CHARLES C. LOVELL, Senior District Judge.
Before the Court is Defendant's "Motion to Suppress Evidence Fed. R. Evid. Rules 12(b)(3)(c) and 47." (ECF NO. 21.) The United States opposes the motion, which came on for hearing on July 25, 2013. Defendant Wilkerson P. Phillips, Sr. ("Phillips"), was represented by Asst. Fed. Def. Michael Donahoe. The United States was represented by AUSA Timothy Racicot. The Court, having considered the arguments of the parties and the evidence presented at the voluntariness hearing, is prepared to rule.
Mr. Phillips is charged in a two-count Indictment with "Theft from a Health Care Program," in violation of 18 U.S.C. § 669, and "Acquiring Controlled Substances by Misrepresentation, Fraud, and Deception," in violation of 21 U.S.C. § 843(a)(3). He is a Certified Nurse Anaesthetist who was working as a full-time contract employee at the VA Medical Center (the "medical center" or the "hospital") at Fort Harrison, Helena, Montana, in July 2011. He had previously worked for the VA in New Orleans, Louisiana, for 15 years prior to coming to Montana to work at Fort Harrison. Phillips came under the scrutiny of the Veterans Administration Office of Inspector General (VA-OIG) during an investigation of possible drug diversion from the VA Medical Center. When interviewed by two agents of the VA-OIG, he confessed to diverting drugs from the Medical Center for his own use, he signed three consent forms allowing search of his person and a bag, his car, and his hotel room. Vials of drugs taken from the Medical Center were found in his bag, in his car, and in his hotel room.
Mr. Phillips now argues that when he was interviewed by two agents of the VA-OIG he was actually under arrest, and because he was not Mirandized before he admitted having diverted controlled substances from the VA hospital, his confession should be suppressed. In addition to that Miranda argument, Phillips also argues that a Garrity
1. Agent Munn testified; he is approximately the same size (height and weight) as Mr. Phillips, although he appears to be significantly younger (by 10-20 years) than Mr. Phillips. Agents Gilbert and Munn were casually dressed in khaki pants and blue jeans when they approached Phillips in or near the parking lot of the VA Medical Center after his shift on July 15, 2011, in the mid-to lateafternoon. Phillips never saw the agents' firearms.
2. Agents Gilbert and Munn told Phillips who they were (from the VA-OIG) and that they wanted to speak with him about the anesthesia department, mentioning an issue with narcotics. They asked him if he would be willing to come back into the hospital to talk to them. Phillips said that he would talk to them, and Agent Gilbert led the way back into the hospital with Phillips and Agent Munn following abreast behind him.
3. As a long-time employee of the VA, Phillips was familiar with the VA Office of Inspector, and he knew that the OIG conducted internal investigations within the agency.
4. Mr. Phillips' body language did not convey surprise when the agents approached him near the parking lot, and it even seemed to Agent Munn that Phillips was communicating that he knew why the agents were there.
5. Agents Gilbert and Munn walked with Phillips to the third floor administrative office area, where they entered a conference room with an oval table. Agents Gilbert and Munn sat across from each other toward the far end of the table, and Phillips sat at the head of the table between them. There were two doors to the conference room, both of which were closed but unlocked, and each door had a 10 by 10 inch window so that passers-by in the hallway could see Phillips and the agents at the conference table. The nearest door was to Phillips' immediate right, Phillips could see both conference room doors, and neither agent was seated between Phillips and the nearest door.
6. Agent Munn engaged in two or three minutes of general chat with Phillips about his work history with the VA and where he went to school, and then Agent Munn advised Phillips of his Garrity rights.
7. Agent Munn gave Phillips a Garrity form, called an "Advisement of Rights (Federal Employees-Garrity)." Agent Munn filled in a blank with the words `drug diversion' to complete the sentence, "This inquiry concerns `drug diversion'." Phillips read the form to himself. It informed him that
(ECF No. 21-1, Exhibit A "Advisement of Rights (Garrity).)
8. Phillips signed the acknowledgment paragraph of the Advisement of Rights, which paragraph stated that "I understand the warnings and assurances stated above and I am willing to make a statement and answer questions voluntarily. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me." (ECF No. 21-1, Exhibit A "Advisement of Rights (Garrity).)
9. Phillips did not hesitate to sign the Garrity form.
10. Phillips was properly informed that if he chose not to speak to the agents, he could not be terminated (fired) for so choosing.
11. After Phillips signed the Garrity form, Agent Munn asked Phillips a second time whether he would be willing to speak with them. For the second time, Phillips answered that he was willing to speak with them.
