United States v. Tisby

• Decision Date: 03 April 2023
• Docket Number: 2:22-cr-00088-ART-BNW
• Parties: United States of America, Plaintiff, v. Isaiah Tisby, Defendant.
• Court: U.S. District Court — District of Nevada

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United States of America, Plaintiff, v. Isaiah Tisby, Defendant.

No. 2:22-cr-00088-ART-BNW

United States District Court, D. Nevada

April 3, 2023

REPORT AND RECOMMENDATION

BRENDA WEKSLER, UNITED STATES MAGISTRATE JUDGE

I. Introduction

On March 18, 2022 Las Vegas Metropolitan Police Department detectives observed Isaiah Tisby walk into a Dollar Store while they were surveilling him for the purpose of executing an arrest warrant. Five detectives entered the store and participated in Mr. Tisby's arrest. The detectives were dressed in plain clothes (not police uniforms) to effectuate a covert arrest. The arrest itself was frenzied. Mr. Tisby sprayed bear spray, detectives wrestled with Mr. Tisby through the store knocking over shelves until finally pinning him on the ground, and a taser was deployed (which ended up tasing not only Mr. Tisby, but two detectives as well). In the process of handcuffing Mr. Tisby, Detective Theobald said something like, “what are you doing?” or “why are you doing this?” Mr. Tisby responded by saying something to the effect of, “I don't want to go back to jail.” None of the detectives administered Miranda warnings prior to Mr. Tisby making that statement.

Due to Mr. Tisby's conduct during his arrest, he is charged with assault of federal officers. ECF No. 1. His defense at trial will be that he did not know the individuals at the Dollar Store were law enforcement officers and that he was acting in self-defense. Tr. at 113. However, the statement at issue suggests he did know (at least at some point) that he was dealing with law enforcement officers.

In his motion, Mr. Tisby argues that his statement should be suppressed because he was subject to custodial interrogation when he made it, and no Miranda warnings had been administered. ECF No. 25. He also contends that his statement is not admissible, as it was accompanied by violence rendering it per se involuntary. ECF No. 51.

To decide whether Mr. Tisby's Miranda rights were violated, this Court must determine whether Mr. Tisby was subject to custodial interrogation. This Court finds that he was subject to custodial interrogation but that the public safety exception applies. As a result, his statement was not made in violation of Miranda. Nevertheless, this Court finds that his statement was per se involuntary because it was accompanied by violence and thus, it is inadmissible at trial.

II. The Parties' Arguments

Mr. Tisby argues that he was subject to custodial interrogation when he made the statement about not wanting to go back to jail. ECF No. 25. First, he argues he was in custody once he was wrestled to the ground by several LVMPD detectives, tased, and handcuffed. Id. at 9-10. Given Mr. Tisby is being charged with assaulting federal officers, he argues that Detective Theobald's question, “what are you doing,” constituted an interrogation because it was likely to elicit an incriminating response. Id. at 15-16. Mr. Tisby also maintains this was not tantamount to “on the scene questioning” given he was in custody, and that the “public safety” exception to Miranda only applies when trying to ascertain the whereabouts of guns. ECF No. 34. The burden to show the absence of custodial interrogation, according to Mr. Tisby, rests with the government. Id. at 9; ECF No. 44.

Mr. Tisby's second argument is that his statement must be suppressed because it was involuntary.^[1] ECF No. 51. He argues the per se rule of inadmissibility applies as opposed to the totality of the circumstances test, as his confession was accompanied by violence. ECF No. 51 at 2-3. He further argues that there is no need to determine whether the violence caused his confession, as the per se rule is automatically triggered when a confession is accompanied by violence. Id. at 4. His position is that the per se rule is not subject to exceptions: the level of force used or the timing of it are irrelevant. Id. at 4-9. As a result, he argues that his statement cannot be used at all. Id. at 10.

The government takes the opposite view. Its position is that Mr. Tisby was not in custody at the time he made the statement; he was not handcuffed, searched, separated from his belongings, or placed in a patrol car. ECF No. 33 at 4-8. Instead, the government argues that Mr. Tisby was actively resisting arrest. Id. As to interrogation, the government's position is that Detective Theobald's statement was not a question designed to elicit an incriminating response- it was a rhetorical question in response to a startling event made in the hopes of gaining control of Mr. Tisby. Id. at 8-9. In this vein, the government emphasizes that detectives were not there to investigate any matter or obtain statements in furtherance of an investigation (they did not even know Mr. Tisby would ultimately be charged with the instant offense); they were simply there to execute an arrest warrant. Id. Lastly, the government argues that the exchange at hand could be construed as “on the scene questioning” or, alternatively, that the public safety exception applies. Id. As to burdens, the government's view is that the burden to show custodial interrogation is Mr. Tisby's. Id. at n.1; ECF No. 45.

