Opinion
Case No. 8:01CR3123
April 25, 2002
MEMORANDUM AND ORDER
INTRODUCTION
This matter is before the Court on the Report and Recommendation (Filing No. 51) issued by Magistrate Judge David L. Piester recommending denial of the following Motions filed by the Defendant, Antonio Rodriguez: Motion in Limine and Motion to Suppress Portion of Statement (Filing No. 27); Motion to Suppress Vehicle Search and Searches of Rooms 311 and 521 in Best Western (Filing No. 29); and Motion to Dismiss Indictment, etc. (Filing No. 31). Rodriguez filed a Statement of Objections to the Report and Recommendation (Filing No. 54) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.
This matter is also before the Court on Rodriguez's appeal from Judge Piester's order denying the following motions: Motion to Inspect Grand Jury Minutes and for In Camera Hearing to Examine Grand Jury Proceedings (Filing No. 33); and Motion to Seal (Filing No. 32). Rodriguez's Statement of Appeal of the Magistrate Judge's Order (Filing No. 54) is allowed by 28 U.S.C. § 636(b)(1)(A) and NELR 72.3.
Rodriguez is charged in a one-count Indictment with conspiracy to distribute and possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1) and 846. Rodriguez's Motions relate to his August 6, 2001 arrest.
Following an evidentiary hearing on the Motions, Magistrate Judge Piester issued a Report and Recommendation in which he determined: 1) the warrantless search of the vehicle was justified under the automobile exception to the warrant requirement, and probable cause supported the warrantless search; 2) a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) was not required, as the evidence did not show any false or misleading statements by Investigator Richard Aldag, and the search warrant affidavit contains sufficient probable cause to support the issuance of the search warrant; 3) Rodriguez's statements made shortly after his arrest while he was in custody were voluntary and not the product of coercion, and the statements are relevant under Federal Rule of Evidence 403; 4) inconsistencies between Investigator Aldag's search warrant affidavit and testimony before the grand jury are not material to the issue addressing whether the Indictment was based on probable cause, and the government bears the burden of proving the charges in the Indictment at trial; 5) the Indictment is not duplicitous by including both methamphetamine and cocaine within a single count, and the government need not elect one controlled substance; and 6) Rodriguez has failed to show a "particularized need" for disclosure of the grand jury minutes. On the basis of these determinations, Judge Piester recommended that Rodriguez's dispositive Motions be denied and denied the nondispositive Motions.
Rodriguez filed a combined Statement of Objections to and Statement of Appeal from the Magistrate Judge's Report and Recommendation. (Filing No. 54.) The combined Statement was supported by a brief. The government submitted a responsive brief.
STANDARD OF REVIEW
Dispositive Motions
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which Rodriguez has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
Nondispositive Motions
Pursuant to 28 U.S.C. § 636(b)(1)(A), the Court shall review Judge Piester's order regarding the Motion to Inspect Grand Jury Minutes, etc. (Filing No. 33) and the Motion to Seal (Filing No. 32) and determine whether the rulings on these motions are "clearly erroneous or contrary to law."
STATEMENT OF FACTS
The Magistrate Judge provided a detailed account of the events leading up to the execution of the search warrant, Rodriguez's arrest, and Rodriguez's questioning. The Court has considered the transcript of the hearing conducted by the Magistrate Judge on February 1, 2002 (Filing No. 46). The Court also carefully viewed the evidence, and the Court has viewed the videotape. Based on the Court's de novo review of the evidence, only one factual finding merits additional comment.
Judge Piester referred to the confidential informant as "CI 2045," after initially noting that he would be referred to as "CI 2405." The record reflects that the correct number is "2405." (Filing No. 39, Attachment 1.)
OBJECTIONS AND ARGUMENTS ON APPEAL
Rodriguez objects to the Report and Recommendations and appeals from Judge Piester's orders by raising several numerous arguments, summarized in the respective subsections of this Memorandum and Order.
ANALYSIS
Motion in Limine and to Suppress Statement (Filing No. 27)
Rodriguez argues that Rodriguez's statements were irrelevant under Federal Rule of Evidence 403, not voluntarily made, and were the product of coercion.
Rodriguez concedes that most of his statements were exculpatory. The statements that Rodriguez seeks to have suppressed are the following:
RODRIGUEZ: Look, if you take me now, right now, and do this to me, there's a shitload of wetbacks that are gonna start dumping shit all over your town. And I'm not . . . That's all I'm telling you. You know, and I told, I told Russ that.
