U.S. v. McCurdy
| Decision Date | 21 November 1994 |
| Docket Number | No. 94-2044,94-2044 |
| Citation | 40 F.3d 1111 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Maurice McCURDY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Louis M. Fischer (John J. Kelly, U.S. Atty., and Presiliano A. Torrez, Asst. U.S. Atty., D. of N.M. with him on the briefs), Dept. of Justice, Washington, DC, for plaintiff-appellant.
Judith A. Rosentstein, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellee.
Before MOORE and BARRETT, Circuit Judges, and ROGERS *, District Court Judge.
The United States (government) appeals from the orders of the district court granting Maurice McCurdy's (McCurdy) motion to suppress certain statements and physical evidence and denying its motion for reconsideration.
On October 1, 1993, officers of the United States Forest Service received information from a hunter that he had found a marijuana plantation in a remote area of the Santa Fe National Forest. Several days later, Forest Service Officer John Dickerson (Dickerson) and Deputy Sheriff Kenneth Morris (Morris) located the site. Both officers drew their weapons while surveying the site. They observed a backpack on the ground near some gardening and pruning tools and a note written on cardboard. The note read, (R., Vol. II at 26-7).
The officers then observed an individual, later determined to be McCurdy, dressed in camouflage pants, boots, and no shirt, walking up to the site. Morris ordered McCurdy not to move, to raise his hands, and to turn around in a circle. Morris then patted McCurdy down for weapons. After determining that McCurdy was not armed, Morris and Dickerson holstered their weapons and asked McCurdy for identification. McCurdy responded that his identification was in his truck.
Dickerson radioed his office and notified Senior Special Forest Service Agent Benjamin Tafoya (Tafoya), a criminal investigator, that they had a person at the site and that they needed some assistance in questioning him. McCurdy waited with Dickerson and Morris for approximately three hours until Tafoya arrived. While they were waiting, McCurdy told the officers that he had been hiking in the area, that he had no knowledge of the site and that he had no interest in the backpack. During this time, neither Morris nor Dickerson advised McCurdy of his Miranda 1 rights nor did they tell him that he was free to leave or that he was not free to leave.
When Tafoya arrived he questioned McCurdy, without first advising him of his Miranda rights, relative to the site and the backpack. McCurdy, in response to Tafoya's specific questioning, again denied any knowledge of the site and any ownership in the backpack. Tafoya then opened the backpack and observed a headset and several camouflage shirts. According to McCurdy, who stands 5'5" and weighs 115 pounds, Tafoya was aggressive and threatening. McCurdy testified that Tafoya twice shoved him to the ground, and that Tafoya terrified him when Tafoya threatened to "come down real hard" on him if he did not admit his association with the plantation. Tafoya denied pushing McCurdy down.
McCurdy subsequently led Tafoya and Morris through the dense forest to his truck. During portions of the walk to the truck, Tafoya held onto one of McCurdy's belt loops. Once at the truck, Tafoya retrieved McCurdy's wallet and shirt from underneath the seat. Tafoya also retrieved a box which contained a photo of a headset resembling the headset found in the backpack. After seeing the photo, Tafoya turned toward McCurdy and McCurdy said something like "bingo." McCurdy then stated, (R., Vol. II at 65). Immediately thereafter, McCurdy was handcuffed and advised of his Miranda rights. McCurdy and Tafoya then walked back to the site, during which time McCurdy gave Tafoya a full statement about the site.
The parties agree that McCurdy was in custody for purposes of Miranda from the time Dickerson and Morris initially detained him.
Prior to trial, McCurdy moved to suppress all of the statements made to the officers as well as any physical evidence removed from his truck on the grounds that "the statements were obtained in violation of Defendant's Fifth Amendment rights and that the evidence was seized in violation of his Fourth Amendment rights." (R., Vol. I, Tab 19 at 1).
