U.S. v. Benedict

• Decision Date: 12 June 2000
• Docket Number: No. 98-CR-6046L.,98-CR-6046L.
• Parties: UNITED STATES of America, Plaintiff, v. Lawrence BENEDICT, a/k/a "LB", Defendant.
• Court: U.S. District Court — Western District of New York

104 F.Supp.2d 175

UNITED STATES of America, Plaintiff, v. Lawrence BENEDICT, a/k/a "LB", Defendant.

No. 98-CR-6046L.

United States District Court, W.D. New York.

June 12, 2000.

COPYRIGHT MATERIAL OMITTED

John R. Parrinello, Rochester, NY, for Lawrence Benedict, a/k/a "LB", defendant.

Martin J. Littlefield, Asst. U.S. Atty., U.S. Attorney's Office, Buffalo, NY, for U.S.

DECISION AND ORDER

LARIMER, Chief Judge.

Defendant, Lawrence Benedict, is charged in three counts of a five-count indictment with violations of 18 U.S.C. §§ 371 and 2252(a)(1), relating to the possession and transportation of child pornography. On December 28, 1999, Magistrate Judge Jonathan W. Feldman issued a Report and Recommendation recommending that defendant's motions to dismiss the indictment and to suppress evidence be denied. Defendant has filed objections to the Report and Recommendation.

DISCUSSION

I. Failure to Read Defendant his Miranda Rights

Defendant's first objection is that Magistrate Judge Feldman allegedly erred in finding that Benedict was not in custody at the time that he made certain statements to Postal Inspector Terrance Loftus during the execution of a search warrant at Benedict's residence. The Magistrate Judge found that Benedict had not been read his Miranda rights at the time that he made the statements, but that those statements are nevertheless not subject to suppression because Benedict was not in custody at that time. See Miranda v. State of Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (warnings must be given prior to questioning of person in custody). The government does not object to the Magistrate Judge's finding that Miranda warnings were not given, but contends that whether they were or not is irrelevant because defendant was not in custody.

After conducting a de novo review of the record, I concur with the Magistrate Judge's findings in this regard. On the facts before me, I conclude that Benedict was not in custody when he made the statements in question, and that Miranda warnings were therefore not required.

Under Miranda, statements made by an individual during a custodial interrogation are inadmissible unless they were preceded by a series of warnings concerning the individual's right against self-incrimination and his right to counsel. "Custody" and "interrogation" are the two prerequisites that trigger the need for Miranda warnings. See Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) ("It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation").

Custody for purposes of Miranda involves a situation in which the defendant is "deprived of his freedom of action in any significant way." Beckwith v. United States, 425 U.S. 341, 347, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602); see also Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam); United States v. Burke, 700 F.2d 70, 83-84 (2d Cir.), cert. denied, 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983). The Supreme Court has stated that "the ultimate inquiry [in determining whether an individual is in custody] is simply whether there is a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. at 495, 97 S.Ct. 711).

In determining whether a person is in custody, the court must view the totality of the circumstances, and should not "`indulge in unrealistic second-guessing' as to the means law enforcement officers ... employ to conduct their investigations." United States v. Glover, 957 F.2d 1004, 1011 (2d Cir.1992) (quoting United States v. Hooper, 935 F.2d 484, 497 (2d Cir.), cert. denied, 502 U.S. 1015, 112 S.Ct. 663, 116 L.Ed.2d 754 (1991)). The test is an objective one which "focuses upon the presence or absence of affirmative indications that the defendant was not free to leave." United States v. Mitchell, 966 F.2d 92, 98 (2d Cir.1992). The officer's subjective intent "is relevant ... only to the extent that that intent has been conveyed to the person confronted." Michigan v. Chesternut, 486 U.S. 567, 575 n. 7, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). See also United States v. Kirsteins, 906 F.2d 919, 923 (2d Cir.1990) (inquiry "focuses on whether a reasonable person in the same situation would have believed that he was not free to leave"). In making this assessment, courts have considered a number of factors, including: whether a suspect is or is not told that she is free to leave; the location and atmosphere of the interrogation; the language and tone used by the police; whether the suspect is searched, frisked, or patted down; and the length of the interrogation. Tankleff v. Senkowski, 135 F.3d 235, 244 (2d Cir.1998).

