U.S. v. Kelley
| Decision Date | 14 January 1992 |
| Docket Number | No. 90-50441,90-50441 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Michael KELLEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Debra Ann DiIorio, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.
Bruce R. Castetter and Judith S. Feigin, Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before SCHROEDER and REINHARDT, Circuit Judges, and KING *, Senior District Judge.
Appellant David Michael Kelley appeals the use at his jury trial of items recovered from his living quarters without his consent on the ground that either the consent of his female housemate was involuntary or she lacked authority to consent to a search of his bedroom and closet. Kelley also appeals the use of statements taken when he was on the verge of withdrawal from heroin on the basis that they were involuntary.
Kelley was arrested on June 9, 1990, as he exited his residence in San Diego, California, accompanied by his housemate, Holly Bakker, and her two young children. At the time of the arrest, Kelley was under FBI surveillance as a suspect in several unsolved robberies in the San Diego area. Following his arrest, Kelley told FBI Agent Walker that Ms. Bakker was his girlfriend.
As Kelley was being arrested, FBI agent John Swartzwelder approached Ms. Bakker and asked her to lie prone on the sidewalk. He had his gun in his left hand, and his right hand was in the center of Ms. Bakker's back. Ms. Bakker's two young children were nearby, crying. Agent Swartzwelder informed Ms. Bakker that the Agents were not there to arrest her, while another Agent calmed the children. After Kelley had been placed under arrest and taken into an FBI car, Agent Swartzwelder re-holstered his gun and allowed Ms. Bakker to get up. Agent Swartzwelder then questioned Ms. Bakker about her relationship with Kelley and, approximately fifteen minutes after Ms. Bakker was initially placed on the ground, obtained her written consent to search the residence. Once inside, Ms. Bakker informed Agent Swartzwelder that she and Kelley had rented the apartment three days ago as a purely financial arrangement, that she had signed the rental agreement, that they had separate bedrooms, and that she was allowed access to Kelley's bedroom to use the telephone, which was located on the right-hand side of his room, in the back corner.
During the course of the search, several items were seized from Kelley's closet, which was located in the far left-hand corner of Kelley's bedroom. Items were also seized from a chair in Kelley's bedroom. At the time of the search, the doors to Kelley's bedroom and closet were open.
Kelley was placed under arrest and read his Miranda rights before being transported to FBI headquarters where he was again read his rights. Kelley signed a written waiver form waiving those rights and was interrogated for one hour and twenty minutes with one arm handcuffed to his chair. During the questioning, Kelley informed the Agents that he was a heroin addict, with a $200-a-day habit. He told the Agents that at the time of his arrest he was on his way to purchase heroin. He also told them that at some point in the afternoon he would be getting sick due to heroin withdrawal. At the beginning of the interview, Kelley requested, and was given, at least two cups of coffee with extra sugar, to help delay the effects of withdrawal. Approximately two-thirds of the way through the interview, Kelley began to experience cold chills, sweats, shakes, and trembling hands. He was given coffee with an extra amount of sugar so that he could continue the interview. Kelley told the Agents that they needed to hurry and finish their questioning because of his withdrawal. At some point during the interview, the Agents told Kelley that they would inform the prosecutor and judge of his cooperation.
After the interview was completed, Kelley was transported to the Metropolitan Correctional Center, where he was booked on charges of bank robbery. The booking slip for the MCC stated that Kelley was "going through withdrawal."
Kelley was subsequently charged with six counts of bank robbery, in violation of 18 U.S.C. § 2113(a) and (d). The trial court denied his pretrial motions to suppress post-arrest statements and to suppress evidence seized from his closet. Following a jury trial, Kelley was convicted of three counts of bank robbery. A mistrial was declared as to the remaining three counts.
Kelley contends that his post-arrest statements were involuntary and therefore should have been suppressed by the trial court. Voluntariness is a legal question requiring de novo review. United States v. McConney, 728 F.2d 1195 (9th Cir.1984); United States v. Wilson, 838 F.2d 1081 (9th Cir.1988). The voluntariness of a confession must be established by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).
A voluntary statement is one that is the product of a rational intellect and free will. Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960). No one factor is determinative. Instead, the "totality of the circumstances" must be considered. Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); Mincy v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973). This includes both the characteristics of the accused and the details of the interrogation. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973).
Kelley argues that the fact that he was on the verge of heroin withdrawal renders his post-arrest statements involuntary. A statement may not be admitted if because of mental illness, drugs, or intoxication, the statement was not the product of a rational intellect and a free will. Gladden v. Unsworth, 396 F.2d 373, 380-81 (9th Cir.1968).
In United States v. Lewis, 833 F.2d 1380 (9th Cir.1987), statements taken in a hospital several hours after the defendant was administered a general anesthetic were held to be voluntary, based on a government agent's sworn statement that the defendant said she was feeling "o.k." and evidence that showed that the defendant was alert, answered the agent's questions responsively, and was able to recall past events accurately. Id. at 1384-5. In United States v. Martin, 781 F.2d 671 (9th Cir.1985), statements made by defendant in the hospital while in pain and under the influence of Demerol, a pain-killing medication, were again held to be voluntary. There, defendant was groggy from medication but coherent, able to conduct a continuous conversation, able to make eye contact, the medication was not excessive or unusual, and defendant's injuries, though painful, "did not render him unconscious or comatose." Id. at 674. In Medeiros v. Shimoda, 889 F.2d 819 (9th Cir.1989), defendant made a voluntary statement where, although intoxicated, he was able to drive an automobile, obey the orders of officers prior to and during an initial stop, and cooperate in conversing with them. Id. at 823.
Kelley began to display physical signs of withdrawal approximately two-thirds of the way through the interview. At that point, he began experiencing chills, shaking, and trembling. Despite this, Kelley remained coherent and responsive, was aware of what was going on, and told the FBI agents that he was able to continue with the questioning. He was able to distinguish between the various bank robberies about which he was being questioned, and told the agents that they needed to hurry if they wanted to continue the interrogation. These facts indicate that the effects of withdrawal did not overcome Kelley's ability to think rationally.
Coercive policy activity is "a necessary predicate" to finding a confession involuntary. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 521, 93 L.Ed.2d 473 (1986). Examples of overreaching include lengthy questioning, deprivation of food or sleep, and physical threats of harm. Id. at 164, n. 1, 107 S.Ct. at 520, n. 1. Also included are forms of psychological persuasion. Id. at 164, 107 S.Ct. at 520. There must be some causal connection between the police conduct and the confession. Id.
The circumstances of Kelley's interrogation do not rise to the level of overreaching necessary to support a finding of police coercion. Although Kelley was handcuffed during the interrogation, he was never threatened with physical harm if he failed to make a statement. Nor is an interrogation of one hour and 20 minutes unduly protracted. Although the interrogation did continue for approximately 30 minutes after Kelley began to exhibit physical signs of withdrawal, he remained coherent and oriented throughout this time. Therefore, continuing the interrogation was not unduly coercive. The fact that Kelley was told that his cooperation would be communicated to the prosecutor and judge also does not rise to the level of psychological coercion.
The preponderance of the evidence shows that Kelley's ability to think rationally was unimpaired by his being on the verge of heroin withdrawal during part of the interrogation. The preponderance of the evidence also shows that no coercive police activity occurred during the interrogation. Therefore, the trial court did not err in denying Kelley's motion to suppress post-arrest statements.
Kelley argues that evidence seized from his room and closet should have been suppressed either because his housemate's consent...
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