DENNIS L. HOWELL, Magistrate Judge.
This matter is before the Court on Defendant's Motion to Suppress (# 23) and Memorandum in Support. The Government filed a Response (# 26). On April 24, 2018, the undersigned conducted a hearing and heard evidence from the Government and Defendant. Post-hearing, Defendant filed a Brief In Support Of Motion To Suppress (# 38), and the Government filed a Supplemental Response To Defendant's Brief (# 40). Having carefully considered the evidence and arguments of counsel, the Court enters the following Findings, Conclusions, and Recommendation.
Defendant is charged in one count of an eight-count Bill of Indictment (# 1). In particular, Defendant is charged in Count One with making a false and fictitious written statement to American Tactical and Pawn, a licensed dealer of firearms, in connection with the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6) and 18 U.S.C. § 924(a)(2).
On March 21, 2018, Defendant filed her Motion to Suppress (# 23), in which she moves to suppress all physical evidence seized as the result of the March 13, 2017 search of her home and all statements made by her and her son, Michael Smith, to law enforcement officers during the search.
On April 24, 2018, the Court held a hearing on Defendant's Motion. At the end of the hearing, Defendant's counsel made an oral motion for leave to file an additional brief. On April 25, 2018, the oral motion was granted by written order (# 36).
On May 6, 2018, Defendant filed a "Brief In Support Of Motion To Suppress" (# 38). On May 11, 2018, the Government filed a "Supplemental Response To Defendant's Brief" (# 40).
John McIntyre ("Officer McIntyre") was called as a witness for the Government. (Apr. 24, 2018 Hr'g Tr. at 36-103.) Officer McIntyre has been employed for twenty years as a law enforcement officer with the Cleveland County Sheriff's Office. (Apr. 24, 2018 Hr'g Tr. at 37.) In February 2017, Officer McIntyre was a lieutenant over the Investigations Division. (Apr. 24, 2018 Hr'g Tr. at 37.)
In early 2017, Officer McIntyre received a Crime Stoppers tip, which stated that Brandon Randall, who lived at Towery Road in Shelby, North Carolina, was dealing drugs and firearms. (Apr. 24, 2018 Hr'g Tr. at 38.) On February 22, 2017, Officers with the Cleveland County Sheriff's Office began surveillance on the Towery Road home. (Apr. 24, 2018 Hr'g Tr. at 39, 45.)
While watching Randall's home, Officer McIntyre noticed a vehicle go into the driveway of the home, stay a short period of time, and leave. (Apr. 24, 2018 Hr'g Tr. at 39.) Based upon Officer McIntyre's experience, he suspected drug activity and decided to follow the vehicle. (Apr. 24, 2018 Hr'g Tr. at 39-40.) A check of the vehicle's registration tag showed the tag was registered to a Chevrolet vehicle that had been placed on a Dodge vehicle. (Apr. 24, 2018 Hr'g Tr. at 40.) Based on this observation, Officer McIntyre stopped the vehicle. (Apr. 24, 2018 Hr'g Tr. at 40.)
Officer McIntyre discovered a "Mr. Queen" was operating the vehicle, and Queen's driver's license had been revoked. (Apr. 24, 2018 Hr'g Tr. at 40.) Queen told Officer McIntyre that he had gone to the Randall residence on Towery Road to purchase marijuana, but Randall was not at home. (Apr. 24, 2018 Hr'g Tr. at 40.) Queen informed Officer McIntyre that Queen was now on his way to another location where Randall sold marijuana, which was 216 Dellinger Road, Shelby, North Carolina. (Apr. 24, 2018 Hr'g Tr. at 41.) Queen also stated that Randall was known to deal drugs out of both locations. (Apr. 24, 2018 Hr'g Tr. at 41.)
Officer McIntyre released Queen and traveled to 216 Dellinger Road, Shelby, North Carolina to determine if Randall was present at that residence. (Apr. 24, 2018 Hr'g Tr. at 41.) At the residence, Officer McIntyre saw a green Nissan vehicle that was owned by Defendant. (Apr. 24, 2018 Hr'g Tr. at 42.) A black Impala vehicle then arrived, stayed a few minutes, and left, which was consistent with a drug transaction. (Apr. 24, 2018 Hr'g Tr. at 42.)
