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United States v. Shoulders

United States District Court, D. South Dakota, Western Division

September 4, 2018





         A superseding indictment charges defendant Jamie Shoulders with second degree murder, discharge of a firearm during a crime of violence and possession of a firearm with an obliterated serial number. (Docket 58). Defendant filed a motion to suppress statements he made to law enforcement. (Docket 89). The suppression motion was referred to the magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the standing order dated March 9, 2015. Magistrate Judge Daneta Wollmann conducted a hearing and issued a report and recommendation on the motion. (Dockets 103 & 127). The magistrate judge determined defendant's motion should be granted. (Docket 127).

         The government filed objections. (Docket 146). The objections target the magistrate judge's “conclusion that the defendant did not initiate contact after invoking his Miranda[1] rights[, ]” the “finding that the agents' continued discussion with Mr. Shoulders after he invoked his rights constituted interrogation[, ]” and the “finding that the defendant did not waive his Miranda rights.” Id. at pp. 1-2. The defendant filed a response to the government's objections. (Docket 163).

         Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.

         The government does not articulate a specific objection to the magistrate judge's factual background statement, (Docket 127 at pp. 2-6), so the court adopts the factual findings in that portion of the report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(C). Where necessary, facts are included in the court's analysis.


         I. The right to remain silent

         On June 1, 2017, two special agents with the Federal Bureau of Investigation (“FBI”) interrogated defendant at the Pennington County Investigation building. (Docket 127 at p. 2). The special agents (“SAs”) were Matt Weber and Tyler Vose. Id. SA Weber started by asking defendant whether he had a cellphone or Facebook account. Id. at p. 3. Less than one minute into the interrogation and before anyone brought up anything related to defendant's charges, defendant stated, “I don't know what this is about, so I am going to remain silent.” Id. Immediately after that statement, SA Weber remarked, “Oh, okay, sure.” Id. Defendant stated, “I have the right to remain silent so[-]” before SA Weber interrupted and proceeded talking to defendant, saying, “we will make it real clear[ ]” and “you don't have to say anything. I will do all of the talking. So you are being charged with first degree murder.” Id. Defendant responded, “On what?”, and the interrogation continued. Id. Neither agent read defendant his Miranda rights until just after two minutes into the interrogation. Id. at p. 4.

         “In [Miranda], the Court adopted a set of prophylactic measures to protect a suspect's Fifth Amendment right from the ‘inherently compelling pressures' of custodial interrogation.” Maryland v. Shatzer, 559 U.S. 98, 103 (2010) (quoting Miranda, 384 U.S. at 467). “The rule in Miranda requires that any time a person is taken into custody for questioning, a law enforcement officer must, prior to questioning, advise the individual of his right to be free from compulsory self-incrimination and his right to the assistance of counsel.” United States v. Axsom, 289 F.3d 496, 500 (8th Cir. 2002) (citing Miranda, 384 U.S. at 444); see also United States v. Laurita, 821 F.3d 1020, 1023 (8th Cir. 2016) (“The rule under Miranda prevents the government from using statements ‘stemming from custodial interrogation of the defendant,' unless the government has used ‘procedural safeguards effective to secure the privilege against self-incrimination.' ”) (quoting Miranda, 384 U.S. at 444). “During an interrogation, ‘if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.' ” United States v. Adams, 820 F.3d 317, 322-23 (8th Cir. 2016) (quoting Miranda, 384 U.S. at 473-74); see United States v. Jones, 842 F.3d 1077, 1083 (8th Cir. 2016) (“Officers must stop questioning if a suspect clearly and consistently expresses a desire to remain silent.”); see also United States v. Cordier, 224 F.Supp.3d 835, 839 (D.S.D. 2016) (“The Supreme Court in Miranda held that if a suspect undergoing custodial interrogation ‘indicates in any manner' that he wants to remain silent, the interrogation must stop.”) (quoting Miranda, 384 U.S. at 473-74). “In general, any statements elicited from a suspect in violation of these rules are inadmissible in the government's case-in-chief.” United States v. Vanover, 630 F.3d 1108, 1114 (8th Cir. 2011) (per curiam) (discussing violations of Miranda's rules).

