UNITED STATES OF AMERICA,
[2002 DSD 36]
United States District Court
District of South Dakota--Central Division
REPORT AND RECOMMENDATION
FOR DISPOSITION OF DEFENDANT'S
MOTION TO SUPPRESS STATEMENTS
Jay Miller, U.S. Attorney's Office, Pierre, SD
Attorney for Plaintiff.
Daniel L. Pahlke, Rapid City, SD
Attorney for Defendant.
Moreno, Mark A., United States Magistrate Judge
[¶1] Defendant, Duffy Ducheneaux (Ducheneaux) filed a Motion to Suppress Statements and supporting brief on September 18, 2002. Plaintiff, United States of America (Government), responded to the Motion and a two-day evidentiary hearing was later held on the same. Because Ducheneaux's Motion is a dispositive one, this Court's determination on it can only be made on a report and recommendation basis. Pursuant to 28 USC §636(b)(1), the Court does now make and propose the following Report and Recommendation for disposition of the Motion.
[¶2] Ducheneaux, whose date of birth is July 30, 1965, is charged with two drug related offenses. In Count I of the Indictment, the Government alleges that some time between March 1, 2000 and June 17, 2002, Ducheneaux conspired with Kevin Busch and others to possess, with intent to distribute, 500 grams or more of a substance containing methamphetamine, a Schedule II controlled substance, in violation of 21 USC §§841(a)(1), 841(b)(1)(A)(viii) and 846. In Count IV of the Indictment, Ducheneaux alone is charged alternatively as a principal or an aider and abettor, with possessing methamphetamine, with the intent to distribute it between March 17, 2001 and April 16, 2001. Ducheneaux has pled not guilty to both Counts and is currently on third party custody release pending trial.
[¶3] In his Motion, Ducheneaux seeks to suppress the statements he made to law enforcement officers on April 16-17, 2001 on Fifth Amendment grounds. The Government asserts that Ducheneaux's Fifth Amendment rights were not violated, that both statements were voluntary and that the first statement was given after he waived his rights.
[¶4] At the conclusion of the hearing, the Court took the matter under advisement. After careful review of the facts and circumstances present and applicable law, the Court concludes that Ducheneaux's Motion should be denied as explained in more detail below.
[¶5] At approximately 1:28 p.m. on April 16, 2001, Kory Annis and Michael Walters, both police officers for the Cheyenne River Sioux Tribe (CRST) (and members of the Northern Plains Safe Trails Drug Enforcement Task Force (NPSTDETF)), went to Room 113 of the Super 8 Motel in Eagle Butte, South Dakota, to follow up on information they had received regarding drug activity in the area. Robert Paul Allen, who had rented the room, answered the door and allowed Annis and Walters to enter. Inside, the officers observed Ducheneaux, who appeared to be passed out on a bed, and noticed that there was drug paraphernalia and alcoholic beverage containers strewed about the room. Walters proceeded to wake Ducheneaux up and escorted Ducheneaux out into the hallway.
[¶6] There, Ducheneaux was supervised by C. Andrew de la Rocha, an agent with the Federal Bureau of Investigation (FBI), who had arrived and was providing assistance. Ducheneaux remained in the hallway with his hands against the wall and his feet spread apart for approximately 30 to 45 minutes except for two bathroom breaks he was allowed to take. [¶7] Shortly after 2:00 p.m. that afternoon, Ducheneaux was transported by law enforcement officers to the police station in Eagle Butte. At 2:21 p.m. Ducheneaux was Mirandized from an Advice of Rights Form and said he understood his rights. He then read out loud the waiver portion of the Form and signed it, acknowledging that he was willing to talk to Annis and Walters. The interview lasted about 5 hours and 20 minutes, but four breaks were taken during the same. While being questioned, Ducheneaux admitted to using drugs, including marijuana and methamphetamine. When the interview ended, Ducheneaux was allowed to leave and did so. Before departing, Ducheneaux agreed to travel to Pierre and meet with de la Rocha and State Division of Criminal Investigation (DCI) Agent Jason Schumacher (who was also a member of NPSTDETF) at 1:00 p.m. the following day.
