Lance E. Walker, United States District Judge.
On February 14, 2019, the Defendant, Amanda Cowette, was charged with (1) conspiracy to distribute and possession with intent to distribute 400 grams or more of fentanyl (a Schedule II controlled substance), in violation of 21 U.S.C. §§ 846, 841(a) and 841(b)(1)(A); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), and aiding and abetting such conduct in violation of 18 U.S.C. § 2; (3) knowing possession with the intent to distribute 40 grams or more of a mixture or substance containing fentanyl, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (4) maintaining drug-involved premises, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2. Indictment (ECF No. 1). Cowette now moves to suppress statements she made to law enforcement on July 16, 2018 and July 17, 2018. Mot. Suppress 1 (ECF No. 36). A hearing on the motion was held on August 5, 2019. After careful consideration of the evidence and the arguments of counsel, Defendant's Motion to Suppress (ECF No. 36) is
On July 12, 2018, officers from the Somerset. County Sheriff's Office executed a drug search warrant on the person and vehicle of Nicholas Culver based on information Mr. Culver was trafficking Fentanyl in and around Somerset County. Def.'s Ex. 1 ("Ex. 1"), 4 (ECF No. 36-2, #96); Def.'s Ex. 2 ("Ex. 2"), 1 (ECF No. 36-3, #109). Following this search, Culver was arrested and then charged with aggravated trafficking in a scheduled drug and possession of scheduled drugs. Ex. 1 at 8; Ex. 2 at 3.
As part of their ongoing investigation into Culver's drug trafficking, law enforcement officers executed a drug search warrant at the residence of the Defendant, Amanda Cowette, on July 16, 2018. Ex. 1 at 10; Ex. 2 at 5. Officers suspected Cowette was Mr. Culver's girlfriend. Ex. 1 at 5; Ex. 2 at 1.
Upon arrival at Cowette's residence, law enforcement officers notified Cowette that they had a search warrant and provided her with a copy of the warrant. Ex. 1 at 10. Cowette had been standing outside her residence speaking with Corporal Joseph Jackson of the Somerset County Sheriff's Office regarding her reports that she had observed men in the trees around her residence. Ex. 1 at 10; Ex. 2 at 5. Law enforcement officers were unable to locate any trespassers and officers suspected she "was basically `seeing things that were not there,' due to the drugs that she may have ingested." Ex. 2 at 5. Nevertheless, other than unsubstantiated claims of men on her property, officers reported she was "coherent and walked, talked, and acted in a normal manner." Ex. 2 at 5.
One of the responding officers, Lieutenant Gottardi, requested that Cowette sit in his unmarked police vehicle so they could speak. Ex. 2 at 5. Cowette was handcuffed at the time. Def.'s Ex. 4 ("Ex. 4") (ECF No. 40). After confirming that Cowette did not have anything hidden on her person, Lieutenant Gottardi read her Miranda rights from a prepared card. Ex. 2 at 5; Ex. 4 at 2:40-3:30. When Lieutenant Gottardi asked Cowette if she wished to speak with him, Cowette responded while shrugging her shoulders: "I guess I should probably wait until I have a lawyer, that sounds like the best idea, I don't — I've never been in Court, never been in trouble, I don't — ... I guess not, I guess I'll wait
Law enforcement officers entered Cowette's residence to execute the warrant while Lieutenant Gottardi and Cowette stood outside the home. Ex. 1 at 10-11; Ex. 2 at 6. Once again, Cowette reported seeing men in the woods, but Lieutenant Gottardi was unable to see any men. Ex. 2 at 6. When Lieutenant Gottardi repeated his concerns regarding Cowette's health, she responded that she "did not feel affected by what she had taken." Ex. 2 at 6. Inside the residence, officers found two safes. Ex. 1 at 11; Ex. 2 at 6. In response to Lieutenant Gottardi's request, Cowette provided the combination to the safes. Ex. 1 at 11; Ex. 2 at 6.
A few minutes after providing the combinations, Cowette spontaneously commented that a bag of Fentanyl in her top drawer was hers. Ex. 2 at 6. Lieutenant Gottardi reminded her of what he had interpreted as her previous request to not talk. Ex. 2 at 6. Cowette then indicated "she would talk now." Ex. 2 at 6. Lieutenant Gottardi advised Cowette to think about her request to talk and indicated that he would be willing to talk with her later if she chose to speak with him. Ex. 2 at 6. In an effort to ensure Cowette "knew what she was talking about," Lieutenant Gottardi also asked Cowette to confirm her name and date of birth — "which she did rapidly and correctly" — and then to confirm that she knew where she was. Ex. 2 at 6-7.
