MARK A. MORENO, Magistrate Judge.
In this domestic assault case, Thomas Espinoza seeks to suppress, on Fourth Amendment grounds and under Miranda,
Just after midnight on June 7, 2015, Earlene Peneaux called the Rosebud Sioux Tribe Police Department and reported that her boyfriend was trying to kill her at Sunrise Apartment Number 904 in Mission, South Dakota. Carl Hunger, a tribal police officer, and Mission City Officer Louis Young, both responded to the call. As he was getting out of his patrol car, Officer Hunger witnessed Peneaux running out of the apartment fanatically yelling "psycho." He asked her what happened and if the "male" was still inside, but she did not answer either question. From his vantage point, he could see Espinoza, who he had arrested before, in an upstairs window of the apartment.
Without consent or a warrant, Officer Hunger entered the open front door and made contact with Espinoza in the bedroom that faced the parking lot. The officer immediately noticed several bleeding scratch marks on Espinoza's face and inquired about what had happened. Espinoza reported that he had "got into it" with Peneaux and that she had "attacked" him. He also showed the officer the marks on his arm where he maintained Peneaux had bit him. During these interactions, the officer detected an odor of alcohol coming from Espinoza's breath and observed alcoholic beverage containers in the bedroom.
At some point, while Officer Hunger was still with Espinoza, Officer Young walked into the apartment and stood in the doorway of the bedroom. Soon thereafter, Peneaux entered as well and tried to force her way into the bedroom, shouting things at Espinoza. Officer Hunger handcuffed and arrested Peneaux (for disorderly conduct), escorted her out of the apartment and told Officer Young to remain with Espinoza.
Officer Hunger talked to Peneaux about the incident beside his patrol car and obtained a statement from her. He also saw, with the aid of his flashlight, that she had sustained injuries to her neck (he thought were consistent with strangulation) and had marks on her face (he believed were caused by being struck with a hand or fist).
Convinced that Peneaux had been the victim of the affray and that he now had probable cause, Officer Hunger went back into the apartment and placed Espinoza under arrest (for the tribal offense of domestic violence) and performed a search of his person, incident to the arrest. During the search, the officer found a folding knife in one of Espinoza's pants pockets. At Espinoza's request, the officer took photographs of Espinoza's injuries, including the scratches on his face, the bite mark on his arm and the abrasion on his elbow. Espinoza was then transported to the Rosebud jail where he was incarcerated.
The next day, approximately 32 hours later, Rosebud Sioux Tribe Special Agent Robert Sedlmajer interviewed Espinoza at the tribal jail where he was being housed. Espinoza was advised of his Miranda warnings and signed a written waiver of them, agreeing to answer questions without a lawyer present and talk to the agent about his encounter with Peneaux. While being interrogated, Espinoza made statements implicating himself in the scuffle.
Afterward, a federal grand jury indicted Espinoza for feloniously assaulting Peneaux by strangulation and suffocation. He moved to suppress the knife and his statements to Officer Hunger and Agent Sedlmajer. The Government filed a response to the motion, resisting the same. On October 29, 2015, an evidentiary hearing was held at which two witnesses testified and three exhibits were received into evidence.
Espinoza first claims that the warrantless and non-consensual entry into the apartment and arrest of him inside ran afoul of the Fourth Amendment. Because he was a resident and any exigency had dissipated, he says, tribal officers were required, but failed to obtain, a warrant before entering and arresting him.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
There are several exigencies that may justify the warrantless entry into a home.
"The analysis of whether the exigent circumstance exception to the warrant requirement has been made out is an objective one focusing on what a reasonable, experienced police officer would believe."
Officers may enter a home, without a warrant, "to protect a resident from domestic violence. . . ."
Still, courts accord an officer great latitude when he has substantial reason to believe that one of the parties to a dispute is in danger.
Here, Peneaux, the alleged victim, was in no immediate danger when Officers Hunger and Young arrived. In fact, she was safely outside the apartment building and with the officers.
There is no evidence that anyone other than Peneaux and Espinoza lived or was present in the apartment that night. Peneaux did not mention, in either her 911 call or at the scene, anyone else being in the apartment. Nor did she identify any other person involved in the dispute or express fear for the safety of any third parties.
