U.S. v. Eastman

• Citation: 256 F.Supp.2d 1012
• Decision Date: 10 February 2003
• Docket Number: No. 02-CR-30089.,02-CR-30089.
• Parties: UNITED STATES of America v. Phillip EASTMAN
• Court: U.S. District Court — District of South Dakota

256 F.Supp.2d 1012

UNITED STATES of America v. Phillip EASTMAN

No. 02-CR-30089.

United States District Court, D. South Dakota, Central Division.

February 10, 2003.

COPYRIGHT MATERIAL OMITTED

Jay P. Miller, Assistant United States Attorney, Pierre, for Plaintiff.

Jay M. Miner, First Assistant Federal Public Defender, Pierre, for Defendant.

ORDER

ROSENBAUM, Chief Judge.

Defendant objects to the Report and Recommendation issued January 31, 2003, by the Honorable Mark A. Moreno, United States Magistrate Judge. Defendant's objections to the Report were timely filed, pursuant to Local Rule 72.1(c)(2).

Based upon a de novo review of the record herein, the Court adopts the Magistrate's Report and Recommendation. Accordingly, defendant's motion to suppress statements and physical evidence [Docket No. 30] is denied.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION FOR DISPOSITION OF DEFENDANT'S MOTION TO SUPPRESS STATEMENTS AND PHYSICAL EVIDENCE

MORENO, United States Magistrate Judge

I.

¶ 1 Defendant, Phillip Eastman (Eastman), filed a Motion to Suppress Statements and Physical Evidence and supporting Memorandum on January 3, 2003. A hearing was held ten days later on the Motion at which four witnesses testified and four exhibits were received into evidence. Following the hearing, the record was supplemented with an additional exhibit by consent of the parties. Because Eastman's Motion is a dispositive one, this Court is only authorized to determine the same on a Report and Recommendation basis. Pursuant to 28 U.S.C. § 636(b)(1), the Court does now make and propose the following Report and Recommendation for disposition of the Motion.

II.

¶ 2 Eastman, a 20-year-old (dob 10-1-82) Native American, is charged with four counts of sexual abuse of a minor in violation of 18 U.S.C. §§ 1153, 2243(a), 2246(2)(A), (B). The Indictment alleges that Eastman sexually abused T.B, a 13year-old female child, on or about August 3, 2002, in LaPlante, South Dakota on the Cheyenne River Sioux Tribe (CRST) Reservation. Eastman has pled not guilty to all four counts of the Indictment and is currently being detained pending trial.

¶ 3 In his Motion, Eastman seeks to suppress any and all statements made and physical evidence obtained by CRST police officers on Fourth, Fifth and Sixth Amendment grounds. Plaintiff, United States of America (Government), asserts that Eastman waived his constitutional rights and agreed to talk to tribal officers. The Government also argues that the buccal swabbings he provided and the photographs taken of him were not the "fruit" of an illegal interview or otherwise suppressible.

¶ 4 At the conclusion of the January 13, 2003 hearing, the Court took the matter under advisement. After careful study of the facts and circumstances present and relevant precedent, the Court concludes that Eastman's Motion should be denied, as explained in more detail below.

III.

¶ 5 On Saturday, August 3, 2002, at 7:24 a.m., tribal officers were dispatched to house number 778 in LaPlante in response to a sexual assault. Upon arriving at the house, officers were told that T.B. had been raped by Eastman and others.

¶ 6 At 4:16 p.m. that same day, Eastman was located and arrested tribally for sexual contact with a minor and underage consumption. Following his arrest, Eastman was taken to the CRST jail. The next day, a $500 cash bond was set on the tribal charges.

¶ 7 On Monday, August 5, 2002, CRST police detectives James Norris, Jr. and Larry LeBeau interviewed Eastman. The interview began at approximately 11:30 a.m. and ended about 1:00 p.m. Eastman had not been able to make bail and had remained in jail since his arrest two days later. Before any questioning began, Norris read Eastman his Miranda rights out loud from and Advise of Rights form. Eastman verbally, and with a head nod, indicated that he was willing to talk to detectives. Norris then asked Eastman to read the Waiver of Rights portion of the form and Eastman did so. When he finished, Eastman said, "What about a public defender" to which Norris replied, "Phillip, that's up to you in your entirety to make that decision. But if you do, I'm going to send this file as is to the U.S. Attorney's Office without Phillip Eastman's side of the story." Eastman answered saying, "I know I didn't rape anyone because why would I have these [pointing to hickeys he had on his face and neck area]?" In response, Norris continued, "Phillip, if you want to tell me anything about what you did or didn't do or anything, I need you to sign the form if you want to talk to myself and Larry—Detective LeBeau." Upon hearing this, Eastman declared, "Well, I know I didn't do anything so I'll talk to you guys" and proceeded to sign the Waiver.¹

¶ 8 Eastman was thereafter questioned about the rape allegations that resulted in his arrest and made incriminatory statements concerning the same. He signed, in two places, the notes Norris himself penned during the interview. He also provided a buccal swab from his mouth for purposes of DNA testing and allowed photographs to be taken of him and his hickeys.

