Opinion
CAUSE NO. 3:21-CR-100 DRL-MGG
2022-09-23
UNITED STATES of America, Plaintiff, v. Lawrence LUSK, Defendant.
John M. Maciejczyk, Government Attorney, U.S. Attorney's Office, South Bend, IN, for Plaintiff.
John M. Maciejczyk, Government Attorney, U.S. Attorney's Office, South Bend, IN, for Plaintiff.
OPINION AND ORDER
Damon R. Leichty, Judge
The government charged Lawrence Lusk with unlawfully possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). He seeks to suppress all evidence obtained by law enforcement the day he was arrested. He says law enforcement unreasonably searched his workstation at work without a warrant in violation of the Fourth Amendment and then procured an inculpatory statement in violation of the Fifth Amendment. The court denies the tandem suppression motions.
FACTUAL FINDINGS
The court held an evidentiary hearing on August 10, 2022. See United States v. Coleman, 149 F.3d 674, 677 (7th Cir. 1998). These facts emerge from the evidence and testimony. See Fed. R. Crim. P. 12(d). Additional findings follow in the court's discussion of the arguments.
The government called Mr. Michael Smith, Officer James Wagner, and Officer Alan Wiegand to testify. The government introduced four exhibits: Officer Wagner's body camera video [Ex. 1], Officer Wiegand's body camera video [Ex. 2], Sergeant Daley's body camera video [Ex. 3], and a Google map photo of the business [Ex. 4]. The motions became ripe for ruling after Mr. Lusk filed his supplemental brief on August 24, 2022.
In the early morning hours of April 30, 2021, Mr. Lusk was working as a temporary employee on the third shift at Plastic Solutions, Inc. (PSI) [ECF 35 at 7-8]. He was assigned to a workstation (station 46) with an injection molding press and a table with a small black trash can underneath [id. 10, 20-22]. Approximately forty other employees were also working third shift [id. 9].
After the midnight hour, Shift Manager Michael Smith learned from an employee (Jazmin Garcia) that another employee (Rocio Alcanter) saw a firearm in a Crown Royal bag at Mr. Lusk's workstation [id. 12, 32-33]. The shift manager approached Mr. Lusk to inquire about the gun [id. 12-13]. On this record, based on the shift manager's testimony, Mr. Lusk confirmed he had a firearm [id. 13]. The shift manager told him to remove it from the building immediately [id.].
About 1:00 a.m., the shift manager called police to report that an employee had brought a firearm into the workplace [id. 11, 13-15]. The shift manager met law enforcement outside the PSI building minutes later [id. 15, 39]. Three officers initially arrived: Officer James Wagner, Officer Alan Wiegand, and Officer David Boutsomsy [id. 39]. They arrived in multiple squad cars, without emergency lights [id. 28, 45-46]. Both Officer Wagner and Officer Wiegand wore body cameras that captured footage from their investigation at PSI [id. 40, 55; see Exs. 1A, 2].
The shift manager went inside PSI with Officer Wagner to retrieve Mr. Lusk [ECF 35 at 16, 40]. They found him at his workstation [id.]. Officer Wagner asked Mr. Lusk if he had a weapon on him, and Mr. Lusk said he didn't [Ex. 1A 0:20]. Officer Wagner then patted Mr. Lusk down and found no weapon [id. 0:25]. Officer Wagner instructed Mr. Lusk to exit the side emergency door [id. 0:35]. Once outside, the shift manager departed while the three officers interacted with Mr. Lusk [ECF 35 at 17, 53].
The four men stood near the closed emergency door; it was dark and not a well-lit area [id. 46]. Officer Wagner asked Mr. Lusk if he had a firearm [Ex. 1A 0:52]. He responded, "No [. . .] my female friend had it, she was here, she worked, but she left." [id.]. Officer Wagner asked Mr. Lusk where the Crown Royal bag was [id. 01:31]. Mr. Lusk replied, "It's gone, sir." [id.]. Officer Wagner clarified, "You've already gotten it out of the shop?" Mr. Lusk confirmed, "Yeah." [id.].