[¶8] About 2 hours and 45 minutes into the interview, Ducheneaux was requested and agreed to provide a urine sample. The sample tested positive for marijuana, methamphetamine and amphetamine. (fn1) While the marijuana level was relatively low, the amphetamine level was high and the methamphetamine level was extremely high. According to Roger Mathison, a chemist with the State Health Laboratory, Ducheneaux's methamphetamine level was in the top 10 of the approximately 50,000 urine samples that had been tested by the Laboratory over the last decade or so.
[¶9] On April 17th, Ducheneaux's sister and brother-in-law, Connie and Mark Knight (who are his third-party custodians), drove Ducheneaux to Pierre where he met with de la Rocha and Schumacher for about an hour in the latter's office. There, Ducheneaux admitted, without being advised of his rights, that he had purchased methamphetamine on two separate occasions. At the conclusion of the interview, he was permitted to leave and rode back to Eagle Butte with the Knights.
[¶10] Ducheneaux claims that he was "out of it" on April 16th and 17th, thereby making his waiver invalid and his statements to law enforcement officers involuntary. Ducheneaux also claims that officers "forced" him to talk to them and incriminate himself.
[¶11] The Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966) held that a person questioned by law enforcement officers after being "taken into custody or otherwise deprived of his freedom of action in any significant way" must first "be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." 384 U.S. at 444. To determine whether an individual is in "custody", a court must examine the physical and psychological restraints placed on the individual from an objective standpoint in light of the totality of the circumstances present. United States v. Griffin, 922 F2d 1343, 1347 (8th Cir. 1990); see also United States v. LeBrun, 306 F3d 545, 551 (8th Cir. 2002); United States v. Galceran, 301 F3d 927, 929 (8th Cir. 2002). A court must also examine "the place, purpose and length of the interrogation, the individual's freedom to leave the scene and other indicia of custody." Griffin, 922 F2d at 1349. The "ultimate inquiry [however], is simply whether there [was] a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)).
[¶12] Courts have identified several factors relevant to the custody evaluation including: (1) whether the individual was informed that he was free to leave or that he was not under arrest; (2) whether the individual possessed unrestrained freedom of movement during questioning; (3) whether the individual initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether police used strong-arm tactics or deceptive strategies during questioning; (5) whether the atmosphere of the questioning was police-dominated; and (6) whether the individual was arrested at the end of the questioning. Griffin, 922 F2d at 1349. This list is not exhaustive, and no one factor is necessarily dispositive. Id.
[¶13] Having examined the totality of the circumstances, the Court finds and concludes that Ducheneaux was in custody when he was questioned by Annis and Walters on April 16th, but not when he met with de la Rocha and Schumacher on April 17th. The Government all but concedes that Ducheneaux was in custody from the time he was first awakened by Walters in the motel room on April 16th until he was permitted to leave the police station that evening. See MH Tr. 247-49. Indeed, de la Rocha's own testimony compels the Government to make such a concession. See MH Tr. 124-25. Notwithstanding these concessions, the Court is convinced, based on its independent review of the record, that Ducheneaux was in custody so as to trigger the protections of Miranda. When applied to the instant case, the six Griffin factors enumerated above, strongly militate in favor of a custody determination. Beyond this, the Court believes that a reasonable man in Ducheneaux's shoes would have believed that he was under arrest and not free to leave at the time Annis and Walters interviewed him. The fact that Ducheneaux was allowed to leave at the conclusion of the interview did not vitiate the custodial nature of the same or alleviate the obligation on the part of law enforcement officers to administer Miranda warnings to him. (fn2)
[¶14] Ducheneaux's "custodial" status on April 16th, however, did not "carry over" to his April 17th interview in Pierre with de la Rocha and Schumacher. Ducheneaux was not arrested, but permitted to leave, the police station following his lengthy meeting with Annis and Walters on April 16th. The next day, he contacted his sister and arranged for round-trip transportation from Eagle Butte to Pierre so that he could meet with de la Rocha and Schumacher. While in Schumacher's office, Ducheneaux was advised that the interview was completely voluntary, that he could stop the interview at any time, that he was not under arrest, and would not be arrested at the conclusion of the same. He agreed to talk to the agents and spoke freely to them about what he knew. He was not handcuffed or otherwise restrained in a manner commonly associated with a formal arrest and was allowed to leave when the interview ended. Under these circumstances, Ducheneaux was not in custody or detained in such a way to require that he be advised of his Miranda rights before being questioned. See Galceran, 301 F3d at 930-31; compare LeBrun, 306 F3d at 552-55.
