U.S. v. Black Bear

• Decision Date: 01 September 2005
• Docket Number: No. 04-3891.,04-3891.
• Citation: 422 F.3d 658
• Parties: UNITED STATES of America, Appellant, v. Jerome BLACK BEAR, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

422 F.3d 658

UNITED STATES of America, Appellant, v. Jerome BLACK BEAR, Appellee.

No. 04-3891.

United States Court of Appeals, Eighth Circuit.

Submitted: June 21, 2005.

Filed: September 1, 2005.

COPYRIGHT MATERIAL OMITTED

Mark E. Salter, argued, Sioux Falls, South Dakota (Randolph J. Seiler, Pierre, South Dakota, on the brief), for appellant Asst. U.S. Attorney.

Timothy J. Langley, argued, Sioux Falls, South Dakota (Jana Miner, Pierre, South Dakota, on the brief), for appellee Asst. Federal Public Defender.

Before RILEY, BOWMAN, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Jerome Albert Black Bear was indicted for assault causing serious bodily injury to his infant son, in violation of 18 U.S.C. §§ 1153 and 113(a)(6). Before the indictment, FBI agents questioned him four times.

On November 21, 2003, agent Miller spoke with Black Bear in a pediatric-intensive-care breakroom at the hospital, after treating doctors said that his son's fractured ribs "are consistent with intentional injury and are not consistent with accidental injury." Before the interview, the agent told Black Bear that he was not under arrest, would not be arrested at the end of the interview, did not have to talk to the agent, and could end the interview at any time. Black Bear spoke with the agent, signing a (jointly) handwritten statement — all of which lasted about an hour.

On December 9, Black Bear was summoned and appeared in the Rosebud Sioux Tribal Children's Court for a (civil) preliminary hearing on temporary emergency custody. A public defender was appointed to represent him. After the hearing, a social worker from the South Dakota Department of Social Services called Black Bear back into the courtroom and "handmotioned" him to follow down a back hallway to the connected law-enforcement center. There, he met with FBI agent Allan D. Wipperfurth. Black Bear's public defender was not informed he was going to be questioned. Before the 30-minute interview, Wipperfurth told Black Bear that he was not under arrest, would not be arrested at the end of the interview, did not have to speak with Wipperfurth, and could end the interview at any time. Later in the day, Wipperfurth "asked" Black Bear to come in the next day — not as an optional appointment — for a polygraph examination at the county courthouse.

On the morning of December 10, Black Bear came to the courthouse without counsel. Upon arriving, he signed — between 10:17 and 10:21 am — a "consent to interview with polygraph" form in connection with "the physical abuse of a child," and a Miranda "advice of rights" form. Both agents present witnessed Black Bear's signatures on the two forms. Agent Trone alone administered the polygraph exam, and then questioned him further. Agent Wipperfurth re-entered the room at about 11:25 and asked more questions, with Trone present. Immediately before Wipperfurth's (and Trone's) post-exam questioning, Black Bear was not advised: that he was not under arrest, would not be arrested at the end of the interview, did not have to speak with them, and could stop talking at any time. Following Wipperfurth's questions, Black Bear agreed to provide a tape-recorded oral summary, which lasted from 12:10 to 12:16 pm. Black Bear left at 12:20 pm.

Later in the afternoon on December 10, Black Bear spoke with his public defender and returned home. About four hours after leaving the agents, he telephoned indicating he wanted to talk further. Wipperfurth and Trone drove to Black Bear's house, where the three talked inside Trone's vehicle for about 10 to 15 minutes.

Before trial, Black Bear moved to suppress all these statements, invoking the Fifth and Sixth Amendments. After a hearing pursuant to 28 U.S.C. § 636(b)(1)(B), the magistrate judge recommended denying the motion. The district court accepted the recommendation as to the November 21 hospital interview, the morning statements to Agent Trone on December 10, and the late-afternoon conversation on December 10. The district court suppressed the December 9 and December 10 statements to Wipperfurth — for violating the Fifth Amendment. The government appeals. Having jurisdiction under 18 U.S.C. § 3731, this court reverses.

