United States v. Murphy
| Decision Date | 09 May 2016 |
| Docket Number | Case No. 15-10053-02-EFM |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ROBBY ALAN MURPHY, Defendant. |
| Court | U.S. District Court — District of Kansas |
Defendant Robby Alan Murphy is charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Murphy, appearing pro se, now moves to dismiss the indictment against him because he claims it is based on perjured grand jury testimony (Docs. 170 and 178). Alternatively, Murphy moves to suppress incriminating statements that he made while in custody. He argues his statements should be suppressed because they were made involuntarily (Doc. 93) and while he was unlawfully detained (Doc. 172). In addition, Murphy requests that certain property that was seized be returned to him (Doc. 86). For the reasons stated below, the Court denies each of Murphy's motions.
On April 9, 2015, Murphy was arrested on suspicion of attempted robbery. The victim of the robbery was a drug dealer, and substantial amounts of drugs and paraphernalia were found at his home. The victim reported that he had been held up by Murphy and two other persons. He claimed that Murphy and another man brandished handguns and threatened to shoot him. Murphy and his companions fled when the victim's son became aware of the robbery and fired a single gunshot. Murphy and his co-assailants were eventually stopped, arrested, and taken into custody. Murphy was transported to a hospital due to a suspected drug overdose, and was given antipsychotic medication while en route.1 Murphy was released back into police custody late on April 9 and invoked his Miranda right to have counsel present during questioning shortly thereafter. At that point, attempts to interview Murphy ceased. Meanwhile in a separate interview, the robbery victim told police that Murphy and his companion used a .32 derringer and a .38 revolver to rob him, but in reality, a .38 caliber derringer and a .44 caliber revolver were recovered.
On April 10, Kansas District Judge Terry Pullman reviewed an affidavit prepared by Sergeant Kooser to determine whether there was probable cause to hold Murphy. The affidavit recounted the victim's account of the armed robbery and noted that Murphy was a felon who was statutorily prohibited from possessing a firearm. The affidavit contained no mention of the fact that the victim was a drug dealer or had any credibility issues. It also failed to note that the victim's son fired the only gunshot at the scene. Judge Pullman ultimately determined there was probable cause to hold Murphy.
While in custody, Murphy reinitiated contact with law enforcement officers by asking his wife to contact someone "with authority to negotiate his charges."2 On April 14, DetectiveBanning of the Sedgwick County Sheriff's Office and a special agent from the Bureau of Alcohol, Tobacco, and Firearms ("ATF") approached Murphy. They confirmed that Murphy did in fact wish to waive his previously invoked Miranda rights and speak to them. Murphy was read each of his rights, orally acknowledged that he understood them, and waived them. He went on to speak at length with Detective Banning and the ATF agent. The interview was taped, and the Court watched significant portions, but not all, of the videotape. Murphy controlled the conversation and required little prompting from Detective Banning. Murphy spoke coherently and did not slur his words. He did not appear tired or under serious duress. Over the course of the interview, Murphy made several incriminating statements in hopes of receiving some sort of leniency in return. But by the end of the interview, it became apparent to Murphy that his charges would remain unchanged.
On April 28, Sergeant Kooser testified before the grand jury about Murphy's case. A grand juror asked if the victim had correctly identified the guns. Sergeant Kooser replied that the victim described the guns "to a T" when in fact, the victim had been wrong about the caliber of the firearms. The grand jury returned an indictment charging Murphy of possessing a firearm while a convicted felon in violation of 18 U.S.C. § 922(g)(1). On March 1, 2016, the Government corrected this error about testimony regarding the victim's identification of the gun and the grand jury returned a superseding indictment against Murphy. Murphy now moves to dismiss the indictment against him or alternatively, to suppress the statements he made on April 14, 2015.
Murphy argues that the indictment against him should be dismissed because it is based on perjured grand jury testimony. Alternatively, he contends that the statements he made on April14, 2015, should be suppressed because they were made during his pretrial detention, and the probable cause finding justifying that detention was improper. He also claims that his statements should be suppressed because they were made involuntarily.