INV. ALDAG: Hold on, what do you mean?
RODRIGUEZ: Yeah, there's a lot of, there's fuckers out all over the place, they're gonna dump shit all over your, all over Lincoln. I swear to God.
(Exhibit 2.)
Rule 403 — Relevance
Rodriguez argues that the statements are not relevant and therefore not admissible under Federal Rule of Evidence 403. The Eighth Circuit has stated that a district court is allowed broad discretion in determining relevancy and the admissibility of evidence, noting that the discretion is enhanced in the context of a criminal trial. United States v. Jones, 275 F.3d 673, 680 (2001). Judge Piester reasoned that the statements are relevant because they provide "evidence that Rodriguez is part of a larger scheme of criminal activity, a fact relevant to the government's claim that he was part of a conspiracy." (Filing No. 51, at 14.) Applying the Eighth Circuit's stated principles to Rodriguez's situation, the Court finds that Judge Piester's conclusion finding the statements relevant will be upheld.
Voluntariness
Rodriguez also argues that the statements were not voluntary and were made under coercion. A suspect both in custody and under interrogation is afforded the protection of the rights set forth in Miranda v. Arizona, 384 U.S. 436 (1966). A subject is deemed in custody, requiring compliance with Miranda when the suspect is formally arrested and not free to leave a location or when "a reasonable person in the suspect's position would have considered his freedom restrained in a degree that is usually associated with a formal arrest." United States v. Caldwell, 954 F.2d 496, 499 (8th Cir. 1992).
Custodial interrogations, by nature, generate "compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Miranda, 384 U.S. at 467. To combat this natural pressure, Miranda demands that persons in custodial interrogation be advised of their right to remain silent and to have counsel present. Id. at 468-70. Although a defendant may waive these rights, the government is held to a high level of proof that a waiver has been effectuated. Specifically, the government must prove that, taking into account the background, experience, and conduct of the defendant, the waiver was "the product of a free and deliberate choice rather than intimidation, coercion, or deception" and was made with "a full awareness of both the nature of the right being abandoned and the consequences surrounding the interrogation." Moran v. Burbine, 475 U.S. 412, 421 (1986). The test has been explained by the Eighth Circuit as whether a defendant's "will was overborne and his capacity for self-determination critically impaired." United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995). In deciding voluntariness, courts are required to view the totality of the circumstances and consider both the conduct of law enforcement officers and the suspect's capacity to resist pressure. Id.
18 U.S.C. § 3501(a) provides that a confession is admissible in evidence only if it was voluntarily given. Section 3501(b) provides:
The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including: (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment; (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession; (3) whether or not such defendant was advised or knew that he was not required to make any statement and that such statement can be used against him; (4) whether or not such defendant had been advised prior to questioning of his right to assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.18 U.S.C. § 3501(b).
Finally, "Miranda accordingly requires that a warning as to the availability of the privilege against self-incrimination and to the assistance of counsel be issued prior to questioning whenever a suspect is (1) interrogated (2) while in custody." United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990). In determining whether a confession is voluntary, the Court should consider all circumstances, including the factors specifically listed in section 3501(b). United States v. Casal, 915 F.2d 1225, 1228 (8th Cir. 1990), cert. denied, 111 S.Ct. 1400 (1991). In viewing the totality of the circumstances, the Court must consider both the conduct of law enforcement officers and the suspect's capacity to resist pressure. Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ; Kilgore, 58 F.3d at 353. The totality of the circumstances is determined by the "characteristics of the accused and the details of the interrogation." Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
In Rodriguez's case, under the totality of the circumstances, the Court finds that his statements were voluntary. Rodriguez was not asked any questions directly pertaining to the situation, involving narcotics, during the time in question. At no time did Rodriguez, very experienced in the criminal justice system, request an attorney. The audio portion of the videotape reveals the tone and nature of the discussion between Rodriguez and Investigator Aldag. The videotape shows that Investigator Aldag tried to end the discussion, and Rodriguez was persistent in continually pursuing discussion of his situation and related matters. The government conceded that Rodriguez, handcuffed and in the police car, was in custody. Under circumstances involving a suspect in custody where the suspect continually pursues such discussion, certainly the better approach would be to advise the suspect of his Miranda rights. However, the Court agrees with the Magistrate Judge that Miranda rights were not required because: no interrogation took place; any questions relating the statements quoted above were justified as relating to possible future threats; and the statements were spontaneous voluntary remarks.