The standard of review for suppression issues is two-pronged. See United States v. Sheikh, 367 F.3d 756, 762 (8th Cir.2004). This court reviews a district court's factual findings for clear error, and its legal conclusions de novo. Id. "In custody" determinations are independently reviewed on direct appeal. Id.

I. Interrogation by agent Wipperfurth on December 9

When taken into custody for questioning, an individual must be advised of the rights to be free from compulsory self-incrimination, and to the assistance of counsel. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda warnings are required only where a person is deemed to be in custody. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

The ultimate inquiry to determine custody for Miranda purposes is whether there was 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). This court first considers the totality of the circumstances of the historical facts that confronted Black Bear at the time of questioning. See Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995); United States v. Czichray, 378 F.3d 822, 826-28 (8th Cir.2004). Second, the only relevant inquiry is whether reasonable persons in Black Bear's position would consider their freedom of movement restricted to the degree associated with a formal arrest. See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Thompson, 516 U.S. at 112, 116 S.Ct. 457. This determination is based on the objective circumstances, not on subjective views of the participants. See United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (en banc).

The district court found that Black Bear "was ordered to attend the December 9 interview by Agent Wipperfurth acting through [social worker] Lanz." The court concluded that, from the perspective of a reasonable person, the restrictions on Black Bear were like those of a formal arrest. The court identified as key historical facts:

1. Lanz had considerable authority and power over Black Bear, having obtained an ex parte order removing his son to foster parents, and prosecuting the litigation (possibly) to terminate Black Bear's parental rights 2. He directed Black Bear to meet with Wipperfurth, pursuant to Wipperfurth's advance directions;

3. Lanz ordered Black Bear to accompany him to be interviewed by Wipperfurth;

4. He did not give Black Bear the option of not coming; and

5. Black Bear was told the interview was "voluntary" only after he was in a private room of the police station.

These findings of fact are not clearly erroneous.¹ However, the district court's legal conclusions are reviewed de novo, as is the ultimate determination of custody. The facts listed emphasize the events preceding the interview. These facts do not resolve whether Black Bear was in custody during the interview of December 9.

The LeBrun case is instructive. Before concluding that LeBrun was not in custody, this court considered the events preceding the interview. LeBrun, 363 F.3d at 718. There, a Highway Patrol officer and a Naval investigator met LeBrun at his place of employment and asked him to accompany them to a Patrol office. LeBrun was not informed of the subject of the investigation, nor given any warnings at that time. LeBrun rode in a police car to the Patrol office, but was not restrained in any manner. Upon arriving at the Patrol office, but before going inside, the investigator told LeBrun that he was not under arrest, was free to terminate the impending interview at any time, and was free to leave at any time. Id.

In this case, Wipperfurth made almost identical statements to Black Bear. True, in the events here, Black Bear may have faced more compulsion than LeBrun. However, "the coercive aspects of a police interview are largely irrelevant to the custody determination except where a reasonable person would perceive the coercion as restricting his or her freedom to depart." Id. at 721.

The key is the reasonable person's view "during the interview" or "during the interrogation." United States v. Wallace, 323 F.3d 1109, 1113 (8th Cir.2003); United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002). Measured by the factors in Axsom, Black Bear was not in custody during the interview because:

1. He was informed at the time of his interview that he was not under arrest, would not be arrested at the end of the interview, did not have to speak with Wipperfurth, and could end the interview at any time;

2. While Black Bear did not have unrestrained freedom of movement during the interview because it occurred in a closed-door room in the police department, he nonetheless accompanied Wipperfurth to the room and was not handcuffed or restrained at any time during the interview;

3. Black Bear voluntarily acquiesced to Wipperfurth's requests to respond to questions;

4. No strong-arm tactics or deceptive strategies were employed during his interview 5. While the atmosphere was police-dominated to some extent, it was not overly so to the point that Black Bear's freedom of movement was restrained to the degree associated with formal arrest; and

6. He was not placed under arrest at the termination of the interview.

See Axsom, 289 F.3d at 500 (quoting United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990)).

Because Black Bear was not in custody for the purposes of Miranda, the district court's order suppressing his statements on December 9 is reversed.

II. Post-examination questioning by agent Wipperfurth on December 10

The district court concluded that Black Bear was in custody on the morning of ...