         As the magistrate judge determined, defendant was subjected to custodial interrogation and sufficiently invoked his right to remain silent when he stated, “I don't know what this is about, so I am going to remain silent.” (Docket 127 at pp. 3, 9)[2]; see Adams, 820 F.3d at 322-23 (discussing the legal standard for invoking the right to silence). SA Vose testified he understood this statement to be a “pretty straightforward” and unambiguous invocation of defendant's right to silence. (Docket 106 at p. 24). SA Weber testified he believed defendant invoked his right to remain silent. Id. at pp. 55-56.

         “When a suspect invokes his right to remain silent, police must ‘scrupulously honor' this invocation by, at the very least, ceasing the interrogation immediately and waiting a substantial period before reinitiating questioning.” Cordier, 224 F.Supp.3d at 839 (quoting Michigan v. Mosley, 423 U.S. 96, 104-06 (1975)) (internal alteration omitted). “The critical safeguard” of the right to remain silent “is a person's ‘right to cut off questioning.' ” Mosely, 423 U.S. at 103 (quoting Miranda, 384 U.S. at 474). “In determining whether a defendant's right to silence is ‘scrupulously honored,' [the] court considers three factors: 1) whether the initial interrogation ceased immediately upon the defendant's request; 2) whether a significant period had passed and fresh Miranda warnings were given before resuming questioning; and 3) whether the later interrogation is restricted to a crime that was not the subject of the first interrogation.” United States v. DeMarce, 564 F.3d 989, 994 (8th Cir. 2009).

         The government argues defendant waived his right to silence because he initiated contact with the agents after invoking his right. (Docket 146 at pp. 2-4). The analysis, however, must begin with the considerations enumerated in DeMarce, 564 F.3d at 994. Focusing on the first two factors, the court finds the agents did not “scrupulously honor” defendant's right to remain silent.[3] Mosley, 423 U.S. at 104-06. Questioning did not “cease[ ] immediately upon the defendant's request” and almost no time passed “before resuming questioning.” DeMarce, 564 F.3d at 994; see Hatley v. Lockhart, 990 F.2d 1070, 1074 (8th Cir. 1993) (holding approximately two hours is a “significant period of time”). SA Webers' responses “we will make it real clear” and “you are being charged with first degree murder” came on the heels of defendant stating he would remain silent. (Docket 127 at p. 3). The government argues SA Weber “did not ask the defendant a question at that time or interrogate him but instead started to explain to the defendant ‘what this is about.' ” (Docket 146 at p. 2). But the issue is whether the interrogation encounter with law enforcement stopped once defendant invoked his right to silence-it did not.

         The government's position would be stronger if “after [defendant] refused to make a statement at the initial interrogation, the agents ‘did not attempt to persuade [him] to reconsider or to resume the interrogation.' ” DeMarce, 564 F.3d at 994 (quoting United States v. Finch, 557 F.2d 1234, 1236 (8th Cir. 1977)). In asserting his right to silence, defendant stated, “I don't know what this is about.” (Docket 127 at p. 3). When defendant invoked his right and connected that decision to not knowing why the agents wanted to question him, SA Weber's choice to immediately respond with the charge against defendant is an “attempt to persuade [defendant] to reconsider” invoking the right to silence.[4] DeMarce, 564 F.3d at 994. During the evidentiary hearing, SA Weber testified, “[i]n the event that they invoke their rights to remain silent we don't have to stop. We can continue talking.” (Docket 106 at p. 77). Miranda does not prohibit agents from uttering any words on any subject after a suspect invokes the right to remain silent; but it does prohibit words or actions-like those in this case-that do not “scrupulously honor” a person's right to silence. See Mosley, 423 U.S. at 104-06. Because the agents did not sufficiently respect defendant's right to remain silent after he invoked that right, the subsequent portion of the interview was obtained in violation of Miranda and must be suppressed from the government's case-in-chief on that basis. See Vanover, 630 F.3d at 1114.

         Defendant's question, “On what?”, in response to SA Weber telling defendant he was charged with first degree murder was not a waiver of Miranda rights. “To establish a valid Miranda waiver, the Government must show that the waiver was knowing, intelligent, and voluntary.” United States v. Woods, 829 F.3d 675, 680 (8th Cir. 2016). Based on the record, the government has not established that defendant's conduct or his question, which preceded any Miranda warnings, constituted an adequate waiver of Miranda rights. While defendant did proceed to speak with the agents, that does not impact the analysis because the agents never honored defendant's invocation of his right to silence as the law requires.