¶ 9 At some point following the arrest, tribal police requested that a judicial determination be made as to whether there was probable cause to support the arrest of Eastman for aggravated sexual contact with a child.² Ultimately, a tribal judge made a formal finding of probable cause on August 5th at 11:00 p.m.

¶ 10 Eastman remained in custody until Wednesday, August 7, 2002, when he was released on a personal recognizance bond.³ Eventually, but not until several weeks later, Eastman was charged in both federal and tribal court with sexual offenses arising out of the incident with T.B.

IV.

¶ 11 At the outset, unlike the situation that existed in United States v. Red Bird, 287 F.3d 709 (8th Cir.2002) (Red Bird II), there is no persuasive evidence that (1) Eastman had been formally charged, by Complaint or otherwise, or had appeared in court prior to his August 5th interview; (2) he was represented by "counsel" at the time of the interview⁴ and that Norris and LeBeau knew this; and (3) the detectives were working in tandem with the Federal Bureau of Investigation (FBI) in the investigation and charging of Eastman.⁵ See and compare 287 F.3d at 711-12, 714-16 & n. 2; see also United States v. Red Bird, 146 F.Supp.2d 993, 995-97, 1001-02, 1004-08 (D.S.D.2001) (Red Bird I).

¶ 12 Because no adversary judicial criminal proceedings had been initiated against him in tribal court or elsewhere, Eastman's Sixth Amendment right to counsel, assuming that he had one, never attached and therefore, was not infringed. Red Bird II, 287 F.3d at 715-16; Red Bird I, 146 F.Supp.2d at 996-1002, 1006-08.

V.

¶ 13 While a suspect in a criminal investigation has no Sixth Amendment right to the assistance of counsel until criminal proceedings have been initiated, the suspect nonetheless has the right to consult with an attorney, to have counsel present during questioning and to have police explain this right to him before any interrogation begins. Miranda, 384 U.S. at 469-73, 86 S.Ct. 1602. Such a right, established in Miranda, was one of a "series of recommended ` procedural safeguards' ... [that] were not themselves rights protected by the Constitution, but were instead measures to insure that the right against compulsory self-incrimination was protected." Davis v. United States, 512 U.S. 452, 457, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (quoting Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974)).

¶ 14 The Miranda Court deemed the right to counsel important enough to require the special protection of a knowing, voluntary and intelligent waiver standard. Edwards v. Arizona, 451 U.S. 477, 482-83, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). If a suspect is given Miranda warnings and waives his right to counsel, law enforcement officers are free to question him. North Carolina v. Butler, 441 U.S. 369, 372-76, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). But if the suspect requests counsel after being Mirandized, he may not be questioned until a lawyer has been made available to him or he initiates conversations with officers. Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880. This "second layer of prophylaxis for the Miranda right to counsel," McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights," Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990). Thus, a suspect who has invoked his right to counsel cannot be questioned regarding any offense unless an attorney is present. Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990); Arizona v. Roberson, 486 U.S. 675, 682, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). The prohibition against further questioning, like other aspects of Miranda, is not itself mandated by the Fifth Amendment, but is instead justified by its "prophylactic purpose." Connecticut v. Barrett, 479 U.S. 523, 528, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987).

¶ 15 The applicability of the Edwards rule requires courts to "determine whether the suspect actually invoked his right to counsel." Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984); see also Fare, 442 U.S. at 719, 99 S.Ct. 2560. Such an inquiry is an objective one. Davis, 512 U.S. at 459, 114 S.Ct. 2350; Barrett, 479 U.S. at 529, 107 S.Ct. 828. "Invocation of the Miranda right to counsel ` requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.'" Davis, 512 U.S. at 459, 114 S.Ct. 2350 (quoting McNeil, 501 U.S. at 178, 111 S.Ct. 2204). If a suspect's reference to an attorney "is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel ... the cessation...