U.S. v. Lowen

• Decision Date: 29 July 2011
• Docket Number: No. 10–3668.,10–3668.
• Citation: 647 F.3d 863
• Parties: UNITED STATES of America, Appellee,v.Edward Joseph LOWEN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

647 F.3d 863

UNITED STATES of America, Appellee,

v.Edward Joseph LOWEN, Appellant.

No. 10–3668.

United States Court of Appeals, Eighth Circuit.

Submitted: June 15, 2011.Filed: July 29, 2011.

Katherine M. Menendez, AFPD, argued, Minneapolis, MN, for Appellant.James Lackner, AUSA, argued, St. Paul, MN, Kevin Ueland, AUSA, on the brief, Minneapolis, MN, for Appellee.Before LOKEN, BEAM, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

A jury found Edward Lowen guilty of one count of bank robbery, a violation of 18 U.S.C. § 2113(a). Lowen appeals, and for the reasons that follow, we affirm.

I. BACKGROUND

On February 26, 2010, a man wearing aviator-style sunglasses, a baseball cap, white tennis shoes, work-style gloves, and a camouflage jacket entered the First National Bank of Walker in Akeley, Minnesota, and approached teller Janet Sheets. The bank's surveillance camera footage showed the man hand a duffel bag to Sheets while pointing a gun at her. Sheets testified that the man demanded money and said “I'm not kidding.” Sheets placed approximately $2,525 into the duffel bag from her cash drawer and watched the man exit the bank and drive away in a dark blue Chevrolet Tahoe. Lori Robbins and Joyce Farrington, two other employees on duty that day, provided similar accounts of the robber, describing him as wearing a black baseball cap, aviator-style sunglasses, a camouflage jacket, and white tennis shoes.

Seeking tips as to the robber's identity, law enforcement released a still image of the robber from the bank's surveillance camera footage to the media. Tammy Jo Eischens, a woman married to Lowen's ex-wife's cousin, viewed the surveillance image in the Park Rapids Enterprise newspaper and informed law enforcement, and later testified at trial, that she recognized the man in the image to be Lowen. Eischens had known Lowen for fifteen years and saw him in person three to four times per year, including two weeks prior to the robbery. Law enforcement officers investigating the robbery also discovered that Lowen was the registered owner of a dark blue Chevrolet Tahoe.

Based on these tips, five law enforcement officers, including Investigator Colter Diekmann and Special Agent Chad Museus, traveled to Lowen's residence in Park Rapids, Minnesota. Upon arriving, the officers noticed a dark blue Chevrolet Tahoe parked in Lowen's driveway. Investigator Diekmann and Special Agent Museus approached the residence and knocked on the door, but there was no answer. Soon after, Investigator Diekmann and Special Agent Museus approached a man walking near the road leading to Lowen's residence, identified themselves as law enforcement investigating a bank robbery, and inquired as to the man's identity. The man confirmed that he was Lowen. Investigator Diekmann asked Lowen if he would speak with law enforcement, to which Lowen responded that he would. After Lowen allowed the officers into his home, Investigator Diekmann and Special Agent Museus questioned Lowen around his dinner table. Lowen denied owning a camouflage jacket or white tennis shoes and admitted that he was unemployed and having financial difficulties. Officers asked Lowen if they could search the Chevrolet Tahoe and his residence, and Lowen agreed to both. Upon searching the vehicle, officers discovered a dark-colored baseball cap, a pair of work-style gloves, and a pair of aviator-style sunglasses. Upon searching the wooded area near Lowen's home, they also recovered a pair of white tennis shoes.

Based on this evidence, two of the officers left the premises to obtain a search warrant while another officer read Lowen his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thereafter, Lowen requested the assistance of counsel. Officers executed the search warrant and, from inside of Lowen's home, seized a photograph of Lowen wearing camouflage clothing, a black fleece duffel bag similar in appearance to the duffel bag used by the robber to carry the stolen money from the bank, a money order dated March 1, 2010, in the amount of $1,100, and an instruction manual for an air pistol similar in appearance to the weapon used by the robber.