Officer McIntyre followed the Impala and saw the driver almost hit another vehicle near an Arby's restaurant. (Apr. 24, 2018 Hr'g Tr. at 42.) Officer McIntyre proceeded to stop the Impala and talked to the driver. (Apr. 24, 2018 Hr'g Tr. at 43.) The driver seemed very nervous. (Apr. 24, 2018 Hr'g Tr. at 43.)
When the driver stepped out of the vehicle, Officer McIntyre noticed a cellophane baggie in the door handle, which was consistent with the type bag used to store drugs. (Apr. 24, 2018 Hr'g Tr. at 44.) The driver stated that there was Xanax in the bag, and he did not have a prescription for the Xanax. (Apr. 24, 2018 Hr'g Tr. at 44.) The driver also stated that his female passenger had non-tax paid white liquor in her possession. (Apr. 24, 2018 Hr'g Tr. at 44.) Both the driver and the passenger stated they had bought the Xanax and the non-tax paid white liquor from Randall at the residence on 216 Dellinger Road. (Apr. 24, 2018 Hr'g Tr. at 44.) The Xanax and non-tax paid white liquor were seized by Officer McIntyre. (Apr. 24, 2018 Hr'g Tr. at 44-45.)
The driver and the female passenger agreed to serve as confidential informants for Officer McIntyre. (Apr. 24, 2018 Hr'g Tr. at 44-45.) The driver made a monitored call to Randall and asked to return to the 216 Dellinger Road home to purchase marijuana. (Apr. 24, 2018 Hr'g Tr. at 45.) The driver, the female passenger, and the Impala were searched by officers. (Apr. 24, 2018 Hr'g Tr. at 46) They were given audio and video recording equipment, and the driver and female passenger traveled back to the 216 Dellinger Road. (Apr. 24, 2018 Hr'g Tr. at 46.)
The driver and female passenger went inside the home and used sixty dollars in currency provided by Officer McIntyre to purchase marijuana from Randall. (Apr. 24, 2018 Hr'g Tr. at 47.) The driver and female passenger then left the 216 Dellinger Road residence and met with Officer McIntyre and delivered the marijuana to him. (Apr. 24, 2018 Hr'g Tr. at 47-48) The driver stated he bought the marijuana from Randall and that Michael Smith, Defendant's son, was present during the purchase. (Apr. 24, 2018 Hr'g Tr. at 47-48.) The driver further stated that he saw more marijuana, Ecstasy pills, and white non-tax paid liquor in the home. (Apr. 24, 2018 Hr'g Tr. at 49.)
On February 27, 2017, Officer McIntyre, through the driver of the Impala who was an informant, attempted to contact Randall to purchase more illegal substances. (Apr. 24, 2018 at 49-50.) The plan was for the informant and an undercover investigator, Travis Glover, to travel to the residence at 216 Dellinger Road and purchase illegal substances. (Apr. 24, 2018 Hr'g Tr. at 50.) The informant and Officer Glover were provided with audio and video recording equipment and United States currency to make the purchase. (Apr. 24, 2018 Hr'g Tr. at 50-51.)
Upon arrival at the home, the informant and Officer Glover went inside and had a conversation with Michael Smith. (Apr. 24, 2018 Hr'g Tr. at 51.) Michael Smith stated that Randall was not there. (Apr. 24, 2018 Hr'g Tr. at 51.) Michael Smith was asked to contact Randall to see if the purchase of illegal substances could be made from Randall. (Apr. 24, 2018 Hr'g Tr. at 52.) Officer McIntyre could hear the conversation from the audio recording equipment. (Apr. 24, 2018 Hr'g Tr. at 52.) Michael Smith called Randall on the telephone and told him the informant and the undercover investigator wanted to purchase all the Ecstasy that Randall had. (Apr. 24, 2018 at 52.) Both the informant and the undercover investigator showed Michael Smith the currency, and Michael Smith verified to Randall that the potential purchasers had the cash necessary to buy the controlled substances. (Apr. 24, 2018 Hr'g Tr. at 53.) During the conversation, the informant and the investigator commented that the marijuana they were seeing at Michael Smith's home was "not any good." Michael Smith spoke into the phone and told Randall, "That is your marijuana they are talking about." (Apr. 24, 2018 Hr'g Tr. at 53.)