About three minutes into the encounter with Mr. Lusk, Officer Wagner asked his full name and for identification [id. 02:32]. Two minutes later, Mr. Lusk asked if he was under arrest [id. 4:50]. Officer Wagner said, "No, you're being detained though, so you're not free to leave yet." [id.]. Officer Wagner asked Mr. Lusk if he had ever been arrested before, and he said yes [id. 5:27]. About seven minutes into the interaction, Officer Wagner said that his sergeant had arrived, and they would wait to hear from him about what to do next [id. 6:38].
About two minutes later, Officer Wiegand returned from speaking with a PSI coworker (Keneisha Rose), at her car parked outside, about the firearm and learned that she could not find it. He said, "Alright, Lawrence, we're going to detain you. Put your hands behind your back. [. . .] It doesn't mean you're under arrest, we're just detaining you." [Ex. 1A 8:52; ECF 35 at 62]. Mr. Lusk asked why he was being detained as the officer placed handcuffs on him [Ex. 1A 9:00]. The officer said his sergeant would speak to him in a moment [id. 9:04].
While the other officers remained with Mr. Lusk outside, Officer Wiegand entered the PSI factory with the shift manager: "You want to let us in? She can't find it in her car, so he probably still has it in here." [Ex. 2 15:15]. The factory floor was brightly lit. They walked to Mr. Lusk's workstation [id. 16:35]. Officer Wiegand immediately found a coat on the table, and the shift manager confirmed it belonged to Mr. Lusk [id.].
Officer Wiegand patted the coat down and found a Crown Royal bag in the pocket [id.; ECF 35 at 57]. Officer Wiegand then put on plastic gloves and took out his flashlight [Ex. 2 17:30]. Officer Wiegand used his flashlight to see into the Crown Royal bag, and he put his right hand inside to move the contents of the bag around [id. 18:28]. The bag didn't contain a firearm.
Officer Wiegand continued his search of the workstation while the shift manager stood nearby [id. 19:05]. Officer Wiegand shined his flashlight underneath the table [id. 19:45]. He walked around the workstation [id. 19:52]. Officer Wiegand stood in the walkway next to the workstation, then squatted, shone his flashlight with his left hand, and picked up a purple Crown Royal bag that was sitting atop of the half-full trash can [id. 20:16]. The drawstring bag was not pulled closed; but, as Officer Wiegand lifted it, the contents could not be readily seen [id.]. The officer used both hands to open the bag and observed the firearm inside [id.].
About 1:23 a.m. (approximately fourteen minutes into the encounter), Sergeant Paul Daley spoke with Mr. Lusk [Ex. 1A 13:52]. They recognized each other and briefly talked about Mr. Lusk's new job and family [id.]. Sergeant Daley said he needed to read Mr. Lusk his rights and would do so on video in the back of the squad car [id. 14:26]. Mr. Lusk again asked if he was under arrest; Sergeant Daley and another officer both said, "No, you're being detained." [id. 14:58]. Sergeant Daley again said that he needed to put Mr. Lusk in a car so he could read him his rights. Sergeant Daley continued, "You don't have to talk to me, but it would be nice if you did." [id. 15:35].
Sergeant Daley directed Mr. Lusk to sit in the back of the squad car [id.]. Officer Wiegand brought Mr. Lusk his coat from his workstation [id. 17:25]. Officer Wagner read Mr. Lusk his Miranda rights [id. 18:48]. Mr. Lusk said he understood his rights [id. 19:17]. The PSI coworker confirmed the firearm was hers [Ex. 2 28:48].
DISCUSSION
A. Fourth Amendment Protection against Unlawful Searches and Seizures.
Pre-revolutionary writs of assistance permitted roving searches for contraband, and such general warrants allowed searches without any particularized evidence of an offense. Colonial Americans reviled the practice precisely because it placed "the liberty of every man in the hands of every petty officer." Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886); see also Maryland v. King, 569 U.S. 435, 466-67, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (Scalia, J., dissenting); Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).
