United States v. Wesley, CR-16-01836-001-TUC-DCB (EJM)

• Decision Date: 22 January 2018
• Docket Number: No. CR-16-01836-001-TUC-DCB (EJM),CR-16-01836-001-TUC-DCB (EJM)
• Citation: United States v. Wesley, No. CR-16-01836-001-TUC-DCB (EJM) (D. Ariz. Jan 22, 2018)
• Parties: United States of America, Plaintiff, v. Celina Facio Wesley, Defendant.
• Court: U.S. District Court — District of Arizona

United States of America, Plaintiff, v. Celina Facio Wesley, Defendant.

No. CR-16-01836-001-TUC-DCB (EJM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

January 22, 2018

ORDER

Defendant is charged in a two count Indictment with making false statements in connection with the purchase of firearms in violation of 18 U.S.C. § 922(a)(6) and 924(a)(2). Defendant filed a Motion to Suppress incriminating statements related to the offenses. Magistrate Judge Markovich held an evidentiary hearing and issued a Report and Recommendation (R&R). He recommended this Court deny the Motion to Suppress. After a de novo review of the motion briefs, the transcript of record, and the audio taped statements, the Court does not adopt the R&R. The Court grants the Motion to Suppress.

During a murder investigation, Tucson Police Department, Detective Cheek, interviewed Defendant as a witness. Police had been informed that she was the girlfriend of the murder suspect; that she was with him following the murder, saw him pour bleach over the murder weapon, take it apart, and drove him around so he could dispose of the gun parts in different locations throughout town. Surveillance footage from the murder scene showed the suspect was driving her car. Police surveilled her residence, followed her in an unmarked police car, and pulled her over with flashing lights at a Quick Trip gas station/market. (Motion to Suppress, Transcript of Record (TR) at 78 (Wesley testimony), but see (TR at 33) (Detective Cheek understood from the surveillance officers that she stopped at the Quick Trip of her own accord). There were several plainclothes officers; Detective Cheek could not recall but thought there were two or three, with others being undercover (TR at 10), but Wesley reported seven or eight officers at the Quick Trip (TR at 79). Detective Cheek asked her if they could ask her some questions; "he kept telling [her] you're fine, we just want to ask you a couple of questions and whatnot." (R&R (Doc. 55) at 80.) She agreed.

Defendant was with another person when she was stopped at the Quick Trip. He was the anonymous source that had tipped police off regarding her involvement. Police asked to interview him too. He took Detective Cheek aside and asked if the interview could be conducted in a more private place because the suspect lived in the neighborhood of the Quick Trip. (TR at 11.) Defendant was not privy to this conversation. Detective Cheek then asked the two to come to the police station for questioning. They did so. The two were separated and transported in unmarked police cars to the police station. Defendant was not hand cuffed.

Defendant testified that she agreed to answer questions, but that police did not tell her that she did not have to answer any questions or that she did not have to go to the police station to answer the questions. It is undisputed, she was not Mirandized. When the Defendant left for the police station to be questioned, she knew that she was not being allowed to drive her car there. Police told her it would remain at the Quick Trip while she was answering questions at the police station. In fact, police intended to obtain a warrant for it to be towed and searched, regardless of whether Defendant agreed to answer questions based on the suspect's use of the vehicle, and this is what happened. Police allowed her to make arrangements for her mother to come pick up her two small children, who were in the car when she was stopped. She left her children with police before her mother arrived.

At the police station, Defendant was placed by herself in a formal interview room with a table where suspects could be handcuffed to it, but she was not handcuffed or otherwise restrained. The door was shut but officers periodically checked on her to bring her water, etc. Defendant waited for approximately 30 minutes while police interviewed the other person. Then they interviewed her. About half way through the interview, Detective Cheek asked her if she knew where the suspect obtained the gun used in the murder. Detective Cheek was "kind of surprised," (TR at 69), when she admitted the gun was hers. In response to further questioning (approximately 10-15 minutes), she admitted she bought the gun for the suspect for him to protect himself because he could not buy a gun because he was a convicted felon. Detective Cheek surmised this purchase was probably not the only time she had bought him a gun, and she admitted to having previously purchased another gun for him. Subsequently, the Tucson Police turned this information over to ATF. The federal firearm charges are based on these two admissions and the corresponding Form 4473s, where she allegedly falsely stated she was the actual buyer. The statements are the subject of the Motion to Suppress.