The undercover investigator and the informant then traveled to the home of Randall located at Towery Road. (April 24, 2018 Hr'g Tr. at 53.) Randall came out to the vehicle and sold Ecstasy pills, Hydrocodone pills, and Xanax to the undercover investigator and the informant. (Apr. 24, 2018 Hr'g Tr. at 54.) Randall also brought out a MAC-10 firearm and a pistol with him. (Apr. 24, 2018 Hr'g Tr. at 54.) Randall is a convicted felon. (Apr. 24, 2018 Hr'g Tr. at 54-55.) On March 9 and 10, 2017, undercover investigator Glover purchased additional controlled substances and a .45 caliber firearm from Randall.
On March 10, 2017, undercover investigator Glover made arrangements to purchase Ecstasy pills from Randall. (Apr. 24, 2018 Hr'g Tr. at 57.) During the purchase, Randall was arrested. (Apr. 24, 2018 Hr'g Tr. at 57.) Randall told Officer McIntyre that he wished to speak to the officers, and Randall was taken to Officer McIntyre's office. (Apr. 24, 2018 Hr'g Tr. at 57.) Officer Gordan went to search Randall's home on Towery Road. (Apr. 24, 2018 Hr'g Tr. at 57.)
After a search of the home at Towery Road, Officer McIntyre made an inventory of the items seized, which included cash that had been hidden in the home containing serial numbers consistent with the cash that had been used to make the purchases of the controlled substances from Randall. (Apr. 24, 2018 Hr'g Tr. at 58-59.) Officer McIntyre was also advised that the officers had found a Smith & Wesson AR-15 assault-style rifle. (Apr. 24, 2018 Hr'g Tr. at 59.) The officers also found a purchase order or receipt for that specific firearm showing that the purchaser of the firearm was Denise Ferrer Smith, Defendant.
On March 10, 2018, Officer McIntyre listened to a recorded call made by Randall from the Cleveland County Jail. (Apr. 24, 2018 Hr'g Tr. at 60.) In the call to Randall's mother, Randall stated he "wanted his 2018AR' back." (Apr. 24, 2018 Hr'g Tr. at 61.) On March 13, 2017, Officer McIntyre heard Randall ask his father to go to Mike Smith's house and collect Randall's money. (Apr. 24, 2018 Hr'g Tr. at 61.)
Officer McIntyre testified that he decided there was probable cause to believe that there might be evidence of criminal activity located at 216 Dellinger Road based upon the following: (1) the purchase of drugs and illegal non-tax paid liquor located at the residence; (2) the fact that Randall might have stored firearms at the residence; and (3) Defendant was named as the purchaser of the AR-15 assault rifle. (Apr. 24, 2018 Hr'g Tr. at 62.) Officer McIntyre prepared and obtained a search warrant for the search of the residence at 216 Dellinger Road at 3:15 p.m. and executed the search warrant at 3:39 p.m. on March 13, 2018.
When serving the search warrant, Officer McIntyre, Officer Gordan, Officer Glover, and three uniformed officers went to the home located at 216 Dellinger Road to execute the search warrant. (Apr. 24, 2018 Hr'g Tr. at 63-64.) Present at the home was Defendant; Defendant's husband; Defendant's son, Michael Smith; and another lady. (Apr. 24, 2018 Hr'g Tr. at 64.) Officer McIntyre asked Michael Smith if he would talk to him. (Apr. 24, 2018 Hr'g Tr. at 65.) Michael Smith and Officer McIntyre then walked outside of the home and sat in Officer McIntyre's minivan, which was parked in the driveway of the residence. (Apr. 24, 2018 Hr'g Tr. at 66.)
