United States v. Salman

• Decision Date: 13 February 2018
• Docket Number: CASE NO: 6:17–cr–18–Orl–40KRS
• Citation: 286 F.Supp.3d 1325
• Parties: UNITED STATES of America v. Noor Zahi SALMAN
• Court: U.S. District Court — Middle District of Florida

286 F.Supp.3d 1325

UNITED STATES of America

v.Noor Zahi SALMAN

CASE NO: 6:17–cr–18–Orl–40KRS

United States District Court, M.D. Florida, Orlando Division.

Signed February 13, 2018

James D. Mandolfo, US Attorney's Office–FLM, Orlando, FL, Roger Bernard Handberg, III, U.S. Attorney's Office Middle District of Florida, Orlando, FL, Sara C. Sweeney, US Attorney's Office–FLM, Tampa, FL, Kevin Christopher Nunnally, U.S. Department of Justice, Washington, DC, for United States of America.

Charles D. Swift, Richardson, TX, Linda G. Moreno, Tampa, FL, Fritz J. Scheller, Orlando, FL, for Noor Zahi Salman.

ORDER

PAUL G. BYRON, UNITED STATES DISTRICT JUDGE

This cause is before the Court on Defendant Noor Salman's Motion to Suppress certain statements made to law enforcement officers on June 12, 2016. (Doc. 107). The Government has filed their Response in Opposition, (Doc. 115), and the Defendant submitted a Reply. (Doc. 132). On December 21, 2016, the Court held an evidentiary hearing on Defendant's Motion to Suppress.¹ (Doc. 163). Upon due consideration of the parties' written submissions and the evidence presented at the evidentiary hearing, the Defendant's Motion to Suppress is DENIED.

I. BACKGROUND

On January 12, 2017, a grand jury sitting in Orlando, Florida, returned a two-count Indictment against Defendant, Noor Salman. (Doc. 1). Count I charges Defendant with aiding and abetting the attempted provision and provision of material support to a foreign terrorist organization, in violation of 18 U.S.C. §§ 2339B(a)(1) and (a)(2). (Id. ). Count II charges Defendant with obstruction of justice, in violation of 18 U.S.C. § 1512(b)(3). (Id. ). The Indictment alleges that Defendant aided and abetted her husband, Omar Mateen, in his attempt to provide material support or resources to the Islamic State of Iraq and the Levant (hereinafter referred to as "ISIL" or the "Islamic State"), culminating in the mass murder of forty-nine civilians and the injury of fifty-three civilians at the Pulse nightclub in Orlando, Florida, on June 12, 2016. (Id. ).

During the early morning hours of June 12, 2016, while authorities were actively investigating the Pulse nightclub attack by Mr. Mateen, the Fort Pierce Police Department made contact with Defendant Salman at her residence, after which her home and vehicle were secured pending the issuance of search warrants. Ms. Salman made a number of statements to the police at the scene, and she later accompanied special agents of the Federal Bureau of Investigation ("FBI") to a local field office where she continued to be interviewed. The Defendant now seeks the exclusion of her statements to local and federal law enforcement officers.

II. THE ISSUES PRESENTED IN DEFENDANT's MOTION TO SUPPRESS

Defendant Salman asserts the following grounds in support of her motion to suppress her statements:

1. The Defendant was unlawfully seized in violation of the Fourth Amendment of the United States Constitution when the officers directed her to sit inside of a patrol car to await the arrival of an FBI special agent.² (Doc. 107, p. 20; Doc. 186, 22:22–24);

2. The FBI's questioning of Defendant Salman while she was seated in the backseat of a patrol car, (Doc. 107, p. 7), and at the Fort Pierce FBI office was custodial and required law enforcement to advise the Defendant of her Miranda rights (Id. at p. 10);

3. The Miranda rights warning provided by SA Enriquez in the absence of "cleansing warnings" was insufficient to cure the taint of her previous un-Mirandized statements (Id. at p. 13); and

4. Defendant Salman's statements to the FBI after Miranda warnings were given were involuntary within the meaning of the Fifth Amendment due process clause. (Id. at p. 16).

The Court will address the facts relevant to each issue presented in the Defendant's motion that were adduced during the suppression hearing, followed by a discussion of the controlling legal principles.

III. STATEMENT OF PERTINENT FACTS

A. The Patrol Car

Lieutenant ("LT") William Hall is in charge of the Fort Pierce Police Department Criminal Investigations Division. (Doc. 184, 19:25–20:3). At approximately 3:13 a.m., he was dispatched to the apartment where Defendant Salman and Omar Mateen resided along with their child. (Id. at 21:6–14). The on-going investigation caused law enforcement to be concerned that explosives and booby traps may be present within the apartment. (Id. at 21:16–21). Upon arrival at the apartment complex, LT Hall called Defendant Salman's phone number and asked if she would come outside to speak with him, to which she agreed. (Id. at 25:1–5).