In the home, officers located a loaded 9mm Glock handgun, various drug paraphernalia items, approximately 100 grams of Fentanyl, several Xanax pills, and over $7,000 in cash. Ex. 2 at 10-11; Def.'s Ex. 3 ("Ex. 3"), 1 (ECF No. 36-4, #118).
Lieutenant Gottardi asked Cowette to return to his police vehicle so he could
Cowette exited Lieutenant Gottardi's vehicle and Detective David Cole transported Cowette to the Somerset County Jail. Ex. 1 at 11; Ex. 2 at 8. Before speaking with her, Detective Cole reminded Cowette of her Miranda rights and reiterated that she did not need to speak with him. Ex. 1 at 11; Def.'s Ex. 8 ("Ex. 8"), 0:46-1:04 (ECF No. 40). Nevertheless, Cowette continued to speak with Detective Cole and during the course of their ensuing conversation, she shared information regarding her personal drug use as well as information relating to Culver's drug trafficking. Ex. 1 at 11-12; Ex. 8 at 1:05-15:44.
The following day, July 17, 2018, Detective Cole met with Cowette in his office. Ex. 1 at 14. He reread Cowette's Miranda warnings in full. Ex. 1 at 14; Ex. 2 at 8; Def.'s Ex. 10 ("Ex. 10"), 0:41-1:09 (ECF No. 40). Cowette indicated she understood her rights pursuant to Miranda but wished to waive those rights and later signed a waiver to that effect. Gov't Ex. 1. During the conversation, Cowette provided officers with additional information regarding Culver's drug trafficking activities as well as her involvement in those activities. Ex. 1 at 14-15, Ex. 2 at 8.
In support of her motion to suppress, Defendant advances two primary arguments. First, she asserts that immediately after being read her Miranda rights in Lieutenant Gottardi's vehicle — at which point the parties agree she was in custody — she "invoked her right to counsel." Mot. Suppress, 8 (ECF No. 36, #82). Defendant then asserts the officers impermissibly reinitiated questioning four times and, as a result, her responsive statements should be suppressed. Id. at 11. In response, the Government asserts that the Defendant failed to "articulate her desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney."
With this elemental primer in mind, I turn to the parties' arguments, keeping in mind that the Government must bear the heavy burden of establishing that the statements made by Cowette were not in violation of her Miranda rights. Miranda, 384 U.S. at 475, 86 S.Ct. 1602 ("This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 S.Ct. 1461 (1938), and we reassert these standards as applied to in custody interrogation.").
The Supreme Court's decision in Davis v. United States provides the test by which I must determine whether Cowette effectively invoked her right to counsel. See Bui v. DiPaolo, 170 F.3d 232, 239 (1st Cir. 1999) ("Davis applies to both components of Miranda: the right to counsel and the right to remain silent."). Emphasizing the need for effective law enforcement and the importance of facilitating legitimate police investigative activity, the Davis Court formulated an objective standard. Davis, 512 U.S. at 459, 460, 114 S.Ct. 2350 (quoting Mosley, 423 U.S. at 102, 96 S.Ct. 321), 461, 114 S.Ct. 2350. The Court instructed that in order to invoke Miranda rights, a suspect must express the desire to have an attorney present "sufficiently clearly" so that "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id. at 459, 114 S.Ct. 2350. Unless the suspect's request "meet[s] the requisite level of clarity" — meaning that it is "unambiguous or unequivocal" — officers are not required to halt their interrogation.
