ROBERTO A. LANGE, District Judge.
This matter is before the Court on the Report and Recommendation (Doc. 29) and
On January 5, 2009, Federal Bureau of Investigation ("FBI") Agent James Van Iten contacted Pierre Police Officer John Wollman.
While driving west of Fort Pierre, South Dakota, Trooper Stahl spotted a vehicle matching the description of Garreau's vehicle traveling east on U.S. Highway 14. (T. 8). Using his radar, Trooper Stahl clocked the speed of the vehicle at 71 miles per hour, which exceeded the speed limit of 65 miles per hour. (T. 8). Trooper Stahl pulled the vehicle over and advised the driver-the sole occupant-of the reason for the stop. Ex. 4, at 1. The driver could not produce a driver's license and instead presented a Cheyenne River Sioux Tribal identification card identifying himself as Garreau. (T. 8-9).
Trooper Stahl instructed Garreau to sit in the patrol car. (T. 9). While Garreau sat in the patrol car, Trooper Stahl completed a warning ticket for the speeding violation, ran a check on Garreau, and learned that Garreau's driver's license had been suspended and that an outstanding warrant for driving with a suspended license existed for Garreau. (T. 9). Trooper Stahl then placed Garreau under arrest, handcuffed him, searched him, and placed him in the back of the patrol car. (T. 9-10). The search of Garreau's person yielded a knife, which Trooper Stahl confiscated. Trooper Stahl then asked Garreau if he knew someone who could come and get the vehicle and Garreau responded in the negative. (T. 10). Trooper Stahl's report lists the time of the arrest as 1320 hours. Ex. 4, at 1.
After Trooper Stahl initially placed Garreau in the patrol car to complete the warning ticket and run a check on Garreau,
After Trooper Stahl found the gun, Officer Wollman went to Trooper Stahl's patrol car and asked Garreau about the firearm. (T. 37). During this conversation, Garreau acknowledged that he knew the gun was stolen. (T. 38). Officer Wollman testified that at no time prior to or during the conversation was Garreau advised of his Miranda rights. (T. 50). At no time prior to the search of the car and Officer Wollman's questioning did Garreau say anything about a stolen firearm. (T. 51).
Subsequently, police took Garreau to the Hughes County Jail in Pierre, where he was interviewed by Officer Wollman and Jason Baldwin, a Special Agent with the South Dakota Division of Criminal Investigation ("DCI"). (T. 39). The interview began at 1427 hours. Ex. 5, at 1. There, after being read his Miranda rights, Garreau agreed to talk to investigators and signed an advice of rights and waiver of rights form as well as a form consenting to a urine sample. (T. 40); Ex. 5. During the interview, Garreau made incriminating statements regarding the gun. (T. 41). At the conclusion of the interview, Garreau provided a urine sample. At no point during the interview did Officer Wollman or Agent Baldwin raise their voices at Garreau, and Garreau never raised his voice at them or indicated that he wanted to terminate the interview or speak with a lawyer. (T. 43-44).
At some point, Trooper Stahl completed form HP-219D, which is required by Section 9.1401 of the South Dakota Highway Patrol Vehicle Inventory Searches policy. Ex. 2. Form HP-219D, entitled "Vehicle Inventory," listed as inventory miscellaneous CD's, a cell phone, four empty Crown Royal bags, miscellaneous paperwork, a roofing hammer, a child seat, two presents consisting of children's toys, cold weather gear, and miscellaneous clothing. Ex. 3. Form HP-219D did not list the handgun. (T. 28). Officer Wollman's report characterized the search as a "search incident to an arrest" and prior to towing of the vehicle. (T. 49, 51). Officer Wollman's report made no specific reference to an inventory search. (T. 49).
Citing Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), Garreau moved to suppress the handgun on the grounds that it was obtained during an invalid search incident to arrest. He further seeks to suppress the statements
In Gant, the Supreme Court held that:
129 S.Ct. at 1723-24. Garreau argues that because he had already been removed from his vehicle, handcuffed, and placed in the back of Trooper Stahl's patrol car prior to the search, the search of the vehicle, incident to arrest, and the seizure of the handgun found in it. were unconstitutional. Defendant further contends neither the "automobile exception" nor the "inventory search" exception to the Fourth Amendment's warrant requirement may validate the search and seizure of the handgun in this case.
