Opinion
Case No. 02-40050-01-JAR
October 17, 2002
MEMORANDUM ORDER AND OPINION DENYING DEFENDANT'S MOTIONS TO SUPPRESS
This matter is before the Court on Defendant's Motion to Suppress Evidence (Doc. 21) and Motion to Suppress Confession or Admission (Doc. 20). On September 30, 2002, the Court held an evidentiary hearing regarding these issues. At the conclusion of the hearing, the Court took the motions under advisement. After due consideration of the parties' filings and the admitted evidence, the Court is now prepared to rule on the motion. For the following reasons, defendant's motions are denied.
I. Background
On March 11, 2001, acting on unconfirmed intelligence of unknown reliability, Officers Souma and Garman of the Topeka Police Department narcotics unit went to 1809 S.W. Burnett in Topeka, the site of alleged trafficking of drugs and stolen property. Having insufficient information to obtain a warrant, they went there with the goal of conducting a "knock and talk," asking whomever they contacted there questions designed to determine whether the intelligence had any basis. Because of the late hour (it was about midnight), the officers drove past the house twice, and seeing lights on in the residence, decided that it was appropriate to knock on the door. As they walked up the driveway of the residence, the officers were attired in street clothes, along with their police vests. Officer Garman wore an overcoat, so his police vest was not visible, unless he opened his coat. Officer Souma wore no coat, so his police vest was visible outer wear. The vest had "police" in small 1-inch reflective letters on the front of the vest; and "police" in larger, 3-inch reflective letters on the back of the vest. Unbeknownst to the officers, the defendant saw them walking up the driveway by way of a videocamera system he had installed in the detached garage in the back of the house. The officers shined their flashlights in the windows of a vehicle parked in the driveway, a customary practice to ensure no one occupied the vehicle who might pose a risk to their safety during the "knock and talk." By all accounts, the driveway and curtilage of the house was dimly lit. The defendant could not tell they were police officers, and suspected that they might be there to steal his car. The defendant testified that he installed the videocamera system because his car had been burglarized before.
With some commotion, the defendant and his friend, Jeremy, ran out of the garage, through the back yard, and through the door in a privacy fence, towards the officers who were standing on the driveway. This alarmed the officers, who immediately identified themselves as police and ordered the two men to stop. Officer Souma drew his weapon. While the two men did not stop immediately, they slowed down, and Officer Garman observed the defendant appear to stick his hand in his pant pocket and then observed an object being thrown down on the driveway.
For purposes of officer safety, Officer Garman handcuffed the defendant and Officer Souma handcuffed Jeremy. After they handcuffed the men, Officer Garman recovered the object that defendant had thrown on the driveway: a bag of marijuana. The defendant's mother, Teresa Bartley and her boyfriend, Clarence Dennis came out of the house at this point. The officers called for backup and three narcotics officers soon arrived. Officers Garman and Souma, knowing that the defendant and Jeremy had come from the back yard area, decided they needed to secure that area, for two reasons: officer safety and to prevent any other subjects from destroying any evidence that might be on the premises.
With guns drawn, officers Souma and Garman went into the backyard through the open door of the privacy fence. They spotted a light coming from the detached garage, and entered through a side door of the garage. The front area of the garage was full of "junk" and the back area of the garage was furnished like an apartment. It was in the back area of the garage that defendant had a couch, television, and the videocamera monitoring system set up.
Assuring themselves that there were no other individuals present, the officers returned to the driveway where the defendant, Jeremy, and the other officers were. However, during their brief sweep of the garage, Officer Souma saw in plain view in the back area of the garage, the barrel of a shotgun next to a couch, and a small bag of white powder that he believed to be methamphetamine, sitting next to the television and videorecorder. The defendant testified that the shotguns were enclosed in zipped up cases and were under the couch such that Souma could not have seen them in plain view. In the front of the garage, Officer Souma saw in plain view a lot of electronics equipment, cameras, "palm handhelds" and videorecorders, as well as a lot of "junk" stacked high to the ceiling. The officers did not touch anything and did not start seizing or collecting any of this evidence at that point.
