United States District Court, D. South Dakota, Central Division
REPORT AND RECOMMENDATION FOR DISPOSITION OF MOTION TO SUPPRESS STATEMENTS
MARK A. MORENO, Magistrate Judge.
Benton Leo Brave Hawk was reported to have had sex with his pre-pubescent "stepdaughter" on the Rosebud Indian Reservation. Federal and tribal agents interviewed him while he was in tribal jail and he made statements to them which he now seeks to suppress. Because the statements were lawfully obtained, the Court recommends that Brave Hawk's suppression motion be denied.
Brave Hawk was arrested tribally and charged with sexually assaulting T.C.F., the 8-year-old daughter of his significant other. While in custody, Kory Provost, a special agent with the Rosebud Sioux Tribe, and FBI Special Agent Alicia Rowland, interviewed him. The interview lasted one hour and 14 minutes and was audio recorded.
Before any questioning took place, Agent Provost informed Brave Hawk of his Miranda rights from an advice of rights form. Brave Hawk initialed each of the rights on the form, acknowledging he understood them. At Agent Provost's request, Brave Hawk read out loud the waiver statement on the form. When asked if he agreed with this statement, Brave Hawk said, "Not really." Agent Provost then inquired whether Brave Hawk wanted to talk to the agents to which he replied, "I don't agree with it, but...." In an attempt to discern Brave Hawk's intentions, Agent Provost followed up: "I mean, it's up to you. I can't make you, I can't make you do anything. It's up to you. It's your choice. These are your rights. Okay? So either you talk to us without a lawyer present, like it says, you can stop answering at any time. Or, or not." Without any verbal response, Brave Hawk took the form and printed his name beneath the statement he had just read. The agents then each signed the form and began conducting the interview.
Both the agents interrogated Brave Hawk. Despite telling them at the outset he was "tired" and only "somewhat" awake and being subjected to their deceptive tactics (about his DNA being on T.C.F.), Brave Hawk continued on with the interview - without ever requesting a break or to halt the same - and steadfastly maintained he did not do anything of a sexual nature to the child.
Brave Hawk was indicted about two and-a-half weeks later and charged with aggravated sexual abuse of T.C.F. (two counts) and with child abuse of T.C.F. and her 10-year-old brother, T.F. (one count each). He thereafter moved to suppress his statements, claiming they were elicited in violation of Miranda  and were involuntary under the Fifth Amendment to the United States Constitution.
The Government filed a response to the motion, resisting Brave Hawk's claims. An evidentiary hearing was held on December 30, 2015, at which Agents Provost and Rowland testified and four exhibits (including the recording and advice of rights form) were received into evidence. Brave Hawk is scheduled to stand trial on all four charges next month.
A. Right to Remain Silent
Brave Hawk initially claims that the statements he made to Agents Provost and Rowland should be suppressed because he invoked his Fifth Amendment right to remain silent. The recording indicates that after being Mirandized from a form and asked if he agreed with the waiver statement in the form, Brave Hawk responded "not really" and then said he did "not agree with it but...." He argues that these utterances were sufficient as a matter of law to trigger his right to silence and cut off any questioning of him.
In the context of invoking the Miranda right to counsel, the Supreme Court has held that a suspect must do so "unambiguously." If the suspect makes a statement concerning this right "that is ambiguous or equivocal" or makes no statement at all, police are not required to end the interrogation or ask questions to clarify whether the suspect wants to invoke his Miranda rights.
According to the Court, "there is no principled reason to adopt different standards" for determining when a suspect invokes his Miranda right to remain silent. Both, the Court has declared, "protect the privilege against compulsory self-incrimination,  by requiring an interrogation to cease when either right is invoked."
A suspect thus who wants to invoke his right to remain silent and end an interview, must "do so unambiguously." "Treating an ambiguous or equivocal act[ ] or statement as an invocation of Miranda rights might add marginally to Miranda's goal of dispelling the compulsion inherent in custodial interrogation.'" But full comprehension of the rights to remain silent and to counsel are ...