Opinion
Case No. 02-CR-222
January 15, 2003
RECOMMENDATION TO THE HONORABLE LYNN ADELMAN ON THE DEFENDANT'S MOTION TO SUPPRESS
On October 16, 2002, a federal grand jury sitting in the Eastern District of Wisconsin returned a four-count indictment against James Cranley. Count one of the indictment charges the defendant with, in connection with his acquisition of two firearms, knowingly making false or fictitious statements to Jalensky's Sport Center, stating that the firearms were for himself, when in fact, the defendant knew that the firearms were for someone else, all in violation of 18 U.S.C. § 922 (a)(6). Count two of the indictment charges the defendant with knowingly possessing two firearms, which both had their serial numbers obliterated in violation of 18 U.S.C. § 922 (k) and 924(a)(1)(B). Count three charges the defendant with, in connection with his acquisition of a firearm, knowingly making false and fictitious statements to Jalensky's Sports Center, stating that he was purchasing the gun for himself, when in fact, he was purchasing it for another person, all in violation of 18 U.S.C. § 922 (a)(6). Count four of the indictment charges the defendant with knowingly possessing a firearm, which had its serial number obliterated in violation of 18 U.S.C. § 922 (k) and 924(a)(1)(B).
The defendant was arraigned before this court on November 4, 2002 and pled not guilty. A trial before the Honorable Lynn Adelman is scheduled to commence on January 29, 2002, with a final pretrial conference scheduled for January 17, 2002. Currently pending is the defendant's pretrial motion to suppress. In his moving papers, the defendant moved to suppress his statements made at an April 12, 2002, interview with his probation agent and an ATF Special Agent. However, the defendant has indicated in his post-hearing brief that he also seeks suppression of any statements made at the January 31, 2002 meeting, indicating that defendant's counsel was unaware of the January meeting until that meeting was disclosed at the evidentiary hearing.
The court held an evidentiary hearing on December 18, 2002 on the defendant's motion to suppress. Testifying on behalf of the government were ATF Special Agent Vernon Mask and Wisconsin probation agent Jennifer Schinker. The defendant testified on his own behalf. At the conclusion of testimony, the court set a simultaneous briefing schedule. The motion is now ready for resolution.
I. Summary of Events
Vernon Mask is a special agent for the Bureau of Alcohol, Tobacco and Firearms ("ATF"), operating from its Chicago office. He testified that the ATF had traced handguns with their serial numbers obliterated, which had been recovered in Chicago, back to Cranley. Mask stated that after performing a record check on Cranley, it was determined that he was on probation in Wisconsin. So, Agent Mask contacted Cranley's probation agent, Jennifer Schinker, to arrange a meeting with Cranley at her office.
Cranley had been released from jail in December, 2001, and was reporting periodically to Schinker. Schinker arranged for a meeting between Mask and Cranley for January 22, 2002. She contacted Cranley and directed him to report to her office on that date, but did not tell him that he would be meeting with an ATF agent. However, agent Mask was unable to make the January 22nd meeting, but Cranley reported as directed. At that time, Schinker informed Cranley that the purpose of the meeting was to meet with an ATE agent. Cranley testified that Schinker apologized to him for not telling him this earlier. Schinker told Cranley that the meeting was rescheduled and he was to report to her again on January 25, 2002. Once again, agent Mask could not attend and the meeting was cancelled. Cranley was then told to report to Schinker's office on January 31, 2002 for an interview with the ATF. This time agent Mask was able to attend.
On January 31, 2002, Cranley reported as directed. Schinker set up the meeting in a conference room. The meeting lasted for approximately one hour and Schinker was present for the entire meeting. Cranley was not read his Miranda rights prior to that meeting and the room was unlocked during the entire meeting. During the meeting, Cranley told agent Mask that the guns had been stolen out of his house. No written statement was taken from Cranley. At the end of that meeting Cranley was not arrested or detained and left the premises after being "buzzed out."
Sometime after the interview with Cranley, Mask learned that there was a warrant out for Cranley in Racine County. Mask testified that he wanted to see if Cranley could give him more information, so he contacted Schinker to arrange another meeting with Cranley. Mask had Schinker set up the meeting for April 12, 2002, and she directed Cranley to report to her office on that date, telling him that agent Mask wanted to meet with him again.
