Opinion
CAUSE NO. NA 01-17-CR-2 H/N
August 12, 2002
ENTRY ON MOTION TO SUPPRESS
Defendant Augusta S. Colvin has been indicted for conspiring with others to distribute and to possess with intent to distribute more than 1000 kilograms of marijuana from October 1997 to October 2000. Colvin has moved to suppress evidence of any statements he made to law enforcement agents during or following his interrogations and interviews by law enforcement on June 12, 2000 and June 15, 2000. Colvin contends that any statements he made were obtained in violation of his rights under the Fourth, Fifth, and Sixth Amendments to the Constitution. The court held an evidentiary hearing on August 7, 2002. This entry sets forth the court's findings of fact and conclusions of law pursuant to Fed.R.Crim.P. 12(e). As explained, Colvin's motion to suppress is denied.
Findings of Fact I. The Search and Interrogation at Colvin's Home on June 12, 2000
At 2:30 a.m. on June 12, 2000, a judge of the Clark Superior Court issued a search warrant authorizing a search of Colvin's residence for marijuana and related paraphernalia. The search warrant was executed at approximately 4:00 a.m. by eight to ten law enforcement officers. The officers tried to force open the door, but Colvin, who had been awakened by noise, unlocked the door for them. The officers ordered the two occupants — Colvin and his then-girlfriend and now wife, Kelly Robertson Colvin ("Robertson") — to lie on the floor. Both were handcuffed while the officers secured the premises.
The officers decided to keep Colvin and Robertson separate. The officers executing the search warrant knew that Colvin had two prior drug felony convictions and a prior conviction for resisting arrest. The officers took Colvin outside to a deck. They handcuffed him to the deck with his hands behind his back. They took Robertson to the open garage and handcuffed her with her hands in front of her.
Based on the evidence at the hearing, the court finds by a preponderance of the evidence that Indiana State Police Sergeant Myron Wilkerson orally administered to Colvin the Miranda warnings required as a condition for using the results of custodial interrogation as part of the government's case-in-chief at trial. Sergeant Wilkerson and FBI Special Agent Paul Meyer both testified that the warnings were given, and the court finds their testimony on that point more credible than Colvin's contrary testimony. The most persuasive evidence, from Agent Meyer, indicates that Sergeant Wilkerson gave Colvin the Miranda warnings within the first hour or so after the search began. The court also finds that Colvin understood his rights and indicated to Sergeant Wilkerson and Agent Meyer that he understood his rights. Although Colvin has limited education, his prior experiences with the criminal justice system gave him ample grounds for understanding his rights.
After the search had been going on for several hours, Sergeant Wilkerson and Agent Meyer approached Colvin, who told them that he was willing to cooperate. The officers took Colvin off the deck and had him sit on a picnic table away from Robertson and others. He remained cuffed, but the cuffs were removed for a moment to move his hands in front of him. Both Sergeant Wilkerson and Agent Meyer then interrogated Colvin about his involvement and the involvement of others in distributing marijuana in southern Indiana.
The only evidence the court has about the actual content of the interrogation at Colvin's home is Defendant's Exhibit 3, which is Agent Meyer's Form 302 summarizing the interrogation. The Form 302 does not reflect any directly incriminating admissions by Colvin about himself. Nevertheless, Colvin told Sergeant Willkerson and Agent Meyer that he was very familiar with a marijuana distribution operation run initially by Randy Collins, which Colvin said was taken over by Colvin's co-defendants in this case, Lavonna Satchwill and Larry Collins, after Randy Collins died. Colvin provided some information about that operation and, according to Agent Meyer's report, advised that "he would provide additional information to law enforcement agents once he was allowed to get away from his residence and away from his inquisitive neighbors."
II. Later Questioning of Colvin on June 12th
The search turned up evidence that Colvin had rented two off-site storage units. After the search of the residence had been completed, Colvin agreed to accompany Wilkerson and other officers to the storage units. Colvin did not want to leave his residence with law enforcement officers. Colvin intended to cooperate with the investigation of marijuana trafficking. He lived in very close proximity to family members and others, and he wanted to avoid giving the impression that he was cooperating with law enforcement. Colvin and Wilkerson met and then went to the storage units, which were searched with Colvin's consent. Apparently, nothing of interest was found in the storage units. During the searches of the storage units, Colvin was not cuffed or restrained. He was free to leave if he had wished to do so.
After the storage unit searches, Colvin was free and apart from law enforcement officers for a couple of hours or so. He then met Wilkerson, FBI Agent Meyer, and IRS Agent Pat Hinkle in Scottsburg, Indiana, where they began a driving tour of several counties in southeastern Indiana. During the tour, Colvin identified locations associated with the marijuana distribution operation, including the residences of Colvin's own customers. During this tour, Colvin was not cuffed or restrained, and he could have ended the tour at any time if he had wished to do so.