The Fourth Amendment to the United States Constitution stamped out suspicionless searches and preserved the right of the people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; see also Caniglia v. Strom, — U.S. —, 141 S. Ct. 1596, 1599, 209 L.Ed.2d 604 (2021); United States v. Ochoa-Lopez, 31 F.4th 1024, 1026 (7th Cir. 2022). As the text suggests, the Fourth Amendment's touchstone is reasonableness. Lange v. California, — U.S. —, 141 S. Ct. 2011, 2017, 210 L.Ed.2d 486 (2021); United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). The Fourth Amendment protects against the government's unreasonable intrusion into a person's things or of his very person. Florida v. Jardines, 569 U.S. 1, 5, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013); Katz v. United States, 389 U.S. 347, 350-51, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
When law enforcement works to discover evidence of criminal wrongdoing, "reasonableness generally requires the obtaining of a judicial warrant," Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), thereby ensuring that the inferences to support a search are "drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime," Riley v. California, 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). Warrantless searches "are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).
That said, "the Fourth Amendment protects people, not places." Katz, 389 U.S. at 351, 88 S.Ct. 507 (monitoring business call in telephone booth violated caller's privacy interest). "But the extent to which the Fourth Amendment protects people may depend [on] where those people are." Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, 389 U.S. at 351, 88 S.Ct. 507. "But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Id. The Fourth Amendment's protection hinges on whether the person "has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
The government must prove by a preponderance of the evidence that the search complied with the Fourth Amendment, United States v. Peters, 743 F.3d 1113, 1116 (7th Cir. 2014); United States v. Garcia-Garcia, 633 F.3d 608, 612 (7th Cir. 2011), but the Fourth Amendment protects against warrantless intrusions only when an individual has a legitimate expectation of privacy, United States v. Yang, 478 F.3d 832, 835 (7th Cir. 2007). For such an expectation to exist, the individual, by his conduct, must have exhibited an actual expectation of privacy and his expectation must be "one that society is prepared to recognize as reasonable." Id. The defendant objecting to a search bears the burden of proving that he had a legitimate expectation of privacy. Id. "Whether a legitimate expectation of privacy exists . . . must be determined on a case-by-case basis." United States v. Villegas, 495 F.3d 761, 767 (7th Cir. 2007) (quotations and citation omitted).
The parties disagree whether this open workstation, and more particularly the trash can, sourced a legitimate expectation of privacy. Employees may have a reasonable expectation of privacy in their workspace against intrusions by police. See O'Connor v. Ortega, 480 U.S. 709, 718, 731, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987); Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). "As with the expectation of privacy in one's home, such an expectation in one's place of work is based upon societal expectations that have deep roots in the history of the [Fourth] Amendment." O'Connor, 480 U.S. at 716, 107 S.Ct. 1492 (quotations omitted). The circumstances of each case matter, as each Fourth Amendment claim must be examined on its own merit. Given the great variety of work environments, the "operational realities of the workplace . . . may make some employees' expectations of privacy unreasonable." Id. at 717, 107 S.Ct. 1492.
Mr. Lusk hasn't established that he had an actual expectation of privacy in this workstation, much less in the trash can, or that society would recognize his expectation as reasonable. The opaque Crown Royal bag might have the beginnings of a privacy expectation except that Mr. Lusk was so casual with the bag that another employee observed the firearm. Mr. Lusk made little effort to conceal or keep the firearm private. Indeed, when the shift manager inquired about the firearm, Mr. Lusk said he had one. See Yang, 478 F.3d at 835 (the law looks to the individual's "affirmative steps to conceal and keep private whatever item was the subject of the search"); see also Katz, 389 U.S. at 351, 88 S.Ct. 507 ("what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection"). When he interacted with law enforcement, he said the bag was "gone"—perhaps intended to be evasive, but belying any actual intent to sustain his possessory interest or an expectation of privacy.
The workstation was entirely open on the factory floor. There were no walls or locked doors. It was adjacent to a walkway used by all employees. It was adjacent to other nearby workstations. The entire work area was surveilled. In the shift manager's words, "[e]veryone [was] on video," except when in the bathrooms. Some forty employees worked the third shift, and any employee could access workstation 46, though each employee often worked his or her own station.