While LT Hall was armed with a rifle when he called the Defendant, the weapon had been secured by another officer in the trunk of the patrol car before he made contact with Defendant Salman outside of her apartment. (Id. at 26:14–25). LT Hall explained to Ms. Salman that "there was a situation that somebody in Orlando needed to talk to her." (Id. at 27:5–7). Defendant Salman allowed LT Hall to enter her apartment to ensure nobody other than her child was inside. (Id. at 27:7–10). LT Hall looked in the apartment and was satisfied no explosives or threatening individuals were present, and allowed Defendant Salman, who had been waiting in the hall, to go unaccompanied into her bedroom to change her clothing. (Id. at 28:1–15).

After she changed her clothing, Defendant Salman asked LT Hall if she needed her cell phone, and he told her she would not need it and asked if she would leave it on her table which she did. (Id. at 28:22–24). Defendant Salman picked up her son and carried him outside of the apartment.³ (Id. at 29:1). Since it was June, the weather was hot and muggy, so LT Hall told Defendant Salman that she and her son could sit in the back of his patrol car which was running and had air conditioning. (Id. at 29:1–5). His patrol car was parked "almost to the hallway in the parking lot" near the Defendant's residence. (Id. at 29:11–14). LT Hall's vehicle is a "plain white Crown Victoria, no divider in it... [and] it had a regular back seat" (Id. at 30:14–17). That is, his vehicle was not marked and lacked the Plexiglas divider commonly present in marked units. (Id. at 31:2–3). None of the patrol cars had their emergency lights flashing. (Id. at 59:18–23). Only one other patrol car was parked in the parking lot, with the remaining vehicles parked closer to the complex entrance. (Id. at 59:24–60:10).

Defendant Salman sat on the driver side of the vehicle in the back seat, and her son was laying down in the back seat. (Id. at 30:23–31:1). The door to the back seat where Defendant Salman was seated was open, and she was not restrained. (Id. at 30:2–4, 20–22). While Defendant Salman and her son were seated in the vehicle, LT Hall and Officer Trinidad were standing about ten (10) feet away from the vehicle. (Id. at 31:4–10). LT Hall did not search Defendant Salman before she sat in the patrol car. (Id. at 48:20–24).⁴ At one point that morning, Defendant Salman's son needed to go to the bathroom, and the officers suggested to the Defendant that her son could relieve himself near a large dumpster. (Id. at 32:16–25). Defendant Salman exited the patrol car and took her son to the dumpster to urinate. (Id. at 32:24–33:3).

LT Hall testified that Defendant Salman did not ask her to call anyone on her behalf while she was waiting for the FBI agent to arrive. (Id. at 53:9–13). When Defendant Salman asked how long she needed to wait, LT Hall told her it would be a while because people were on their way from Orlando. (Id. at 57:12–18). Prior to the FBI arriving, LT Hall limited his discussions with the Defendant to asking her to describe the type of car her husband had left home in, to which she replied that it was a rental car. (Id. at 31:11–20).

At approximately 5:45 a.m., FBI Special Agent ("SA") Christopher Mayo arrived at the apartment complex. (Id. at 113:21–24). Upon arrival, SA Mayo spoke with LT Hall who advised that Defendant Salman was sitting in his vehicle and further reported that he "hadn't really asked her any questions," but she had volunteered that her husband was very safe with guns. (Id. at 115:18–116:2). When SA Mayo approached Defendant Salman, he observed that "she was sitting with her legs facing out and her feet on the ground." (Id. at 116:10–12). She was not handcuffed or restrained in any way. (Id. at 116:16–17). SA Mayo's firearm was concealed from view during his interactions with Defendant Salman. (Id. at 117:1–9). SA Mayo identified himself to Ms. Salman and obtained biographical data from her. (Id. at 117:12—15). He asked Defendant Salman if she knew the whereabouts of her husband, and Defendant Salman stated that Mateen left the previous night at 5:00 p.m. to have dinner with a friend named "Nemo." (Id. at 118:20–24). The Defendant volunteered that they had just purchased airline tickets, and never asked SA Mayo why he was speaking with her and did not inquire about her husband's health or well-being. (Id. at 119:15–24).

SA Mayo asked Defendant Salman if Mateen had any ill will towards the United States, and she said he liked everyone, even homosexuals because they are sympathetic to Muslims. (Id. at 120:4–14). Defendant Salman's demeanor during this exchange was very calm as was his, and SA Mayo described it as a normal conversation. (Id. at 120:15–19). SA Mayo presented Defendant Salman with a written form used to obtain consent to search her apartment, and she stated that at "that point in time she ... did not want us looking through her apartment," and she declined to give consent to search. (Id. at 121:13–21). SA Mayo knew her apartment had been secured by law enforcement pending issuance of a search warrant, and he explained to Defendant Salman that his office was approximately five minutes away and asked if she would be willing to go to the office to continue talking. (Id. at 122:7–16). Defendant Salman agreed to go to his office, and SA Mayo discontinued his conversations with her...