When they returned to the driveway, Officer Souma Mirandized the defendant and asked him where he lived. The defendant gave him conflicting information: that he lived in the garage; that he lived in the garage sometimes but had no control of it because it was his mother's house; and that the garage belonged solely to him and that his mother had no control or access to the garage. In view of this conflicting information, Officer Souma and Garman decided to seek consent to search from everyone with a potential interest: the defendant, his mother, and his mother's boyfriend. Officer Garman explained to the mother and boyfriend why the police were there and what they wanted to do. The mother and boyfriend were cooperative and signed consents to search. Officer Garman did not threaten or coerce them. The mother seemed to comprehend her rights. In fact, Officer Garman so thoroughly explained to the mother her right to deny her consent, that the mother asked him if he was trying to talk her out of giving consent. The mother told Officer Garman that the defendant stayed in the garage from time to time, but also stayed with his girlfriend, and also lived in his car; that he had no residence established. She gave the officer the impression that she was in control of the entire property, but the officer did not ask her if the defendant had exclusive control of the garage during the times he stayed there. The defendant testified that during this particular period, however, he was living in the garage and that although he spent the night at his girlfriend's sometimes, his mailing address was at his mother's house. He further testified that he had complete and exclusive control and access to the garage. His mother gave him the key and he also had a padlock; and not even his mother could gain access without his permission.
Meanwhile, Officer Souma asked the defendant for consent. The defendant testified that he was still angry and uncooperative at this point, and only agreed to give consent to search his car. He testified that he pointedly told the officers that unless they had a warrant they could not search and had to leave the premises. Officer Souma testified that the defendant had calmed down by then and freely and voluntarily granted consent to search the premises and vehicle. The consent form is filled out with two different pens. The defendant testified that his signature appears on the consent form. His signature, as well as the signature of the witness, was accomplished with a heavy, felt tip pen, apparently the same pen used to fill in his name and the description of his vehicle. Another pen was apparently used to fill in the defendant's name, the names of the searching officers and the address of the premises to be searched. The defendant testified that when he and the witness signed the consent form, the only information filled in was for the vehicle, because he did not consent to search of the premises. The officers deny that the defendant did not give them consent to search residence, garage and car. They deny that the defendant signed the form before it was completely filled out.
When the defendant was asked why he later freely answered questions about the source and probable stolen nature of the items recovered from the garage, he testified that there was nothing he could do at that point, the items had already been seized. Yet he also testified that the officers had begun seizing items even before they asked him to consent to search of the garage.
After the consent forms were signed, the search commenced. As the officers were recovering the electronics equipment, guns and other items in the garage, Officer Souma Mirandized the defendant; the defendant acknowledged understanding his rights and agreed to be interviewed. The defendant admitted that he had a prior felony conviction. In Souma's initial interview of the defendant, the defendant told him who he received the electronics equipment from and that it was likely the property was stolen, because his source is a car burglar. The defendant agreed to talk to Detective Biggs of the stolen property unit, so the officers called Biggs to the scene.
Thirty minutes later, after Souma had seen what was seized from the garage, he decided to reinterview the defendant. Souma again Mirandized the defendant; the defendant again waived his Miranda rights. This time the defendant admitted that the methamphetamine, a methamphetamine pipe and the marijuana were his, which he had for personal use. He also admitted that two shotguns seized from the garage were his; and that someone gave him these two shotguns for free. At that point Souma ended his interview of the defendant and the defendant was transported to the police department to be interviewed by Detective Biggs.
Detective Biggs videotaped his entire interview with the defendant on March 11, 2001. He began his interview by Mirandizing the defendant again; the defendant waived his Miranda rights. During the interview, the defendant again admitted that he received the shotguns from another person and admitted that he knew that the property seized from the garage was most likely stolen. He also told Detective Biggs that he "stayed" at the garage. At the onset of the interview, Detective Biggs asked defendant if he had received his Miranda warnings at the scene of the arrest. Defendant responded that he had. Detective Biggs advised the defendant that he wished to Mirandize him again, to ensure he was aware of all of his rights. Detective Biggs administered a Miranda warning and asked the defendant if he understood his rights. The defendant said he did. Detective Biggs asked him whether, knowing his rights, was he willing to talk to Detective Biggs at that time. The defendant responded that he was. The interview proceeds with conversation about Detective Biggs having contact with the defendant on an arrest approximately five years earlier. The two discuss his old residence, his girlfriend, his child and the type of car he drove at that time. The conversation is very relaxed and friendly, with the defendant offering more information than Detective Biggs was asking for. As the interview proceeds to the substance of this case, the defendant remains very calm, as does Detective Biggs. The two use normal conversation voices and the conversation flows back and forth in an apparently cordial fashion. At no time does the defendant act hostile or resistant and Detective Biggs does not act forceful or coercive. The defendant appears more than willing to talk to Detective Biggs and answer any questions put to him.