Murphy has the burden of showing that the grand jury's indictment was based on intentionally perjured testimony.3 And Murphy must demonstrate that there would not have been probable cause for his pretrial detention if material facts had not been omitted from the underlying affidavit.4 But the Government bears the burden of proving that Murphy's confession was voluntarily given.5
Murphy claims that the indictment against him must be dismissed because Sergeant Kooser committed perjury before the grand jury, and the prosecutor failed to correct it. Murphy argues that Sergeant Kooser committed perjury when he claimed that the victim described the guns used in the robbery "to a T" when the victim actually failed to correctly identify their calibers. Murphy contends that this was perjury and was material to the grand jury's decision to indict him. Therefore, he argues that the indictment should be dismissed since it relied on perjured testimony that went uncorrected by the prosecutor.
Even if Murphy's allegations were true, dismissal of the indictment against him would not be warranted. Murphy is facing a superseding indictment that was returned on March 1, 2016. The grand jury that returned the superseding indictment did not hear Sgt. Kooser'sstatement about the guns matching "to a T," and therefore, the indictment that Murphy is facing is unrelated to the alleged perjury he identifies.6
But putting aside the superseding indictment, Murphy's motion is still without merit. To obtain dismissal of an indictment based on perjured grand jury testimony, Murphy must demonstrate that (1) Sgt. Kooser intentionally committed perjury before the grand jury and (2) that such testimony was material to the grand jury's decision to return an indictment.7 Murphy fails to convincingly demonstrate either of these elements. The Government concedes that Sergeant Kooser was mistaken when he testified that the victims identified the firearms "to a T." But there was no evidence that Sergeant Kooser's testimony about the firearms constituted perjury. To commit perjury a witness must (1) give false testimony under oath; (2) concerning a material matter; (3) with willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.8 Murphy fails to demonstrate that Sergeant Kooser's testimony was willfully given with the intent to mislead. Mistake or faulty memory is much more likely. In addition, there is no evidence that Sergeant Kooser's testimony was material to the grand jury's decision. The issue was whether Murphy was a felon who possessed a firearm. The caliber of the firearms is of little import; the victim's description of the caliber even less so. At the end of the day, the grand jury only had to determine whether Murphy likely possessed a firearm. An indictment was probable whether or not the victim correctly identified the caliber of the weapon. The grand jury knew Murphy was a felon, he was identified as the assailant in anarmed robbery, a handgun was recovered from the vehicle he occupied, and that Murphy incriminated himself. Whether or not the victim could correctly identify the caliber of the gun Murphy possessed is inconsequential. There was ample evidence for the grand jury to indict Murphy of being a felon in possession of a firearm.
Since the Government corrected Sergeant Kooser's mistaken testimony with a superseding indictment, and since the mistake was neither intentional nor material, Murphy's motion to dismiss the indictment against him is denied.
Murphy moves to suppress incriminating statements he made while in custody. He claims that the probable cause determination underlying his pretrial detention was improper. And so he argues that the statements should be suppressed because he was being unlawfully detained when he made them.
The Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to detention following an arrest.9 Probable cause exists where the totality of the circumstances demonstrate the probability of criminal activity to a reasonable mind.10 In this case, Judge Pullman reviewed an affidavit prepared by Sergeant Kooser and determined that there was probable cause to hold Murphy. And this Court has already found that this procedure was constitutionally adequate.11 But Murphy argues that the probable cause determination relied on misleading information. More specifically, he contends that material facts were omitted from the affidavit that would have vitiated probable cause. According to Murphy, the affidavit shouldhave noted that the victim was a drug dealer with poor credibility, and that the victim's son is the one who fired the shot.
"[I]t is a Fourth Amendment violation to knowingly or recklessly omit from an affidavit information that would have vitiated probable cause."12 But if the omitted evidence is not material to the probable cause determination, then no violation has occurred.13 If the affidavit...
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