607 F.3d 1277 (11th Cir. 2010), 09-10794, United States v. Lall

Docket Nº:09-10794
Citation:607 F.3d 1277, 22 Fla.L.Weekly Fed. C 900
Opinion Judge:KORMAN, District Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LANCE LALL, a.k.a. Trini, Defendant-Appellant
Attorney:For Lance Lall, Appellant: Jacqueline Esther Shapiro, Appeals Court Appointed, MIAMI, FL. For United States of America, Appellee: Jonathan D. Colan, Anne R. Schultz, Kathleen M. Salyer, U.S. Attorney's Office, Miami, FL; Dawn Bowen, Christopher J. Hunter, MIAMI, FL.
Judge Panel:Before TJOFLAT and COX, Circuit Judges, and KORMAN, [*] District Judge. COX, Circuit Judge, specially concurring. COX, Circuit Judge, specially concurring:
Case Date:May 28, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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607 F.3d 1277 (11th Cir. 2010)

22 Fla.L.Weekly Fed. C 900



LANCE LALL, a.k.a. Trini, Defendant-Appellant

No. 09-10794

United States Court of Appeals, Eleventh Circuit

May 28, 2010

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 08-20776-CR-FAM.

For Lance Lall, Appellant: Jacqueline Esther Shapiro, Appeals Court Appointed, MIAMI, FL.

For United States of America, Appellee: Jonathan D. Colan, Anne R. Schultz, Kathleen M. Salyer, U.S. Attorney's Office, Miami, FL; Dawn Bowen, Christopher J. Hunter, MIAMI, FL.

Before TJOFLAT and COX, Circuit Judges, and KORMAN, [*] District Judge. COX, Circuit Judge, specially concurring.


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KORMAN, District Judge.

Lance Lall appeals from a judgment, entered upon a jury verdict, convicting him of conspiracy to commit credit card fraud in violation of 18 U.S.C. § 1029(a)(2), (4), and (b)(2), possession of device-making equipment with intent to defraud in violation of 18 U.S.C. § 1029(a)(4), and aggravated identity theft in violation of 18 U.S.C. § § 1028A(a)(1) and (2). Lall was sentenced principally to thirty months in prison. On this appeal, he challenges the denial of his motion to suppress evidence

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obtained after the police responded to an armed robbery targeting his bedroom. Specifically, he argues that incriminating statements he made at that time and in response to subsequent interrogation were not voluntary and that the physical evidence seized from his bedroom was derived improperly from his initial admission.

I. Background

On November 8, 2007, North Miami Police Detectives Michael Gaudio (" Gaudio" ) and Fred Desir (" Desir" ) responded to an emergency call regarding an armed robbery at the home where the twenty-year-old Lall lived with his parents, Erroll and Hannah Lall, and his brother and sister, Joel and Anissa. Hannah, Anissa, and Joel were home when two masked men entered and demanded money. The robbers made statements indicating that Lance had money and equipment that was valuable, and searched the upstairs bedroom shared by Joel and Lance. The Lalls were threatened with violence by the robbers, who eventually settled for a laptop computer belonging to Lance and the keys to the Ford Mustang owned by the father, Erroll, in which they made their escape.

Detective Gaudio testified that, after the police arrived at the Lall residence to investigate the crime scene, Joel indicated to him that Lance " was into credit card fraud and making ID's and stuff with the Internet." The two detectives determined that the bedroom shared by Joel and Lance was " the focus of this home invasion, whatever these criminals were looking for, they were looking for in his room." Lance then arrived home and was given Miranda warnings by the detectives in the front yard of the house. Gaudio testified that he told Lance, " my main concern was the home invasion, about who had done this to his family, you know, this was a pretty serious crime," and that Gaudio " needed to find out more information."

Gaudio then took Lance to the bedroom to, in his words, " try to collect any evidence that might help" and " [t]o develop any leads to who might have committed the home invasion robbery." Once in the bedroom, the door to the room was shut. Lall testified that there were four officers, including Detective Gaudio, in the bedroom with him, though Gaudio testified that only he and Detective Desir, and possibly one other officer, were in the room. Gaudio admitted, however, that Lall's father and other family members were purposefully excluded from the room and not permitted to enter, despite objections from the family. Significantly, prior to entering the bedroom, Detective Gaudio told Lall and his family that any information Lall shared with the police would not be used to prosecute him.