Cranley reported as directed and once again, Schinker set up the conference room for the meeting. This time, however, Schinker only stayed for a moment because Mask told her that she did not need to stay. Schinker testified that she could tell that the meeting was not going to go well for Cranley and that the mood was very tense when she left. Cranley was not given a Miranda warning before the meeting.
At the meeting, Cranley signed a statement, which was prepared by agent Mask based upon information provided by Cranley. In that statement, Cranley confessed to obliterating the serial numbers on some handguns, buying the guns in exchange for crack cocaine and lying to the retailer by stating that he was buying the guns for himself when he knew that he was buying the guns for others. After the interview, Cranley was allowed to leave. He was "buzzed out" and went on his way.
As a condition of his probation, Cranley is required to report to his probation agent for both scheduled and unscheduled appointments when directed. Additionally, he is required to provide true and correct statements verbally and in writing in response to inquires by the probation agent. Cranley testified that he thought that Schinker reminded him of his responsibility to be truthful before the January meeting, but he was not positive and admitted that Schinker could have told him that just before the April meeting. In any event, Cranley testified that he believed that he was required to meet with the ATF agent as directed by Schinker and was obligated to tell the truth. Schinker testified that if she knew that Cranley was lying to her, his probation could be revoked. She also testified that she would be in a position to react if she knew that Cranley was lying to agent Mask.
II. Legal Analysis
The defendant offers two arguments in support of his motion to suppress. First, the defendant argues that he was in custody at the time that he made the statements and therefore he should have been issued aMiranda warning. Because no Miranda warning was issued, the defendant argues that the statements should be suppressed. Secondly, the defendant argues that even if he was not in custody at the time he made the statements and Miranda does not apply, the circumstances demonstrate that his statements were not voluntary and therefore, they should be suppressed.
A. Custodial Status
The test to determine whether or not a person is in custody within the meaning of the Fourth Amendment is whether the individual's movement is restrained to a degree comparable to a formal arrest. United States v. Abdulla, 294 F.3d 830, 834 (7th Cir. 2002). Courts must look at the totality of the circumstances when making this determination. United States v. Wyatt, 179 F.3d 532, 536 (7th Cir. 1999).
In order to establish a custodial relationship, a defendant must either show that he or she was formally arrested, or that he or she was subjected to restraints of freedom such that the conditions of a formal arrest were closely approximated or actually attained. . . . In the latter case, the test is not whether the defendant was under a subjective belief that his or her movements were restricted, but whether a reasonable person in the defendant's position would believe that he or she was free to leave. . . .Id.(quoting United States v. Lennick, 917 F.2d 974, 977 (7th Cir. 1990)). As the defendant was not formally arrested at either the January 31 or April 12, 2002 meeting, the question is whether a reasonable person in Cranley's position would believe that he was not free to leave.
The government argues that a reasonable person would not believe that Cranley was in custody because (1) he arrived at the meeting freely and willingly, (2) the meeting took place in a conference room, where he had met with his probation a numerous times; and (3) the room was unlocked at the time he gave his statement.
The defendant, on the other hand, argues that a reasonable person would believe that he was not free to leave because (1) he was required to attend both the January and April meetings arranged by his parole agent under the terms of his probation/parole rules and (2) he could not leave the building without, first being "buzzed out."
Looking at the totality of the circumstances, the court cannot conclude that the defendant, Cranley, was in custody at either meeting. Although he was compelled to attend each meeting pursuant to his probation rules, there is no indication that Cranley was not free to leave at any time during either meeting. Both meetings took place in an unlocked conference room and Cranley was not handcuffed or restrained in any way. After each interview the defendant was buzzed out of the probation office and drove home. Although agent Mask does not remember if he was wearing his gun or not, there is no indication that even if agent Mask was wearing his gun, that he did anything that would intimidate Cranley into believing that he was not able to leave. In sum, the totality of the circumstances indicate that Cranley was never in custody and consequently, was not required to receive a Miranda warning. However, even if not in custody, the defendant's statements must still be voluntary.
B. Voluntariness of Statements
The government argues that the defendant's statements were not compelled under Miranda or its progeny. The government relies onMinnesota v. Murphy, 465 U.S. 420 (1984) and United States v. Humphrey, 34 F.3d 551 (7th Cir. 1994) in support of its argument that fear that one's probation might be revoked is not enough to render the statements involuntary.