For these reasons, the Court will adopt Judge Piester's recommendation and deny the Defendant's Motion in Limine and to Suppress.
Motion to Suppress Vehicle Search and Searches of Rooms 311 and 521 in Best Western (Filing No. 29)
Rodriguez argues that he did not consent to the search of Room 521 in his Statement of Objections. Defendant's Brief In Support of Statement of Appeal of Magistrate's Order and Objections to Report and Recommendation, at 6. However, Judge Piester found that Rodriguez lacked standing to contest the search of Room 521. (TR 9:14-16.) Rodriguez did not object to the conclusion that he lacks standing to contest this search. Therefore, the Court will not further address the issue of a lack of consent regarding Room 521.
Vehicle
Rodriguez objects to the search of the vehicle because he personally did not consent to a search of the vehicle.
The evidence shows that the vehicle was registered to Kevin Morrow. (TR 43:3-5.) Rodriguez was driving the vehicle on August 6, 2001. (TR 57:22-23). Amanda Brejcha-Walenta, the passenger, consented in writing to the search of the vehicle. (Filing No. 39, Attachment 3.) The consent form clearly states that Brejcha-Walenta had the right to refuse to give consent to search. A passenger may consent to the search of a vehicle. United States v. Lyton, 161 F.3d 1168, 1171 (8th Cir. 1998). Therefore, valid consent was obtained for the vehicle search.
Moreover, officers had probable cause to perform a warrantless search of the vehicle under the vehicle exception to the search warrant requirement. Officers were justified in searching the vehicle and in expanding the search, because probable cause existed that contraband would be found in the vehicle. United States v. Alverez, 235 F.3d 1086, 1089 (8th Cir. 2000). The reasons supporting probable cause are adequately and fully stated by Judge Piester.
Rodriguez did not argue in his Statement of Objections that probable cause was lacking for a warrantless search.
Therefore, Judge Piester's conclusions regarding the search of the vehicle will be upheld.
Room 311
Room 311 was the subject of the search warrant. (Filing No. 39, Attachment 1.) Rodriguez argues the following: he did not personally consent to a search of Room 311; probable cause was lacking for issuance of the search warrant; and he is entitled to a Franks hearing.
The search warrant affidavit included the following details in its lengthy and thorough recitation of facts constituting probable cause: a controlled purchase of approximately one-half ounce of methamphetamine, arranged by Rodriguez, occurred on July 27, 2001 at a McDonald's restaurant; a records check at the Best Western Airport Inn showed that, among other details, Rodriguez rented Room 311 in the name of Paige Bailey on August 1, 2001 and that the room was rented in that name at the time the affidavit was drafted; on August 3, 2001, Rodriguez told CI #2405 that Rodriguez could provide him with one ounce of methamphetamine for $800, but no transaction took place at that time; on August 6, 2001, Rodriguez attempted to deliver approximately three ounces of methamphetamine to CI #2405 at a Phillip 66 station, resulting in the arrests of Rodriguez and Brejcha-Walenta; and Brejcha-Walenta's very detailed statements incriminating Rodriguez, including statements that she witnessed Rodriguez distributing methamphetamine in Room 311. These facts are a mere summary of the information set out in the affidavit.
"To be valid, a search warrant must be based upon a finding by a neutral and detached judicial officer that there is probable cause to believe that evidence, instrumentalities or fruits of a crime, contraband, or a person for whose arrest there is probable cause may be found in the place to be searched." Walden v. Carmack, 156 F.3d 861, 870 (8th Cir. 1998). "The standard of probable cause for the issuing judge is whether, given the totality of the circumstances, `there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Id. "'"Probable cause" to issue a search warrant exists when an affidavit sets forth sufficient facts to justify a prudent person in the belief that contraband will be found in a particular place.' . . . Courts should apply a common-sense approach and, considering all the relevant circumstances, determine whether probable cause exists." United States v. Buchanan, 167 F.3d 1207, 1211 (8th Cir. 1999). The probable cause determination may only be made based on the information contained in the face of the affidavit. See United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993).