Officer McIntyre recorded the interview with Michael Smith on his cell phone.
During the interview, Michael Smith told Officer McIntyre that he had known Randall for a little over a year. Michael Smith met Randall at the home of a neighbor to whom Randall was selling drugs. Michael Smith stated that he would purchase fifty dollars of marijuana from Randall each week. This had occurred over a two or three-month period before March 13, 2017. Randall began to use Defendant's home at 216 Dellinger Road to sell drugs. Randall would come to the home each day, and at least three people per day would come to the residence to purchase drugs from Randall.
When questioned about Randall's possession of guns, Michael Smith stated Randall had possessed a MAC-10 weapon, but he had sold it to an informant. Michael Smith stated Randall wanted him to purchase firearms and sell them to persons from Florida, where Randall obtained the controlled substances he sold. Randall then asked Michael Smith to purchase an AR-15 assault rifle for Randall. Michael Smith knew that Randall was a convicted felon and could not lawfully purchase a firearm. Michael Smith told Randall he would ask his mother, Defendant, to purchase the firearm for Randall. Michael Smith then lied to his mother and asked her to purchase the firearm for Michael Smith and did not ask her to purchase it for Randall.
Michael Smith stated that Defendant agreed to purchase the firearm for Michael Smith, but only if the firearm was secured at Randall's residence by Randall's father. According to Michael Smith, Defendant talked to Randall's father, who agreed to keep the firearm inside of Randall's father's gun safe. At the Smith home, Randall gave Defendant $900.00 to purchase the firearm. Randall, Michael Smith, and Defendant then went together to purchase the firearm, which was selected by Randall, a Smith & Wesson AR-15 assault rifle. After the purchase of the weapon, Defendant carried the firearm out of the store. The rifle was then taken by Randall to his father's home. When questioned about his possession of money owned by Randall, Michael Smith stated Randall had brought him $1,300.00 in currency and some drugs to hold while Randall went with his girlfriend to visit some of her friends.
Later that same day, Randall came back to Defendant's home and took back the money and drugs. Michael Smith was then asked by Officer McIntyre and Officer Gordan if Michael Smith would ask his mother, Defendant, if she would speak to the officers. Michael Smith left the minivan and went to get his mother.
Defendant came to the minivan to meet with the officers. (Apr. 24, 2018 Hr'g Tr. at 69, 92.) A recording of Defendant's interview was introduced into evidence.
With respect to firearms, Defendant stated she obtained a gun for Randall about a month ago. Defendant stated that she was asked to purchase the gun for Randall because she could buy the firearm legally. Defendant stated Randall could not purchase a firearm because he had been in jail. Defendant knew Randall was on probation because she had taken him to visit his probation officer on two occasions. Randall went with Defendant, and he picked out the firearm he wanted purchased. Randall stated to Defendant that he knew the people at the pawn shop where the firearm was purchased. Defendant did not know the name, type, or caliber of the firearm that was purchased. When the interview was complete, Defendant was thanked by the officers, and she replied that the officers were very welcome and requested the officers provide her a card, so she could contact them if she thought of something else.
The search of 216 Dellinger Road took a little over an hour. (Apr. 24, 2018 Hr'g Tr. at 71, 88.) The officers found non-tax paid white liquor and some marijuana and paraphernalia. (Apr. 24, 2018 Hr'g Tr. at 71, 88.)
On March 15, 2017, Randall gave a statement to officers concerning the purchase of the firearm. (April 24, 2018 Hr'g Tr. at 79-80) Randall stated he approached Michael Smith about buying the firearm for Randall and Michael Smith did not have sufficient identification to do so. (April 24, 2018 Hr'g Tr. at 79.) Michael Smith and Randall then approached Defendant about purchasing the firearm since neither of them could do so legally. (Apr. 24, 2018 Hr'g Tr. at 79.)