Davis concluded that the defendant's statement, "Maybe I should talk to a lawyer," was too ambiguous to qualify as a request for counsel. Davis, 512 U.S. at 462, 114 S.Ct. 2350. Likewise, in United States v. Nolan, the Ninth Circuit panel affirmed a district court's determination that, in context, the defendant's "mid-interview statement that `I guess I have to, you know, get a lawyer or something because we're not coming to an understanding here'" did not qualify as an unequivocal request for counsel. 443 F. App'x 259, 260 (9th Cir. Jul. 15, 2011). Other jurists have come to the same conclusion when faced with similarly vague language. See, e.g., Luna v. Lamarque, 400 F. App'x 169, 172 (9th Cir. 2010) (affirming that the defendant's statement, "I should probably get a lawyer, I guess," was an "unsuccessful invocation[] of his right to counsel," but concluding that his later statement, "[I]t sounds like I need a lawyer. And I need help" sufficiently invoked his right to counsel); Sechrest v. Ignacio, 549 F.3d 789, 807 (9th Cir. 2008) ("We have also held that the statements, `I think I would like to talk to a lawyer,' and, `maybe [I] ought to see an attorney' were not clear and unambiguous requests for counsel." (citations omitted)); Fraher v. Patrick, No. 06-CV-1406, 2010 WL 532397, at *16-17 (C.D. Cal. Feb. 9, 2010) (habeas petition) (concluding that the defendant's statement: "Yes, I would like attorney I guess" which, after the officer sought clarification, was then followed by "[w]ell I'll tell you what I know" fell short of invoking the defendant's right to counsel and did not require "cessation of questioning"); United States v. Mees, No. 4:09-CR-00145, 2009 WL 1657420, at *9 (E.D. Mo. June 10, 2009) (concluding the defendant's statements, "Then I guess I'm just gonna wait until I get a lawyer and I don't know what else (inaudible)[,]" and "I guess I need to wait and talk to a lawyer[,]" did not qualify as an unambiguous, unequivocal invocation of his Miranda rights); Taylor v. State, 689 N.E.2d 699, 703 (Ind. 1997) ("[The defendant's] statement of `I guess I really want a lawyer, but, I mean, I've never done this before so I don't know' is an expression of doubt, not a request. A reasonable police officer in the circumstances would not understand that [the defendant] was unambiguously asserting his right to have counsel present.").
The indecisive language utilized by Cowette was too ambiguous or equivocal to invoke her Miranda rights. Davis, 512 U.S. at 459, 114 S.Ct. 2350. After Lieutenant Gottardi read Cowette her rights
In rebuttal, Defendant asserts that "prefacing the invocation with `I guess' did not make [her] invocation ambiguous." Reply, 5. To support this argument, Defendant relies on a 2007 First Circuit case in which the court seemingly accepted without analysis that the defendant's statement "I think I'm going to get a lawyer" qualified as an invocation of his right to counsel. United States v. Teleguz, 492 F.3d 80, 88 (1st Cir. 2007). This argument is an exemplar of "any port in a storm." In Teleguz, the testimonial evidence the defendant sought to suppress was made prior to the defendant's statement that he thought he would get a lawyer; therefore, the First Circuit determined "his right to counsel [wa]s not at issue." Id. Consequently, Teleguz does not support Defendant's argument. Other First Circuit precedent is more useful and contradicts Defendant's position. See, e.g., United States v. Sweeney, 887 F.3d 529, 535-36 (1st Cir.), cert. denied, ___ U.S. ___, 139 S.Ct. 322, 202 L. Ed. 2d 226 (2018) (indicating that the defendant "create[d] ambiguity as to whether he was invoking his right to counsel" when he stated "I'm trying to keep myself—I don't want to dig a hole. I need to speak to a lawyer" but immediately continued, without prompting, to talk and then queried "[d]o I need a lawyer?"; concluding that until the defendant stated "I'm screwed. I need a lawyer," he failed to unambiguously request counsel).
In analyzing the shortcomings of Cowette's request for counsel, I am mindful of the Supreme Court's guidance that a defendant's words should be "understood as ordinary people would understand them." Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987). The argument that the phrase "I guess" is so ubiquitous as to have little impact on the meaning of a statement in which it is incorporated is chillingly Orwellian. Mr. Orwell famously observed that thoughts may corrupt language and language can corrupt thought. In a similar vein, Orwell posited that the "slovenliness of our language" makes it easier for us to have disorderly thoughts. George Orwell, Politics and the English Language (1946). Among the many benefits of giving plain language its ordinary meaning is that we geometrically enhance our prospects of shared understanding. This strikes me as particularly critical in the application of constitutional protections. I acknowledge that the declarative sentence is an endangered species. But to relegate the equivocation "I guess" to the lowly status of a meaningless throat clearer and polite introduction to an otherwise clear declaration is a lexicographical bridge too far.
