U.S. v. Wauneka

• Citation: 770 F.2d 1434
• Decision Date: 10 September 1985
• Docket Number: No. 84-1236,84-1236
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Allen WAUNEKA, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1434

770 F.2d 1434

UNITED STATES of America, Plaintiff-Appellant, v. Allen WAUNEKA, Defendant-Appellee.

No. 84-1236.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 11, 1985.

Decided Sept. 10, 1985.

Sherry P. Herrgott, Phoenix, Ariz., for plaintiff-appellant.

Thomas Hoidal, Phoenix, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before HUG, SCHROEDER and HALL, Circuit Judges.

HUG, Circuit Judge:

Appellee Allen Wauneka ("Wauneka") was charged with several counts of assault and rape stemming from two separate assaults on female nurses in Fort Defiance, Arizona. Wauneka moved to suppress all statements made by him to law enforcement officials on January 20 and 22, 1984, on the grounds that his initial confession was the product of questioning by the police not preceded by the warnings required in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the subsequent statements were not sufficiently attenuated from the earlier confession and were, therefore, tainted by the earlier confession. The district court suppressed those statements made by Wauneka pertaining to the December 16, 1983 attack on one of the nurses and ruled that Wauneka's confessions to the January 11, 1984 shooting of the other nurse were admissible. The Government appeals the district court's pretrial suppression order pursuant to 18 U.S.C. Sec. 3731 (1982). In light of the United States Supreme Court's decision in Oregon v. Elstad, --- U.S. ----, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the district court's pretrial suppression order is reversed and the case is remanded for further proceedings consistent with this opinion.

FACTS

On December 16, 1983, Ruth Minton, a nurse of the Public Health Service Hospital in Fort Defiance, Arizona, was attacked, raped, and stabbed in the throat. On January 11, 1984, Anita Willard, a nurse employed at the same hospital, was shot in the head through the back window of her home with a .22 caliber rifle. Both victims survived.

On January 17, 1984, Bureau of Indian Affairs ("BIA") officers, patrolling the hospital grounds as part of the investigation of the attacks, questioned four young men in the hospital parking lot, one of whom was Wauneka. On January 19, 1984, two BIA investigators visited Wauneka and asked him to come to the BIA office. Wauneka consented and was accompanied by a friend, Franklin Begay.

During this first interview, the BIA officials obtained descriptive data from Wauneka. Wauneka was informed that he was not being accused of any crime, but that the procedure was routine. The BIA officials asked Wauneka why he was on the hospital grounds on the night of January 17, 1984. Wauneka was photographed by the officials for the purpose of future photographic identifications.

While waiting for Mr. Begay to be interviewed, BIA Chief Inspector Bill King questioned Wauneka about the rape of a woman whose last name was also Wauneka. Inspector King further inquired whether Wauneka heard about the stabbing and rape of Ruth Minton. Wauneka replied that he had and volunteered that he knew about the shooting of Anita Willard. Wauneka explained that on the night of the Willard shooting, he was walking in the vicinity of the Willard residence, heard a shot, and saw a man run down a nearby ravine. Wauneka was advised that this information would be forwarded to the Federal Bureau of Investigation ("FBI") and that Wauneka would be questioned later. Before returning Wauneka and Begay to their residence, the BIA investigators took them to the scene of the Willard shooting, where Wauneka pointed out his position on the night of the shooting.

On January 20, 1984, following further investigation, Wauneka was asked to return to the BIA office for additional questioning concerning his statements to Inspector King. BIA officials picked up Wauneka at his residence and drove him to the BIA office. During this second interview, Wauneka identified the man he saw as "Francisco." Wauneka accompanied an official to the shooting scene to measure distances, completed a written statement of his account of the shooting and was returned to his residence. This second interview lasted approximately two hours.

At approximately 7:00 p.m. that same day, two uniformed and armed officers arrived at Wauneka's residence, advised Wauneka that he was needed for further questioning and transported him to the BIA office. As in the prior interviews, Wauneka was again questioned in the BIA's conference room. Present during this third interview were Wauneka, FBI agent Romero, and four BIA investigators. When confronted with the fact that the information he had earlier given was not confirmed, Wauneka admitted that he did not know a "Francisco" and that his written statement was false. Instead, Wauneka said that on the night of the January 11 shooting, he was driving a vehicle, accompanied by two friends, when an ambulance came up behind them and proceeded to the scene of the shooting. Wauneka continued to his residence, parked his car, and walked back to where the ambulance had stopped. Wauneka stated that while he was standing there, he observed a man with a gun. However, Wauneka later recanted this statement and returned to his original version of what happened.