During the investigation that followed, law enforcement officers discovered that, on February 28, Lowen used $1,500 in cash to purchase chips at the Northern Lights Casino in Walker, Minnesota. A casino manager testified that Lowen played blackjack for approximately ten hours on February 28 and March 1. Officers also determined that Lowen had purchased an air pistol on February 15—eleven days before the robbery—at a Wal–Mart store in Park Rapids, Minnesota. The instruction manual recovered at Lowen's home matched the model Lowen had purchased.

Lowen moved to suppress his statements made during his questioning prior to receiving the Miranda warnings, including his denial that he owned camouflage clothing or white tennis shoes and his admission that he “could use some money.” A magistrate judge ¹ concluded that Lowen was not in custody at the time of the questioning and recommended denying the motion. The district court ² adopted the magistrate judge's report and recommendation and denied Lowen's motion, and Lowen proceeded to trial. At trial, Lowen stipulated that he owed the State of Minnesota $7,713.20. At the conclusion of the Government's case, Lowen moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29, and the district court denied the motion. Lowen renewed his motion for judgment of acquittal after the jury was charged, and the district court again denied the motion. The jury found Lowen guilty of one count of bank robbery. The district court sentenced Lowen to 71 months' imprisonment. Lowen appeals his conviction, challenging the denial of his motion to suppress, the sufficiency of the evidence, and the admission of Sergeant Cory Aukes's identification testimony.

II. DISCUSSIONA. Motion to Suppress

Lowen first argues that the district court should have suppressed the statements he made to Investigator Diekmann and Special Agent Museus because he was in custody and was not advised of his Miranda rights. “ Miranda requires that law enforcement agents provide certain prescribed warnings before conducting an interrogation of a suspect who is in custody.” United States v. New, 491 F.3d 369, 373 (8th Cir.2007). “The Supreme Court in Miranda stated that warnings are required when interrogation is ‘initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Id. (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). “When reviewing the denial of a motion to suppress, we review the district court's factual findings for clear error....” United States v. Muhlenbruch, 634 F.3d 987, 995 (8th Cir.2011). “We review de novo the district court's legal conclusion that [the defendant] was not ‘in custody’ at the time of his interview.” Id.

The question “whether a suspect is ‘in custody’ is an objective inquiry.” J.D.B. v. North Carolina, 564 U.S. ––––, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011). “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave,” id. (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)), “or in this case, to terminate the interrogation and cause the [officers] to leave,” New, 491 F.3d at 373. “Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” J.D.B., 131 S.Ct. at 2402 (quoting Thompson, 516 U.S. at 112, 116 S.Ct. 457); see also United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (en banc).

“Rather than demarcate a limited set of relevant circumstances, we have required police officers and courts to ‘examine all of the circumstances surrounding the interrogation.’ ” J.D.B., 131 S.Ct. at 2402 (quoting Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)). In the instant case, both the parties and the district court relied heavily on the six non-exclusive factors expounded by our court in United States v. Griffin, 922 F.2d 1343 (8th Cir.1990), for evaluating whether an individual is in custody for purposes of Miranda.³ “There is no requirement ... that the Griffin analysis be followed ritualistically in every Miranda case.” United States v. Czichray, 378 F.3d 822, 827 (8th Cir.2004). “When the factors are invoked, it is important to recall that they are not by any means exclusive, and that ‘custody’ cannot be resolved merely by counting up the number of factors on each side of the balance and rendering a decision accordingly.” Id. at 827. “The ultimate inquiry must always be whether the defendant was restrained as though he were under formal arrest.” Id. at 828; see also LeBrun, 363 F.3d at 720.

Lowen asserts that the district court clearly erred when it made certain factual findings regarding the interrogation. Lowen concedes that he was “not physically restrained” but argues that he was “physically controlled” because Investigator Diekmann and Special Agent Museus determined where Lowen would be questioned and “asked him to strike certain poses for photographs.” We disagree. It is undisputed that Diekmann and Museus asked Lowen if he would speak with them and, later, if they could enter Lowen's home in order to continue their questioning and that Lowen consented to both of these requests. Although Diekmann and Museus questioned Lowen around his dinner table, Lowen was not confined to any portion of his home during the questioning. Also, the record reveals that Lowen voluntarily agreed...