US v. Durham, Cr. A. No. 90-36-JLL.

• Decision Date: 22 June 1990
• Docket Number: Cr. A. No. 90-36-JLL.
• Citation: 741 F. Supp. 498
• Parties: UNITED STATES of America, Plaintiff, v. Walter A. DURHAM, Defendant.
• Court: U.S. District Court — District of Delaware

741 F. Supp. 498

UNITED STATES of America, Plaintiff, v. Walter A. DURHAM, Defendant.

Cr. A. No. 90-36-JLL.

United States District Court, D. Delaware.

June 22, 1990.

Thomas V. McDonough, Asst. U.S. Atty., Wilmington, Del., for plaintiff.

Jerome M. Capone, Wilmington, Del., for defendant.

MEMORANDUM OPINION

LATCHUM, Senior District Judge.

This motion to suppress presents yet another version of the classic regret, "If I'd only known...."¹ In this case, if he had only known the charges were serious, the defendant would not have surrendered and confessed and would have instead eluded U.S. authorities by fleeing to Peru. Needless to say, there is no law that requires this Court to give constitutional protection to the defendant's contingency plans for an escape to South America. Therefore, for the reasons set forth below, the Court will deny the defendant's motion to suppress.

FACTUAL BACKGROUND

On March 2, 1990, Special Agent Brandt A. Schenken, of the U.S. Treasury Department's Bureau of Alcohol, Tobacco & Firearms ("ATF"), began a federal firearms investigation at Bill's Gun Shop in Dover, Delaware. (See Docket Item "D.I." 10 at 3-4 transcript of suppression hearing.) Through this investigation, Agent Schenken learned that the defendant, Walter A. Durham, had placed a down payment on an SKS 7.62 × 39 Chinese assault rifle. (Id.) Agent Schenken also learned that the defendant had seven prior criminal convictions. (See id. at 4-5.) On March 29, 1990, a warrant was obtained for the defendant's arrest. (See D.I. 1.)

The defendant was contacted and agreed to surrender to ATF agents at Troop 3 of the Delaware State Police in Camden, Delaware. (D.I. 10 at 3.) He arrived at the lobby of Troop 3, as promised, on April 4, 1990, at approximately 2:30 p.m. (see id. at 3, 5), and surrendered himself to Agent Schenken and another ATF Agent named Larry Duchnowski. (Id. at 5-6.) Also present in the lobby at this time were two other ATF agents, as well as a woman named Rashenda Melvin and a boy accompanying her, both of whom had entered the lobby with the defendant. (Id. at 5.)

The defendant was frisked and handcuffed. According to Agent Schenken, the defendant's demeanor at this point was "calm, but yet he seemed nervous, like he was doing something he wasn't used to doing." (Id. at 6.) Agent Schenken later elaborated that "being arrested and turning yourself in ... are two different things." (Id. at 36.) The defendant, Agent Schenken explained, "appeared like he was doing something that he wouldn't be used to doing, which would be turning himself in." (Id.)

After frisking and handcuffing him, Agent Schenken showed the defendant a copy of the warrant and told him he was under arrest for "federal firearms charges, possession of a firearm by a person prohibited." (Id. at 23.) The defendant was thereafter taken to a cell block, where he was strip searched by one of the other ATF agents, Agent Pat Clowry. (Id. at 6.) Agent Schenken was present during this search, which lasted approximately ten minutes. (Id.)

The defendant then dressed, and was taken to be photographed. Agent Schenken and Agent Clowry subsequently took the defendant to a processing room, where he was placed in a belly chain. (Id. at 7.) In the processing room, Agent Schenken told the defendant he had to read him his Miranda rights. (Id.) The defendant replied that "he knew them." (Id.) Agent Schenken told the defendant he still had "to read them anyway," which he then did.² (Id.) At this point, Agent Mark R. Swartswelder, the fourth ATF agent at Troop 3, was also present in the processing room, and it was approximately 2:55 p.m. (See id. at 7-8.)

The defendant said nothing in response to the advisement of his rights. (Id. at 7.) Agent Schenken then placed a standard ATF waiver of rights form in front of the defendant and asked him to read it, which the defendant appeared to do.³ (See id.) The defendant signed the portion of the form that indicated that he had been advised of his rights and that he understood those rights. (See id. at 7-8; see also Government Exhibit 1.) Agent Schenken thereafter read the section of the form that consists of a waiver of the suspect's Miranda rights, and passed the form back to the defendant to read. (D.I. 10 at 27-28.) Agent Schenken testified that he asked the defendant if he wanted to sign the waiver. (Id. at 28.) The defendant did not sign the waiver. (Id. at 9.) According to Agent Schenken, the defendant "stated that he would tell us anything that we wanted to know, but he wouldn't sign anything." (Id.) This response was written down on the signature line beneath the waiver portion of the form, and Agents Schenken and Swartswelder signed the bottom of the waiver form to certify that the defendant had been read his rights and signed the acknowledgement in their presence. (See Government Exhibit 1.)