Regarding the voluntariness of the statement, the government argues for the application of the totality of the circumstances test. Id. at 3-4. It also argues that the per se rule only applies if the violence caused the confession Id. at 4 (“Stein . . . demonstrates that the violence is per se coercive only when it causes a confession.”). Furthermore, it contends that the per se rule is not applicable in this case since the violence was not employed as an investigatory technique, but rather to carry out an arrest. Id at 5. Lastly, the government cites several cases it views as factually similar, which found statements to be voluntary even when accompanied by violence. Id. at 5-7. As a result, the government requests a ruling that the statement was voluntary. ECF No. 52.

III. Findings of Fact

On March 18, 2022, Detective Jackson and other LVMPD detectives were tasked with executing an arrest warrant on Isaiah Tisby. Tr. at 29.^[2] After surveilling Mr. Tisby and seeing him go into the Dollar Store, Detectives Magsaysay, Faller, and Beckerle went into the store intending to execute the arrest warrant. Tr. at 14, 29, 66. Detectives Jackson and Theobald entered shortly thereafter. Tr. at 15, 30, 55. Detective Theobald waited a little while before entering the store because she had arrested Mr. Tisby twice before and did not want him to recognize her. Tr. at 54, 67, 68. Detective Jackson had also arrested Mr. Tisby before. Tr. at 13.

A surveillance video captured Mr. Tisby's arrest. Government Exhibit 2. The first six seconds of surveillance show Detective Magsaysay trying to detain Mr. Tisby by putting his arms around him.^[3] Gov. Ex. 2. Mr. Tisby can be seen spraying bear spray into the air and trying to get away.^[4] Gov. Ex 2, 00-06 seconds. As this was happening, Detective Magsaysay lifted Mr. Tisby into the air in an unsuccessful attempt to subdue him. Id. Detectives Faller and Beckerle met Mr. Tisby and Detective Magsaysay in the aisle by the refrigerator on the far-right side of the store.^[5]Gov. Ex. 2, 09-10 seconds.

Within seconds, Detective Jackson approached from the back of that aisle.^[6] Gov. Ex. 2, 11-13 seconds. Detective Jackson was wearing a police vest (Gov. Ex. 2, 8 seconds) and announced himself as “police” before Mr. Tisby was brought down to the ground. Tr. at 17. He told Mr. Tisby to “stop resisting” more than once. Tr. at 24. He also heard others telling Mr. Tisby to stop resisting. Tr. at 17.

At the 15-second mark, detectives were able to get Mr. Tisby to the ground. Gov. Ex. 2, 15 seconds. Four detectives were either on the floor or surrounding Mr. Tisby for several seconds trying to handcuff him. Gov. Ex. 2, 15-43 seconds. During this time, Mr. Tisby was flailing his arms and legs, making it hard for the detectives to handcuff him. Id.

A taser was deployed around the 19-second mark. Tr. at 17, 24. Mr. Tisby was tased. Id. Detective Jackson and another detective got wrapped in the coils and got tased as well. Id.

Detective Theobald approached the area around the 25-second mark. Gov. Ex. 2, 25 seconds. Detective Theobald yelled “Isaiah” around the 30 to 44-second mark while there were at least two to three detectives on the ground with Mr. Tisby. Gov. Ex. 2, 30-44 seconds; Tr. at 57, 61, 62. Detective Theobald does not contest that, within seconds, she said something along the lines of “what are you doing?” or “why are you doing this?” Tr. at 62. In response, Mr. Tisby stated “something to the effect that he just didn't want to go back to jail.” Tr. at 20, 57, 62-63. Detective Jackson was trying to handcuff Mr. Tisby during this exchange and was ultimately able to handcuff him within seconds of this exchange. Tr. at 25, 37. Detective Theobald was directly on top of Mr. Tisby when he made the statement in question. Tr. at 97.

Detective Theobald asked the question to get Mr. Tisby's attention. Tr. at 57. She did not care what Mr. Tisby's answer was-she simply wanted him to acknowledge that she was there and get him to comply while they attempted to handcuff him. Tr. at 57. She was not involved in determining whether Mr. Tisby would be charged with the assault of federal officers. Tr. at 59.

It is not uncommon for individuals in Mr. Tisby's situation to make remarks such as this one (i.e., that they do not want to go to jail). Tr. at 28, 35, 56, 58. In fact, it is routine. Tr. at 28. According to Detective Jackson, when arresting fugitives, no questions are asked because it is not safe and because of Miranda implications. Tr. at 26, 41.

Miranda warnings were not provided during this...