of travel was inconsistent because Berg said he was in a hurry but had spent time in Denver when he could have been on the road.  Trooper Seiler admitted, however, that Berg’s decision to break up his twenty-four-hour trip into four days was inconsistent with drug trafficking because most traffickers drive directly to their destination without stopping.

Trooper Seiler returned Berg’s documents but asked Berg if he would answer a few more questions.  Berg did not expressly agree but he continued speaking to Trooper Seiler. Trooper Seiler asked Berg for consent to search his vehicle but Berg refused.  Trooper Seiler then told Berg he was being detained while a drug dog was called.  The dog alerted to Berg’s vehicle.  Officers found approximately 471 pounds of marijuana in Berg’s minivan when they searched it.

The district court denied Berg’s motion to suppress the evidence obtained during the search.  Berg appealed arguing Trooper Seiler did not have reasonable suspicion to detain him for a dog sniff.

The Tenth Circuit court of appeals affirmed denial of the motion to suppress, concluding Trooper Seiler had reasonable suspicion to prolong the stop while he waited for the drug dog.  It explained, Trooper Seiler’s suspicion that the three vehicles he observed on I-70 were traveling in tandem is supported by their driving patterns.  Moreover, reasonable suspicion of illegal activity was also supported by his observations about the cargo in Berg’s minivan and how it was stacked:  “completely full, top to bottom, front to back” with uniform size moving boxes and multiple duffle bags and suitcases, which was inconsistent with what he usually saw when people are moving, rather than merely anecdotal information he heard from others.

 

United States v. Martinez

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Two United States Border Patrol Agents a car carrying an unusual number of passengers in the back seat, so they followed the car for approximately twenty miles.  The driver – the defendant – eventually entered a truck stop and pulled up to a gas pump.  The Agents, in uniform with holstered sidearms, followed and parked approximately ten feet behind the defendant’s vehicle in a way that did not impede its path of exit.  Customers may have been walking in and out of the convenience store, and one or two additional vehicles were parked at other gas pumps.

The defendant exited his vehicle and started walking toward the convenience store but returned when one of the Agents exited the truck and saw four to five people in the back seat of the vehicle.  The Agent approached the defendant while the second Agent stood at the rear passenger’s side.  The first Agent said good morning, identified himself as a Border Patrol agent, and asked the Defendant if he was a United States citizen. The defendant replied he was, to which the first Agent responded by asking if those inside the vehicle were his family.  The defendant said he did not know the passengers but had picked them up on the side of the highway after they flagged him down.  The Agent used a “conversational tone” and remained approximately three feet away from the defendant throughout the exchange.

The second Agent asked the defendant if he could speak to the people in the car.  When the defendant lowered the passenger window, the second agent questioned the passengers and determined that they were Mexican nationals without immigration documents.  Upon hearing this – about five minutes after arriving at the gas station – the first Agent arrested the defendant. He was indicted by a federal grand jury for transporting and conspiracy to transport illegal aliens.

The defendant moved to suppress the evidence of his statements and that of his passengers.  The district court held a suppression hearing and issued ruling granting the motion, concluding the Agents violated the defendant’s Fourth Amendment rights by subjecting him to an investigative detention without reasonable suspicion, and violated his Fifth Amendment rights by subjecting

The defendant to a custodial interrogation without first issuing Miranda warnings.  The government appealed.

The Tenth Circuit Court of Appeals reversed and remanded the matter for trial.  It explained, the dispositive issue in the case was whether the Agents’ encounter with the defendant was consensual.  If so, it did not violate the Fourth Amendment.  In determining whether an encounter is consensual, “the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.”  It listed several factors to be considered in determining whether a reasonable person would feel free to terminate a police encounter:

  1. The location of the encounter (public or private);
  2. Whether the suspect is within the view of persons other than law enforcement officers;
  3. Whether the officers touch or physically restrain the suspect;
  4. Whether the officers are in uniform or plain clothes;
  5. Whether the officers display their weapons;
  6. The number, demeanor and tone of voice of the officers;
  7. The length of the detention of the suspect’s personal effects, such as tickets or identification; and
  8. Whether or not the officer has specifically advised the suspect he had the right to leave or refuse consent.

The Tenth Circuit concluded the Agents’ interaction with the defendant in this case was consensual encounter because 1) it occurred in a public place; 2) the Agents did not create a coercive environment; and 3) the Agent who questioned the defendant did in a manner that was not coercive.  As to the first factor, the court explained that generally encounters in the presence of others are more likely to be consensual than those where no members of the public are present.  Here the interaction with the defendant occurred at a gas station open to the public where other patrons were in the vicinity and was in full view of other customers.

As to the second factor, the Agents approached Defendant in a non-threatening manner, did not block his path of exit, and did not otherwise restrain him.