The only information about the content of this interview with Colvin is Defendant's Exhibit 1, which is Agent Meyer's Form 302 for the interview. Colvin repeated his interest in cooperating, and he again implicated Larry Collins and Lavonna Satchwill as the leaders of the marijuana distribution operation. The Form 302 for this interview also indicates, however, that Colvin acknowledged that he had been dealing marijuana for about eight years with the late Randy Collins. Colvin said that he had been making about $200 per pound on marijuana sales, and that he had made about $100,000 by dealing marijuana over the years.
III. Questioning of Colvin on June 15th
Three days later, on June 15th, Colvin went with Robertson to the FBI's office in New Albany. There they met with Sergeant Wilkerson, FBI Agent Meyer, IRS Agent Hinkle, and Detective Amick. Colvin was not in custody during that meeting; he was free to leave at any time. Colvin chose not to answer some questions during the meeting, and he suffered no punishment or coercion for those choices. The only evidence of the content of the June 15th meeting is Defendant's Exhibit 2, which is Agent Meyer's Form 302 for the interview. According to that report, Colvin again admitted that he had been distributing marijuana himself, and he again identified first the late Randy Collins, followed by Lavonna Satchwill and Larry Collins, as his sources.
The meeting on June 15th came after Colvin and Robertson had met with Sergeant Wilkerson at a restaurant near the federal building in New Albany. (Colvin testified that he had only one meeting with the agents after June 12th, and the record, including Agent Meyer's Form 302 from the later interview, plainly indicates the meeting took place on June 15th. The court finds that witnesses who placed that meeting on June 13th were probably mistaken as to the precise date.)
IV. General Matters
During each of the questioning sessions, the court finds, Colvin was trying to cooperate with the law enforcement officers by providing information that would help them. He apparently drew some lines, however, and the agents concluded that Colvin had chosen not to be completely forthcoming on all subjects. After June 15, 2000, Colvin continued to have contacts with the investigating officers. He made some appointments and missed others.
During the hearing on Colvin's motion to suppress, much of the evidence concerned conversations between Sergeant Wilkerson and Colvin and Robertson on the topic of lawyers. The conversations that Robertson had alone with Sergeant Wilkerson are not material here to Colvin's decisions and statements, and the court makes no findings concerning them. During Colvin's talk with Sergeant Wilkerson and Agent Meyer during the search the morning of June 12, 2000, the evidence does not show that Colvin ever made an unambiguous request to have an attorney present for any questioning or to talk to an attorney before questioning proceeded. The court does not credit Colvin's testimony to the effect that Sergeant Wilkerson told him he could not call a lawyer or that Colvin ever said he needed a lawyer. The court also does not credit Colvin's testimony to the effect that Sergeant Wilkerson and Agent Meyer told Colvin on June 12th that he would not need a lawyer if he cooperated.
The court heard evidence from Shirley Ault, who is Robertson's mother and Colvin's mother-in-law. Ault testified that she advised Robertson not to meet with law enforcement and that she and Colvin should have a lawyer. Robertson chose not to follow her mother's advice. Before meeting with Sergeant Wilkerson at a New Albany restaurant on June 15th, however, Robertson used her cellular telephone to call Ault, and she left the telephone on during the first half hour or so of the meeting with Wilkerson, so that Ault was able to eavesdrop on the meeting. During the meeting, Robertson said that she thought she and Colvin needed an attorney for the meeting. Ault and Robertson both testified that Sergeant Wilkerson said they could not have an attorney at the meeting with him and Agent Meyer. The court credits their testimony on this point. Sergeant Wilkerson did not testify to the contrary, and the court heard no evidence regarding cellular telephone records that would confirm or rebut their testimony about whether the conversation was monitored.
Ault testified that the relevant conversations happened on June 12th prior to a meeting on June 13th. The court believes that Ault was mistaken about the precise dates, and that her testimony probably concerns the events leading up to Colvin's and Robertson's meeting with the agents at the FBI office in New Albany on June 15th.
Through the end of the June 15, 2000 interview, Colvin and Robertson never called a lawyer for advice about their contacts with law enforcement. They had ample opportunity to do so at several times if they had wished to do so.
Colvin testified that both Sergeant Wilkerson and FBI Agent Meyer told him that his statements would not be used against him. The court does not credit Colvin's testimony on this point. It is highly improbable that either would have said such a thing, and equally improbable that Colvin would have believed them if they had. Colvin had prior experience with the criminal justice system. The suggestion that either Sergeant Wilkerson or Agent Meyer could have given Colvin what would amount to use immunity is not plausible. The more credible account is contained in Defendant's Exhibit 1, to the effect that Colvin was told that any cooperation would be brought to the attention of the United States Attorney's Office.