Randall supplied the money for the purchase. (Apr. 24, 2018 Hr'g Tr. at 95.) Randall stated that he, Michael Smith, and Defendant had first gone to Diamond Pawn Shop to purchase the firearm, but they were told to leave after the manager heard Randall speaking about the firearm as if it was going to be purchased for him. (Apr. 24, 2018 Hr'g Tr. at 100-01.) Randall, Michael Smith, and Defendant then went to American Tactical and Pawn, where they successfully purchased the firearm. (Apr. 24, 2018 Hr'g Tr. at 99.)
Since 1998, Bryon Gordan has been employed as a Deputy Sheriff with the Cleveland County Sheriff's Office. (Apr. 24, 2018 Hr'g Tr. at 104.) In February and March of 2017, Officer Gordan was a lieutenant assigned to the narcotics unit. (April 24, 2018 Hr'g Tr. at 105.) On March 10, 2017, Officer Gordan took five or six officers to the home of Randall, which is located at Towery Road, to conduct a search of the residence pursuant to a search warrant that had been issued. (Apr. 24, 2018 Hr'g Tr. at 105-06.)
On March 10, 2017, Randall was in the custody of the Sheriff's Department, and no one else was at the home. (Apr. 24, 2018 Hr'g Tr. at 106.) During the search of the dwelling, Officer Gordan called Randall's father at work and requested that he come to the home to open a gun safe that had been discovered. (Apr. 24, 2018 Hr'g Tr. at 107.)
Upon opening the gun safe, Officer Gordan discovered a Smith & Wesson M&P AR-15 rifle. (Apr. 24, 2018 Hr'g Tr. at 110-11) The rifle was seized, along with a cardboard box for the rifle. (Apr. 24, 2018 Hr'g Tr. at 111-12) Located inside the box was a pink colored receipt for the purchase of the firearm, which had the same serial number as that of that firearm.
At the time of the search of the Randall residence, Officer Gordan was aware that Randall was a convicted felon. (April 24, 2018 Hr'g Tr. at 115.) During the search of the house and gun safe, Randall's father was present and told Officer Gordan the AR-15 rifle found in the gun safe belonged to Brandon Randall. (Apr. 24, 2018 Hr'g Tr. at 115.)
Officer Gordan was present for the search of Defendant's home as an on-scene supervisor. (Apr. 24, 2018 Hr'g Tr. at 117.) Officer Gordan talked to Michael Smith, and Michael Smith provided the officers with a small amount of non-tax paid alcohol and some drug paraphernalia from a bedroom. (Apr. 24, 2018 Hr'g Tr. at 118.)
Officer Gordan was present during a portion of the interview by Officer McIntyre of Michael Smith, and Officer Gordan was present for the entire interview by Officer McIntyre of Defendant. (Apr. 24, 2018 Hr'g Tr. at 118, 128-30.) No threats or promises were made to Defendant or Michael Smith, and both individuals were very cooperative. (Apr. 24, 2018 Hr'g Tr. at 119.) After his interview, Michael Smith went into the house to see if Defendant would come out to the officers' van to be interviewed. (Apr. 24, 2018 Hr'g Tr. at 129.)
Travis Glover was called as a witness for the Government. (Apr. 24, 2018 Hr'g Tr. at 7-36.) Officer Glover works as an undercover law enforcement officer for the Cleveland County Sheriff's Office. (Apr. 24, 2018 Hr'g Tr. at 7-8.) Officer Glover has been a law enforcement officer for ten (10) years. (April 24, 2018 Hr'g Tr. at 8.) In February 2017, Officer Glover became involved in an investigation of Brandon Randall. (Apr. 24, 2018 Hr'g Tr. at 8.)