In addition, "[d]ecisions in this circuit have emphasized that in the absence of actual arrest, an interrogation is not `custodial' unless the authorities affirmatively convey the message that the defendant is not free to leave." Mitchell, 966 F.2d at 98. See also Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (defendant not in custody prior to formal arrest since he was never informed that detention would not be temporary, and officer did not communicate to defendant his decision to take him into custody; "A policeman's unarticulated plan has no bearing on the question whether a suspect was `in custody' at a particular time"); United States v. Guarno, 819 F.2d 28, 31-32 (2d Cir.1987); ("in the absence of arrest something must be said or done by the authorities, either in their manner or approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so") (quoting United States v. Hall, 421 F.2d 540, 545 (2d Cir.1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970)); United States v. Manbeck, 744 F.2d 360, 378 (4th Cir.1984) (defendant not in custody since he was not told he was under arrest, and was not handcuffed), cert. denied, 469 U.S. 1217, 105 S.Ct. 1197, 84 L.Ed.2d 342 (1985).

Applying these standards to the case at bar, it is plain that Benedict was not in custody at the time that he made the statements. First, Benedict was in familiar surroundings: his own home. While not dispositive, that fact militates against a finding that defendant was in custody. Although defendant is correct in stating that a person might be upset to find police officers in his home conducting a search, being upset does not translate into being in custody. Clearly one's home is a far less intimidating location in which to speak to law enforcement agents than, for example, a police station. See, e.g., Mitchell, 966 F.2d at 99 ("It is similarly clear that [defendant] was not in custody during his interview. The entire interview occurred in the familiar surroundings of [defendant's] home"); United States v. Gregory, 891 F.2d 732, 735 (9th Cir.1989) (defendant interviewed in his home was not in custody); United States v. Rakowski, 714 F.Supp. 1324, 1334 (D.Vt.1987) ("Lower courts ... almost universally hold that questioning in a suspect's home is not custodial because individuals in a familiar environment are less likely to be intimidated by law enforcement officers") (collecting cases) (cited in Mitchell, 966 F.2d at 99).

Defendant's argument that no one told Benedict that he was free to leave is specious. Number one, no one told him that he could not leave. Furthermore, there is little reason to think that a person would even want to leave his own home while it is being searched by law enforcement officers; most people would want to observe what the officers were doing.

Moreover, the record shows that defendant's movement within his house was not restricted in any significant way. Although defendant points to a number of alleged restraints on his movement, all that they really amount to was an instruction to Benedict not to interfere with the search. Benedict was in fact allowed to move about, and he did so. He went to his bedroom to lie down, and he was allowed to use his telephone. He was never handcuffed or frisked, or told that he was under arrest. In short, under all the circumstances, it cannot be said that, when viewed objectively, any significant restraints were imposed on defendant's freedom so as to transform his conversation with Loftus into a custodial interrogation. See United States v. Salvo, 133 F.3d 943, 950-53 (6th Cir.) (defendant questioned at his dormitory computer room about his possession of child pornography was not in custody), cert. denied, 523 U.S. 1122, 118 S.Ct. 1805, 140 L.Ed.2d 943 (1998); United States v. Dornhofer, 859 F.2d 1195, 1200 (4th Cir.1988) (defendant questioned in his apartment during police search for pornography not "in custody"), cert. denied, 490 U.S. 1005, 109 S.Ct. 1639, 104 L.Ed.2d 155 (1989). There was therefore no need to inform him of his Miranda rights, and there is no basis upon which to suppress his statements.

II. Right to Counsel

Defendant next contends that the Magistrate Judge erred in holding that Benedict's right to counsel was violated. This assertion is meritless. In his written objections, defendant goes on at length about alleged contradictions and inconsistencies in the testimony of the government's witnesses, but he fails to address the legal basis for Magistrate Judge Feldman's conclusions in this regard: first, that defendant's Fifth Amendment right to counsel was not implicated because he was not in custody at the time, see United States v. Thompson, 35 F.3d 100, 103-04 (2d Cir.1994); and second, that his Sixth Amendment right to counsel was not violated because that right did not attach until the government formally brought charges against Benedict. See Moran v....