As to the third factor, the presence of two uniformed and armed officers does not automatically transform every police-citizen encounter into a non-consensual one.  In this case, while both Agents exited their vehicle upon arriving at the gas station, only the first approached the defendant, while the second remained on the opposite side of the defendant’s vehicle.  Moreover, only the first Agent approached and questioned the defendant.  Neither Agent intimidated, touched, or restricted the defendant’s movement, and they stood a respectful distance from the defendant and behaved in a “non-threatening” manner towards him. They parked approximately ten feet behind the defendant’s vehicle and left and unobstructed exit path. They talked in a non-threatening demeanor and used a conversational tone.

The court additionally ruled the Agents did not violate the defendant’s Fifth Amendment Miranda rights because Miranda only applies to custodial investigations, not consensual encounters.  Since the defendant engaged in a consensual encounter with the Agents, they were not required to notify him of his Miranda rights.

 

United States v. Ray

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A Custer County Oklahoma deputy arrested the defendant for a traffic violation and discovered methamphetamine on him while performing a search incident to arrest.  When the deputy asked the defendant whether he had any other contraband, the defendant replied he had some in his car.  After the defendant realized he was going to jail, he cried and made suicidal comments.  Regardless, the deputy handcuffed and placed the defendant in his patrol vehicle, and thereafter conducted an inventory search of the defendant’s car.  A second deputy arrived to assist with the inventory.  When the second deputy asked the defendant what was in the vehicle, the defendant admitted to a blasting cap, which the second deputy recovered from the car.  Neither deputy issued Miranda warnings to the defendant, who also told the second deputy he had a lot more blasting caps at another undisclosed location.  The two deputies referred the case to the ATF.

Two Special Agents interviewed the defendant twice at the jail. Each time, the ATF agents read the defendant Miranda warnings, and he signed a waiver of those rights prior to questioning.  The defendant admitted he had one hundred or so blasting caps, but refused to disclose their specific location. He also admitted using a blasting cap in his yard, but suggested the blasting caps were not at his house because he did not own the house.  The ATF ultimately obtained a warrant to search the residence.  Upon execution of the warrant, agents discovered three boxes of blasting caps.  A grand jury indicted the defendant with being a felon in possession of explosives.  The defendant filed a motion to suppress, which the district court denied the motions, except as to Defendant’s unwarned statements to the deputies, and the defendant appealed.

The Tenth Circuit Court of Appeals affirmed.  It began by explaining the failure to provide a suspect with Miranda warnings does not require suppression of items discovered as a result of the suspect’s unwarned but voluntary statements.  Relevant factors considered in making the determination whether the statements were voluntary include:

  1. The age, intelligence, and education of the defendant;
  2. The length of detention;
  3. The length and nature of the questioning;
  4. Whether the defendant was advised of his constitutional rights; and
  5. Whether the defendant was subjected to physical punishment.

The court explained, “Supreme Court and Tenth Circuit precedent establishes that while ‘arresting and handcuffing are coercive acts,’ the statements ‘of a handcuffed arrestee may well be voluntary,’ even in the absence of Miranda warnings . . . Indeed, the proper inquiry centers on whether an arrestee suffered ‘physical mistreatment, use of violence or threats of violence,’ or similar intrusions on his person.”  (citations omitted).

Analyzing the facts of the case, the court concluded neither deputy physically mistreated or threatened the defendant, nor did they draw their weapons at any time.  They also did not coerce the defendant’s statements through non-physical means.  Even though one of the deputies knew the defendant had received mental health treatment in the past, the defendant identified no evidence that the deputies exploited his mental health status.  And although the defendant made suicidal comments when he realized he was under arrest, the deputy engaged him in amicable conversation before questioning him about contraband.  Moreover, the body camera footage of one of the deputies confirmed he did not press the defendant about his mental health, but rather focused his brief inquiries on the presence and location of contraband, that the interaction was limited and conversational in nature, and that after placing the defendant under arrest, they only spoke with him in short increments.  The second deputy solicited the incriminating statements about ten minutes after he arrived on the scene, and entire roadside detention lasted about forty minutes from when the first deputy stopped the defendant.  Moreover, only one deputy spoke to Defendant at a time.

The court also found that the defendant participated freely in the county jail interviews and declined to suppress the defendant’s subsequent statements to the ATF agents. After making the unwarned but voluntary statements to the deputies, he provided additional statements to ATF agents after the agents provided Miranda warnings, which the defendant waived in writing.  There was no evidence the ATF agents coerced him into waiving his Miranda rights or otherwise involuntarily speaking to them.

Finally, the court went on to address whether the warrant application, used to obtain a warrant to search the defendant’s home, included materially false statements that rendered the warrant invalid.  We do not address that analysis here.

 

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