Officer Glover testified that an informant made a telephone call to Randall and Michael Smith to arrange the purchase of narcotics from Randall at the home of Michael Smith located at 216 Dellinger Road, Shelby, North Carolina. (Apr. 24, 2018 Hr'g Tr. at 10-11) Officer Glover then went with the informant to the home of Michael Smith at 216 Dellinger Road, Shelby, North Carolina to purchase narcotics from Randall. (April 24, 2018 Hr'g Tr. at 9-10.) Upon arrival at Smith's home, Officer Glover and the informant went into the bedroom of Michael Smith, which is located inside the Smith home. (Apr. 24, 2018 Hr'g Tr. at 12.) Michael Smith had only a small amount of marijuana. Michael Smith then called Randall to "line-up" a narcotics deal whereby Officer Glover and his informant would purchase Xanax pills from Randall. (April 24, 2018 Hr'g Tr. at 13.) After the call, Michael Smith told Officer Glover and the informant to go to Towery Road to meet with Randall at his home. (April 24, 2018 Hr'g Tr. at 13-14.) At Randall's residence, Officer Glover bought Ecstasy, Hydrocodone, and Xanax pills from Randall. (Apr. 24, 2018 Hr'g Tr. at 14.) Officer Glover also noticed that Randall had a revolver in his waistband. (April 24, 2018 Hr'g Tr. at 14.) At the time, the informant bought Xanax pills from Randall. (April 24, 2018 Hr'g Tr. at 15.)
Officer Glover testified that he purchased a firearm and some Ecstasy pills from Randall on March 9, 2017. (Apr. 24, 2018 Hr'g Tr. at 16.) A few days later, Officer Glover arrested Randall during a drug purchase. (Apr. 24, 2018 Hr'g Tr. at 16-17.)
Officer Glover testified that during a search of Randall's home, Officer Glover called Randall's father, Scott Randall,
During the hearing, the Government offered and introduced into evidence the following exhibits:
The Fourth Amendment to the United States Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. "This fundamental right is preserved by a requirement that searches be conducted pursuant to a search warrant issued by an independent judicial officer."
When a district court reviews a search warrant issued by a magistrate or a superior court judge, the judicial officer's determination of probable cause is entitled to great deference.
In
354 F.3d at 309;
The portion of the sworn application for the search warrant for 216 Dellinger Road, Shelby, North Carolina, which the Government contends provides probable cause for the issuance of the search warrant, reads as follows:
In the instant case, the facts and information contained in the application for a search warrant for 216 Dellinger Road was sufficient to support the issuance of the search warrant. The application shows that on February 22, 2017, a confidential informant bought marijuana from Randall at the residence at 216 Dellinger Road. The purchase was made by the confidential informant while being surveilled. While inside the home, the informant saw gallons of non-tax paid white liquor, marijuana, and Xanax pills. Michael Smith was a resident of the home, and he was present in the home during the transaction.
On February 27, 2017, a purchase of controlled substances was attempted at the residence at 216 Dellinger Road, but Michael Smith directed the informant and the officer who were making the purchase to the residence of Randall at Towery Road. On February 27, 2017, and again on March 9, 2017, either controlled substances or firearms, or both, were purchased from Randall at the Towery Road residence. On March 10, 2017, a search warrant was issued by a State Judge, and a search was made of the Towery Road residence, where controlled substances and an AR-15 rifle were found with documentation that showed Defendant had purchased the rifle. Randall was a convicted felon as of January 30, 2017. On March 13, 2017, a jail call was recorded from Randall asking a male subject to go to Michael Smith's residence to get $1,300.00. Finally, on both February 22 and February 27, 2017, a vehicle registered to Defendant was located at the 216 Dellinger Road residence.
The affidavit details the history of the investigation and offers specific facts showing that controlled substances had been sold in the residence and other illegal substances were seen in the residence. The affidavit further shows probable cause to believe that controlled substances and currency from the sale of such substances might be found at the 216 Dellinger Road residence.
This is all that is required. Defendant seeks to invalidate the search warrant by focusing on the issue that the application does not contain sufficient evidence to show evidence of a conspiracy to sell drugs existed between Michael Smith and Randall. This argument ignores the totality of the information in the application, which shows: (1) a sale of controlled substances was made in the home; (2) un-tax paid white liquor and other controlled substances were seen in the home; (3) the discovery of the AR-15 rifle in Randall's home, which was titled in Defendant's name; and (4) repeated purchases of drugs and firearms were made from Randall, a convicted felon. The recorded telephone call provided reason to believe that proceeds from the sale of drugs or firearms might be located at the 216 Dellinger Road residence.