At the suppression hearing, Detective Cheek explained that he asked Defendant questions about the gun because the suspect was a convicted felon, who could not buy a gun, and Detective Cheek wanted to establish that the suspect had access to a gun and what type of gun. This was important to confirm the suspect was the shooter by matching forensic evidence from the murder scene to a gun in the suspect's possession. Detective Cheek was also trying to establish the element of premeditation so information about when and why the gun was purchased was relevant. Detective Cheek testified that Defendant was the key witness in the state case because her purchase information connected the suspect to the type of gun used in the murder.

It is abundantly clear from reviewing both the transcript from the motion hearing and the audio recording of Detective Cheek's interview with the Defendant that he considered her a witness in his case and not a suspect. He clearly intended to use her as such. It is also clear that she was concerned about her own criminal liability. She asksseveral times whether or not she is in trouble, including expressly asking if she is in trouble for buying the suspect the gun. She says she did not know he would kill someone. Detective Cheek assures her that he believes her, and he is only questioning her as a witness, a cooperating witness to the murder. While Detective Cheek justifies his questions as all relevant to his murder investigation, he has no such justification for his questions related to other guns purchased by the Defendant not related to the murder. Detective Cheek admitted to knowing that the Defendant was making incriminating statements. (TR at 58-59.)

The Magistrate Judge found there was no duress: Detective Cheek was very nice, polite, and sympathetic. Defendant was asked to cooperate and she did. This is true, but it ignores that Detective Cheek knew the Defendant might have potentially incriminating evidence; she was with the suspect following the murder and helped him dispose of the weapon. The Court finds that Detective Cheek, an experienced law enforcement officer, did not Mirandize the Defendant because he decided to use her as a witness in the murder case. The Court's concern is that the assurances given to her by Detective Cheek that she was not in trouble and was only being questioned as a witness induced her to incriminate herself.

It is not an issue of whether any promise by Detective Cheek, a state agent, is binding on the federal prosecutor: clearly, it is not. Here, the question is one of fundamental fairness. This doctrine may operate to require dismissal, if a defendant's reliance on a promise subjects him to subsequent prosecution or other related detriment. Cf., State v. Bryant, 42 P.3d 1278, 1285-86 (Wash.2002) (finding, even though Snohomish County was not bound by immunity agreement defendant reached with King County, immunity agreement would be enforced and Snohomish County charges dismissed where the defendant's incriminating statements made in reliance on the agreement led to subsequent prosecution); Ramallo v. Reno, 931 F. Supp. 884, 892-93 (D.C. 1996) (fundamental fairness doctrine applied to promise to not deport the plaintiff where she "severely compromised her own safety by cooperating with the government,"would be in danger if she were deported, and relinquished her right to a full hearing before the Immigration Judge as a result of the cooperation agreement); see also Rowe v. Griffin, 676 F.2d 524, 527-28 (11th Cir.1982) ("We believe that, as a matter of fair conduct, the government ought to be required to honor [an immunity] agreement when it appears from the record that: (1) an agreement was made; (2) the defendant has performed on his side; and (3) the subsequent prosecution is directly related to offenses in which the defendant, pursuant to the agreement, either assisted with the investigation or testified for the government.").

The Court does not necessarily find that Detective Cheek promised the Defendant immunity, but does find that under the circumstances, especially given the absence of advice related to her constitutional Miranda rights, the Defendant relied on Detective Cheek's assurances that she would be fine as long as she told the truth and understood his assertion that she was only being questioned as a witness to mean she would not be charged for any crime related to the conduct which was the subject of his questions. She gave incriminating answers which in fact form the very basis of this subsequent prosecution. The Government intends to use the statements against her and the Form 4473s which but for her incriminating statements would not be in evidence. The Court finds that the doctrine of fundamental fairness arguably applies.

At the very least, Detective Cheek's assurances to Defendant that she was fine, and she could answer truthfully without worrying about getting into trouble, should have been considered by the Magistrate Judge as coercive. See Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347-48 (1963) (describing long standing constitutional principle that prosecution must establish guilt by...