ROBERT E. WIER, Magistrate Judge.
Defendant, Robert Lee Shields, by counsel, moved to suppress all statements he made to law enforcement on the date of his arrest, August 26, 2016, and on the date of his transport by law enforcement from Campbell County to Fayette County, August 29, 2016. DE #33 (Motion to Suppress). The United States responded in opposition. DE #38 (Response). The Court held an evidentiary hearing on November 18, 2016. DE #45 (Minute Entry). The Court has reviewed the entire record, including three witnesses' testimony, the parties' briefing, counsel's arguments, and the applicable law. For the following reasons, the Court
Lexington DEA pursued Shields as the alleged source of fentanyl distributed around Montgomery County in late August 2016. Authorities preliminarily attributed a spate of overdoses, including one fatality, to the batch of fentanyl involved. The DEA promptly identified the local source, and that local source (co-Defendant Wesley Hamm) quickly implicated an Ohioan named or known to him as "Sosa." A controlled buy effort led the DEA to Shields on August 26—Hamm directly identified him as Sosa in the area of a planned drug buy, and police arrested him. Shields participated in interrogations on August 26, immediately after his arrest, and then on August 29, as the DEA transported him to the first court appearance in Lexington. Shields made incriminating statements on both occasions, and these are the statements Shields targets by his motion.
First, the Court notes that there is no dispute over issues of custody, interrogation, and procedural compliance with Miranda's prophylactic measures. Authorities did question Shields (who was under arrest and handcuffed or held in a police vehicle) in custody,
The key here is the voluntariness of Shields's communications. Both the Miranda waiver and the decision to answer questions or communicate must be voluntary, but the analysis is substantively the same. As the Sixth Circuit recently summarized:
United States v. Binford, 818 F.3d 261, 271 (6th Cir. 2016), petition for cert. filed, 85 U.S.L.W. 3086 (U.S. Aug 26, 2016) (No. 16-253).
The analysis considers the "totality of the circumstances." Bray v. Cason, 375 F. App'x 466, 469 (6th Cir. 2010). The Sixth Circuit phrases the test as involving three necessary considerations:
Binford, 818 F.3d at 271 (quoting United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999).
The Court conducted a lengthy hearing to examine the particular circumstances of the statements at issue. See DE #45 (Minute Entry). At the hearing, both sides had a full and fair opportunity to present witnesses. See id. The parties presented starkly different stories regarding the allegedly coercive remarks made by law enforcement to Defendant Shields during Shields's August 26, 2016, questioning and his August 29, 2016, transport from Campbell County to Lexington, Kentucky. The Court recounts the proof as presented at the hearing. See id.
The United States first called Cincinnati Police Specialist Charles Vanover, a DEA Task Force Officer present during Shields's arrest.
The Government next called DEA Special Agent Jared Sullivan, the agent in charge of the investigation. He testified that he became involved on August 25, 2016, when local authorities reached out regarding multiple drug overdoses, including one death, that had occurred in Montgomery County. Investigators identified co-Defendant Wesley Hamm as the local source of fentanyl allegedly involved in the overdoses. Hamm cooperated with authorities and provided a description of his fentanyl supplier, located in Cincinnati, who he knew only as "Sosa." Under DEA direction, Hamm, via phone, arranged a controlled buy with "Sosa." On August 26, Shields arrived in the area of the controlled buy in Cincinnati, and Hamm identified him as "Sosa." Law enforcement pursued and promptly arrested Shields.
Sullivan arrived on the scene of arrest "at least ten minutes" after the arrest. He stated he was approached by a Cincinnati investigator (possibly Vanover), who told him that Shields had been read his rights and wanted to talk. Sullivan testified that he interpreted Shields wanting "to talk" to mean he wanted to cooperate. SA Sullivan approached Shields, who was handcuffed and in the back seat of a marked police cruiser. Shields stated he was willing to cooperate, and Sullivan asked him the location of his source and the fentanyl or other narcotics suspected to be in Shields's possession or control. Shields indicated the drugs were nearby but was hesitant to elaborate further given the civilian spectators that had gathered.
SA Sullivan testified that he had read the motion to suppress briefing, and he specifically and categorically denied making the alleged threatening statements. See DE #33 (Motion to Suppress), at 2 ("When Mr. Shields continued to claim a lack of knowledge [regarding any narcotics], he remembers that the agents were more specific, telling him: `If you don't tell us we will make sure you do life, unless you give us somebody. If you do, I can make sure you don't do life'.") Sullivan testified that he "wouldn't have even known that life was a possibility in this investigation"
According to SA Sullivan, during the August 26 interview, Shields repeatedly asked: "What are you going to do for me?" Sullivan explained to Shields that "if he proactively cooperated that information would be provided to the prosecutors and the judges and it could help your situation." At one point, Shields asked for "something in writing," and Sullivan recalled responding: "I have no authority or no position to be able to do that, we don't do that, we can't." On cross-examination, SA Sullivan testified that he would have told Shields: "You're going to be arrested on federal charges today. If you want to help yourself out, now is the time to do it. I specifically was saying the best way to start is to tell me where the stuff is that you were going to give Wesley Hamm today." He further clarified, in response to a question from the Court, that he would have told Shields: "You're in trouble, and one way that people frequently get out of trouble is to cooperate. And if you do [cooperate], that information will be supplied to the prosecutors and judges for consideration for lower sentencing."