The Government concedes
The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV. A "cardinal principle" in Fourth Amendment search and seizure jurisprudence is that searches conducted outside the judicial process, i.e. without prior approval by a judge, are per se unreasonable, "subject only to a few specifically established and well-delineated exceptions." Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). When the government seeks to introduce evidence that was seized during a warrantless search, it "bears the burden of showing the need for an exemption from the warrant requirement and that its conduct fell within the bounds of the exception." Kennedy, 427 F.3d at 1144 (citing Marshall, 986 F.2d at 1173).
One such exception, which has been recognized and applied for more than three decades, is an inventory search. South Dakota v. Opperman, 428 U.S. 364, 367-76, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); see also United States v. Hall, 497 F.3d 846, 850 (8th Cir.2007). This exception is premised on "three distinct needs: the protection of the owner's property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property, and the protection of the police from potential danger." Opperman, 428 U.S. at 369, 96 S.Ct. 3092 (internal citations omitted). Because they are performing an "administrative caretaking function," police need not have a search warrant or probable cause before they conduct an inventory search of a vehicle. Id. at 369-70 n. 5, 96 S.Ct. 3092; United States v. Marshall, 986 F.2d 1171, 1173-74 (8th Cir.1993). In the context of an inventory search, the Government bears the burden to "produce evidence that impoundment and inventory search procedures were in place and that law enforcement complied with those procedures." Kennedy, 427 F.3d at 1144 (citing Marshall, 986 F.2d at 1175-76) (holding that district court erred in admitting evidence seized in an inventory search when government produced insufficient evidence of compliance with standardized procedures).
The central question, when evaluating the propriety of an inventory search, is whether, under the totality of the circumstances in the particular case, the search was reasonable. Hall, 497 F.3d at 851 (citing United States v. Kennedy, 427 F.3d 1136, 1143 (8th Cir.2005)); see also Marshall, 986 F.2d at 1174. Inventory searches that are "conducted according to standardized police procedures" are reasonable. Id. (citing Kennedy, 427 F.3d at 1143). "Adherence to standardized procedures is necessary to ensure that the search is not merely `a ruse for general rummaging in order to discover incriminating evidence,' since inventory searches are often conducted in the absence of the safeguards of a warrant and probable cause." Kennedy, 427 F.3d at 1143 (quoting
Police may use discretion in conducting an inventory search as to the proper course of action to take, "so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." Hall, 497 F.3d at 851 (quoting Colorado v. Bertine, 479 U.S. 367, 375, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987)). An inventory search need not be made in a "totally mechanical" manner, United States v. Petty, 367 F.3d 1009, 1012 (8th Cir.2004) (quoting Wells, 495 U.S. at 4, 110 S.Ct. 1632), but "some degree of `standardized criteria' or `established routine' must regulate" an inventory search. Petty, 367 F.3d at 1012 (quoting Wells, 495 U.S. at 4, 110 S.Ct. 1632). A police officer's residual judgment that is exercised and based on legitimate concerns related to the purposes of an impoundment does not run afoul of the Constitution. United States v. Kimhong Thi Le, 474 F.3d 511, 514 (8th Cir. 2007) (citing Petty, 367 F.3d at 1012).
"The presence of an investigative motive does not invalidate an otherwise proper inventory search." United States v. Garner, 181 F.3d 988, 991 (8th Cir.1999) (citing United States v. Lewis, 3 F.3d 252, 254 (8th Cir.1993); see also Marshall, 986 F.2d at 1175-76). Police "may keep their eyes open for potentially incriminating items that they might discover in the course of an inventory search, as long as their sole purpose is not to investigate a crime." Kennedy, 427 F.3d at 1144 (quoting Marshall, 986 F.2d at 1176). Even if a police officer suspects that he might uncover evidence in a vehicle, he can still tow the vehicle and inventory its contents, as long as the impoundment is otherwise valid. Hall, 497 F.3d at 851 (quoting Petty, 367 F.3d at 1013). The Constitution, however, does not permit police to "raise the inventory-search banner in an after-the-fact attempt to justify what was ... purely and simply a search for incriminating evidence." Kennedy, 427 F.3d at 1144 (quoting Marshall, 986 F.2d at 1175).
