U.S. v. Grey Water, C2-04-145.

• Decision Date: 31 January 2005
• Docket Number: No. C2-04-145.,C2-04-145.
• Citation: 395 F.Supp.2d 850
• Parties: UNITED STATES of America, Plaintiff, v. Neil Alexander GREY WATER, Defendant.
• Court: U.S. District Court — District of North Dakota

395 F.Supp.2d 850

UNITED STATES of America, Plaintiff, v. Neil Alexander GREY WATER, Defendant.

No. C2-04-145.

United States District Court, D. North Dakota, Northeastern Division.

January 31, 2005.

Brett M. Shasky, U.S. Attorney's Office, Fargo, ND, for Plaintiff.

Daniel J. Borgen, Rosenquist & Arnason LLP, Grand Forks, ND, for Defendant.

Memorandum Opinion and Order Granting Motion to Suppress Evidence and Denying Motion to Dismiss Indictment

ERICKSON, District Judge.

Before the Court is a motion to suppress statements obtained in violation of Miranda and a motion to dismiss on the grounds that 18 U.S.C. § 922(g)(3) is unconstitutional as applied to Defendant (doc. # 12). The United States has filed a brief in opposition. A hearing was held on January 13, 2005, during which these issues were taken under advisement.

Summary of Decision

The Court finds Defendant was in custody for purposes of Miranda when he was handcuffed and directed to sit in a chair because he was restrained as though he was under formal arrest and no reasonable person would have felt free to leave. Accordingly, Defendant's motion to suppress the statements obtained on May 27, 2004, prior to Miranda warnings, is GRANTED. The Court further finds that although Defendant has been deprived of some of his property rights with respect to the seizure of his firearm, he has not been denied due process and 18 U.S.C. § 922(g)(3) is not unconstitutional as applied to him. Consequently, Defendant's motion to dismiss the indictment is DENIED.

Background

On May 27, 2004, agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Bureau of Indian Affairs (BIA), the Federal Bureau of Investigation (FBI), the United States Marshals Service, the North Dakota Bureau of Criminal Investigation (ND BCI), and other local law enforcement officers executed a search warrant at Defendant's residence. The warrant was issued to search for Darren Strouse, a federal fugitive. Defendant was present during the search and was advised that although he was not under arrest, he was going to be handcuffed while the search was going on at his residence.

Darren Strouse was found at Defendant's residence and was taken into custody. In addition, agents observed large amounts of paraphernalia for ingesting controlled substances, including syringes, spoons with residue, straws, and a light bulb with residue. Agents also discovered a hunting rifle in a rack in the living room.

While handcuffed in the kitchen, Defendant was told twice that he was not under arrest and that did not have to speak to the agents. At no time, however, was Defendant told he was free to leave or that he could ask the agents to leave. Defendant agreed to talk to Special Agent Ron Miller from the FBI and Special Agent Jay McCrary from ATF. During the interview, Defendant was cooperative and answered the agents' questions. Defendant acknowledged the rifle was his and he used it for hunting. Defendant also said that the syringes belonged to his brother for which his brother used them to "shoot" methamphetamine. Defendant stated that he had in the past used a needle to ingest methamphetamine, but that he preferred to smoke it. In addition, Defendant admitted that he last used methamphetamine "about a week ago" and smoked marijuana on a "very frequent basis," the last time being in the early morning of May 27, 2004. Defendant was not arrested at the conclusion of the search and interview.

Defendant argues the interrogation at his residence was illegal because he was in custody for purposes of Miranda and he was not informed of his Miranda rights. Thus, Defendant contends the statements obtained on May 27, 2004, should be suppressed. In addition, Defendant asserts the application of 18 U.S.C. § 922(g)(3) is unconstitutional because it deprives him of his property without due process.

Analysis

1. Statements Obtained Prior to Miranda Warnings

Defendant contends that the statements he made to law enforcement officers must be suppressed because they were the product of custodial interrogation without the benefit of Miranda warnings.