Sullivan described Shields as very eager to help investigators, wanting to go home that night and not spend time in jail. To that end, and after moving to the unmarked DEA vehicle, Shields led agents to an alleged stash house. SA Sullivan, two other DEA agents, and Shields drove by the supposed stash house, and Shields identified a man sitting on the porch as "Dave," who Shields presented to agents as his supplier.
SA Sullivan also addressed discussions that occurred on August 29, 2016, when he and DEA Special Agent Matt Morris transported Shields from the Campbell County Detention Center to Lexington for Shields's initial appearance in federal court.
Finally, Defendant Shields testified. He stated that "about ten officers" were involved in his initial arrest. Shields testified that he repeatedly asked officers why he was under arrest and told officers he had a right to know why he was under arrest. Officers responded that they could not answer his questions and that he would have to wait for Kentucky DEA
Approximately thirty to forty-five minutes after being placed in the back of a marked police cruiser, Shields stated that SA Sullivan approached. Shields testified that he asked Sullivan why he was under arrest, to which Sullivan replied, "I'm pretty sure you know why you're under arrest." According to Shields, when he said he did not know why he was under arrest, Sullivan replied, "Well, someone has died. . . . You were going to meet up with someone today and that someone gave someone the product that you gave them and they overdosed and died." Shields further testified: "Agent Sullivan told me that I was facing life if I didn't tell him where the narcotics was or if I could[n't] give him someone with narcotics that he was going to make sure that I do life. Agent Sullivan also said I could avoid a life sentence. If I gave him drugs or someone with drugs, he would make sure I didn't do a life sentence."
Shields testified that, following the August 26 interrogation, he spent the weekend in jail prior to his transport to Lexington on August 29. He had no contact with a lawyer over the weekend and claimed to have thought about a life sentence all weekend. During the drive to Lexington, Shields was handcuffed and placed in the front passenger seat. Shields again spoke with SA Sullivan. Shields testified that SA Sullivan said, "Remember, you can help yourself, you can either make this easier or make this harder. We have approximately an hour and a half, two hour drive. You can either help yourself or not. You can either do a life sentence or help yourself and get you somewhere under 20 years. But if you can't help us, I can make sure you do [life
During the course of the interviews, Shields made various inculpatory statements concerning his role, his awareness of the substance, and his connections to Hamm and trafficking. He claims he made all such statements involuntarily.
Shields attacks only the voluntariness of his statements; the Government, which has the burden, defends the statements as voluntarily made.
As a factual matter, the Court credits SA Sullivan's version of events for several reasons. First, Sullivan described his approach to cooperation as basically the same in every case, this one included. He explained that proactive cooperation is a time-sensitive opportunity. Further, cooperation can help a defendant because law enforcement would communicate the fact and particulars of assistance to the relevant prosecutor and judge, which could be beneficial in terms of sentencing considerations. Sullivan described that as his customary approach and the one pursued with Shields.
Regarding the particulars here, the Court notes that Sullivan encountered a fluid situation with an unknown defendant (Hamm knew Shields only as "Sosa"). Thus, Sullivan knew nothing of Shields's criminal record. Sullivan also knew that actually linking Sosa to the overdoses would be a complicated proof chain dependent in part on prospective toxicology reports. Finally, Sullivan described this as his first overdose death case, and he candidly admitted to not having detailed familiarity with the sentencing possibilities under 21 U.S.C. § 841. These facts combine to convince the Court, as a matter of both proof and logic, that Sullivan did not communicate that he would "make sure" Shields received a life sentence absent cooperation. Indeed, Sullivan, who denied even contemplating a life term at the time, communicated nothing of that sort. He credibly denied making any charging threat to Shields (relaying that Shields would only be charged, at that point, with conspiracy to distribute) and he denied making any promises to Shields. He explained the mechanism of proactive cooperation and the possible benefits as tied to informing the judge and/or prosecutor for theoretical ameliorative sentencing impact.
Sullivan was consistent and measured in his description throughout the testimony. He testified to stressing the seriousness of the circumstance (including referencing the overdoses and the desire to interdict the batch involved) and Shields's narrow window of cooperation, but he flatly denied making promises, threats, or coercive quid pro quo remarks. He testified to never mentioning the possibility of a life sentence, focusing instead on the twenty-year default term associated with Schedule II trafficking. While this may be Sullivan's first case involving a death, it is hardly his first case, and Sullivan described his approach to cooperation as the same in every case—present and explain the opportunity, and let the target make a choice. That police encountered Shields as Hamm arranged, in the presence of a likely dirty phone, created situational pressures tied to the alleged criminality, not to police misconduct.