Conclusions of Law I. Interrogation at Colvin's Home
When Colvin was handcuffed for several hours during the search of his home, including the interrogation by Sergeant Wilkerson and Agent Meyer, he was in custody for purposes of Miranda v. Arizona, 384 U.S. 436 (1966). For purposes of Miranda, custodial interrogation means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444. Being cuffed to the deck during the search clearly meets that standard, as does being cuffed while being questioned by two officers. See New York v. Quarles, 467 U.S. 649, 655 (1984); United States v. Smith, 3 F.3d 1088, 1097-98 (7th Cir. 1993) (suspect in handcuffs during Terry stop was in custody for purposes of Miranda, despite absence of formal arrest). Cf. United States v. Salyers, 160 F.3d 1152, 1159-60 (7th Cir. 1998) (defendant not "in custody" during execution of search warrant at home when he was not restrained and was not told he could not leave). The questioning by Sergeant Wilkerson and Agent Meyer while Colvin was in custody during the morning of June 12, 2000 plainly amounted to interrogation. Colvin was still in handcuffs, in the company of the two officers. He was not free to leave during that interrogation.
Colvin was given his Miranda warnings by Sergeant Wilkerson, in the presence of Agent Meyer. Colvin then waived his right to counsel and his right to remain silent by choosing to answer questions during the interrogation.
Waiver depends on the totality of the circumstances, and requires evidence that the waiver was both voluntary and knowing. Moran v. Burbine, 475 U.S. 412, 421 (1986). Colvin does not have extensive education, and the court assumes in the absence of more specific evidence that his intelligence is within a broad range of average level. He is a mature adult, and he was quite familiar with the criminal justice system. At the time of the search on June 12, 2000, Colvin had two prior felony drug convictions and a conviction for resisting arrest. From his testimony, the court infers that he and Robertson felt they had a relationship with a criminal defense lawyer at the time of the search. Colvin was in good physical and mental condition, and there is no evidence that he was under the influence of drugs or alcohol at the time of the interrogation.
The evidence on timing is simply not very clear, but the court's best estimate is that the delay between the Miranda warnings and the interrogation, which Colvin actually invited, was approximately two hours. That delay does not undermine the validity of Colvin's waiver of his rights. See Patton v. Thieret, 791 F.2d 543, 547-48 (7th Cir. 1986) (holding that 40 minute delay did not affect waiver, and citing cases allowing nine and five hour delays); United States v. Boyd, 180 F.3d 967, 977 (8th Cir. 1999) (two hour delay did not affect waiver); United States v. Alvarez, 142 F.3d 1243, 1248 (10th Cir. 1998) (two and a half hour delay did not affect waiver).
Colvin's principal argument against a finding of waiver is that Sergeant Wilkerson and Agent Meyer deceived him by telling him that what he said would not be held against him, and by telling him he did not need a lawyer if he wanted to cooperate. The former point is not credible as a matter of fact. The latter point also is not credible as a matter of fact. Further, Colvin never made an unambiguous request to talk with an attorney or to stop the interrogation at his home. See generally Davis v. United States, 512 U.S. 452, 459-60 (1994) (ambiguous or equivocal references to attorney do not require police officers to stop questioning).
Colvin had been given his Miranda warnings, and he was familiar with the criminal justice system and his rights as a suspect. Whether wisely or not, Colvin made voluntary choices to try to cooperate with law enforcement in the hope of winning more lenient treatment for himself. He was not successful in doing so, but that does not affect the legal issues here.
II. Later Questioning
When Colvin later on June 12th met with Sergeant Wilkerson, FBI Agent Meyer, and IRS Agent Hinkle in Scottsburg to drive around, Colvin was not in custody. He was not in cuffs; he appeared voluntarily for the meeting and the drive, and he was free to leave at any time if he wished to do so. He was voluntarily providing information in non-custodial questioning. Because he was not in custody, there is no basis for suppressing evidence of his incriminating statements in that session.
Similarly, when Colvin and Robertson visited the FBI office in New Albany on June 15th, they were not in custody. They appeared voluntarily, their freedom of action was not restrained, and they were free to leave at any time. See California v. Beheler, 463 U.S. 1121, 1123-24 (1983) (suspect was not in custody during interview at police station when he was not under arrest and was free to go at any time); Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (same).
The court has found that Sergeant Wilkerson told Colvin and Robertson that attorneys would not be welcome for the interview at the FBI office. For such a voluntary and non-custodial interview, the court sees no reason that the law enforcement officers could not, if they chose, establish that ground rule for subjects who indicated they would like to cooperate with them. Whether it was wise for Colvin to participate in the interview does not affect its constitutionality.
Conclusion
As explained above, the court finds that defendant Colvin waived his right to remain silent and his right to counsel during the custodial interrogation that occurred at his home on June 12, 2000 while the home was being searched.
After that session, Colvin was not subjected to any further custodial interrogation. Accordingly, his motion to suppress evidence of his statements is hereby denied.
So ordered.