U.S. v. Stewart

• Decision Date: 28 January 1999
• Docket Number: No. 98-40097-01-SAC.,98-40097-01-SAC.
• Citation: 51 F.Supp.2d 1136
• Parties: UNITED STATES of America, Plaintiff, v. Shawn E. STEWART, Defendant.
• Court: U.S. District Court — District of Kansas

51 F.Supp.2d 1136

UNITED STATES of America, Plaintiff, v. Shawn E. STEWART, Defendant.

No. 98-40097-01-SAC.

United States District Court, D. Kansas.

January 28, 1999.

Mark L. Bennett, Jr., Bennett & Dillon, L.L.P., Topeka, KS, for defendant.

Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for plaintiff.

Steven D. Rosel, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

On October 14, 1998, the grand jury returned a twelve count indictment charging the defendant with six separate counts of committing robberies affecting interstate commerce (in violation of 18 U.S.C. § 1951 (Hobb's Act)), and six separate counts of using and carrying a firearm during and in relation to crimes of violence (in violation of 18 U.S.C. § 924(c)(1)). The crimes are alleged to have occurred in Topeka and Lawrence, Kansas.

This case comes before the court upon the following pretrial motions:

1. Defendant's "Motion to Suppress" (Dk.15).

The government has filed a response opposing the defendant's motion. (Dk.19).

2. Government's "Motion to Compel Giving of Hair Sample" (Dk.18).

The defendant has filed a response, opposing the government's motion.

On January 15, 1999, the court conducted a hearing to consider the parties' respective motions. At the close of the hearing, the court took the matter under advisement. Having considered the arguments and briefs of counsel, the evidence presented, and the applicable law, the court is now prepared to rule.

1. Defendant's "Motion to Suppress" (Dk.15).

On September 4, 1998, Stewart was arrested as a suspect in a robbery which occurred in Topeka, Kansas. According to the defendant's brief, following his arrest he was placed in an interrogation room where he was informed of his Miranda rights. According to the defendant, he told Detective Lowe of the Topeka Police Department that he would not talk to him and that he wanted an attorney. The defendant was then transported to the Shawnee County, Kansas, Department of Corrections. Although he had invoked his Miranda rights, over the course of the next three days Detective Brown of the Lawrence, Kansas, Police Department and FBI Agent Phil Andrews conducted custodial interrogations without the presence of counsel. Stewart claims that he repeatedly told the Shawnee County corrections officers that the did not want to talk to either Detective Brown or Agent Andrews and that he wanted to speak to an attorney. Instead of honoring his requests, Detective Brown and Agent Andrews obtained a handwritten note from the defendant's mother. The note was written by Stewart's mother while she was at the hospital, apparently having suffered a heart attack. Bowing to the repeated pressure of the officers to speak without the presence of an attorney, the defendant confessed orally and in writing without the benefit of counsel.

Although the defendant signed a written waiver of his Miranda rights, the defendant contends that the waiver was signed only after his right to speak to an attorney had been violated. In his confession, Stewart admits to committing robberies in both Topeka and Lawrence. Stewart seeks suppression of his statements and evidence obtained as a direct result of his "unlawful interrogation."

The government, in a one page response, succinctly states that none of the records within its possession indicate that "the defendant, contrary to his now-expressed position, never asked that he be allowed to consult with an attorney."

Legal Standards

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." "These safeguards include certain rights that an accused must be informed of and must waive before custodial interrogation can commence." United States v. Bautista, 145 F.3d 1140, 1146 (10th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 255, 142 L.Ed.2d 210 (1998). Specifically,

[a suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Miranda, 384 U.S. at 479, 86 S.Ct. 1602. "Only if there is a voluntary, knowing, and intelligent waiver of these rights can authorities question a suspect without counsel being present and introduce at trial in the case-in-chief any statements made during the interrogation." Bautista, 145 F.3d at 1146.

"In Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court added a second layer of prophylaxis to the Miranda right to counsel," Bautista, 145 F.3d at 1146, holding that a suspect who has "expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication."

"If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards." McNeil v. Wisconsin, 501 U.S. 171, 177, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). "This is `designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.'" Id. (citing Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990)).

"Moreover, unlike an accused's Sixth Amendment right to counsel, the Edwards rule is not offense specific." Id.; Arizona v. Roberson, 486 U.S. 675, 685, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). "Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present." McNeil, 501 U.S. at 177, 111 S.Ct. 2204, 115 L.Ed.2d 158.

Bautista, 145 F.3d at 1147.

"Once a suspect has invoked the right to counsel, knowledge of that request is imputed to all law enforcement officers who subsequently deal with the suspect." United States v. Scalf, 708 F.2d 1540, 1544 (10th Cir.1983). See Bautista, 145 F.3d at 1149 n. 6 (quoting Scalf).

Burden of Proof

If a defendant talks to police after being advised of his right to remain silent, the government bears the burden of proving by a preponderance of the evidence that the waiver of the right was voluntary. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); United States v. Johnson, 42 F.3d 1312, 1318 (10th Cir.1994) (when a Miranda violation is alleged to have occurred, the burden of proof rests with the government to prove the validity of the waiver by a preponderance of the evidence) (citing Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986)), cert. denied, 514 U.S. 1055, 115 S.Ct. 1439, 131 L.Ed.2d 318 (1995).

An express statement of waiver by the defendant is not required; instead, waiver can be inferred from the defendant's actions and words. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). To establish a voluntary waiver of Fifth Amendment rights, the government must show (1) that the waiver was the product of free and deliberate choice rather than intimidation, coercion, or deception; and (2) that the waiver was made in full awareness of the nature of the right being waived and the consequences of waiving. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Only if the totality of the circumstances surrounding the interrogation shows both an uncoerced choice and the requisite level of comprehension can a waiver be effective. Id.; United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir. 1996). To evaluate whether a statement or confession was coerced, we consider the characteristics of the defendant, the circumstances surrounding the statements, and the tactics employed by the police. United States v. Guerro, 983 F.2d 1001, 1004 (10th Cir.1993).

United States v. Toro-Pelaez, 107 F.3d 819, 825 (10th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 129, 139 L.Ed.2d 78 (1997).

When a defendant challenges the use of his statements on the ground that they were involuntary, it is the duty of this court "to examine the entire record and make an independent determination of the ultimate issue of voluntariness." Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). The government has the burden of proving by at least a preponderance of evidence that a confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); see United States v. Robertson, 19 F.3d 1318, 1321 (10th Cir.), cert. denied, 513 U.S. 906, 115 S.Ct. 271, 130 L.Ed.2d 189 (1994). "[C]oercive police activity is a necessary predicate to the finding that a confession is not `voluntary.'" Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); United States v. Robertson, 19 F.3d at 1321 ("In other words, the police must somehow overreach by exploiting a weakness or condition known to exist.").

In United States v. Glover, 104 F.3d 1570 (10th Cir.1997), the Tenth Circuit set forth the appropriate inquiry for determining the voluntariness of a defendant's statements:

Incriminating statements obtained by government acts, threats, or promises that permit the defendant's will to be overborne run afoul of the Fifth Amendment and are inadmissible at trial as evidence of guilt. Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 12 L.Ed.2d...