Once inside the bedroom, Lall proceeded to show Detective Gaudio the equipment he used to commit identity theft and to explain how each device worked. Based on these admissions, Gaudio seized, inter alia, two " skimmers," which Lall used to capture account information from swiped credit cards and driver's licenses, and one " encoder," which he used to transplant that information onto new cards or licenses for fraudulent purposes.

While Detective Gaudio did not arrest Lall, he alerted the Secret Service to this evidence less than twenty-four hours after it was taken. Several days later, Gaudio called Lall and told him to come to the police station with his father. According to Lall, Gaudio told Lall's father that they would not need to be accompanied by a lawyer, and Gaudio testified at the suppression hearing that he again told Lall he " wasn't going to be charging him with any of this." While at the station, Lall was again given Miranda warnings, and proceeded

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to further " expound" on his initial statement. Lall was not aware at this time that Gaudio had already notified the Secret Service of the evidence originally taken. Ultimately, Lall was arrested by Secret Service and charged with the offenses of which he was convicted.

Prior to trial, Lall moved to suppress the statements made to Gaudio during the initial interrogation and the physical evidence seized from his bedroom. Lall argued that the statements, which provided the probable cause for the seizure of the physical evidence, were improperly obtained. After a suppression hearing, the district judge denied the motion to suppress. Specifically, he held that Lall was not in custody--a holding which obviated any Miranda violation--and that there was sufficient probable cause to seize evidence found in Lall's bedroom.

The case then proceeded to trial. At the conclusion of trial testimony, Lall renewed his motion to suppress the evidence and statements obtained by police on the night of the robbery. The motion was predicated on the claim that certain evidence had been withheld from him with respect to the issue whether the items seized from his bedroom were in plain view. More pertinent to the issues raised on appeal, Lall asked the judge to instruct the jury to disregard testimony concerning the statements made by Lall at the police station on the grounds that they were not voluntary. While Lall's pretrial motion to suppress did not encompass the latter confession, the district judge denied the motion on the merits after concluding that the content of the first and second confessions was essentially identical, and that " the legal issue involved [was] the same," stating that " it's the same thing except [Lall] is entitled to Miranda warnings, perhaps, if he goes to the station voluntarily. But it doesn't really change anything."

II. Discussion

The principal issue presented by this appeal is the voluntariness of Lall's statements to Detective Gaudio. Lall's challenge to the admissibility of those statements encompasses two separate yet interrelated arguments: first, that Gaudio's promises of non-prosecution prevented Lall from making a voluntary, knowing, and intelligent waiver of his Miranda rights; and second, that these promises rendered any subsequent confession by Lall involuntary and thus inadmissible. The U.S. Attorney argues that Lall freely and voluntarily confessed to committing identity and credit card fraud and explained to Detective Gaudio how his equipment facilitated the commission of those crimes. Moreover, he argues that Lall was not in custody at the time of the questioning, notwithstanding the fact that he was given the Miranda warnings. Consequently, he argues, it is immaterial whether Lall knowingly and voluntarily waived his Miranda rights. The same argument is repeated with respect to Lall's challenge to the admissibility of the second statement he made a few days later after he was summoned to the police station for additional interrogation.

A. The First Confession

1. Miranda Waiver

We begin with Lall's first confession made to Detective Gaudio on the night of the robbery. Before a suspect's uncounseled incriminating statements made during custodial interrogation may be admitted, the prosecution must show " that the suspect made a voluntary, knowing and intelligent waiver of his privilege against self-incrimination and his right to counsel." United States v. Beale, 921 F.2d 1412, 1434 (11th Cir. 1991). In Miranda v. Arizona,

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384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court explained that a warning that statements could be used against the suspect would make him aware of the consequences of foregoing the right to remain silent. Miranda, 384 U.S. at 469. " It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of that privilege." Id. Two factors are relevant to whether a waiver of the privilege was voluntary, knowing, and intelligent:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the " totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)).

Relying on Hart v. Attorney General of Florida, 323...

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