United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
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).
government filed objections. (Docket 146). The objections
target the magistrate judge's “conclusion that the
defendant did not initiate contact after invoking his
Miranda 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
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.
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.
The right to remain silent
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.
[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).
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); 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.
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).
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. 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.
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. 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
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.
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.
The right to counsel
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.
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).
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).
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
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 ...