12. Agent Munn next asked whether Phillips would consent to a search of his bag and his coat. Phillips said that he would consent.
13. Agent Munn gave Phillips a form entitled "Voluntary Consent to Search." (ECF No. 21-1 at 2, Exhibit B "Voluntary Consent to Search.") Agent Munn filled in certain blanks on the form. First, Agent Munn wrote that the offense being investigated was "drug diversion." Second, Agent Munn also wrote that the search being requested was a search of "my Persons/black bag," physically located at "VAMC Ft. Harrison."
(ECF No. 21-1 at 2, Exhibit B, Voluntary Consent to Search.)
15. Phillips read the Voluntary Consent to Search form (search of person/black bag) and signed it. The time of the search was noted to be 16:05.
16. Phillips did not hesitate to sign the consent to search his bag and person.
17. Agent Munn found vials of Fentanyl inside Phillips' black bag. Without any need for discussion, it was patently obvious to all present that the vials of Fentanyl were evidence of drug diversion.
18. Agent Munn asked Phillips whether he knew this day was coming. Phillips responded, `Yes.'
19. Agent Munn and Phillips then discussed Phillips' diversion of drugs from the anesthesia department and the hospital. Phillips' admissions began within a few minutes (approximately fifteen minutes or less) from the beginning of the interview.
20. Agent Munn told Phillips that they had been looking at the medical center's drug dispensing transaction log (the "Omnicell log").
21.
22. Although Agent Munn's question (`Is this the day that you knew was coming?')was perhaps arguably a question that was reasonably likely to elicit a self-incriminating statement, it was not a psychologically coercive question. Instead this question was but a simple invitation for Phillips to acknowledge the significance of the vials of narcotics in his black bag. After answering, "Yes," Phillips then began to discuss the details of how he had been diverting controlled substances from the hospital, almost as if a formal confession was simply unnecessary or would be redundant in light of the circumstance of having been caught with the hospital's controlled substances in his bag.
23. After completing this review of the Omnicell log, Agent Munn asked Phillips whether he would consent to a search of his car and of his hotel room. Phillips agreed to these searches.
24. Agent Munn gave Phillips two "Voluntary Consent to Search" forms, one for his car and one for his hotel room. These forms were identical to the first Voluntary Consent to search form described above at ¶¶ 9-10. Phillips read the forms. Phillips signed each form. (ECF No. 21-1 at 3-4 (Exhibits C-D), "Voluntary Consent to Search".)
26. Agent Munn's impression of Phillips' emotional state toward the conclusion of the interview was that Phillips was more optimistic at the end of the interview than at the beginning, because he had been anticipating this interview for some time and perhaps he was relieved that it was over. Agent Munn testified that Phillips's demeanor was perfectly normal.
27. Toward the end of the meeting and just before they left the conference room, Phillips asked the agents whether he was going to be arrested. Indeed, Phillips himself testified that "I asked if I was going to be arrested." The agents assured him that he would not be arrested, although they did plan to refer the case to U.S. Attorney's Office.
28.
29. The agents and Mr. Phillips left the medical center and walked to his car in the parking lot. Mr. Phillips told the agents what they would find in the car and where they would find it. The agents found the evidence where Mr. Phillips told them they would find it.
30. After the search of the car, Mr. Phillips drove his car to his hotel, and the agents followed him in their car.
31. There was nothing inherently coercive in the agents driving their vehicle behind Mr. Phillips' vehicle to his hotel room. As a practical matter, it was the best way for the agents to find the hotel, and if anything this transportation arrangement underscored the fact that the agents had no intention of arresting or detaining Mr. Phillips.
32. As before with his car, Mr. Phillips again told the agents where they would find evidence in his hotel room. After finding empty vials, foil wrappers for vials, used needles, and bloody cotton swabs in the hotel room in the locations indicated, the agents gathered the evidence.
33. Before leaving the hotel room, Agent Munn asked Phillips to let him know if he returned to Louisiana or moved anywhere else in case the U.S. Attorney's Office wanted to contact him or if the agents needed to talk to him again.
34. Approximately one hour later, the agents returned to the hotel room to give Phillips a receipt for all the evidence they had collected. When there was no response to their knock on the hotel room door, the agents slid the receipt under the door and left. They did not have further contact with Phillips. 35. Within one week, Phillips returned to his home state of Louisiana.
36. Approximately one month later, two different agents from VA-OIG visited Phillips at his home in Harvey, Louisiana, to inquire whether there might be other employees at the VA Medical Center that were involved in the drug diversion with Phillips.