The Government established at the suppression hearing that the South Dakota Highway Patrol has a standardized Vehicle Inventory Searches policy ("Inventory Policy"), which was in effect at the time of the search. At issue in this case is whether Trooper Stahl was adhering to the Inventory Policy when conducting the search that yielded the handgun.
Trooper Stahl's search did not fully comport to the Inventory Policy. The Inventory Policy describes "[a]n inventory" as "a procedure used to identify and list property that may be located in a vehicle, which is to be impounded or otherwise taken into police custody." Ex. 2, at 1 (Section 9.1401). In Section 9.1403, the Inventory Policy requires an inventory of an impounded vehicle's contents:
Ex. 2, at 1. The form HP-219D completed by Trooper Stahl failed to list the handgun, despite it being "property" and one of "the contents" of the vehicle. When asked why he did not list the gun on the form, Trooper Stahl testified "[t]he weapon came back stolen, I do not list that on the inventory then." (T. 28). He later stated that "[i]f [the handgun] would not have been a stolen weapon, I would have put it on the
The Government's argument that the inventory search exception applies appears to be an after-the-fact attempt to justify a search incident to arrest contrary to Gant. Trooper Stahl's report documents two separate searches. First, "[a] search of the vehicle was conducted" immediately after Garreau was arrested. Ex. 3, at 1-2. During this search, Trooper Stahl found the handgun. Id. Upon finding the handgun, Trooper Stahl examined the serial number and ran a check with State Radio to inquire whether the weapon was stolen. Id. at 2. Then, according to the report, arrangements were made for towing
There are three general exceptions to the exclusionary rule. The first, called the "attenuated connection" exception, applies when the chain between the challenged evidence and the primary taint of illegality is so long or only linked by sophisticated argument such that exclusion is not warranted. Wong Sun, 371 U.S. at 487-88, 83 S.Ct. 407 (rejecting "but for" test for determining whether evidence is fruit of the poisonous tree and noting that in some cases connection between illegal conduct and discovery of challenged evidence will "become so attenuated as to dissipate the taint") (citing Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939)): see also United States v. Hinojosa, No. 08:05CR145, 2005 WL 3508480, at *5, 2005 U.S. Dist. LEXIS 39921, at *17 (D.Neb.2005). Second, the "independent source" exception makes the evidence admissible if the Government can show that it derived the evidence from a lawful source independent of the illegal conduct creating the primary taint. Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (holding that the independent source doctrine applies not "only to evidence obtained for the first time during an independent lawful search," but "also to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality."); see also Wong Sun, 371 U.S. at 487, 83 S.Ct. 407 (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920)); Hinojosa, 2005 WL 3508480, at *5, 2005 U.S. Dist. LEXIS 39921, at *17. Third, the "inevitable discovery" exception applies when the Government can establish that the challenged evidence would have been inevitably discovered without reference to the illegal conduct creating the primary taint. See Nix v. Williams, 467 U.S. 431, 441, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (adopting the inevitable discovery exception to the exclusionary rule).
In this case, the inevitable discovery exception applies to the vehicle search and the seizure of the handgun. Otherwise unconstitutionally found evidence "need not be suppressed if the two prongs of the inevitable discovery doctrine are proved by a preponderance of the evidence: (1) there is a reasonable probability the evidence would have been discovered by lawful means in the absence of police misconduct, and (2) the government was actively pursuing a substantial, alternative line of investigation at the time of the constitutional violation." United States v. Munoz, 590 F.3d 916, 923 (8th Cir.2010) (citing United States v. Thomas, 524 F.3d 855, 858 (8th Cir.2008)); United States v. Pruneda, 518 F.3d 597, 604 (8th Cir.2008); see also Nix v. Williams, 467 U.S. 431, 444 & 448, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The second prong "requires that the government prove that there was, at the time of the search ... an actual other investigation that would have led to discovery of the otherwise unconstitutionally obtained evidence." Id. at 923-24 (quoting United States v. James, 353 F.3d 606, 617 (8th Cir.2003)). The prosecution must establish "by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means." Nix, 467 U.S. at 444, 104 S.Ct. 2501. The Eighth Circuit has found that the inevitable discovery exception applies when unlawfully obtained evidence would have been identified during a lawful inventory search conducted according to an established police department procedure. See United States v. Alvarez-Gonzalez, 319 F.3d 1070, 1072 (8th Cir.2003) (holding that "discovery of [defendant's]
In this case, although the handgun was found during a search incident to arrest contrary to Gant, the handgun would have been inevitably discovered as part of an inventory search following the arrest of Garreau for driving with a suspended license and on the outstanding warrant. The Inventory Policy requires an inventory of the contents of all vehicles impounded or taken into protective custody. Due to his arrest and inability to identify anyone who could pick up the vehicle from the site of the arrest, Garreau's vehicle would have been inevitably impounded, thereby mandating an inventory of the vehicle's contents. This inventory, under the terms of the Inventory Policy, would have included "all areas of the vehicle, trunk, glove compartment and luggage or other closed containers within the vehicle." Whether the location of the gun when seized is best characterized as an area of the trunk or a closed container within the vehicle, the gun would have been inevitably found as part of an inventory search, thereby satisfying prong one of the inevitable discovery test. The Government also has met its burden on prong two, for at the time of the search the police were actively pursuing an investigation into Garreau's warrant for driving with a suspended license. This is evident by the fact that Garreau was in custody for this offense when the search occurred. Accordingly, evidence of the search of the vehicle and seizure of the firearm is not suppressed under the exclusionary rule and, therefore, is admissible at trial.
