United States v. Cross Dog, 1996 DSD 24

UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN CROSS DOG,
Defendant.

United States District Court
District of South Dakota - Western Division
CR. 96-50006-01

MEMORANDUM OPINION AND ORDER

Filed May 14, 1996

Richard L. Battey, District Judge

NATURE AND PROCEDURAL HISTORY

[¶1] On January 11, 1996, defendant was indicted for aggravated sexual abuse in violation of 18 USC 2241(a). Defendant has filed a motion to suppress the blood test results secured from defendant without a search warrant. The government has responded, contending that the blood was obtained by defendant's voluntary consent. The motion was assigned to Magistrate Judge Marshall P. Young who held a suppression hearing concerning the motion on April 19, 1996. Magistrate Judge Young's recommendation is that the motion be denied (Docket #30). On May 6, 1996, defendant filed an objection to the Magistrate Judge's findings and recommendation based on the following grounds: (1) Miranda warnings are required prior to a request to draw blood; and (2) A search warrant was required for access to defendant's blood because defendant did not voluntarily consent to the drawing of blood.

FACTS

[¶2] In June of 1995, FBI Special Agent Lester L. Davis, Jr. initiated several attempts to contact defendant in regard to a rape allegation he was investigating. On July 7, 1995, defendant contacted Agent Davis by telephone, at which time Agent Davis advised defendant that there had been a rape allegation made by his former common law wife, Crystal Bush, and that a blood sample should be taken from defendant as part of the investigation (Tr. 3, 21). Defendant then agreed to meet with Agent Davis at the FBI office at the federal building in Rapid City, South Dakota, for the purpose of drawing a blood sample (Tr. 21). After defendant arrived at the FBI office, Agent Davis presented defendant with a handwritten consent form for the blood test (Tr. 4, 5). The consent form which was prepared by Agent Davis read as follows, "I John Cross Dog voluntarily submit to having blood drawn for investigative and examination purposes. This pertains to an investigation involving the alleged rape of Crystal Bush." (Ex. 1). Defendant testified that he read and understood the consent form when he signed it (Tr. 22). Defendant has a high school education, can read and write, and did not ask any questions concerning the consent form or the blood test (Tr. 22, 23, 29). Agent Davis testified that it was FBI policy to first attempt to obtain consent for the drawing of blood and then pursue a search warrant in the event consent is not freely given (Tr. 14).

[¶3] Prior to the signing of the consent form, defendant was not advised of his Miranda rights, specifically his right to an attorney or that if he could not afford an attorney one would be provided for him at the government's expense (Tr. 6). However, Agent Davis did advise the defendant that he was not under arrest (Tr. 22). Agent Davis and defendant drove to the Black Hills Clinical Laboratory in an FBI vehicle where they met with a phlebotomist (Tr. 7). Defendant sat in a chair, lifted his arm on the chair arm, a needle was inserted one time, and two vials of blood were drawn (Tr. 23). Defendant and Agent Davis went back to the federal building whereupon defendant was advised that it would take three to six months for the test results (Tr. 9). Defendant then left the federal building (Tr. 9). Agent Davis testified that defendant was at all times free to go, that he was not threatened nor restrained in any way, nor did he appear to be under the influence of alcohol or drugs (Tr. 8, 16, 17).

[¶4] Defendant testified that prior to his arrival at the FBI Office, Agent Davis told him that "If you don't give blood, I could have a warrant issued for your arrest and incarcerate you until the time of your trial." (Tr. 25). Defendant further testified that he was unfamiliar with legal terminology, having never been arrested or interrogated before this incident, and that the term search warrant and arrest warrant were somewhat confusing (Tr. 29-34). However, after a thorough examination by counsel and the Court, defendant testified that it was not possible that Agent Davis said he would obtain a search warrant rather than an arrest warrant (Tr. 34, 35). Defendant admitted that he felt he was free to leave at any time, and that he voluntarily submitted to the blood draw (Tr. 21, 22).

STANDARD OF REVIEW

[¶5] The Eighth Circuit Court of Appeals has set forth the following procedure for a district court to undertake when reviewing a magistrate judge's findings and recommendations.

Once a proper objection is made to a magistrate judge's finding, the district court must review that finding de novo. Taylor v. Farrier, 910 F.2d 518, 521 (CA 8, 1990); 28 USC 636(b)(1). "In conducting [de novo] review, the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing." Branch v. Martin, 886 F.2d 1043, 1046 (CA 8, 1989).