Probable cause exists "when the facts and circumstances within an officer's knowledge are sufficiently trustworthy to warrant a person of reasonable caution to believe that a crime has been committed and that seizable property from that crime may be located at a particular place or on a person to be searched." United States v. Gipp, 147 F.3d 680, 687 (8th Cir. 1998). Probable cause may be established by the observations of trained law enforcement officers or by circumstantial evidence. United States v. Searcy, 181 F.3d 975, 981 (8th Cir. 1999); United States v. Edmiston, 46 F.3d 786, 789 (8th Cir. 1995). Substantial deference is given to an issuing judge's determination of probable cause. That determination should be upheld "unless the issuing judge lacked a substantial basis for concluding that probable cause existed." Edmiston, 46 F.3d at 788. Rodriguez contends that no drug transaction took place on August 6, 2001 and, therefore, probable cause did not exist for issuance of the search warrant. First, the affidavit very clearly states that the August 6, 2001transaction was "attempted." And even aside from the "attempted" August 6, 2001 transaction, the affidavit is replete with detailed information amply supplying probable cause for the issuance of the search warrant.
Therefore, the decision of Judge Piester regarding the issue of probable cause will be upheld.
Franks v. Delaware
Rodriguez objects to the denial of a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) in conjunction with the search warrant obtained for the search of Room 311. Rodriguez stated that, although the affidavit states that after the August 6, 2001 attempted transaction Rodriguez was found possessing "approximately three ounces of suspected methamphetamine," Rodriguez told the grand jury the amount was two ounces and the laboratory reports yielded only 1.8 ounces. Rodriguez also stated that the affidavit was misleading by stating that the controlled substance involved in the July 27, 2001 transaction was one-half ounce of methamphetamine when Investigator Aldag then told the grand jury that the substance was one ounce of cocaine. Rodriguez argues that these were false statements made deliberately or in reckless disregard for the truth.
To obtain a Franks hearing, Jones must: 1) make a "substantial preliminary showing" that the affidavit contains false information deliberately or in reckless disregard for the truth; and 2) the information is necessary for a finding of probable cause. Technical Ordinance, Inc. v. United States, 244 F.3d 641, 647 n. 3 (8th Cir. 2001). Although Rodriguez did not argue that the affidavit omitted information, the same analysis applies to omissions of fact. The defendant must show: (1) facts were omitted with the intent to make, or in reckless disregard of whether they make, the affidavit misleading; and (2) the affidavit, if supplemented by the omitted information, could not support a finding of probable cause. United States v. Reinholz, 245 F.3d 765, 774 (8th Cir. 2001); United States v. Gladney, 48 F.3d 309, 313 (8th Cir. 1995). This "substantial preliminary showing" is "not lightly met." United States v. Hively, 61 F.3d 1358, 1360 (8th Cir. 1995). Mere allegations of negligence or innocent mistake are insufficient to make this substantial preliminary showing, United States v. Najarian, 915 F. Supp. 1441, 1455 (D.Minn. 1995), but "recklessness may be inferred from the fact of omission of information from an affidavit . . . when the material omitted would have been `clearly critical' to the finding of probable cause." United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986 (citation omitted)). If the affidavit is sufficient to establish probable cause with the false material removed or with the omitted material included, no evidentiary hearing is required. United States v. Crook, 936 F.2d 1012, 1014 (8th Cir. 1991). Probable cause exists when the application for a search warrant "presents sufficient facts to justify a prudent person in the belief that there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Riedesel, 987 F.2d 1388, 1390 (8th Cir. 1993).
To satisfy his burden of making the "substantial preliminary showing" needed to receive a Franks hearing, Rodriguez must show: 1) the affiant officers deliberately or intentionally omitted facts that made the affidavit misleading; and 2) the affidavit does not support a determination of probable cause when the omitted facts are included. United States v. Lucht, 18 F.3d 541, 546 (8th Cir. 1994).
The Court finds that Rodriguez has failed to meet his burden in making a "substantial preliminary showing" needed to receive a Franks hearing. The evidence presented does not amount to a substantial showing that the affidavit included false information added deliberately or in reckless disregard for the truth. And, though this issue was not raised, neither does the evidence presented show that facts were omitted with the intent to make the affidavit misleading or in reckless disregard of the meaning of the affidavit.
For these reasons, Judge Piester's decision denying the request for a Franks hearing will be upheld.
Motion to Dismiss Indictment (Filing No. 31)
It appears that Rodriguez confuses the Franks issue with the issues raised in conjunction with his Motion to Dismiss. The Franks issue relates to the search warrant affidavit, discussed above, and bears no relation to the arguments raised in conjunction with the Motion to Dismiss regarding misstatements in evidence presented to the grand jury and duplicity.
