ERIC F. MELGREN, District Judge.
Defendant Robby Alan Murphy is charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Murphy, appearing pro se, now moves to dismiss the indictment against him because he claims it is based on perjured grand jury testimony (Docs. 170 and 178). Alternatively, Murphy moves to suppress incriminating statements that he made while in custody. He argues his statements should be suppressed because they were made involuntarily (Doc. 93) and while he was unlawfully detained (Doc. 172). In addition, Murphy requests that certain property that was seized be returned to him (Doc. 86). For the reasons stated below, the Court denies each of Murphy's motions.
On April 9, 2015, Murphy was arrested on suspicion of attempted robbery. The victim of the robbery was a drug dealer, and substantial amounts of drugs and paraphernalia were found at his home. The victim reported that he had been held up by Murphy and two other persons. He claimed that Murphy and another man brandished handguns and threatened to shoot him. Murphy and his companions fled when the victim's son became aware of the robbery and fired a single gunshot. Murphy and his co-assailants were eventually stopped, arrested, and taken into custody. Murphy was transported to a hospital due to a suspected drug overdose, and was given antipsychotic medication while en route.
On April 10, Kansas District Judge Terry Pullman reviewed an affidavit prepared by Sergeant Kooser to determine whether there was probable cause to hold Murphy. The affidavit recounted the victim's account of the armed robbery and noted that Murphy was a felon who was statutorily prohibited from possessing a firearm. The affidavit contained no mention of the fact that the victim was a drug dealer or had any credibility issues. It also failed to note that the victim's son fired the only gunshot at the scene. Judge Pullman ultimately determined there was probable cause to hold Murphy.
While in custody, Murphy reinitiated contact with law enforcement officers by asking his wife to contact someone "with authority to negotiate his charges."
On April 28, Sergeant Kooser testified before the grand jury about Murphy's case. A grand juror asked if the victim had correctly identified the guns. Sergeant Kooser replied that the victim described the guns "to a T" when in fact, the victim had been wrong about the caliber of the firearms. The grand jury returned an indictment charging Murphy of possessing a firearm while a convicted felon in violation of 18 U.S.C. § 922(g)(1). On March 1, 2016, the Government corrected this error about testimony regarding the victim's identification of the gun and the grand jury returned a superseding indictment against Murphy. Murphy now moves to dismiss the indictment against him or alternatively, to suppress the statements he made on April 14, 2015.
Murphy argues that the indictment against him should be dismissed because it is based on perjured grand jury testimony. Alternatively, he contends that the statements he made on April 14, 2015, should be suppressed because they were made during his pretrial detention, and the probable cause finding justifying that detention was improper. He also claims that his statements should be suppressed because they were made involuntarily.
Murphy has the burden of showing that the grand jury's indictment was based on intentionally perjured testimony.
Murphy claims that the indictment against him must be dismissed because Sergeant Kooser committed perjury before the grand jury, and the prosecutor failed to correct it. Murphy argues that Sergeant Kooser committed perjury when he claimed that the victim described the guns used in the robbery "to a T" when the victim actually failed to correctly identify their calibers. Murphy contends that this was perjury and was material to the grand jury's decision to indict him. Therefore, he argues that the indictment should be dismissed since it relied on perjured testimony that went uncorrected by the prosecutor.
Even if Murphy's allegations were true, dismissal of the indictment against him would not be warranted. Murphy is facing a superseding indictment that was returned on March 1, 2016. The grand jury that returned the superseding indictment did not hear Sgt. Kooser's statement about the guns matching "to a T," and therefore, the indictment that Murphy is facing is unrelated to the alleged perjury he identifies.
But putting aside the superseding indictment, Murphy's motion is still without merit. To obtain dismissal of an indictment based on perjured grand jury testimony, Murphy must demonstrate that (1) Sgt. Kooser intentionally committed perjury before the grand jury and (2) that such testimony was material to the grand jury's decision to return an indictment.
Since the Government corrected Sergeant Kooser's mistaken testimony with a superseding indictment, and since the mistake was neither intentional nor material, Murphy's motion to dismiss the indictment against him is denied.
Murphy moves to suppress incriminating statements he made while in custody. He claims that the probable cause determination underlying his pretrial detention was improper. And so he argues that the statements should be suppressed because he was being unlawfully detained when he made them.
The Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to detention following an arrest.
"[I]t is a Fourth Amendment violation to knowingly or recklessly omit from an affidavit information that would have vitiated probable cause."