Garreau next argues that he was not advised of his Miranda rights prior to making incriminating statements while sitting handcuffed in Trooper Stahl's patrol car. He contends that he was in custody at the time he was questioned and was asked questions eliciting potentially incriminating answers, thereby entitling him to Miranda warnings.
To protect a suspect's Fifth Amendment right not to be "compelled in any criminal case to be a witness against himself," the Supreme Court created concrete constitutional guidelines requiring that the suspect "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda warnings, however, are not required for "[g]eneral on-the-scene questioning as to facts surrounding a crime," which does not present "the compelling atmosphere inherent in the process of in-custody interrogation." Miranda, 384 U.S. at 477-78, 86 S.Ct. 1602. In order for Miranda to apply, the challenged statements must have been made while the suspect was in custody and in response to interrogation. United States v. Howard, 532 F.3d 755, 763 (8th Cir.2008).
The ultimate inquiry in the custody analysis "is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)). "Two discreet inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation;
At the time Officer Wollman and Garreau conversed, Garreau was in handcuffs, under arrest, and sitting in the back seat of a locked patrol car. Garreau was, without question, in custody within the meaning of Miranda at the relevant time.
Garreau, without question, was subject to "interrogation" by Officer Wollman. "[Interrogation includes both direct questions and words or actions that an officer should know are reasonably likely to elicit an incriminating response from the suspect." United States v. McGlothen, 556 F.3d 698, 701 (8th Cir.2009) (internal citations omitted), cert. denied ___ U.S. ___, 129 S.Ct. 2812, 174 L.Ed.2d 306 (2009). Determining whether specific questions or statements amount to interrogation depends on the circumstances of each case, particularly whether they are objectively and reasonably likely to result in incriminating responses by the suspect, as well as the nature of the context in which they are given. Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). After the handgun was found, Officer Wollman went to Trooper Stahl's patrol car to talk to Garreau. There, Officer Wollman identified himself and said that he and Trooper Stahl had found the stolen gun in the vehicle Garreau had been driving. Officer Wollman then asked Garreau about the gun, whereupon Garreau admitted that he knew the gun was stolen. Garreau had said nothing about a stolen gun being in the vehicle before the gun was found. Officer Wollman's question was the kind of investigative query that was at least reasonably likely to elicit an inculpatory reply from Garreau and thus constituted "interrogation" under Miranda.
Garreau's statements, confessing knowledge of the handgun being stolen, were therefore the result of custodial interrogation, prior to which he should have been, but was not, advised of his Miranda rights. Consequently, his statements must be suppressed and cannot be used as substantive evidence at trial. See United States v. Stoneman, No. CR 09-30101-RAL, 2010 WL 1610065, at *6, 2010 U.S. Dist. LEXIS 38837, at *16-17 (D.S.D. Apr. 20, 2010) (citing Miranda, 384 U.S. at 475, 86 S.Ct. 1602); see also Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).