Within his motion, McCurdy alleged, inter alia, that: after his initial encounter with Morris and Dickerson, he was ordered to remain in the area until Tafoya arrived; he was guarded by Morris who related that he could not leave; Tafoya twice shoved him to his knees; he did not believe he was free to leave; he believed that he had to cooperate with the officers; he led Tafoya and Morris to his pickup where Tafoya grabbed his keys and proceeded to unlock the truck and search inside; at some point during the search, Tafoya requested permission to search, but he responded that since Tafoya was already searching he had no choice but to allow him to continue searching; he was not informed that he had the right to refuse permission to search; and he made certain incriminating statements after Tafoya located a box containing a photo of a headset similar to the one found at the marijuana site.
McCurdy's motion to suppress argued that: he was clearly in custody and was prevented from leaving the site after he was initially questioned; any statements he made while in custody and prior to being advised of his Miranda rights were inadmissible; the warrantless, non-consensual search of his vehicle violated his Fourth Amendment rights; the statements made after his formal arrest and Miranda warnings were inadmissible as fruits of the poisonous tree; the statements made after his formal arrest and Miranda warnings were not voluntary and should be suppressed; the officers did not have probable cause to arrest him and search his vehicle prior to his incriminating statement; and, his consent to the search of his truck was not voluntary.
Following a hearing, the district court granted McCurdy's motion to suppress. In so doing, the court found:
The Court: We've got the officers who were tipped off to the marijuana. So they go out there and finally find it, a very remote area, totally remote. Not a place where hikers go. No question about that.
All right. Then they see ... they find the grow and they see this sign....
Well, to my way of thinking, when the defendant then arrives on the scene, the officers have that, and they in essence, have a confession from him that its his grow. They're way out in no place. They probably had probable cause to arrest at that time.
I don't have to reach that point. He gets there. They say, "Hold up your hands." They have their guns out, pat him down, all of which is all right. They ... ask him if he had any associates. There's no doubt in their mind ... they thought they had the person with the grow.
I don't see how you can now say that this is not custodial in the sense of Miranda, because they have him, they make him sit for three hours. I'm going to find that everything he said after Agent Tafoya got there is certainly to be suppressed. I've got nothing in front of me that says they would have ever found the truck. Had they found the truck, then they could have inventoried the truck and they would have found all of this. But I don't have anything in front of me that says they would have found the truck.
... I can't say that they would have ever found the truck and had an opportunity to search that. The only question I really have in my mind is when the officers said, "Either we're going to detain you or would you stay around to talk to the other fellow," is that he then said, "Well, I could see why you would want to do it, to detain me." Obviously, that's incriminating. Seems like to me that he was in actual custody for Miranda purposes prior to that time.
I'm going to suppress that also.
* * * * * *
I'm going to suppress what was found in the truck, only on the basis that there's nothing before me that would say they would have ever found the truck.
So from the time he starts talking, I'm going to suppress it.
Thereafter, Assistant United States Attorney Torrez asked the court to make a finding as to whether or not McCurdy consented to the search of his vehicle:
Mr. Torrez: I'm asking the court to make a finding whether or not he consented to the search of his vehicle....
If the court finds that he consented ... you don't get the items in the vehicle suppressed because that's a ... Fourth Amendment issue as opposed to a Fifth Amendment issue, and I think that the court has to make a separate finding as to whether the Fourth Amendment has been violated here....
The Court: The interplay between the Fourth and Fifth, when he's not Mirandized, he's not totally and doesn't have to make a statement, how can I then say that you don't have to make any statement, but we want you to lead us down to the car. It's still, to me, fruit of the poisoned tree....
Mr. Torrez: But it's a different inquiry for consent ...
The Court: I know that. And I believe it spills over into that inquiry. I'm going to suppress it all.
... he should have been Mirandized at that time, made aware of all of his rights.
* * * * * *
Mr. Torrez: ... And I'd ask the court make that finding [that McCurdy consented to the search of his truck] ... despite the violation of Miranda, that it was, in fact, a voluntary statement.
The Court: I think no doubt that once he got down there to the truck that what he said was pretty freely and voluntarily given. But I can't say that since he wasn't Mirandized at the right time ... for...
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