Each night the shift manager assigned employees their jobs, so Mr. Lusk had no rooted or continuing expectation of privacy in that particular workstation on any given night. Indeed, he had been employed at PSI only a few days to a week by this point. He was classified as a temporary employee. His workstation was subject to change daily at the shift manager's discretion, and each shift brought a different operator to that workstation, making Mr. Lusk's presence there and his uses truly transient except for his eight hours.
The company assigned permanent employees a locker to store personal items, such as cellphones, purses, or jackets. Temporary employees weren't assigned a locker. The company had a policy, reduced to writing, that restricted personal items on the floor, again militating against an actual expectation of privacy, or even a reasonable one that society would recognize, particularly for a temporary employee. This policy wasn't always enforced, but Mr. Lusk had barely been there long enough to create a firm expectation that this policy existed only in name.
Mr. Lusk never maintained the Crown Royal bag (the one with the firearm) in his coat as he did with the other Crown Royal bag, which may have lent greater weight to his argument. Instead, he disposed of the bag and the firearm in the trash can under the open table at this temporary workstation. Though each employee had the job duty of later dumping this trash into a larger refuse bin, until then the trash remained visible to employees and indeed usable. The Crown Royal bag sat atop the trash can, and any manager, passerby employee, snoop, or scavenger could have elected to examine or take the Crown Royal bag for his own. Cf. California v. Greenwood, 486 U.S. 35, 40, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (no reasonable expectation of privacy in trash placed in sealed opaque bags on public street).
This isn't a fanciful thought when the record shows that another employee, the one who reported the presence of the firearm to the shift manager, had just a Crown Royal bag of her own. Mr. Lusk was reported to have two.
Society isn't prepared to call a privacy expectation in trash thrown in an open trash can on an unrestricted factory floor reasonable under the circumstances offered today. The space of this open workstation, as viewed on this record, isn't deserving of the same protection as the curtilage of one's home. See, e.g., United States v. Hedrick, 922 F.2d 396, 399 (7th Cir. 1991). Even in the case of a home, "containers or sheds within the curtilage would not be protected if their contents could be viewed by people routinely passing on the street or overhead," and once more this trash can could be viewed by any number of company employees near a trafficked walkway. Id.; see also United States v. Redmon, 138 F.3d 1109, 1113-14 (7th Cir. 1998) (trash on joint walk-driveway accessible to friends, guests, and neighbors preserved no expectation of privacy).
"[G]arbage placed where it is not only accessible to the public but likely to be viewed by the public is 'knowingly exposed' to the public for Fourth Amendment purposes." Hedrick, 922 F.2d at 400. If the law cannot stomach as reasonable an expectation of privacy in garbage searched in opaque bags inside garbage cans with closed lids sitting between a home and the street, see id. at 397, 400, it can hardly do so here in an even more public setting and unrestricted exposure. See also United States v. Dunkel, 900 F.2d 105, 106-07 (7th Cir. 1990) (no expectation of privacy in trash in dumpster in parking lot outside office used by three dentists and five business tenants), reversed on other grounds, Dunkel v. United States, 498 U.S. 1043, 111 S.Ct. 747, 112 L.Ed.2d 768 (1991); accord United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (preserving Fourth Amendment ruling from original opinion).
Mr. Lusk relies on Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), and United States v. Shelton, 997 F.3d 749 (7th Cir. 2021), to argue that he had a reasonable expectation of privacy in his workstation. The facts prove quite different today. Mancusi determined that a union boss had a reasonable expectation of privacy when he had custody of the papers at the moment of their seizure in his office, consisting of one large room that he shared with other union officials but spent a considerable amount of time using. Mancusi, 392 U.S. at 368, 88 S.Ct. 2120.
Shelton involved a private, fully-enclosed office on the top floor of a secure building, solely occupied by one employee for seven years who kept personal items there and who used the door for privacy. Shelton, 997 F.3d at 760. Employees would knock to enter. At least once, she turned papers face-down on her desk so that a visitor could not see them. See id. Under these circumstances, she "had a reasonable expectation that co-workers . . . and other visitors would not access her office or desk outside of regular office hours at times when she was not present, except for brief and very limited purposes." Id. at 764.