37. The VA-OIG agents Mirandized Phillips on July 8, 2011, and then asked him questions about other employees involved with drug diversion. After being Mirandized, Phillips acknowledged his drug diversion activity but assured the agents that only he was involved and that he had no relevant information regarding any other employee.
38. The Court found that Phillips was a credible witness generally, on all but a few crucial points:
1. As a procedural safeguard to protect this Fifth Amendment protection,
Miranda warnings must be given prior to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612 (1966). These warnings require the individual to be informed "that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. .. ." Miranda, 440 U.S. at 479, 86 S.Ct. at 1630.
2. Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444. The objective test is whether a reasonable person in the defendant's position would not feel free to terminate the interrogation and leave. United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008).
3. In the custodial context, interrogation means "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90 (1980).
4. An individual is in custody when he is formally arrested or when his freedom of action is deprived to "a degree associated with formal arrest." United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir. 2005).
5. A court determines custody status by considering the totality of the circumstances of the questioning, see United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002).
6. In considering the totality of the circumstances of the questioning, the main factors are "(1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual." Kim, 292 F.3d at 974 (citing United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001)).
7. Under the totality of the circumstances (see Findings ¶ 28), all the main factors favor a conclusion that Phillips was not in custody, and a reasonable person in his position would have understood that he was speaking to the agents voluntarily and that he was free to stop talking to the agents and leave at any time.
8. Consent is a recognized exception to the Fourth Amendment protection against unreasonable searches and seizures. Katz v. United States, 389 U.S. 347, 358 n.22, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
9. The United States carries the burden of showing that consent to search is free and voluntary. Schneckloth v. Bustamonte. 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
10. Whether consent is free and voluntary rests on the following factors: "(1) whether defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether defendant was told a search warrant could be obtained. The fact that some of these factors are not established does not automatically mean that consent was not voluntary." United States v. Morning, 64 F.3d 531, 533 (9th Cir. 1995) (quoting United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988)).
11. Miranda warnings need not be given prior to requesting consent for search. United States v. Vongxay, 594 F.3d 1111, 1120 (9th Cir. 2010) (quoting United States v. Ritter, 752 F.2d 435, 438 (9th Cir. 1985)).
12. Phillips' three consents to search were voluntary because he was not in custody, the officers' firearms were not visible to him, he was informed that he had the right not to give consent, and he was not told that a search warrant could be obtained.
13. The Fifth Amendment to the United States Constitution provides individuals with a privilege against compulsory self-incrimination.
14. Confessions must be made voluntarily to be admissible. See Lego v. Twomey, 404 U.S. 477, 483-85, 92 L.Ed.2d 618 (1972). Either physical intimidation or psychological pressure may precipitate an involuntary confession. United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981). In either case, the test is whether the will of the individual has been overborne. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In applying this test, the court looks to the totality of the circumstances, often considering the youth of the accused, his intelligence, the lack of any advice of constitutional rights, the length of detention, the repetitive and prolonged nature of questioning, and the use of physical punishments like deprivations of food or sleep. Id. at 226, 93 S.Ct. 2041. The government bears the burden of proving by a preponderance of the evidence that a defendant's statements were voluntary. See Lego, 404 U.S. at 489; Tingle, 658 F.2d at 1335.
15. When determining admissibility of confessions, consideration should be given to
18 U.S.C. § 3501(b).
15. Under the totality of the circumstances (see Findings ¶ 21), the Court concludes that Phillips' June 15, 2011, confession was voluntary because his will was not overborne by that of the agents and his confession was not precipitated by physical or psychological coercion. Phillips was informed of the nature of the offense for which he was under suspicion, and Phillips knew that he was not required to make any statement and that any statement he did make could be used against him.
16. The Court further concludes that Phillips' July 8, 2011, confession was also voluntary and sufficiently distant in time from the events of June 15, 2011, as to be an entirely separate confession.
The Court having concluded that Mr. Phillips was not arrested or otherwise in custody when he was interviewed by VA-OIG agents on June 15, 2011, that he was not entitled to the Miranda warnings, that the Garrity admonition was properly given to him and was not confusing to him, and that his consent to search and confession were freely and voluntarily given by him, the Court deems the motion to suppress statements and evidence to be without merit. Accordingly,
IT IS HEREBY ORDERED that Defendant's Motion to Suppress (ECF No. 21) is DENIED.
DONE and DATED this 1st day of July, 2013.