At approximately 3:00 p.m., less than five minutes after reviewing the defendant's Miranda rights, Agents Schenken and Clowry and the defendant got into a Chevy Blazer automobile to drive to Wilmington for the defendant's initial appearance. (D.I. 10 at 10-11.) Agent Clowry was in the driver's seat; Agent Schenken was in the front passenger seat; and the defendant was seated directly behind Agent Schenken, in the rear passenger seat. (Id. at 11.) The defendant was still restrained by the belly chain and handcuffs which had been placed on him while at Troop 3. (See id.)

After about five minutes in the vehicle, Agent Schenken asked the defendant "to tell him about what had happened...." (Id. at 12.) According to Agent Schenken, a 15 to 20 minute conversation followed during which the defendant confessed to the crimes for which he was arrested. (Cf. id. at 12, 15-17.) The defendant then went on to comment that he had escaped from custody three times, and that "if he thought the charges were serious, he would have gone to Peru and it would have taken a whole crew of you guys to catch me." (Id. at 32-33; see also Government Exhibit 2 at 2.)

On April 24, 1990, the defendant was charged in a two-count indictment with possession of a firearm by a person prohibited (Count I), in violation of 18 U.S.C. § 922(g)(1) (West Supp.1990), and conspiracy in the making of a false statement in connection with the acquisition of a firearm (Count II), in violation of 18 U.S.C. §§ 922(a)(6), 924(a)(1)(B) (West Supp.1990). (See D.I. 2.) The defendant entered a not guilty plea to both counts on May 3, 1990, and thereafter, on May 4, 1990, moved to suppress the statements made by him on the day of his arrest. (See D.I. 5.) The Court held a suppression hearing on May 14, 1990 (see D.I. 7; D.I. 10 transcript), and both sides subsequently submitted letter memoranda in support of their respective positions. (See D.I. 12; D.I. 13; D.I. 14.)

At the suppression hearing, the government presented the testimony of Agent Schenken, along with two exhibits. Government Exhibit 1 is the ATF waiver of rights form discussed above, and Exhibit 2 is Agent Schenken's typewritten report of his interview with the defendant. No other evidence was presented.

DISCUSSION

The defendant seeks to suppress his statements because he contends that he did not waive his Miranda rights and his statements were not given voluntarily. The defendant particularly underscores the fact that "it was apparent to the ATF agents that he was unaware of the serious nature of the charges against him." (D.I. 14 at 2.)

I. Validity of the Miranda Waiver

As most recently characterized by the Supreme Court, Miranda v. Arizona stands for the proposition "that the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during `custodial interrogation' without a prior warning." Illinois v. Perkins, ___ U.S. ___, ___, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990); see also Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966). Miranda is based on the premise that a "danger of coercion results from the interaction of custody and official interrogation." Perkins, ___ U.S. at ___, 110 S.Ct. at 2397; see also Miranda, 384 U.S. at 458, 86 S.Ct. at 1619. Thus, a person who is taken into custody must be warned of his rights prior to any questioning, and must be permitted to exercise these rights at any point throughout the interrogation. Miranda, 384 U.S. at 479, 86 S.Ct. at 1630.

A suspect can, of course, waive his Miranda rights; but such a waiver must be made voluntarily, knowingly, and intelligently. See, e.g., Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410 (1986). The validity of a suspect's waiver of his Miranda rights is assessed in light of the "totality of the circumstances surrounding the interrogation." Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571, 61 L.Ed.2d 197 (1979); see also United States v. Velasquez, 885 F.2d 1076, 1086 (3d Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1321, 108 L.Ed.2d 497 (1990). In analyzing the totality of the circumstances, a court "must look at the facts of the particular case, including the background, experience, and conduct of the suspect." Velasquez, 885 F.2d at 1086 (citation omitted). The government bears the burden of proving the validity of the waiver by a preponderance of the evidence. See Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986).

Two factors must be considered to determine whether the waiver was voluntary, knowing, and intelligent:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

Moran, 475 U.S. at 421, 106 S.Ct. at 1141 (emphasis added). By "consequences of the decision" to abandon his...