Mr. Lusk had neither a walled office nor possession of the bag or firearm at the time of their seizure. He, a temporary employee of not more than a week, shared this open workstation among employees on various shifts, assigned there only for his particular shift at the discretion of the shift manager. He kept the bag, not under lock and key, not private or hidden, but exposed in an open trash can available to any other passerby on the factory floor, and contrary to company policy. Cf. O'Connor, 480 U.S. at 718-19, 107 S.Ct. 1492 (doctor had reasonable expectation of privacy in his hospital office, desk, and filing cabinets because he did not share them with other employees, he had occupied his office for seventeen years, he kept personal items there, and the hospital had no policy discouraging employees from storing personal effects there). Rather than expecting that no other employee would enter his work area when he was absent, he knew quite readily that other employees would. Because he had no legitimate expectation of privacy, the court denies his motion to suppress.
B. Fifth Amendment Privilege Against Self-Incrimination.
Before being read his Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Mr. Lusk never admitted to possessing a firearm. In fact, he denied it [Ex. 1A 1:31]. However, during his interaction with law enforcement, Mr. Lusk said he, at one point, had a Crown Royal bag at work but that "it's gone" [id. 1:03; ECF 35 at 42-43]. He argues that this statement was obtained in violation of his Fifth Amendment right against self-incrimination because he was subjected to an unlawful custodial interrogation.
The Fifth Amendment to the United States Constitution says no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This prohibition permits a person to refuse to testify against himself in a criminal trial but also "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). If "statements are compelled[,] they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted." Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).
The constitutional right against self-incrimination is not self-executing. McKune v. Lile, 536 U.S. 24, 65 n.10, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). An individual seeking to invoke such protections must assert the privilege. United States v. Swanson, 635 F.3d 995, 1001 (7th Cir. 2011). There are exceptions to this general rule when "some identifiable factor [denies] the individual a free choice to admit, to deny, or to refuse to answer." Murphy, 465 U.S. at 429, 104 S.Ct. 1136 (quotations and citation omitted). Then a failure to invoke the Fifth Amendment can be excused. Id. An exception exists when statements are made during unwarned custodial interrogations, and Mr. Lusk argues this exception because he otherwise never invoked the Fifth Amendment. See id. at 429-30, 434, 104 S.Ct. 1136. The government argues that law enforcement's initial interaction with Mr. Lusk was a proper investigatory stop (not a custodial interrogation), and alternatively that the public safety exception applies.
"[T]he Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during 'custodial interrogation' without a prior warning." Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). Miranda warnings include the right to remain silent, the right to have an attorney present, and the right to have an attorney who is retained or appointed. Miranda, 384 U.S. at 444, 86 S.Ct. 1602. "Miranda warnings are not required merely because the individual questioned by law enforcement officers is a suspect or is the focus of a criminal investigation." United States v. Jones, 21 F.3d 165, 170 (7th Cir. 1994) (citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)). A suspect must be both in custody and subject to interrogation to trigger the Miranda warnings requirement. United States v. Burns, 37 F.3d 276, 280 (7th Cir. 1994); see also United States v. Shlater, 85 F.3d 1251, 1256 (7th Cir. 1996) (custody is a prerequisite).
An individual is considered in custody when subjected to a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (quotations and citation omitted); United States v. Yusuff, 96 F.3d 982, 987 (7th Cir. 1996). This is an objective test that asks whether a reasonable person in the circumstances would have believed he was free to go, not whether the particular defendant believed so. United States v. Salyers, 160 F.3d 1152, 1159 (7th Cir. 1998).
The court must consider the totality of the circumstances. United States v. Patterson, 826 F.3d 450, 455 (7th Cir. 2016) (citing Howes v. Fields, 565 U.S. 499, 508, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012)). Factors relevant to a decision include "the location of the interrogation; the duration of the interrogation; any statements made by the suspect during the interrogation; any use of physical restraints during the interrogation; and whether the suspect was released at the end of the interrogation." Id. (numbers omitted). Such factors could also include, without limitation, "whether the encounter occurred in a public place; whether the suspect consented to speak with the officers; whether the officers informed the individual that he was not under arrest and was free to leave; whether the individual was moved to another area; whether there was a threatening presence of several officers and a display of weapons or physical force; and whether the officers' tone of voice was such that their requests were likely to be obeyed." United States v. Littledale, 652 F.3d 698, 701 (7th Cir. 2011) (citing United States v. Snodgrass, 635 F.3d 324, 327 (7th Cir. 2011)).