II. Discussion and Analysis
Defendant's motion alleges that any statements taken from him by police officers were taken by coercion and without properly advising him of his Miranda rights. Although the defendant's motion speaks of statements taken from him on May 22, 2002, the date is apparently a typographical error, for the body of his motion refers to statements taken from him on the date of his arrest by officers at the scene and later at the police department by Detective Biggs, all of which occurred on March 11, 2001, the same date that defendant's mother's residence was searched and defendant was arrested.
384 U.S. 346 (1966).
In the suppression hearing, the defendant testified that on March 11, 2001, the officers Mirandized him three times, twice at his mother's residence and again after they transported him to the police department that same day. The defendant testified that he understood his rights March 11, 2001, when the officers Mirandized him, but was coerced to speak to them because they threatened to arrest his mother if he did not answer their questions about a bag of marijuana seized from the driveway and suspected stolen property found in the garage behind his mother's house. The officers deny threatening the defendant with his mother's arrest, or making any other threats to coerce the defendant to answer their questions. Officer Garman admits that he mentioned to the defendant that if the evidence was linked to his mother, she could be in jeopardy. The defendant testified that he was not going to let his mother be implicated in anything, and that he was concerned about her, as she was suffering from cancer. But, nothing suggests that whatever Officer Garman or others said to the defendant could have reasonably been construed as a threat to him or a threat to his mother.
The defendant's testimony is internally inconsistent. On the one hand, he wants the Court to believe that he submitted to questioning because of the officers threats; and that he consented to the search of his car because he felt powerless. Yet, he also wants the Court to believe that he had the wherewithal to deny consent to search the garage and to order the officers off his property. As the proverbial saying goes, he cannot have it both ways. This attempt to convince the Court to suppress the search of the garage and the interview because of coercion, while also attempting to convince the Court that he dictated when and what they could search, only illustrates the incredibility of defendant's testimony. Having observed the defendant's demeanor, and having evaluated his statements, both on their face value and in light of his demeanor, the Court concludes that the defendant's testimony is not credible. The Court believes Officers Garman and Souma, who testified that the defendant consented to the search of car and premises, as did his mother and her boyfriend. The Court believes that the consents were obtained without threat, duress or coercion. The Court believes that the officers did not conduct a search until they had obtained consents, but that based on what Officer Souma saw in plain view during their protective sweep, the officers had every right to seek consensual searches. The Court further believes that the officers did not obtain statements from the defendant by undue pressure or coercion. They Mirandized him three times within the period of a few hours. The information he gave them was admittedly given in a cooperative and calm manner. Nothing suggests that the defendant feared for himself or his mother when he gave these statements. Perhaps he was concerned that his mother would be implicated for something she had nothing to do with. But that is not the type of concern that constitutes coercion that renders a statement involuntary. Rather, it is the reasonable concern of a son who admits that the drugs and property were in his possession and control and that his mother had no knowledge of either. His concern for his mother's welfare is admirable, but the evidence does not demonstrate that he was coerced to admit his own culpability simply to save his mother from implication. In fact, nothing in the evidence suggested that the mother was linked to the drugs or stolen property, as Officer Garman testified. Because nothing suggests that the defendant was under duress, deceived, tricked, or the victim of police misconduct or physical threats, his motion to suppress confession or admission is denied.
United States v. Wright, 2001 WL 963994 (D.Kan. Jun. 29, 2001) (unpublished opinion).
Id. (Statement not coerced when officers did not advise defendant his confession was necessary to prevent his wife's arrest. And officers took no action to indicate the two were related.)
United States v. Glover, 104 F.3d 1570, 1583-84 (10th Cir. 1997).
As for the consensual search of the premises, nothing suggests that the defendant was defrauded, tricked, or coerced into signing a consent form for the search of the premises and the vehicle. And, nothing suggests anything other than the mother and boyfriend also gave voluntary consents without coercion or undue pressure or misconduct. Thus, whether or not the garage was in the exclusive control of the defendant or his mother, the officers were authorized to search the garage, having obtained the consent of both.
Even if the Court were to find that the mother and boyfriend lacked standing to grant consent and that only the defendant could consent to search of the garage, the Court concludes that the evidence shows that the defendant granted consent without coercion, fraud, trickery or police misconduct.
III. Conclusion
For the reasons and authorities set out above, defendant's motions are denied.
IT IS THEREFORE BY THIS COURT ORDERED that the defendant's Motion to Suppress Confession or Admission and Motion to Suppress Evidence Seized from Residence (Docs. 20 and 21) are denied.