United States v. Brodigan
| Decision Date | 14 January 2019 |
| Docket Number | Case No. 2:17-cr-00103-KJD-PAL |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. NICHOLAS BRODIGAN, Defendant. |
| Court | U.S. District Court — District of Nevada |
(Mot. to Suppress - ECF No. 99)
Before the court is defendant Nicholas Brodigan's ("Brodigan") Motion to Suppress Statements (ECF No. 99). This motion was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice. The court has reviewed the motion, the government's Response (ECF No. 107), Brodigan's Reply (ECF No. 127), and considered the arguments of counsel at the evidentiary hearing conducted December 4, 2018. Nisha Brooks-Whittington and Raquel Lazo appeared on behalf of Brodigan, and Christopher Burton and Brian Whang appeared on behalf of the government.
Brodigan is charged with conspiracy to interfere with commerce by robbery in violation of 18 U.S.C. § 1951; three counts of interference with commerce by robbery, aiding and abetting in violation of 18 U.S.C. § 1951 and § 2; and three counts of use of a firearm during an in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) and § 2 for robberies that occurred on or between March 13 and 19, 2017.
Brodigan made his initial appearance on April 7, 2017, pled not guilty, and was detained following a detention hearing. The trial date was initially set for June 5, 2017, however, the parties have stipulated to multiple extensions of the pretrial motion and trial date. The parties also stipulated to multiple extensions of the deadline to brief the pending motion to suppress, which was initially filed on August 6, 2018. Trial is currently set on April 22, 2019, with calendar call on April 16, 2019. See Stipulation (ECF No. 143), Order (ECF No. 144).
Mr. Brodigan is charged in an Indictment (ECF No. 1) returned April 4, 2017, along with co-defendants Justin Castro and Victoria Commisso.1 The Indictment arises out of three alleged robberies that occurred between March 13 and March 19, 2017. The Indictment alleges that on March 13th, defendants Brodigan and Castro entered the Lowe's Home Improvement store on N. Nellis Boulevard in Las Vegas. Castro was armed with a semi-automatic handgun openly carried in a holster on his hip. Castro and Brodigan went to the tool department, took merchandise, walked past all points of sale and towards the store's exit. An employee confronted them, and Castro placed his hand on his holstered gun telling the clerk to "move out of the way or get shot." Castro and Brodigan then fled.
On March 19th, Castro and Brodigan allegedly walked into a Home Depot store located on S. Lamb Boulevard in Las Vegas. Castro was armed with a semiautomatic handgun openly carried in a holster on his hip. Castro and Brodigan went to the tool department, selected merchandise, and proceeded to walk out of the store. While doing so, Castro placed his hand around the handle of his holstered firearm. An employee attempted to prevent Castro and Brodigan from fleeing but stopped when the employee realized Castro was armed. Castro and Brodigan allegedly fled in a vehicle driven by Commisso.
Thirty minutes after the second robbery, Commisso and Castro allegedly entered a Home Depot on S. Pecos Road in Las Vegas. Castro was again armed with a semi-automatic handgun openly carried on his hip. Commisso and Castro went directly to the tool department, selected merchandise, and walked toward the exit. A store employee again attempted to stop the defendants from leaving without paying for the merchandise. Castro pulled his firearm out of its holster, pointed it at the employee, and told him to "back off." Commisso and Castro left the store and entered a Hyundai Brodigan had parked close to the entrance. Brodigan then drove all three defendants away from the store.
/ / /
Brodigan requested an evidentiary hearing on his motion to suppress statements. He argues that his statements to police following his arrest on March 20, 2017, must be suppressed for three reasons. First, he argues police obtained a statement by violating his rights under Miranda. Second, he contends his statements were involuntary under the totality of the circumstances and obtained in violation of his Fifth Amendment right. Third, he argues in the alternative that if he received adequate Miranda warnings, the officers violated his rights when he unequivocally invoked his right to counsel and was questioned without an attorney present.