Mr. Lusk seeks to suppress his implied admission that he, at one point, had the Crown Royal bag at work but no longer did [ECF 36 at 2 (citing Tr. 42-43)]. This statement occurred before he was placed in handcuffs. During this time, he was questioned outside the business by three officers, Officers Wagner, Wiegand, and Boutsomsy. The officers wore their standard clothing and gear. Their squad cars were parked in the nearby parking lot. It was dark, around 1:00 a.m., and not in a well-lit area. There never was a display of weapons or force. The officers were courteous.
The statement came about one minute after officers first encountered Mr. Lusk. At 1:09:55 a.m., Officer Wagner walked into the factory and asked Mr. Lusk if he had anything on him [Ex 1A 0:24]. Mr. Lusk said he did not, and Officer Wagner proceeded to pat him down [id. 0:25]. This was consistent with the law. "An officer conducting a Terry stop may pat down a suspect in order to search for weapons, but only if specific and articulable facts support a suspicion that the suspect is armed and presents a danger to officers or to others." United States v. Shoals, 478 F.3d 850, 853 (7th Cir. 2007) (quotations and citation omitted); see also Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
At 1:10:06 a.m., Officer Wagner asked Mr. Lusk to step outside [Ex. 1A 0:35]. Once outside, the officers asked Mr. Lusk what station he was working (46) and whether he had a firearm on him (no) [id. 0:47, 0:53]. Officer Wagner explained that they were called to PSI because somebody reported that Mr. Lusk had a firearm [id. 0:59]. Then, at 1:11:02 a.m., Officer Wagner asked Mr. Lusk where the Crown Royal bag was [id. 1:31]. Mr. Lusk said, "It's gone, sir" [id.].
Mr. Lusk argues that this statement was inculpatory. He points to no other admission that he seeks to suppress. As such, the court need only consider whether Mr. Lusk's encounter with law enforcement up to the time this statement was made was custodial. See Jones, 21 F.3d at 170. The court need not consider later facts—that officers told Mr. Lusk he was being detained, that he was not free to leave, that he was handcuffed, or that he was placed in the back of a squad car—that may have transformed the interaction with law enforcement into a custodial interrogation when none of his statements during this later time prove of concern.
Given the totality of the circumstances, the encounter with law enforcement up to the statement about the Crown Royal bag wasn't custodial. Though three uniformed officers questioned Mr. Lusk in a poorly-lit area, after moving him to another place outside the factory floor, they didn't use any physical restraints or display their weapons. It was conducted in an open area of the parking lot, not in a squad car or police station. Officer Wagner was the only one to pose questions to this point, and he did so in a conversational, courteous manner. Mr. Lusk made the statement at issue just one minute into his encounter with law enforcement. No officer had informed him at this point that he could not leave.
The exclusion of incriminating statements isn't appropriate "outside the context of the inherently coercive custodial interrogations for which it was designed." Roberts v. United States, 445 U.S. 552, 560, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980). Here, Mr. Lusk was not in custody for purposes of receiving Miranda warnings when he said that the Crown Royal bag had been in the workplace but wasn't any longer. A reasonable person in Mr. Lusk's situation would not have thought himself in custody then. Accordingly, the court must deny the motion to suppress this statement.
CONCLUSION
Law enforcement had the constitutional authority to search Mr. Lusk's workstation and Crown Royal bag in the trash can, so the firearm wasn't recovered in violation of the Fourth Amendment. Given the totality of the circumstances, the encounter with law enforcement up to the statement about the Crown Royal bag was not custodial, so the statement wasn't taken in violation of the Fifth Amendment. The court thus DENIES both suppression motions [ECF 21, 22].
SO ORDERED.