Accordingly, Judge Singal adopted Magistrate Judge Rich's conclusion that a defendant had not "unambiguously invoke[d] either his right to counsel or his right to cease questioning" because his "use of the phrase, `I guess,' twice, spoken while lowering his voice, conveyed uncertainty." United States v. Clark, 746 F.Supp.2d 176, 185 (D. Me. 2010). In coming to this conclusion, Magistrate Judge Rich expressly rejected the defendant's argument that "in common parlance, the use of the phrase `I guess' does not undermine a declarative sentence." Id. Likewise, the Eighth Circuit applied the Davis standard to the defendant's statement: "I guess you better get me a lawyer then" and concluded
Id. I find persuasive the Eighth Circuit's fulsome analysis and fidelity to plain language and likewise conclude that when considered in full, Cowette's statement would have led a reasonable officer to believe — at most — that she "might be invoking the right to counsel." Davis, 512 U.S. at 459, 114 S.Ct. 2350.
Because Cowette failed to invoke her right to counsel, Lieutenant Gottardi was not required to halt the interrogation. Id. at 462, 114 S.Ct. 2350 ("Unless the suspect actually requests an attorney, questioning may continue."); see also Berghuis v. Thompkins, 560 U.S. 370, 388, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) ("[A]fter giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights."). This is so even though Lieutenant Gottardi initially suspended questioning.
In the absence of an "unambiguous or unequivocal request for counsel,"
Counsel for Cowette briefly called into question her state of mind during her initial interactions with officers; presumably for the purpose of contesting whether Cowette acted "voluntarily, knowingly and intelligently" when she failed to invoke her right to counsel and subsequently provided law enforcement officers with incriminating information. Miranda, 384 U.S. at 444, 86 S.Ct. 1602. This argument appears to have been an afterthought and was not developed. Perhaps this was a strategic decision for appeal purposes; it is not clear. I will respond in kind and provide a deserving summary analysis, focusing on whether Cowette's waiver was "knowing and intelligent." Burbine, 475 U.S. at 421, 106 S.Ct. 1135 ("Only if the `totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979))).
An express waiver is not required and a waiver — whether express or implied — meets the requisite level of comprehension when it was "made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." United States v. Garcia, 983 F.2d 1160, 1169 (1st Cir. 1993); see also North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) ("[I]n at least some cases waiver can be clearly inferred from the actions and words of the person interrogated."). This means Cowette must have understood that "[s]he had the right to remain silent and that anything [s]he said could be used as evidence against [her]." Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851,
While Cowette's mental clarity was understandably a point of concern for officers at the scene due to her apparent hallucinations, she was read her Miranda rights (after which she verbally confirmed she understood those rights) and she was repeatedly reminded of those rights throughout her interactions with the officers. Furthermore, Cowette demonstrated her mental acuity when she denied recent drug use (other than ZQuil), "rapidly and correctly" confirmed her name and date of birth, and expressed an awareness of where she was. As noted by officers, on the whole, Cowette was "coherent and walked, talked, and acted in a normal manner." Ex. 2 at 5. Therefore, the record does not support the conclusion that Cowette failed to understand the basic principles protected by the Fifth Amendment or the "consequences of speaking freely to the law enforcement officials." Spring, 479 U.S. at 575, 107 S.Ct. 851. Cowette was properly informed of her rights and her waiver of those rights was "made knowingly and intelligently within the meaning of Miranda." Id.; see also Burbine, 475 U.S. at 422-423, 106 S.Ct. 1135 ("Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.").
Defendant asserts that her July 17, 2018 waiver was invalid under Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010) because she "was still in custody from her arrest the prior day, never provided counsel as she requested, and no break of the 14-day rule in Shatzer occurred." Reply, 12. This argument is of no avail.
In Shatzer, the Supreme Court "consider[ed] whether a break in custody ends the presumption of involuntariness established in Edwards v. Arizona, 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378] (1981)." 559 U.S. at 100, 130 S.Ct. 1213. Relying on the belief that a sufficient break in custody "provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody," id. at 110, 130 S.Ct. 1213, the Court adopted "a bright-line rule that if a suspect who has invoked his right to have counsel present during a custodial interrogation is released from police custody for a period of fourteen days before being questioned again in custody, then the Edwards presumption of involuntariness will not apply," United States v. Guzman, 603 F.3d 99, 105 (1st Cir. 2010). Because Cowette failed to unambiguously assert her right to counsel during her interactions with law enforcement officers on July 16 or 17, she cannot invoke the presumption of involuntariness afforded under Edwards and Shatzer.
For the reasons discussed above, Defendant's Motion to Suppress (ECF No. 36) is
Gov't Ex. 4T; Ex. 4, 3:03-3:56.
Davis, 512 U.S. at 461, 114 S.Ct. 2350.
