United States v. Hawk
| Decision Date | 12 January 2016 |
| Docket Number | 3:15-CR-30090-RAL |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. BENTON LEO BRAVE HAWK, Defendant. |
| Court | U.S. District Court — District of South Dakota |
REPORT AND RECOMMENDATION FOR DISPOSITION OF MOTION TO SUPPRESS STATEMENTS
Benton Leo Brave Hawk was reported to have had sex with his pre-pubescent "stepdaughter" on the Rosebud Indian Reservation. Federal and tribal agents interviewed him while he was in tribal jail and he made statements to them which he now seeks to suppress. Because the statements were lawfully obtained, the Court recommends that Brave Hawk's suppression motion be denied.
BACKGROUND
Brave Hawk was arrested tribally and charged with sexually assaulting T.C.F., the 8-year-old daughter of his significant other. While in custody, Kory Provost, a special agent with the Rosebud Sioux Tribe, and FBI Special Agent Alicia Rowland, interviewed him. The interview lasted one hour and 14 minutes and was audio recorded.
Before any questioning took place, Agent Provost informed Brave Hawk of his Miranda rights from an advice of rights form. Brave Hawk initialed each of the rights on the form, acknowledging he understood them. At Agent Provost's request, Brave Hawk read out loud the waiver statement on the form. When asked if he agreed with this statement, Brave Hawk said, "Not really." Agent Provost then inquired whether Brave Hawk wanted to talk to the agents to which he replied, "I don't agree with it, but . . . ." In an attempt to discern Brave Hawk's intentions, Agent Provost followed up: Without any verbal response, Brave Hawk took the form and printed his name beneath the statement he had just read. The agents then each signed the form and began conducting the interview.
Both the agents interrogated Brave Hawk. Despite telling them at the outset he was "tired" and only "somewhat" awake and being subjected to their deceptive tactics (about his DNA being on T.C.F.), Brave Hawk continued on with the interview - without ever requesting a break or to halt the same -- and steadfastly maintained he did not do anything of a sexual nature to the child.
Brave Hawk was indicted about two and-a-half weeks later and charged with aggravated sexual abuse of T.C.F. (two counts) and with child abuse of T.C.F. and her 10-year-old brother, T.F. (one count each). He thereafter moved to suppress hisstatements, claiming they were elicited in violation of Miranda1 and were involuntary under the Fifth Amendment to the United States Constitution.
The Government filed a response to the motion, resisting Brave Hawk's claims. An evidentiary hearing was held on December 30, 2015, at which Agents Provost and Rowland testified and four exhibits (including the recording and advice of rights form) were received into evidence. Brave Hawk is scheduled to stand trial on all four charges next month.
DISCUSSION
Brave Hawk initially claims that the statements he made to Agents Provost and Rowland should be suppressed because he invoked his Fifth Amendment right to remain silent. The recording indicates that after being Mirandized from a form and asked if he agreed with the waiver statement in the form, Brave Hawk responded "not really" and then said he did "not agree with it but . . . ." He argues that these utterances were sufficient as a matter of law to trigger his right to silence and cut off any questioning of him.