The defendant, on the other hand, argues that a reasonable person in the defendant's position would have felt compelled to answer agent Mask's questions. Additionally, the defendant argues that the government's reliance on Murphy is misplaced because of the factual differences between the cases. Further, the defendant argues that the Fifth Amendment privilege should be self-executing in this case under the Supreme Court's holding in Murphy.
Similar to the determination of whether or not an individual is in custody, the determination of whether the statements made by the defendant were voluntary must be made under the totality of the circumstances. United States v. Ceballos, 302 F.3d 679, 694 (7th Cir. 2002). A confession is voluntary if it is the product of a rational intellect and a free will and not the product of physical or psychological intimidation or deceptive practices that overcome the defendant's free will. United States v. Dillon, 150 F.3d 754, 757 (7th Cir. 1998). Courts examine voluntariness from the perspective of a reasonable person in the position of the suspect. United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001).
In Minnesota v. Murphy, 465 U.S. 420, 425 (1984), the issue was whether a statement made by a probationer to his probation officer without prior warnings is admissible in a subsequent criminal proceeding. Murphy had been directed by his probation officer to contact her to discuss a treatment plan, knowing that Murphy had previously made incriminating statements to a counselor. The court held that Murphy's disclosures to his probation officer were not compelled because he revealed the incriminating information instead of asserting his Fifth Amendment privilege. Id. at 440. Consequently, since Murphy had not been compelled to incriminate himself, but rather volunteered his statements, they could be used against him in a criminal prosecution. Id.
Notwithstanding its holding, the Murphy court acknowledged that there will be some instances where the Fifth Amendment privilege is self-executing. Specifically, the court noted that when the questions put to the probationer call for answers that may incriminate him in a later criminal prosecution, there is a substantial basis in case law for concluding that, if the state either expressly or by implication, asserts that the invocation of the privilege would lead to the revocation of probation, it would have created a penalty situation and the failure to assert the privilege would be excused. Id at 435. But in Murphy, the court concluded that even though Murphy was compelled to report to his probation officer as directed and to be truthful with his probation officer in all matters, Murphy would not have been penalized for asserting the privilege. Id. at 422 436. Further, even if Murphy believed that he would have been penalized for invoking his Fifth Amendment privilege, that belief would not have been reasonable under the circumstances. Id. Consequently, the court determined that the privilege was not self-executing in that situation.
In United States v. Humphrey, 34 F.3d at 554, the defendant, on the advice of his parole officer, agreed to meet with two agents at the FBI's offices. Because the agents did not consider the defendant to be in custody, they did not read him his Miranda warning. Id. Further, he was told that he was free to leave at any time and was free to contact an attorney. Id. Humphrey claimed that he was compelled to cooperate with the agents because he thought that if he did not, they would somehow get his parole revoked. Id.
The court, in Humphrey, determined that the defendant's statements were voluntary under Murphy. Id. at 555. Specifically, the court notes that Humphrey did not provide the court with any information that would make reasonable the belief that he could not freely refuse to answer the agents' questions. Id. Rather, Humphrey's only claim was that he felt obligated to cooperate. Id.
Although the court does not think that Cranley's Fifth Amendment privilege was self-executing, the statements should still be suppressed because a reasonable person in Cranley's position would assume that he was compelled to answer agent Mask's questions. Further, neitherHumphrey nor Murphy are applicable because this case can be distinguished by the underlying facts.
The court responds first to Cranley's argument that his Fifth Amendment privilege was self-executing. Even though Murphy and Humphrey are distinguishable from this case, Murphy is proper authority to determine when the Fifth Amendment privilege is self-executing in a probation setting.
Cranley's probation regulations require that he is to report to his probation officer as directed, to both scheduled and unscheduled appointments. Further, the regulations provide that he is to provide true and correct verbal and written responses to inquiries by his probation officer. The probation regulations also say that his probation may be revoked if the regulations are violated. Under the rule in Murphy, the privilege is only self-executing if the state implicitly or expressly asserts that invocation of the privilege will result in revocation of probation. The rules here do not expressly consider the situation where a probationer would assert his Fifth Amendment privilege. Additionally, the regulations do not imply that probation revocation will be the result of asserting the privilege. Rather, the worst that could happen is that probation may be revoked. Consequently, the privilege is not self-executing in this case.