To hear Shields tell it, Sullivan repeatedly incanted the exaggerated quid pro quo threats—either help or face mandatory life. Shields attributed the threats only to Sullivan, and he described Sullivan as promising Shields he would "do life" unless he revealed the location of narcotics or gave up a supplier. The Court does not doubt that Sullivan communicated the gravity of Shields's state, and the DEA surely hoped to intercept the remaining fentanyl batch, but the Court rejects Shields's fanciful version as unsupported. Part of this owes to Shields's patent credibility problems. For instance, Shields depicts himself as overwhelmed and cowed by the involvement of the DEA. However, as a defendant with multiple drug felonies, Shields showed himself a wily and assertive participant in the discussions. He essentially prompted the August 26 interview, repeatedly demanded information from authorities, insisted, self-protectively, on relocating from the public arrest area, and persistently sought to know precisely what cooperation would mean for him. This conflicts with the depiction of an overborne will and thus hurts Shields's credibility as to the scrutinized events.
Further, even within the August 26 interaction, Sullivan perceived that Shields was lying to him. Thus, Shields, claiming the drugs were nearby, led police to a supply house that was a dead end. He also fingered an alleged co-conspirator that, by description and appearance, conflicted sharply with reliable information from Defendant Hamm. Sullivan suspected that Shields was intentionally misleading him about Shields's source. This intra-interrogation suggestion of falsity blemishes Shields's trustworthiness as a narrator of the day's interactions.
Certainly, "[p]olice promises of leniency and threats of prosecution can be objectively coercive." United States v. Johnson, 351 F.3d 254, 261-62 (6th Cir. 2003). However, the cases center on concerns over promises that are "broken or illusory," id. at 262, and threats unfounded in law or fact. Id. at 263. An illusory promise is one that does not bind law enforcement to particular action or is made without authority. See id. 262 n.1; see also United States v. Siler, 526 F. App'x 573, 575-76 (6th Cir. 2013) (citing Johnson). Factually, the Court has already determined that SA Sullivan did not threaten Shields with mandatory life (or indeed with any particular charge or punishment), did not make him any promises, and did not extend an improper or coercive quid pro quo offer. Rather, Sullivan merely (and accurately) relayed the situation Shields faced and described the opportunity and possible benefits of cooperation. Sullivan limited those possible benefits to judicial (and prosecutor) notice, which could positively impact sentencing. This was all entirely proper. Indeed, "although police promises of leniency can be objectively coercive in certain circumstances, a statement about possible leniency upon cooperation does not render a confession unconstitutional." Bray v. Cason, 375 F. App'x at 469. As the Sixth Circuit just confirmed:
Binford, 818 F.3d at 271-72 (citation and quotation marks omitted). Here, Sullivan at most accurately depicted Shields's conundrum and pointed to cooperation as a possible mitigative avenue. See United States v. Turner, No. 14-20019, 2015 WL 687313, at *3 (E.D. Mich. Feb. 18, 2015) ("Conveying to suspects the seriousness of the crime for which they are being investigated does not render a confession involuntary. And although it is true that offers of leniency made during a police interrogation have a coercive effect, a promise to speak with the prosecutor about a defendant's cooperation does not automatically render a confession coerced." (citations and quotation marks omitted)).
The Court finds that police, including SA Sullivan in particular,
Shields's characteristics also matter. He is a twice convicted cocaine trafficker with at least one prior heroin possession felony. See DE #15 (Notice). He has significant and recent experience in the criminal justice system. Shields knew his rights and never sought counsel. Further, he was assertive in seeking information, demanding to know his status, and negotiating with Sullivan. Defendant now tries to describe himself as intimidated by involvement of the DEA, but the Court finds that portrayal incredible. Shields, an articulate and intelligent man, was wily during the attempted buy with Hamm and sophisticated in his interactions with Sullivan (perhaps misleading Sullivan in an attempt to garner cooperation points without actually offering much of substance). Shields's age, experience, and facility with the system contribute to the totality of circumstances that undergird the Court's voluntariness findings.
Finally, while the Court finds no coercive activity, the Court also must remark on indicia of Shields's will and volition. Specialist Vanover, who Mirandized Shields, described him as anxious to begin a dialogue with authorities from the moment of arrest—Vanover perceived this as Shields's interest in cooperation. According to Vanover, Shields said, "I want to talk" and "I need to talk to someone" almost immediately. Thus, even before Shields knew (from Sullivan) anything of the particulars, Shields showed a desire to talk. Sullivan confirmed this, describing Shields as eager from the beginning to talk with authorities and explore cooperation. Per Sullivan, Shields had "a lot" to say and was "eager" to cooperate. This evidence sharply cuts against any notion of Shields having his will overborne—if Shields wanted to talk from the inception of arrest, then post-arrest, post-Miranda interaction hardly overbore his will.
The United States proved by a preponderance of the evidence, under the appropriate due process and Miranda standards, that Shields voluntarily made his statements of August 26 and 29. The Court
The Court issues this recommendation under 28 U.S.C. § 636(b)(1)(B). The parties should consult 28 U.S.C. § 636(b)(1) and Federal Rule of Criminal Procedure 59(b) for specific appeal rights and mechanics. The objection period will be as stated in the Rule and statute, subject to any particular schedule set by Judge Reeves. Failure to object in accordance with the Rule waives a party's right to review.