Suppressed statements made in response to a custodial interrogation, however, may be admitted for impeachment purposes if the defendant testifies at trial, so long as the statements were voluntary. See Harris, 401 U.S. at 226, 91 S.Ct. 643. The premise behind allowing tainted evidence to be used as impeachment is simple: If the defendant takes the witness stand and gives testimony that is inconsistent with his own previously recorded statements or other evidence, the Constitution does not require the Government to leave the lie unchallenged, for to do so would permit the defendant to use the law as a means of effectuating perjury. United States v. Baftiri, 263 F.3d 856, 857 (8th Cir.2001); see also United States v. Rowley, 975 F.2d 1357, 1361 (8th Cir.1992) (voluntary statements, even if otherwise inadmissible, may be used to impeach a testifying defendant).
Garreau also seeks to suppress the statements he made to Officer Wollman and Special Agent Baldwin at the Hughes County Jail under the "fruit of the poisonous tree" doctrine set out in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The Government does not intend to introduce these statements in its case in chief, but requests that this Court find that the statements were not coerced and may be used for impeachment purposes. Garreau argues that his admissions flow from an illegal search of the car he was driving. The Court, however, has determined that the vehicle search and seizure of the firearm are admissible under the inevitable discovery exception to the exclusionary rule and for this reason, Garreau's argument does not succeed. Determination of whether Garreau's subsequent statements emanated from, or were tainted by, the Miranda violation requires additional analysis.
The Fourth Amendment generally requires a "`broad application' of the exclusionary rule." United States v. Fellers, 397 F.3d 1090, 1094 (8th Cir.2005) (quoting Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)). In the Fourth Amendment context, the exclusionary rule serves to deter unreasonable searches and seizures regardless of the probative value of their fruits. Id. at 1095. "Under the fruit of the poisonous tree doctrine, the exclusionary rule bars the admission of physical evidence and live witness testimony obtained directly or indirectly through the exploitation of police illegality." United States v. Simpson, 439 F.3d 490, 493 (8th Cir.2006) (internal citations omitted).
As discussed above, the exclusionary rule has general exceptions for "attenuated connection," "independent source," and "inevitable discovery." On this issue, the attenuated connection exception merits further discussion. When the fruit of a Fourth Amendment violation is a confession, the exclusionary rule is applied "to ensure that the confession is not causally linked to the initial illegality." Id. (citing Brown v. Illinois, 422 U.S. 590, 602-03, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)). In such cases, Miranda warnings subsequent to the police illegality will not, by themselves, attenuate the taint of an
To break the causal chain between a prior Miranda violation and subsequently made statements, Wong Sun requires that the latter statements be "sufficiently an act of free will to purge the primary taint." 371 U.S. at 486, 83 S.Ct. 407. In determining whether a confession is the product of a free will, courts consider "Miranda warnings, the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and particularly, the purpose and flagrancy of the official misconduct." Vega-Rico, 417 F.3d at 976 (quoting United States v. Hernandez-Hernandez, 384 F.3d 562, 565) (8th Cir.2004).
Garreau's statements were sufficiently an act of free will to purge the primary taint. On the one hand, the length of time between the prior Miranda violation and Garreau's statements at the Hughes County Jail—approximately one hour and seven minutes in between the arrest and interrogation, of which 10-15 minutes consisted of a ride in the patrol car—was not particularly long. (T. 39); See Brown, 422 U.S. at 604, 95 S.Ct. 2254 (statement separated from illegal arrest by less than two hours not attenuated); Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982) (confession six hours after illegal arrest not purged of taint of illegal arrest); Dunaway v. New York, 442 U.S. 200, 203, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (incriminating statements made within an hour of illegal arrest not sufficiently attenuated). However, the length of time, in conjunction with intervening circumstances including the change in location and the substitution of Agent Baldwin for Trooper Stahl, weigh in favor of a finding of attenuation. In addition, it is undisputed that Garreau received Miranda warnings and waived his Miranda rights prior to making any statements at the jail, and the facts further demonstrate that Officer Wollman and Agent Baldwin conducted the interview in a professional manner and acted with no bad purpose. It also appears that questioning by Officer Wollman at the scene was brief.