The question is whether the application, in its entirety, provides sufficient information to support the issuance of a search warrant authorizing the search of the residence at 216 Dellinger Road. When considered in its entirety and recognizing the deference which must be shown to the State magistrate's determination,
Defendant argues that her recorded statements to Officer McIntyre should be suppressed as a fruit of unlawful police action and cites the case of
Despite the issues not being raised by Defendant, and to assist the presiding District Judge, the undersigned will address two (2) issues that could have been presented and do appear to be applicable herein:
There is no question that Defendant was not advised of her
The Fourth Circuit set forth the standard for determining when a defendant is in custody in
Two cases decided by the Fourth Circuit Court of Appeals are instructive in determining the issue in the instant. In
The defendant moved to suppress the statements on the ground that she was in custody for
In
After being charged, the defendant moved to suppress his statements. The district court denied the motion. On appeal, the Fourth Circuit held that based on the totality of the circumstances, the defendant was not subject to a custodial interrogation, and therefore, no
In the instant case, after examining the totality of the circumstances, the Court finds that a reasonable person in Defendant's position would have felt free to leave the interview at any time and was not in custody. The interview of Defendant was in a vehicle just outside of and in the driveway of her home. Defendant was not asked by law enforcement officers to talk with the officers, but she was, in fact, asked by her son, Michael Smith, if she would speak to the officers. Michael Smith had spoken to the officers, and he had just left the interview with the officers without being placed into custody. Defendant was told by the officers at the beginning of the interview she was not under arrest. When told by the officers about the topic of the interview, Defendant stated, "I have no problem." When the interview was completed Defendant requested a card from the officers so that she could call them if she thought of something. Finally, Defendant was not arrested, and she left the van and was in fact free to go.
As a result of the foregoing, the undersigned finds that Defendant was not in custody during the interview with the officers and therefore was not entitled to
To determine whether a defendant's will have been overborne or his capacity for self-determination critically impaired, courts must consider "the `totality of the circumstances', including the characteristics of the defendant, the setting of the interview, and the details of the interrogation."
Some of the factors to consider in determining the totality of the circumstances "include the defendant's age, education, level of intelligence, the setting of the interview, the details of the interrogation, the duration of questioning, the use of physical coercion or deprivation, the defendant's experience with the criminal justice system, and whether the defendant has been advised of his
The totality of the circumstances in this case demonstrate that Defendant's will was not overborne and her capacity for self-determination was not critically impaired, and the statements made by Defendant were given freely and voluntarily without compelling influence. No threats were made to Defendant, and she was told she was not under arrest. (Apr. 24, 2018 Hr'g Tr. at 69-70.) Defendant was not handcuffed, and she was not arrested. (Apr. 24, 2018 Hr'g Tr. at 71.) Defendant was requested by her son, Michael Smith, to walk out of the house to the van for the interview. (Apr. 24, 2018 Hr'g Tr. at 92.) Defendant told Officer McIntyre she was disabled when speaking about her disability payments being used to purchase the rifle, but Officer McIntyre did not ask Defendant about her disability. (Apr. 24, 2018 Hr'g Tr. at 93, 96) Officer McIntyre did not notice anything about Defendant that would have caused him to think she had a disability. (Apr. 24, 2018 Hr'g Tr. at 96.) The recording of the interview, Gov.'s Ex. 1, shows the officers told Defendant that she was not being truthful, but this technique did not render a confession being made during the interview involuntarily.
The undersigned has listened carefully to the recording on multiple occasions and concludes that the interview was extremely cordial. The interview depicts the following: Defendant as being at least of average intelligence; the questioning of Defendant was polite and short in duration; and Defendant's statements were freely provided. Therefore, the Government has proven by a preponderance of the evidence that Defendant's statement to Officer McIntyre was voluntary.
Defendant seeks to suppress the statement made by Michael Smith to the officers.
"Fifth Amendment rights . . . a person may not be vicariously asserted."
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C) and Rule 72, Federal Rules of Civil Procedure, written objections to the findings of fact, conclusions of law and recommendation contained herein must be filed within fourteen (14) days of service of the objections. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal.