Jones v. Pillow, 47 F3d 251, 252 (CA 8, 1995). Upon review of the suppression hearing transcript and consistent with the following discussion, the Court accepts Magistrate Judge Young's recommendation to deny defendant's motion to suppress.

DISCUSSION

A. Miranda

[¶6] Miranda warnings are necessary whenever an individual is in custody. United States v. Brown, 990 F.2d 397, 399 (CA 8, 1993) (citing Miranda v. Arizona, 384 US 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966)). Custody for Miranda purposes is an objective test that turns on whether there was a formal arrest or "restraint on freedom of movement of the degree associated with a formal arrest." Feltrop v. Delo, 46 F3d 766, 773 (CA 8, 1995) (quoting Stansbury v. California, US , , 114 S. Ct. 1526, 1529, 128 LEd2d 293 (1994)). In United States v. Griffin, 922 F.2d 1343 (CA 8, 1990), the Eighth Circuit Court of Appeals enumerated six indicia of custody:

(1) whether the suspect was informed at the time of questioning that the questioning was voluntary, the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official request to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of questioning.

Id. at 1349 (quoted in Brown, 990 F.2d at 399). The facts and circumstances of this case clearly indicate that defendant was not in custody. Defendant testified that he felt he was free to leave at any time, that he had been advised he was not under arrest, and that he voluntarily submitted to the blood draw. Because it was a non-custodial blood draw, law enforcement officers were not required to provide defendant with Miranda warnings.

B. Consent

[¶7] Defendant contends that a search warrant was required for access to his blood because defendant did not voluntarily consent to the blood draw. A warrant or probable cause is not necessary if a law enforcement officer obtains voluntary consent from someone possessing authority over the area to be searched. United States v. Armstrong, 16 F3d 289, 295 (CA 8, 1994) (citing United States v. Chaidez, 906 F.2d 377, 380 (CA 8, 1990); Schneckloth v. Bustamonte, 412 US 218, 222, 93 S. Ct. 2041, 2044, 36 L. Ed. 2d 854 (1973)). "Whether consent is voluntary is a question of fact to be determined from the totality of the circumstances." Armstrong, 16 F3d at 295 (citing Bustamonte, 93 S. Ct. at 2047). The following characteristics have been deemed relevant in assessing the voluntariness of a consent: (1) age; (2) general intelligence and education; (3) whether the individual consenting was under the influence of alcohol or drugs; and (4) whether the individual consenting was given Miranda warnings or informed of the right to withhold consent. Armstrong, 16 F3d at 295 (citations omitted). The government must demonstrate voluntariness by a preponderance of the evidence. United States v. Miller, 20 F3d 926, 930 (CA 8, 1994).

[¶8] Examining the totality of the circumstances, this Court finds that defendant voluntarily consented to the blood draw. Although defendant testified that law enforcement officers had threatened him with an arrest warrant if he did not give blood, defendant admitted that he was unfamiliar with legal terminology and that the term search warrant and arrest warrant were somewhat confusing. Furthermore, after his conversation with law enforcement he voluntarily appeared at the FBI office, stated he wished to cooperate, and was never placed in custody or arrested. Defendant also read, understood, and signed a consent form. Defendant has a high school education, can read and write, was not under the influence of any alcohol or drug, and did not ask any questions concerning the consent form or the blood test. It is true that defendant was not given Miranda warnings or informed of the right to withhold consent; however, those characteristics, while important factors in determining voluntariness, are not required to render the consent voluntary. Bustamonte, 93 S. Ct. 2049-50. Defendant admitted that he felt he was free to leave at any time and that he voluntarily submitted to the blood draw. Agent Davis denied making any threats to the defendant. The blood draw was conducted by a licensed technician and the draw itself constituted only a minor intrusion.

CONCLUSION

[¶9] Because defendant was not in custody, law enforcement was not required to provide defendant with Miranda warnings prior to the request to draw blood. The Court also finds that after an examination of the totality of the circumstances defendant voluntarily consented to the drawing of blood. Therefore, a search warrant was not required for access to defendant's blood. Based on the foregoing, this Court accepts Magistrate Judge Young's recommendation to deny defendant's motion to suppress.

ORDERED that defendant's motion to suppress blood test results (Docket #19) is denied.