Rodriguez's objection to the denial of his Motion to Dismiss is vague, citing United States v. Flaherty, 668 F.2d 566, 584 (1st Cir. 1981) in support of his position. However, the Flaherty decision, as well as numerous Eighth Circuit decisions, state that where misstatements in evidence presented to the grand jury are not material, an indictment will not be dismissed. See, e.g., United States v. Moore, 184 F.3d 790, 794 (8th Cir. 1999). Rodriguez bears the burden of showing that the misstatements are material. Id. Rodriguez has made no such showing.
Rodriguez also argues that the Indictment is duplicitous because it charges him in one count with a conspiracy to distribute and possess with intent to distribute both methamphetamine and cocaine. The Eighth Circuit, in considering the same argument, stated:
Duplicity concerns are not present, however, when the underlying statute is one which merely enumerates one or more ways of committing a single offense. . . . [A]ll of the different ways of committing that same offense may be alleged in the conjunctive in one count, and proof of any one of the enumerated methods will sustain a conviction. Here, count I charged [the Defendant] with committing one offense, conspiracy to distribute a controlled substance, in two ways, with marijuana and methamphetamine. Enumerating the controlled substances did not render count I duplicitous.Moore, 184 F.3d at 793 (citations omitted).
For these reasons, Judge Piester's recommendation that the Indictment not be dismissed will be upheld.
Motion to Inspect Grand Jury Minutes and for In Camera Hearing to Examine Grand Jury Proceedings (Filing No. 33)
Judge Piester denied Rodriguez's Motion to Inspect Grand Jury Minutes pursuant to Federal Rule of Criminal Procedure 6(e) because Rodriguez failed to show the required "particularized need" for such inspection. Once again, Rodriguez raises the Franks issue, relating to search warrant affidavits, in an inappropriate context. Otherwise, Rodriguez merely recites in his Statement of Appeal that he is entitled to grand jury minutes because "[t]he amounts charged in an indictment are deemed material in the post- Apprendi world." (Filing No. 54, ¶ 6.)
This Court finds that such a statement, even in addition to the others made in conjunction with this issue in the Statement of Appeal, fails to meet the required "particularized need" for disclosure of grand jury minutes. United States v. Wilkinson, 124 F.3d 971, 977 (8th Cir. 1997) (discussing Federal Rule of Criminal Procedure 6(e)(3)); United States v. Harbin, 585 F.2d 904, 907 (8th Cir. 1978). Judge Piester concluded that Rodriguez was provided with laboratory reports, a portion of Investigator Aldag's grand jury testimony, and heard Investigator Aldag's testimony at the suppression hearing regarding the various substances and their amounts, and with that material Rodriguez may challenge the identity and amounts of controlled substances.
For these reasons, Judge Piester's decision regarding the Motion to Inspect Grand Jury Proceedings will be upheld.
Motion to Seal (Filing No. 32)
Rodriguez moved for an order sealing the Defendant's Motion to Inspect Grand Jury Minutes and for In Camera Hearing to Examine Grand-Jury Proceedings (Filing No. 33). Although Judge Piester denied the Motion to Seal without discussion (Filing No. 51, at 18), the Motion remains sealed.
Rodriguez did not address Judge Piester's denial of his Motion to Seal in his Statement of Appeal. The Court finds no reason why the Motion should remain sealed.
Therefore, under NELR 72.3(b), this issue is deemed abandoned. To the extent that Rodriguez may have appealed from Judge Piester's decision, the appeal is denied. The Clerk will be directed to unseal the Motion.
CONCLUSION
For the reasons discussed above, the Statement of Objections to the Report and Recommendation will be denied, the Statement of Appeal from Judge Piester's rulings on the nondispositive Motions will be denied, and Judge Piester's Report and Recommendation will be adopted in all respects, with the modification of one factual finding relating to CI #2405.
IT IS ORDERED:
1. The Magistrate Judge's Report and Recommendation (Filing No. 51) is adopted, with the factual finding relating to CI #2405 modified herein;
2. The Statement of Objections to the Report and Recommendation (Filing No. 54) is denied;
3. The Statement of Appeal (Filing No. 54) is denied;
4. The Clerk is directed to unseal the Defendant's Motion to Inspect Grand Jury Minutes and for In Camera Hearing to Examine Grand Jury Proceedings (Filing No. 33).