United States v. Hickman

Decision Date03 August 2020
Docket NumberCRIMINAL NO. 3:19-cr-128-DCB-LRA
PartiesUNITED STATES OF AMERICA v. BRETT K. HICKMAN DEFENDANT
CourtU.S. District Court — Southern District of Mississippi
ORDER

Before the Court is Defendant Brett K. Hickman ("Hickman")'s Motion to Suppress. [ECF No. 25]. The Court held a hearing on the Motion on July 14, 2020 and it is now ripe for review. Having heard from the parties, considered the motion, applicable statutory and case law, and being otherwise fully informed in the premises, the Court finds as follows:

Background

Hickman was indicted by a federal Grand Jury on July 24, 2019 and charged with one count of violating 18 U.S.C. § 1111, First Degree Murder and one count of violating 18 U.S.C. § 2241(c), Aggravated Sexual Abuse. The instant Motion to Suppress [ECF No. 25] asserts that Hickman made a series of involuntary statements during questioning on June 8, June 13, and June 19, 2019.

On June 8, 2019, Neshoba County 911 dispatch received a call that a 2-year-old female (K.F.) was barely breathing and cold to the touch. The caller claimed that the child was taking a bath with her sister. Neshoba County 911 dispatch contacted Choctaw Police and Emergency Services Personnel ("EMS") who sent officers and an ambulance to the scene. EMS found Hickman with the unresponsive child. EMS noted that the child was in dry clothes. Hickman was the live-in-boyfriend of the child's mother, Gwendolyn Frazier ("Frazier"). EMS transported K.F. to Neshoba General Hospital in Philadelphia, Mississippi. Hickman also went to the hospital.

The responding Choctaw Police Officer observed bruising to the child's facial area. Medical staff informed the officer that K.F. had multiple bruises on the facial area, what looked like a burn mark on her leg, and vaginal tearing. The officer requested that an investigator be notified of the situation.

Choctaw Police Department Investigator, Gabriel Billie ("Billie"), responded to the hospital, took photos of the deceased child, and collected various items of evidence. Billie spoke with Hickman briefly at the hospital and asked if he would be willing to come to the police station to talk about what happened. Hickman did not have a means of transportation. Billie asked if Hickman would be willing to ride with an officer to Choctaw Justice Complex. Billie advised Hickman that he was not under arrest and that he merely wanted to talk with Hickmanabout what happened to the child. Hickman agreed to ride with the officer and was not handcuffed or restrained in any way.

In the subsequent investigation, officers interviewed Hickman on three separate occasions: June 8, June 13, and June 19, 2019. In each interview, Hickman was apprised of his rights. Hickman was always permitted to leave, was never handcuffed, and was informed - on each occasion - that he was not under arrest. Hickman was arrested on August 1, 2019. Once in custody, Billie attempted to interview Hickman, but Hickman refused and invoked his right to an attorney.

The Government asserts that Hickman was not in custody for Miranda purposes until he was arrested. Hickman claims that he was in custody for all three interviews and that his statements from those interviews should be suppressed.

Discussion

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court determined that "the Fifth and Fourteenth Amendments' prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney." Edwards v. Arizona, 451 U.S. 477, 481-82 (1981). "[I]f the accused indicates in any manner that he wishes to remain silent or to consult anattorney, interrogation must cease, and any statement obtained from him during interrogation thereafter may not be admitted against him at his trial." Fare v. Michael C., 442 U.S. 707, 709 (1979) (citing Miranda, 384 U.S. at 444-45). Not only must the interrogation cease, but law enforcement also may not re-approach the suspect for further questioning until a lawyer has been made available. See Edwards, 451 U.S. at 484 ("[A]n accused, ... having 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, exchanges, or conversations with the police.")

However, the interests protected by Miranda warnings only apply to custodial interrogation. United States v. Wright, 777 F.3d 769, 774 (5th Cir. 2015). A suspect is "in custody" for the purposes of Miranda "when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." Id. at 596. "Two discrete inquiries are essential to the determination: First, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave." UnitedStates v. Cavazos, 668 F.3d 190, 193 (5th Cir. 2012) (quoting J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011)).