Wauneka was then advised by the law enforcement officials that he knew information which only the perpetrator, an eyewitness to the crime, or an investigator would know, and that his description matched the description of the assailant provided by Ruth Minton. Wauneka denied that he was involved in either offense. The interview lasted approximately one hour. A break was taken when FBI agent Zembiec arrived.

During the break, Wauneka was placed in another office with BIA investigator Hart, who apparently warned Wauneka to "come up with another name because he could get fifteen years for lying to the FBI." Wauneka broke down and cried.

Wauneka's interview resumed at approximately 8:20 p.m., but only Wauneka and FBI agents Zembiec and Romero were present. Agent Zembiec spoke at some length of the seriousness of the crimes, the adverse impact on the community if the hospital were forced to close, and the importance of Wauneka's assistance in the investigation. Agent Zembiec asked Wauneka if he had raped a nurse at Fort Defiance on December 16, 1983. Wauneka nodded his head, and then said "yes." Agent Zembiec asked Wauneka what he had been wearing at the time of the rape. In reply, Wauneka patted his head with his hand and said, "stocking cap."

Immediately thereafter, Wauneka was orally advised of his Miranda rights. Wauneka responded that he understood his rights. The agents told Wauneka that he could stay or leave, that the door was not locked, that he could leave at any time, and that he could talk or remain silent. Wauneka remained and confessed to the rape and stabbing of Ruth Minton and to the shooting of Anita Willard. The confessions were completed by 10:00 p.m. Wauneka then signed a written waiver of rights form reflecting the earlier oral advice of rights and his waiver.

Afterwards, Wauneka was taken to a nearby trash dump, where he had apparently disposed of the rifle used in the Willard shooting. The rifle was not located. The investigators took Wauneka to his residence, where he produced the tennis shoes that he wore on both nights. On returning to the BIA office, Wauneka was placed under arrest. Wauneka was transported to a jail in Gallup, New Mexico and remained there during the next day, Saturday, January 21, 1984. On January 22, 1984, Wauneka was transported to Flagstaff, Arizona. On this same day, Wauneka made additional statements pertaining to the rape and shooting. On January 23, 1984, Wauneka appeared before the United States Magistrate in Flagstaff, Arizona.

The district court conducted a four-day hearing on Wauneka's motion to suppress and concluded that prior to any Miranda warning Wauneka was the subject of a custodial interrogation on January 20, 1984 at the time he was asked whether he had raped a nurse at Fort Defiance. The district court further found that once advised of his Miranda rights, Wauneka voluntarily, knowingly, and intelligently waived his rights. Despite the finding of waiver, the district court suppressed Wauneka's subsequent statement regarding the rape of Ruth Minton because it was tainted by the earlier unwarned confessions to that crime. However, Wauneka's January 20, 1984 admission of guilt to the shooting of Anita Willard was found to be voluntary, untainted, and admissible.

With respect to Wauneka's confessions of January 22, 1984, the district court found that Wauneka was properly advised of his rights and knowingly and voluntarily waived them. However, the failure to advise Wauneka of his Miranda rights prior to his January 20 confession to the rape, the district court ruled, required suppression of the January 22, 1984 confession to the rape. The district court noted that the passage of time and the second Miranda warning were not sufficient to dissipate the taint of the earlier unlawful confession. Wauneka's January 22, 1984 confession to the Willard shooting was found to be free of this taint and voluntary.

DISCUSSION

I. Custodial Interrogation

The Government contends that the district court erred in concluding that Wauneka was subjected to "custodial interrogation" when he responded affirmatively to FBI agent Zembiec's question on January 20, 1984 whether he, Wauneka, raped a nurse at Fort Defiance and described the clothing he was wearing that night. Because no Miranda warnings had been given prior to this custodial interrogation, the district court suppressed Wauneka's answers.

The procedural protections afforded by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are designed to secure an accused's privilege against self-incrimination and are triggered only in the event...