US v. BETONE, CR. 09-30011-RAL.
| Decision Date | 27 January 2010 |
| Docket Number | No. CR. 09-30011-RAL.,CR. 09-30011-RAL. |
| Citation | 686 F. Supp.2d 949 |
| Parties | UNITED STATES of America, Plaintiff, v. Jeffrey BETONE, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Mikal G. Hanson, U.S. Attorney's Office, Pierre, SD, for Plaintiff.
Defendant moves (Doc. 47) to suppress statements that he allegedly made to FBI Agents Oscar Ramirez ("Ramirez") and Michele Lakey ("Lakey") on December 23, 2008. Defendant argues that the statements were made involuntarily and in violation of his due process rights under the Fifth Amendment and in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The matter is before the Court on the Report and Recommendation of United States Magistrate Judge, Mark A. Moreno (Doc. 55). After conducting an evidentiary hearing on December 9, 2009, Magistrate Judge Moreno has recommended that the Defendant's motion to suppress the statement as involuntary be denied. The Defendant has not asserted any objections to the Magistrate Judge's recommendation to deny his motion to suppress the statement.
In considering a magistrate judge's recommendation on a dispositive matter, such as a motion to suppress evidence, a district court must make a "de novo determination of those portions of the report or... recommendations to which objection is made." 28 U.S.C. § 636(b)(1). A de novo review requires a district court to make its own determination of disputed issues. See United States v. Portmann, 207 F.3d 1032, 1033 (8th Cir.2000).
The Court has conducted a de novo review of the record, including the transcripts of the evidentiary hearing on Defendant's motion to suppress the statement (Doc. 56).
On February 11, 2009, Defendant Jeffrey Betone ("Betone") was charged with three counts of sexual abuse, in violation of 18 U.S.C. §§ 2242(2), 2242(1), 2246(2)(A), and 2246(2)(B). The indictment alleges that Betone engaged in a sexual act with a victim incapable of declining participation on or about March 9, 2005, and also alleges that Betone engaged in a sexual act with a second victim by threat on or about May 5, 2008.
Prior to being charged, Betone traveled on his own to the federal building located in Pierre, South Dakota, where he was interviewed by FBI Agents Ramirez and Lakey on December 23, 2008, beginning at approximately 11:11 a.m. Ramirez testified at the motions hearing that he told Betone that he was not under arrest and he was not going to be arrested immediately after the interview. (T. 13).1 Ramirez also advised Betone that the interview was completely voluntary, that Betone could stop the interview or ask the interviewing agents to stop at any lime, and that Betone could leave the interview room or ask the interviewing agents to leave at any time. (T. 13). Finally, Ramirez explained that the doors, though closed, were unlocked. (T. 14). Betone confirmed that he understood each of the advisements made by Ramirez. (T. 17).
After obtaining biographical and background information, including that Betone had completed two years of college, Ramirez questioned Betone about the accusations made against him by one of the alleged victims. At approximately 11:19 a.m., Betone was asked and agreed to provide a buccal swab. Betone initialed and signed a consent to search form prior to providing the sample. (T. 16-17).
Ramirez asked Betone about another alleged victim and then advised Betone of the accusations made against him. At approximately 11:44 a.m., Ramirez asked Betone to provide a summary statement. During the taping of the summary statement, Ramirez and Betone initially spoke about the first victim, with whom Betone admitted having oral sex. Ramirez then initiated questioning regarding the second alleged victim. At 11:56 a.m., Betone requested that the tape recording cease in order for him to take a break, which he then did. (T. 21). The recording reconvened at 12:04 p.m., after which Betone spoke about the second alleged victim, with whom Betone then admitted to having consensual sex. Ramirez testified that he told Betone that he may want to contact Betone in the future. Betone responded that he first wanted to contact an attorney. (T. 25). At no time did Ramirez or Lakey administer Miranda warnings. The interview ended at 12:16 p.m.
Betone has moved to suppress his statement, arguing that it was obtained in violation of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Although Ramirez did not read Betone his Miranda warnings prior to obtaining his confession, "Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him `in custody.'" See United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)). In determining whether a custodial investigation occurred, this Court must conduct an objective custody analysis. See Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (). In this analysis, the Court considers the totality of the circumstances, and ultimately decides whether a reasonable person in the defendant's position would have considered his freedom of action restricted to the degree associated with a formal arrest. LeBrun, 363 F.3d at 723 (citing Feltrop v. Bowersox, 91 F.3d 1178, 1181 (8th Cir.1996)). The Court takes into account the defendant's age, work experience, and education, as well as the circumstances surrounding the interview. Surrounding circumstances which are relevant to the Court's objective custody analysis include whether the defendant voluntarily acquiesced to the law officer's request for an interview, whether the officers told the defendant that he was free to leave and would not be arrested, whether the defendant's freedom of movement was constrained during the interview, and whether the officers ultimately arrested the defendant at the end of the interview. See United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990) ().
As is required by 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of the record. In completing the objective custody analysis, the Court looked to the surrounding facts and determined that the facts do not support a finding that there has been such a restriction on Betone on December 23, 2008, as to render him in custody. Therefore, for the following reasons, this Count finds that the statements were not obtained in violation of Miranda.
Betone drove with his parents to the federal building voluntarily, a factor weighing against custody. (T. 10). The Eighth Circuit has reasoned that when a defendant has ridden to the federal building with law enforcement for an interview, he is "dependant on the authorities for transportation from the federal building," and thus, there is indicia that the defendant's freedom to depart has been restricted. LeBrun, 363 F.3d at 723 (citing United States v. Hanson, 237 F.3d 961, 965 (8th Cir.2001)). On the other hand, when the defendant comes to the police station on his own, the defendant can more easily depart without restriction, weighing against custody. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (); LeBrun, 363 F.3d at 723 (); cf. Hanson, 237 F.3d at 965 (). Betone's voluntary arrival for the interview weighs against a finding that he was in custody during the interview.
The main interviewing officer, FBI Agent Oscar Ramirez, testified that at the onset of the interview he told Betone that Betone was not under arrest, was not going to be arrested immediately following the interview, and Betone could stop the interview or ask the interviewing agents to stop at any time. (T. 13). Ramirez further testified that he informed Betone that he could leave the interview room or ask the interviewing agents to leave at any time. (T. 13). This manner of beginning an interview resembles circumstances in Eighth Circuit decisions holding that an interview was non-custodial, on the basis that a reasonable person in the defendant's position would not think himself constrained after being given this type of information. See United States v. Galceran, 301 F.3d 927, 929 (8th Cir.2002); Thatsaphone v. Weber, 137 F.3d 1041, 1045 (8th Cir.1998). In both Galceran and Thatsaphone, the interviewing officer advised the defendant that the interview was voluntary, that he was not under arrest, and that he was free to leave at any time, liven when an officer neglects to advise the defendant that the interview was voluntary and he was free to leave, the Eighth Circuit has found that an interview may be non-custodial. See Feltrop v. Bowersox, 91 F.3d 1178, 1182 (8th Cir.1996).
Also weighing against a determination that Betone was in custody is the fact that the Defendant was not arrested at the conclusion of the interview. The lack of a defendant's arrest is a "very important factor weighing against custody." Galceran, 301 F.3d at 931. In the circumstances where the defendant was advised that he was free to leave and would not be arrested after the questioning, the pendulum swings strongly in...
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