Upon the officers' arrival, there was no evidence of any disturbance inside or outside of the apartment. Significantly, Officer Hunger recognized Peneaux as she ran out of the apartment building. Had he not done so, it may have been reasonable for him to be concerned about Peneaux and enter the apartment to ensure her safety. And had he heard signs of a struggle or commotion still within the apartment, the officer may have been justified in entering based on the reasonable belief that another potential victim was present or that Peneaux was in need of aid.
Similarly, a reasonable officer in the officers' position would not have had a legitimate concern for Espinoza's safety. There was no indication he was injured or was a threat to himself.
There also was no need to enter the apartment for officer safety reasons because of Espinoza's use of a firearm or other weapon. The officers had no information that Espinoza owned a firearm or had one with him or in the apartment or that he had or would use such a weapon against anyone, including law enforcement.
If there was any danger to the officers, it was of their own doing. Had they secured Peneaux after she fled the apartment, the officers could have determined if (1) she was hurt and in need of medical assistance, (2) there was anyone else in the apartment, (3) Espinoza had a firearm or there was one inside with him and (4) he was a risk of harming himself. Instead, Officer Hunger rushed into the apartment on unsupported assumptions.
A reasonable officer in Officers Hunger and Young's position, with the sketchy information they had, would not have believed he or others were in any immediate danger. Peneaux had distanced herself from Espinoza and was no longer in peril. And no one else, either in or outside the apartment, was in jeopardy. The circumstances thus did not suggest that any serious consequences would have occurred had the officers first tried to obtain consent
The Court does not discount the "combustible nature" of domestic violence situations. It fully understands and appreciates the dangers police officers face each day when they are called upon to quell a domestic disturbance. But the protection against officers entering a person's home to effect a warrantless arrest or search, absent exigent circumstances, is a fundamental one that must be safeguarded and adhered to.
Despite the good intentions of the officers, the Court reluctantly concludes that the warrantless entry and arrest of Espinoza in his apartment violated the Fourth Amendment.
Espinoza claims that his pre-arrest statements should be suppressed as the fruit of an unlawful Fourth Amendment entry into and search of the apartment and under Miranda. The Government maintains that his statements are not the poisonous harvest of a constitutional violation but does not address the Miranda claim.
Taking these claims in reverse order, because he was detained and questioned without any Miranda advisement, the real issue is whether Espinoza was in custody when he made his statements to Officer Hunger in the bedroom of the apartment. If so, then the statements must be suppressed; if not, they are admissible for all purposes as trial evidence.
The requirements of Miranda are triggered only when a suspect is both in custody and being interrogated.
After due consideration of the circumstances present, the Court concludes that Espinoza was not in "custody" within the meaning of Miranda. A number of factors support this conclusion. The questioning occurred in his own bedroom and was of short duration, lasting less than five minutes. In speaking with Espinoza, Officer Hunger was engaged in on-the-scene fact finding, trying to get Espinoza's side of a domestic squabble and figure out what had transpired. At no time during the interview was Espinoza handcuffed or physically restrained and he was free to move about the room. He voluntarily acquiesced to questions, candidly making known that he had "got into it" with Peneaux. But he was adamant that she had attacked him and insisted that the officer take photographs of the scratch and bite marks he said she inflicted on him. The atmosphere was not police dominated — Officer Hunger largely being the only other person present — and there was no show of force. Significantly, Espinoza was not arrested until sometime later on (after the officer spoke to Peneaux for a while in the parking lot and investigated further).
Granted, Espinoza was never informed he was free to leave and not under arrest. And he was eventually arrested and shackled after being questioned. But these facts are not dispositive. A court must consider all of the historical facts, not just the absence or marginal presence of certain judicially-created "indicia" that ostensibly tend to aggravate or mitigate the existence of custody. The essential inquiry must always be whether the suspect was "restrained as though he was under formal arrest."