In the context of invoking the Miranda right to counsel, the Supreme Court has held that a suspect must do so "unambiguously."2 If the suspect makes a statementconcerning this right "that is ambiguous or equivocal" or makes no statement at all, police are not required to end the interrogation or ask questions to clarify whether the suspect wants to invoke his Miranda rights.3
According to the Court, "there is no principled reason to adopt different standards" for determining when a suspect invokes his Miranda right to remain silent.4 Both, the Court has declared, "protect the privilege against compulsory self-incrimination,5 by requiring an interrogation to cease when either right is invoked."6
A suspect thus who wants to invoke his right to remain silent and end an interview, must "do so unambiguously."7 "Treating an ambiguous or equivocal act[ ] or statement as an invocation of Miranda rights 'might add marginally to Miranda's goalof dispelling the compulsion inherent in custodial interrogation.'"8 But full comprehension of the rights to remain silent and to counsel are sufficient to expel or at least neutralize whatever coercion is inherent in the interrogation process.9
Brave Hawk did not say that he wanted to remain silent, not talk to agents or answer questions. Had he made any of these simple, unequivocal statements (rather than cryptically divulging that he did not "really" agree with the waiver statement and that he did not agree with it "but"), he would have invoked his right to shut down all questioning. Because he did neither, there was no invocation of his right to silence and no "critical safeguard" for the agents to "scrupulously honor."10
In any event, Agent Provost handled the situation just as he should. He tried to ascertain whether Brave Hawk was exercising his Miranda rights by pointedly asking him whether he wanted to talk to the agents and stressing that this was up to him to decide. Agent Provost's tactics were not some contrived attempt to get around Miranda or the Fifth Amendment, but rather were aimed solely at clarifying what he perceived to be an ambiguous response to his waiver inquiries. He obviously knew that he and Agent Rowland could not talk to Brave Hawk if Brave Hawk wanted to remain silent or have counsel present. But Brave Hawk made it clear that he was willing to waive hisrights by taking the form - he had initialed and audibly read a minute or so earlier - signing the waiver portion of it, and then speaking with the agents - without talking to a lawyer or having one present - for over an hour. Finding nothing improper about what Agent Provost said or did,11 Brave Hawk's motion, to the extent that it seekssuppression under Miranda based on an invocation of his right to remain silent, cannot be sustained.
Brave Hawk next claims that his Miranda waiver was invalid. He asserts that he did not knowingly, voluntarily and intelligently waive his rights.
It is undisputed that Agent Provost informed Brave Hawk of his Miranda rights before any questioning took place and that Brave Hawk waived these rights by executing the advice of rights form. The issue here is whether the waiver was a knowing, voluntary and intelligent one.12
The Miranda waiver inquiry has "two distinct dimensions": the waiver "must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception" and the waiver must be made "with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it."13 The totality of the circumstances are to be considered when determining whether a suspect's waiver is valid.14
The recording, irrefutably shows that Brave Hawk waived his Miranda rights. There is no basis to conclude that he did not understand his rights. It therefore follows that he chose not to invoke or rely on them when he spoke to the agents.
First, credible evidence proves Brave Hawk was both mindful and appreciative of his rights and what he was doing.15 He was read and acknowledged - through his seven sets of initials on the advice of rights form - understanding each of his rights, including his right to remain silent and to stop answering questions at any time.
Second, Brave Hawk's written waiver constitutes potent evidence he had a clear understanding of his rights and gave them up.16 And his willingness to engage in a colloquy without the benefit of a lawyer and make statements - some of which were incriminating - was a "course of conduct indicating waiver" of his rights.17 If Brave Hawk wanted to remain silent, he could have said nothing in response to the agents' questions, or he could have unambiguously invoked his Miranda rights and terminated the interrogation. The fact that he chose not to and elected instead to converse with the agents by himself for 70 plus minutes is indicative of a full-fledged waiver.18
Third, there is no credible evidence Brave Hawk's statements were coerced.19 At no time did the agents threaten or intimidate Brave Hawk, or yell, raise their voices, or become hostile toward him. Nor did they use any force, employ physical punishment, brandish their weapons or use rubber hose tactics to get him to talk. Brave Hawk's age, education, background and conduct that day did not indicate he was low functioning or particularly suggestable and vulnerable to questioning by authority figures. His responses to inquiries also convincingly showed he was not under the influence of alcohol or drugs and not suffering from any mental or physical afflictions. And he cooperated with the agents, talking on end with them at times, without being questioned.
Brave Hawk contends that his tired and sleepy condition rendered his waiver invalid. Although the recording indicates he yawned on 12 occasions while speaking with the agents, being fatigued and drowsy do not necessarily render a waiver involuntary.20 Rather, the test is whether a suspect's condition "caused [his] will to be overborne."21
While Brave Hawk did say he was tired, somewhat awake and yawned periodically, he never asked to stop the interview or provided any indication he was too languid to go on. Other than his statements (made very early on to the agents) and open mouth inhalations (which may have been an involuntary...
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