The rule from Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires that any time a person is taken into custody for questioning, law enforcement officers must, prior to questioning, advise the person of his right to be free from compulsory self-incrimination and his right to assistance of counsel. United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002). Thus, "`[t]he Miranda protections are triggered only when a defendant is both in custody and being interrogated.'" United States v. Boyd, 180 F.3d 967, 976 (8th Cir.1999) (quoting United States v. Hatten, 68 F.3d 257, 261 (8th Cir.1995)). The ultimate question in determining whether a person is in "custody" for purposes of Miranda is "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). Therefore, "[c]ustody occurs not only upon formal arrest, but also under any other circumstances where the suspect is deprived of his freedom of movement." United States v. Hanson, 237 F.3d 961, 963 (8th Cir.2001). In considering this question, the relevant inquiry is how a reasonable person in the defendant's position would have understood his situation. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). If Defendant believed his freedom of action had been curtailed to a degree associated with formal arrest, and if that belief was reasonable from an objective viewpoint, then Defendant was being held in custody. United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir.1990). In making this determination, courts consider the totality of the circumstances that confronted the defendant at the time of questioning. United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004).

When determining, under the totality of the circumstances, whether a suspect is in custody, the Eighth Circuit has identified six factors for consideration:

(1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest;

(2) whether the suspect possessed unrestrained freedom of movement during questioning;

(3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questioning;

(4) whether strong arm tactics or deceptive stratagems were employed during questioning;

(5) whether the atmosphere of the questioning was police dominated; or

(6) whether the suspect was placed under arrest at the termination of the questioning.

Griffin, 922 F.2d at 1349; Axsom, 289 F.3d at 500. The first three factors tend to mitigate the existence of custody, while the last three tend to aggravate it. Id. However, while these six factors are intended to be representative, not exclusive, Axsom, 289 F.3d at 501, "[t]he ultimate inquiry must always be whether the defendant was restrained as though he were under formal arrest." Czichray, 378 F.3d at 828.

Guided by these principles, the Court finds this case presents a close question of custody. As to the first factor, Defendant was told on two separate occasions that he did not have to speak with law enforcement officers and that he was not under arrest. No evidence was presented indicating Defendant could request the officers to leave, or that he was told he was free to leave. Special Agent McCrary did testify that although he saw no reason why the defendant would not have been able to leave if he had requested, Special Agent Miller was the chief officer at the time and would have made the decision. Given that Defendant volunteered to speak with the agents after he was told he did not have to, the Court finds this factor mitigates against the existence of custody.

The second factor concerns whether Defendant possessed unrestrained freedom of movement. As noted earlier, Defendant was not told that he could leave at any time or that he could ask the officers to leave his residence. Instead, Defendant was placed in handcuffs and directed to sit in a chair in the kitchen. The Court does not overlook the fact that Defendant was advised that he was not under arrest despite being handcuffed. The officers testified that the restraints were utilized to ensure Defendant's safety and that of the officers. Nevertheless, "telling a suspect that he is not under arrest does not carry the same weight in determining custody when he is in handcuffs as it does when he is unrestrained." United States v. Newton, 369 F.3d 659, 677 (2d Cir.2004) (citations omitted).

Being placed in handcuffs is clearly a restraint associated with formal arrest, giving rise to the conclusion that a handcuffed individual is in custody for purposes of Miranda. See New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (an individual surrounded by four police officers and handcuffed was in police custody); United States v. Acosta-Colon, 157 F.3d 9, 18 (1st Cir.1998) (the use of handcuffs is one of the most recognizable indicia of traditional arrest and substantially aggravates the intrusiveness of a detention); United States v. Henley, 984 F.2d 1040, 1042 (9th Cir.1993) (suspect is in custody for Miranda purposes when he was handcuffed and placed in the back of a police car, even though he was told he was not under arrest); United States v. Smith, 3 F.3d 1088, 1098 (7th Cir.1993) (defendant in custody when he was handcuffed and told to sit in a specific place in the grass); United States v. Guarino, 629 F.Supp. 320, 324 (D.Conn.1986) (a reasonable person handcuffed and surrounded by agents would have understood he was "in custody"). Because handcuffing Defendant and directing him to sit in a chair in the kitchen curtailed...