40 F.3d 1111 (10th Cir. 1994), 94-2044, United States v. McCurdy

Docket Nº:94-2044.
Citation:40 F.3d 1111
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Maurice McCURDY, Defendant-Appellee.
Case Date:November 21, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1111

40 F.3d 1111 (10th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellant,


Maurice McCURDY, Defendant-Appellee.

No. 94-2044.

United States Court of Appeals, Tenth Circuit

November 21, 1994

Page 1112

Louis M. Fischer (John J. Kelly, U.S. Atty., and Presiliano A. Torrez, Asst. U.S. Atty., D. of N.M. with him on the briefs), Dept. of Justice, Washington, DC, for plaintiff-appellant.

Judith A. Rosentstein, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellee.

Before MOORE and BARRETT, Circuit Judges, and ROGERS [*], District Court Judge.

BARRETT, Senior Circuit Judge.

The United States (government) appeals from the orders of the district court granting Maurice McCurdy's (McCurdy) motion to suppress certain statements and physical evidence and denying its motion for reconsideration.


On October 1, 1993, officers of the United States Forest Service received information from a hunter that he had found a marijuana plantation in a remote area of the Santa Fe National Forest. Several days later, Forest Service Officer John Dickerson (Dickerson) and Deputy Sheriff Kenneth Morris (Morris) located the site. Both officers drew their weapons while surveying the site. They observed a backpack on the ground near some gardening and pruning tools and a note written on cardboard. The note read, "I see both of you. I know who you are. I was here when you came in. I have worked very hard at this work, please do not rob me or bust me. Thank you." (R., Vol. II at 26-7).

The officers then observed an individual, later determined to be McCurdy, dressed in camouflage pants, boots, and no shirt, walking up to the site. Morris ordered McCurdy not to move, to raise his hands, and to turn around in a circle. Morris then patted McCurdy down for weapons. After determining that McCurdy was not armed, Morris and Dickerson holstered their weapons and asked McCurdy for identification. McCurdy responded that his identification was in his truck.

Dickerson radioed his office and notified Senior Special Forest Service Agent Benjamin Tafoya (Tafoya), a criminal investigator, that they had a person at the site and that they needed some assistance in questioning him. McCurdy waited with Dickerson and Morris for approximately three hours until Tafoya arrived. While they were waiting, McCurdy told the officers that he had been hiking in the area, that he had no knowledge of the site and that he had no interest in the backpack. During this time, neither Morris nor Dickerson advised McCurdy of his Miranda 1 rights nor did they tell him that he was free to leave or that he was not free to leave.

When Tafoya arrived he questioned McCurdy, without first advising him of his Miranda rights, relative to the site and the backpack. McCurdy, in response to Tafoya's

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specific questioning, again denied any knowledge of the site and any ownership in the backpack. Tafoya then opened the backpack and observed a headset and several camouflage shirts. According to McCurdy, who stands 5'5" and weighs 115 pounds, Tafoya was aggressive and threatening. McCurdy testified that Tafoya twice shoved him to the ground, and that Tafoya terrified him when Tafoya threatened to "come down real hard" on him if he did not admit his association with the plantation. Tafoya denied pushing McCurdy down.

McCurdy subsequently led Tafoya and Morris through the dense forest to his truck. During portions of the walk to the truck, Tafoya held onto one of McCurdy's belt loops. Once at the truck, Tafoya retrieved McCurdy's wallet and shirt from underneath the seat. Tafoya also retrieved a box which contained a photo of a headset resembling the headset found in the backpack. After seeing the photo, Tafoya turned toward McCurdy and McCurdy said something like "bingo." McCurdy then stated, "Okay, I'm the one that is responsible for everything. No one else is up there. I don't [sic] think you'd believe me." (R., Vol. II at 65). Immediately thereafter, McCurdy was handcuffed and advised of his Miranda rights. McCurdy and Tafoya then walked back to the site, during which time McCurdy gave Tafoya a full statement about the site.

The parties agree that McCurdy was in custody for purposes of Miranda from the time Dickerson and Morris initially detained him.

Motion to Suppress

Prior to trial, McCurdy moved to suppress all of the statements made to the officers as well as any physical evidence removed from his truck on the grounds that "the statements were obtained in violation of Defendant's Fifth Amendment rights and that the evidence was seized in violation of his Fourth Amendment rights." (R., Vol. I, Tab 19 at 1).

Within his motion, McCurdy alleged, inter alia, that: after his initial encounter with Morris and Dickerson, he was ordered to remain in the area until Tafoya arrived; he was guarded by Morris who related that he could not leave; Tafoya twice shoved him to his knees; he did not believe he was free to leave; he believed that he had to cooperate with the officers; he led Tafoya and Morris to his pickup where Tafoya grabbed his keys and proceeded to unlock the truck and search inside; at some point during the search, Tafoya requested permission to search, but he responded that since Tafoya was already searching he had no choice but to allow him to continue searching; he was not informed that he had the right to refuse permission to search; and he made certain incriminating statements after Tafoya located a box containing a photo of a headset similar to the one found at the marijuana site.

McCurdy's motion to suppress argued that: he was clearly in custody and was prevented from leaving the site after he was initially questioned; any statements he made while in custody and prior to being advised of his Miranda rights were inadmissible; the warrantless, non-consensual search of his vehicle violated his Fourth Amendment rights; the statements made after his formal arrest and Miranda warnings were inadmissible as fruits of the poisonous tree; the statements made after his formal arrest and Miranda warnings were not voluntary and should be suppressed; the officers did not have probable cause to arrest him and search his vehicle prior to his incriminating statement; and, his consent to the search of his truck was not voluntary.

District Court's Ruling

Following a hearing, the district court granted McCurdy's motion to suppress. In so doing, the court found:

The Court: We've got the officers who were tipped off to the marijuana. So they go out there and finally find it, a very remote area, totally remote. Not a place where hikers go. No question about that.

All right. Then they see ... they find the grow and they see this sign....

Well, to my way of thinking, when the defendant then arrives on the scene, the officers have that, and they in essence, have a confession from him that its his

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grow. They're way out in no place. They probably had probable cause to arrest at that time.

I don't have to reach that point. He gets there. They say, "Hold up your hands." They have their guns out, pat him down, all of which is all right. They ... ask him if he had any associates. There's no doubt in their mind ... they thought they had the person with the grow.

I don't see how you can now say that this is not custodial in the sense of Miranda, because they have him, they make him sit for three hours. I'm going to find that everything he said after Agent Tafoya got there is certainly to be suppressed. I've got nothing in...

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