The government opposes the motion arguing the undisputed evidence demonstrates that Brodigan received and voluntarily waived his rights under Miranda. The government also contends that Brodigan's statement to detectives was voluntary. The government argues that a transcript of the recorded interview establishes that Detective Nelson made it clear that Brodigan was being arrested and was going to jail for charged offenses regardless of what he said. The government provided the court with an audio recording from the defendant's recorded interview, which lasted approximate 1 hour and 45 minutes. The government maintains it corroborates the tone of the interview and that Detective Nelson did not raise his voice or otherwise threaten Brodigan. The fact that Brodigan was in custody while interviewed does not render those statements involuntary. Additionally, Brodigan's personal characteristics do not demonstrate that his will was overborne by police conduct.
The government acknowledges that if a suspect invokes his right to counsel, all questioning must cease unless the suspect himself reinitiates interaction with the police. However, in this case, Brodigan did not unequivocally invoke his right to counsel. According to the transcript of the interview, Brodigan asked Detective Nelson "what if I wanted a lawyer?" Detective Nelson advised Brodigan that invoking his right to counsel would end the interview. Brodigan indicated he understood invoking his right to counsel would terminate the interview but continued with the interview with Detective Nelson for approximately 90 minutes. The recorded interviewdemonstrates that Brodigan did not unequivocally invoke, but only acknowledged that he understood Detective Nelson's answer to his question. As such, the interview properly continued.
The reply points out that the government concedes Brodigan was in custody at the time he was interrogated. Brodigan disputes that he received and waived Miranda rights prior to speaking with Detective Nelson. An evidentiary hearing is requested to require the government to meet its burden of establishing Brodigan received and waived Miranda warnings. At an evidentiary hearing, the totality of the circumstances will demonstrate that Brodigan's statements were obtained by physical or psychological coercion or by improper inducement overcoming his will. Brodigan was in handcuffs, placed in a locked patrol car, and surrounded by police officers at the time of his initial interrogation. Detective Nelson told Brodigan that Brodigan was giving him the "runaround" and that he needed to think about what he was going to say. Additionally, Detective Nelson made continual promises of leniency to get Brodigan to confess. Finally, at two points during the recorded interview, Brodigan stated that he wanted counsel. On the first occasion, Brodigan stated "what if I said I wanted a lawyer, or—or whatever?" The second time was after Detective Nelson stated Brodigan definitely had the right to a lawyer, "but the thing is that when you—if you say you want a lawyer...." Mr. Brodigan responded, "yeah." Brodigan maintains that after this exchange, the interrogation should have ceased, citing Mickey v. Ayers, 606 F.3d 1223, 1235 (9th Cir. 2010).
At the evidentiary hearing, the government called two detectives from the Las Vegas Metropolitan Police Department ("LVMPD"), Detectives Steven Junge and Jason Nelson.
Detective Junge retired in October 2017 after 27 years as an LVMPD police officer. At the time of his retirement, he was a sergeant in the robbery/detective section supervising eight robbery detectives.
On March 20, 2017, at approximately 4:00 a.m., he was dispatched to the vicinity of Sahara Avenue and Hollywood Boulevard in Las Vegas. A suspect vehicle involved in this case had beenlocated and a suspect, later identified as Nicholas Brodigan, had been taken into custody. He identified Brodigan in court. His role was to supervise the scene, supervise the detectives, and ensure that protocol was followed. There was also a motorcycle accident that had occurred as part of the pursuit of the suspect vehicle.
At the scene, Detective Junge learned that Brodigan was in the back seat of a patrol car just south of the traffic circle at Sahara and Hollywood. Junge accompanied Detective Nelson to speak with Brodigan standing outside of the patrol car. No one else was present at that time. At the time of his initial encounter with Brodigan, Brodigan was seated in the rear seat of the patrol car in handcuffs. Detective Nelson introduced himself and had Brodigan get out of the patrol car and conducted a short interview. Brodigan was standing right inside the open rear door of the patrol car. Junge was standing in front of the open door by the front passenger door. Detective Nelson was closer to the rear of the car. Nelson estimated that he was three or four feet from Brodigan.
Detective Nelson introduced himself and gave Brodigan his Miranda rights from a pre-printed LVMPD advisement of rights card that most detectives carry in their notepad. Although it is not required by LMVPD, Junge always required his detectives to read Miranda rights from the preprinted card. It "simplifies the process and ensures that nothin's forgotten and all the i's are dotted and the t's are crossed." Junge observed Detective...
To continue reading
Request your trial