Espinoza's brief conversation with Officer Hunger did not become custodial when Espinoza admitted that he had an altercation with Peneaux. The officer's internal decision — after this admission — not to let Espinoza leave and to subsequently arrest him, did not transform the initial encounter into a custodial one. The officer did not say or provide any outward indication of what his thoughts or intentions were until he announced Espinoza was being arrested for the domestic abuse offense. The questioning likewise did not magically become custodial because of Espinoza's inculpatory remarks. Nothing in the environment or in the officer's treatment of Espinoza changed until the arrest was made. Custody must be determined by viewing the entirety of the situation through an objective, not a subjective, lens.
Having studied the scene and reconstructed the events that night, the Court is satisfied that a reasonable person standing in Espinoza's shoes would not have understood he was in custody while briefly conversing with Officer Hunger in the "comforts" of his own bedroom.
But Espinoza's alternative suppression claim — based on the statements being the poisonous fruit of a Fourth Amendment violation — is a different story. This claim has merit.
The exclusionary rule extends to both the direct and indirect products of an illegal search.
In Wong Sun, federal agents illegally entered James Wah Toy's living quarters.
The same Court, however, reached a different conclusion as to the statements of Wong Sun.
In Espinoza's case, there was no separation in time, place or identity of interrogators between the proscribed entry and his statements. Rather, the statements were made while the Fourth Amendment infringement was taking place. The interrogator (Officer Hunger) was the same officer who perpetrated the constitutional transgression. And he lacked probable cause to believe that an offense had been committed or was being committed and that Espinoza was the culprit.
After the arrest, Officer Hunger searched Espinoza and seized a folding knife from his person. Espinoza claims that the knife is another fruit of the poisonous tree (an invalid entry and arrest under Payton) and is inadmissible. The Government contends that the exclusionary rule does not apply because the officers did not exploit the Fourth Amendment violation and obtained the knife by means sufficiently attenuated from the violation so as to purge it of any taint.
The Supreme Court has made it clear that "the indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality."
Espinoza was searched, and a knife taken from his pants pocket, after a Payton trespass had occurred. The wrongful conduct was still fresh and flowing when Officer Hunger patted Espinoza down and commandeered the knife. And there were no intervening circumstances to vitiate the taint of the knife that stemmed from the Fourth Amendment breach the officer put in motion. As a result, the taint of the violation was never purged, but remained, making the knife no different than the narcotics taken from Johnny Yee in Wong Sun.
Aside from this, the Supreme Court in Kirk v. Louisiana
Espinoza lastly claims that his post-arrest statements, made to Agent Sedlmajer 32 hours later (none were made immediately after the arrest), were additional fruit of the same poisonous tree and should be suppressed. Should these statements, like the ones he made before his arrest, be excluded as well because they emanated from and were tainted by the earlier Payton infringement? The short answer is no.
"Where the police have probable cause to arrest a suspect, the exclusionary rule does not bar [] the use of a statement made by the [suspect] outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton."
Regardless, Espinoza's statements were enough of an act of free will to purge the underlying taint. The length of time between the Payton violation and his statements at the tribal jail — approximately 32 hours — weighs in favor of attenuation.
No evidence was presented that Officer Hunger used compulsion to elicit Espinoza's first set of statements, that the Miranda waiver Espinoza signed before making his second set of statements was not knowing, voluntary or intelligent or that his later statements were in any way coerced.
The statements Espinoza made at the jail were not invalidated by the earlier Fourth Amendment violation or by his pre-arrest statements in the apartment.
Officers entered the apartment Espinoza was a resident of, arrested him and seized a knife from his person, without there being exigent circumstances to do so and without securing a warrant or consent. After the entry, but before his arrest, one of the officers questioned Espinoza and obtained incriminating statements from him. The actions of the officers collectively violated the Fourth Amendment and require suppression of Espinoza's pre-arrest statements and the knife under the fruit of the poisonous tree doctrine. But his post-arrest statements, made to another officer some 32 hours later at the tribal jail, were not the befouled offspring of a Payton/Fourth Amendment violation and are admissible as substantive evidence at trial.
For the reasons and based on the authorities set forth in this report, it is hereby
RECOMMENDED that Espinoza's Motion to Suppress Evidence and Statements
The parties have 14 calendar days after service of this report to file their objections to the same.