For cases involving a "two-step" interrogation-an interrogation in which there is a subsequent administration of Miranda warnings to a suspect who previously provided a voluntary but unwarned statement-the Eighth Circuit has adopted the approach that, in order for the subsequent statements to be fruit of the poisonous tree, the two-step interrogation must be a "designed, deliberate, or calculated circumvention of Miranda." United States v. Elzahabi, 557 F.3d 879, 884 (8th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 2781, 174 L.Ed.2d 281 (2009); accord United States v. Torres-Lona, 491 F.3d 750, 757 (8th Cir.2007).
Unlike the defendant in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), Garreau was not subjected to an interrogation technique intended to drain the substance out of Miranda or to thwart its purpose. No improper tactics were employed by Officer Wollman or Agent Baldwin, and the two questioning sessions were separated by both time and location. Where, as here, the initial statement was voluntary, the proper inquiry is whether Garreau's subsequent statements, after being properly advised of his rights, were voluntary based on the surrounding circumstances. See Elstad, 470 U.S. at 318, 105 S.Ct. 1285.
No evidence was presented that Officer Wollman used compulsion in eliciting Garreau's first statement, that the Miranda waiver signed by Garreau before the second statements was not knowing, voluntary, or intelligent, or that the later statements were in any way coerced. The subsequent statements not only concerned the handgun but also Garreau's use of illegal drugs, the latter being a separate and independent basis for a Miranda advisement prior to questioning him on this subject matter. Garreau's statements at the Hughes County Jail were knowingly, voluntarily, and intelligently made. Under the circumstances, the statements were not invalidated by his prior, illegally obtained statement and need not be suppressed. United States v. Walker, 518 F.3d 983, 985-86 (8th Cir.2008)
Garreau also moves under the fruit of the poisonous tree doctrine to suppress the urine sample that he consented to at the Hughes County Jail. For the same reasons that the Hughes County Jail statements need not be suppressed, neither must the urine sample.
The Supreme Court has held that the failure to give Miranda warnings does not require the suppression of physical evidence derived from a suspect's unwarned, but voluntary, statements. United States v. Patane, 542 U.S. 630, 641-44, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004); see also United States v. Buchanan, No. CR 07-50118-AWB, 2008 WL 2704865, at *2-3 (D.S.D.2008) (denying motion to suppress derivative evidence obtained after an Edwards violation based on the Exclusionary Rule), affd, 574 F.3d 554 (8th Cir.2009). In addition, Garreau consented to providing the urine sample and that consent was voluntary based on the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 226-27, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); see also United States v. Mendenhall, 446 U.S. 544, 557-58, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (the evidence plainly supported the trial court's view that the defendant's consent to search of her person at DEA office was freely and voluntarily given). His custodial status does not suffice under the circumstances to vitiate the voluntariness of his consent. See United States v. Watson, 423 U.S. 411, 424-25 & n. 14, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); see also United States v. Sanders, 424 F.3d 768, 773-74 (8th Cir.2005) (applying personal and environmental characteristics and concluding that the search of the defendant's person was voluntarily given).
The Government has advised the Court that it will not utilize evidence derived from the urine sample. (Doc. 23, at 7). The Government does request, however, that the Court find that the urine sample was not obtained as a deliberate, intentional attempt to illegally secure evidence. As discussed above, the Court finds that none of the evidence at issue in Garreau's motion was obtained as part of such an attempt. Therefore, the urine sample may also be offered for impeachment purposes at trial.
Based on the foregoing, it is hereby
ORDERED that Defendant's factual Objections to the Report and Recommendation for Disposition of Motion to Suppress Evidence and Statements (Doc. 37) are sustained. It is further
ORDERED that Defendant's Motion to Suppress Evidence and Statements (Doc. 14) is denied with respect to the search of the car, the evidence of a firearm found in
ORDERED that the Court declines to adopt the Magistrate Judge's Report and Recommendation (Doc. 29) and Corrigendum/Clarification of Report and Recommendation (Doc. 32).
(T. 6).
The Government bears the burden of proving that an exception to the warrant requirement exists. United States v. Davis, 569 F.3d 813, 816 (8th Cir.2009) (noting that "[t]he exceptions [to the warrant requirement] are jealously and carefully drawn, and there must be a showing by those who seek exemption... that the exigencies of the situation made that course imperative.") (quoting Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). Because the Government made no attempt—indeed, it expressly declined to make such an attempt—to meet its burden that it was acting in good faith reliance on pre-Gant precedent, that exception to the warrant requirement does not apply in this case.