As stated above, both Murphy and Humphrey are distinguishable from this case. In Humphrey, the court stated that his contention that his statements were compelled was unreasonable because he failed to present any fact that would lead the court to believe that Humphrey could not freely refuse to answer the FBI agent's questions. Humphrey, 34 F.3d at 555. But in Humphrey, the defendant went to the FBI offices and was not in the presence of his parole officer.Id. at 554. Further, the FBI attempted to arrange a meeting both though the defendant's parole officer and through his mother. Id. It was upon the advice of his parole officer that Humphrey agreed to a meeting with the FBI. Id. There is no indication that Humphrey was compelled to attend the meeting. Under these circumstances, Humphrey's belief is understandably unreasonable.
Cranley's situation is different because he was compelled to come to the meeting that was arranged by his probation agent at the probation office. Even though the meeting was arranged at the request of law enforcement, Cranley did not know this when he first appeared on January 22nd. He was then advised of the purpose, and told to report on the rescheduled date. More importantly, Cranley's probation agent sat through the January meeting with the defendant, whereas Humphrey met with the FBI alone at their offices. The defendant also asserts that he was reminded that he was under the obligation to be truthful when he answered questions or his probation could be revoked. Although the defendant's statements may be self serving, the facts of the case are different enough from those in Humphrey to persuade this court that the Humphrey case is not applicable.
Cranley's case is also different from the situation of the defendant inMurphy. There, the defendant only met with his probation officer. No other law enforcement officer was present when Murphy confessed to the earlier crimes. Agent Mask's presence renders Murphy inapplicable to this case.
It seems clear from the attendant facts of this case that agent Mask used Cranley's probation obligations, and Cranley's understanding of the possible consequences if he failed to meet those obligations, to induce responses from Cranley that he would not have made in other circumstances. Also, it is reasonable to believe that the defendant, Cranley, felt compelled to answer the questions posed to him by agent Mask at the January meeting because he had been required to attend and his probation agent was also in attendance. It was a "lose-lose" situation for Cranley. If he told the truth, he would get arrested for the weapons violations, but if he lied, he would get his probation revoked and put back in prison as a probation violator.
If agent Mask had summoned Cranley to the ATF offices or had visited Cranley in his home, and Cranley had made the same statements to him, clearly under Humphrey. the statements would have been voluntary and admissible. Likewise, if probation agent Schinker had elicited the confession from Cranley during a meeting between the two of them and then relayed that information to authorities, that confession would be admissible under Murphy. Instead, the January 31, 2002 meeting, as it unfolded, resulted in Cranley's involuntary statements. Those statements should be suppressed.
The April meeting when viewed by itself is a different story. At that meeting, Schinker, did not sit in with Cranley and agent Mask. That situation is similar to the scenario in Humphrey and Cranley's testimony at that meeting would be admissible under Humphrey, However, the April meeting cannot be viewed in a vacuum; it was scheduled as a direct result of the involuntary statements made by Cranley at the January meeting. Mask testified that he only scheduled the April meeting to see if there was anything else that Cranley remembered (Tr. 15), because Mask thought that he was holding back from the first interview (Tr.7). This establishes a nexus between the January statements and the April meeting. Since the January statements are tainted, the statements acquired at the April meeting should be suppressed as fruit of the poisonous tree.
Although the Supreme Court has rejected the application of that doctrine to non-coercive Miranda violations in Oregon v. Elstad, 470 U.S. 298, 308-18 (1985), this is not the case of a Miranda violation, nor at all parallel to Elstad. The court, in Elstad, had to determine what to do with two voluntary confessions, one that was made before a Miranda warning was given and one that was made after a Miranda warning. Here, we are dealing with a "voluntary" confession made after an involuntary confession. Further, the second confession was obtained only because of Cranley's responses in the first meeting. Agent Mask testified that he wanted the second meeting to see whether the guns were stolen, as the defendant had stated in the first meeting or whether Cranley had sold them. It appears that there would not have been any second meeting but for Cranley's responses at the first meeting. Clearly, this different from the situation where the Supreme Court declined to extend the poisonous tree doctrine in Elstad. Consequently, the fruit of the poisonous tree doctrine should apply and the second confession should be suppressed as a fruit of the poisonous first meeting.
IT IS THEREFORE RECOMMENDED that the defendant's motion to suppress should be granted and that any statements from both the January 31, 2002 and April 12, 2002 meetings should be suppressed.
Any objections to this recommendation must be made in writing and filed with the Clerk of Court within 10 days from the receipt of this recommendation or within a time frame to be established by Judge Adelman, and in accordance with General Local Rule 72.3.