         The determinations above relate to defendant's invocation of his right to silence under Miranda and the violation of that right. Parts of the record blend discussions of how the right to silence and the right to counsel apply in this case. “Both protect the privilege against compulsory self-incrimination[ ] by requiring an interrogation to cease when either right is invoked.” Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) (internal citation omitted). However, separating the discussion of each right is important because defendant invoked them at different times and the analysis of the individual rights is not identical. See Edwards v. Arizona, 451 U.S. 477, 485 (1981) (“In [Mosely, 423 U.S. at 104 n.10], the Court noted that Miranda had distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and had required that interrogation cease until an attorney was present only if the individual stated that he wanted counsel.”). For example, on the right to silence, a break just over two hours may be sufficient to “scrupulously honor[ ]” invocation of that right. See Hatley, 990 F.2d at 1074. However, with the right to counsel, absent the presence of counsel or the suspect engaging law enforcement himself, the presumption of involuntariness following invocation of the right is not eliminated until a break in custody of 14 days occurs. See Shatzer, 559 U.S. at 105-10.

         II. The right to counsel

         Approximately two minutes into the interrogation, SA Weber read defendant his Miranda rights and asked him to sign an FBI Advice of Rights Form. (Docket 127 at p. 4). SA Weber said, “If you don't mind, I'd just like you to, uh, sign the bottom right here just saying that I read you your rights.” Id. Defendant did not sign at that time and responded, “I need my attorney man, I ain't gonna do nothing until-”, before SA Weber interrupted, “That's fine. You can sign that and you can lawyer up, that is fine. You don't have to sign it, that is fine. All right.” Id.

         “Once an accused who is in custody ‘expresses his desire to deal with the police only through counsel,' he shall not be ‘subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.' ” United States v. Jackson, 852 F.3d 764, 770 (8th Cir. 2017) (quoting Edwards, 451 U.S. at 484-85) (internal alterations omitted) (emphasis in original). Like Miranda, the holding of Edwards relates to the Fifth Amendment, but the Supreme Court has “frequently emphasized that the Edwards rule is not a constitutional mandate, but judicially prescribed prophylaxis.” See Shatzer, 559 U.S. at 105 (collecting cases).

         “The rationale of Edwards is that once a suspect indicates that ‘he is not capable of undergoing [custodial] questioning without advice of counsel,' ‘any subsequent waiver that has come at the authorities' behest, and not at the suspect's own instigation, is itself the product of the inherently compelling pressures and not the purely voluntary choice of the suspect.' ” Id. at 104-05 (quoting Arizona v. Roberson, 486 U.S. 675, 681 (1988)) (internal quotation marks omitted). “The Edwards presumption of involuntariness ensures that police will not take advantage of the mounting coercive pressures of prolonged police custody . . . by repeatedly attempting to question a suspect who previously requested counsel until the suspect is badgered into submission[.]” Id. at 105 (internal citations and quotation marks omitted). Edwards is a “second layer of prophylaxis for the Miranda right to counsel[.]” Davis v. United States, 512 U.S. 452, 458 (1994) (internal quotation marks omitted).

         “Interrogation occurs when a law enforcement officer engages in ‘either express questioning or its functional equivalent,' which includes ‘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 subject.' ” Jackson, 852 F.3d at 771 (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)). “The applicability of the rigid prophylactic rule of Edwards requires courts to determine whether the accused actually invoked his right to counsel.” Davis, 512 U.S. at 458 (emphasis in original) (internal quotation marks omitted). “[T]his is an objective inquiry.” Id. “Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” Id. at 459 (internal quotation marks omitted). “[O]nly a clear and unequivocal request for the assistance of counsel may serve to invoke a defendant's right.” United States v. Giboney, 863 F.3d 1022, 1029 (8th Cir. 2017) (internal quotation marks omitted). A suspect “must articulate his 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.” Id. (internal quotation marks omitted).

         The magistrate judge determined defendant's statement, “I need my attorney, man, I ain't gonna do nothing until-”, invoked his right to counsel. (Docket 127 at p. 9). The government does not object to this conclusion. SA Vose testified he believed defendant invoked his right to counsel and it was not ambiguous. (Docket 106 at p. 25). SA Weber also understood defendant's statement as an invocation of ...

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