"The requisite restraint on freedom is greater than that required in the Fourth Amendment seizure context." Wright, 777 F.3d at 774(citing United States v. Bengivenga, 845 F.2d 593, 598 (5th Cir. 1988)). "Whether a suspect is 'in custody' is an objective inquiry that depends on the 'totality of the circumstances.'" United States v. Ortiz, 781 F.3d 221, 229 (5th Cir. 2015) (quoting Wright, 777 F.3d at 774-75).

The Fifth Circuit has identified factors relevant to the custody inquiry:

(1) the length of the questioning; (2) the location of the questioning; (3) the accusatory, or non-accusatory nature of the questioning; (4) the amount of restraint on the individual's physical movement; and (5) statements made by officers regarding the individual's freedom to move or leave.

United States v. Romero-Medrano, 207 F.Supp.3d 708, 711-12 (S.D. Tex. 2016) (citing Wright, 777 F.3d at 775). No one factor is determinative. Wright, 777 F.3d at 775. In a motion to suppress, the defendant has the burden of proving he or she was under arrest or in custody. United States v. Webb, 755 F.2d 382, 390 (5th Cir. 1985) (citing United States v. Charles, 738 F.2d 686, 692 (5th Cir. 1984) (overruled on other grounds)). An individual's Fifth Amendment right against self-incrimination is only implicated during custodial interrogation. See Wright, 777F.3 at 777. Furthermore, if an individual is not "in custody," a court need not reach the issue of whether the individual's reference to a lawyer was an "unambiguous or unequivocal request for counsel," as required in the suppression context. Id.

The Court will review the three interviews in question and consider the factors set out by the Fifth Circuit to determine whether Hickman was ever "in custody" prior to his arrest.

The First Interview

On June 8, 2019, Hickman agreed to ride with officers to the Choctaw Justice Complex. The purpose of the interview was to analyze the events leading to K.F.'s death. Billie and Special Agent Charles Morrow ("Morrow") of the Federal Bureau of Investigation ("FBI") met with Hickman and advised him of his rights. When advised that he had a right to talk to a lawyer, Hickman asked, "what does that mean?" Morrow responded by saying that Hickman had a right to have a lawyer present and that he could talk to the lawyer for advice and that the lawyer could be present during questioning. Billie explained that it was the police department's procedure to advise people of their rights. Morrow further advised Hickman that he was not under arrest and that he could stop the interview at any time.

Hickman initialed the Advice of Rights form at various places and signed the waiver indicating that he was willing totalk with the police without a lawyer. The first interview was recorded. During this interview, Hickman made a statement indicating that K.F. received her injuries because of a fall in the bathtub while bathing. The interview began at approximately 11:45 p.m. and lasted approximately two and a half hours. Hickman did not have a ride home, so he stayed at the Justice Complex until Billie finished a subsequent interview - with the child's mother, Frazier - at approximately 4:00 a.m. the following morning. At the end of Frazier's interview, Billie asked Hickam to sign a Voluntary Consent to Search form for his house. [ECF No 34-5]. Billie then drove Hickman - who was seated in the front of the vehicle - back to Hickman's home.

The factors weigh against custody for the first interview. When looking at the totality of the circumstances, it is clear that Hickman was not in custody during his first interview. He agreed to ride with Officer Billie to the Choctaw Justice Complex, he was never handcuffed or restrained in any way, he was repeatedly told that he was not under arrest, that he was free to have an attorney present with him, and that he could stop the interview at any time. See Wright, 777 F.3d at 773, 776(finding that a defendant was not in custody when he was questioned without handcuffs and permitted the freedom to remove himself from police questioning).

A suspect who voluntarily accompanies police to the station to talk with them is not automatically deemed to be in custody. See Oregon v. Mathiason, 429 U.S. 492, 493 (1977) ("A suspect who voluntarily accompanies police to the station to talk with them is not automatically deemed to be in custody."). Also, if a defendant is told that he is not under arrest by an agent, it "weighs against a finding of custody." United States v. McNair, 444 Fed.Appx. 769, 770 (5th Cir. 2011); see also United States v. Howard, 991 F.2d 195, 200 (5th Cir. 1993); see also United States v. Wright, 777 F.3d 769, 775 (5th...

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