It is of little import that Murphy's robbery victim was a drug dealer. A similar omission from an affidavit was found to be immaterial in United States v. Morin.
The fact that the victim in this case is not a model citizen is immaterial to Judge Pullman's probable cause determination. Sergeant Kooser's affidavit would have supported probable cause even if it had included facts about the victim's credibility. Because the omissions complained of by Murphy were immaterial, his motion to suppress his statements is denied.
Murphy argues that his confession should be suppressed because it was involuntarily given. Murphy claims that he used methamphetamine nearly every day from February until April of 2015. He asserts that he ingested an especially large amount of methamphetamine on April 9, the day he was arrested. Murphy argues that when he confessed on April 14, his state of mind was influenced by the effects of methamphetamine, sleep deprivation, lack of food, and the fact that he had been held incommunicado for five days without access to counsel. Accordingly, he claims that his confession was involuntary and should be suppressed.
When considering whether a confession was voluntarily given, the Court considers the suspect's age, intelligence and education, whether the suspect was informed of his or her rights, the length and nature of the suspect's detention and interrogation, and the use or threat of physical force against the suspect.
At the outset, the Court would note that Murphy has shown himself to be of above average intelligence. He initially invoked his Miranda rights and seems to understand them. He has previous experience with the legal system and although he was held for five days before he confessed, there is no evidence of threats or physical force against him.
The crux of Murphy's involuntariness argument turns on his assertion that at the time he confessed, the withdrawal effects associated with over a month of daily methamphetamine use adversely influence him. But the evidence convinces the Court that even if Murphy was experiencing these effects during his interview, they were not overpowering and did not render his confession involuntary. The Court watched the video of Murphy's interview with Detective Banning, which showed that before Murphy gave his statement on April 14, 2015, Detective Banning read Murphy his Miranda rights. Murphy orally indicated that he understood each right and wished to waive those rights. Following this waiver, Murphy spoke at length to Detective Banning. Murphy spoke coherently and calmly. He did not slur his words, he did not yawn, and he did not appear exhausted or exasperated. He did not seem worn down or ill. He was neither lethargic nor overly restless. He was as composed as one could expect a suspect in custody to be. And Detective Banning was not aggressive or coercive in any way during the interview. In fact, Detective Banning played a relatively small role in obtaining Murphy's confession: Murphy did almost all of the talking. Detective Banning would only occasionally interrupt Murphy's narrative to ask questions. Murphy's conversation was rational and intelligent, and never did Detective Banning make any promises or threats in exchange for information.
In such circumstances, a confession will not be suppressed as involuntary.
Murphy also suggested that his confession was involuntary due to an implied understanding that he would receive leniency in exchange for his statements. He noted that he asked his wife to contact someone who could negotiate his charges, and the presence of an ATF agent implied that his request had been fulfilled—even though the ATF agent made no express assurances. "[A] promise of leniency may render a confession involuntary if it was sufficiently compelling and linked to the confession so that it could be said that the defendant's will was overcome by the offer."
Looking at the totality of the circumstances, there is simply no evidence—outside of Murphy's bare assertions—suggesting that the confession in this case was involuntary. Murphy was alert, aware, and in touch with reality when he waived his Miranda rights and made incriminating statements. And there was no promise of leniency that would render his confession involuntary. Therefore, his motion to suppress the statements is denied.
Murphy also requests that the Government return his cell phone, driver's license, social security card, and other items taken from his wallet. He moves under Fed. R. Crim. P. 41(g), which provides that "[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return." Here, these items were taken when Murphy was arrested as part of a criminal investigation. "The government is clearly permitted to seize evidence for use in investigations and trial."
Because, for the reasons stated above, Murphy has not shown that his arrest, detention, or the seizure of his property was unlawful, the Court will not order the Government to return them before criminal proceedings have terminated. Therefore, Murphy's motion is denied without prejudice. If the Government fails to return Murphy's non-contraband to him at the conclusion of these proceedings, Murphy can file another motion under Rule 41(g).
For the reasons state above, the Court denies each of Murphy's motions. The Court denies Murphy's motions to dismiss because any errors made in the grand jury proceedings were corrected by the superseding indictment, and in any event, the errors were immaterial. The Court denies Murphy's motions to suppress because the victim's credibility was immaterial to the probable cause determination required for pretrial detention, and because Murphy's statements were given voluntarily. Lastly, the Court denies without prejudice Murphy's motion to return property because his property was lawfully seized and criminal proceedings are still pending.