[¶15] The Supreme Court in Miranda held that a defendant's statements obtained during custodial interrogation, would be admissible only if the Government meets "its heavy burden" of demonstrating "that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel", 384 U.S. at 475. "If the individual indicates in any manner, at any time, prior to or during questioning, that he wishes to remain silent, interrogation must cease" for he has thus "shown that he intends to exercise his Fifth Amendment privilege . . . ." Id. at 473-74.
[¶16] A waiver of the Fifth Amendment privilege of self-incrimination is valid only if it is made knowingly, voluntarily, and intelligently. Miranda, 384 U.S. at 444. A waiver is knowing if it is "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986). It is voluntary if it is "the product of a free and deliberate choice rather than intimidation, coercion, or deception." Id.; see also United States v. Syslo, 303 F3d 860, 865 (8th Cir. 2002).
[¶17] When reviewing the voluntariness of a waiver or a confession, a court looks at the totality of the circumstances and must determine whether the individual's will was overborne. Syslo, 303 F3d at 866; see also United States v. Holloway, 128 F3d 1254, 1256 (8th Cir. 1997) (waiver); United States v. Makes Room For Them, 49 F3d 410, 414-15 (8th Cir. 1995) (confession); United States v. Jorgensen, 871 F2d 725, 729 (8th Cir. 1989) (same). Two factors must be considered in the voluntariness inquiry: the conduct of the law enforcement officers and the capacity of the individual to resist pressure to confess. Syslo, 303 F3d at 866; Makes Room For Them, 49 F3d at 415; United States v. Rohrbach, 813 F2d 142, 144 (8th Cir.), cert. denied, 482 U.S. 909 (1987).
[¶18] After reviewing the record and assessing the credibility of the witnesses who testified, the Court is unable to find that the requisite coercive or overreaching conduct was present to negate Ducheneaux's April 16th waiver or make his April 17th statements involuntary. No threats or promises were made to Ducheneaux and no undue influence or pressure was exerted on him. The duration, tone and overall atmosphere of the interviews were not hostile or forceful. The record indicates that his will was not overborne. Instead, he cooperated with officers, answered their questions and freely shared information with them. On this record, Ducheneaux's waiver and inculpatory statements were not the product of coercive interrogation or overreaching on the part of law enforcement officers. Syslo, 303 F3d at 866-68; Galceran, 301 F3d at 931. Because officers took no action that could objectively be considered as coercion or overstepping their bounds, there is nothing to refute the voluntariness of Ducheneaux's waiver and incriminatory statements. The Government has thus established, by a preponderance of the evidence, that Ducheneaux's waiver and the statements he made were obtained voluntarily and in compliance with the Constitution. (fn3)
[¶19] Having determined that law enforcement officers did not overbear Ducheneaux's will or critically impair his capacity for self-determination, the Court must now decide whether Ducheneaux's April 16th waiver of his rights was a "knowing" and "intelligent" one.
[¶20] Ducheneaux was advised of his Miranda rights and after doing so, stated he understood these rights (fn4) and waived them in writing. The written waiver itself constitutes strong evidence that Ducheneaux had a clear understanding of his rights and intended to and did give up the same. North Carolina v. Butler, 441 U.S. 369, 273 (1979) ("an express written . . . statement of waiver of the right to remain silent or the right to counsel is usually strong proof of the validity of that waiver . . ."). In addition, Ducheneaux's educational background (a high school diploma and one semester of college), his prior experiences with the criminal justice system and his failure or refusal to admit to anything more than personal use of drugs weigh heavily in favor of a valid waiver. Based on the entirety of the record, there can be little doubt that the Government has met is burden of proving, by a preponderance of the evidence, that Ducheneaux knowingly and intelligently waived his Miranda rights before being questioned and making incriminating remarks to Annis and Walters on April 16th.
[¶21] Before making its decisions on the voluntariness and waiver issues, the Court carefully scrutinized Ducheneaux's claims of intoxication and force/coercion, but found them to be incredible and unpersuasive. The Court did not find Ducheneaux or his sister's testimony to be reliable or worthy of belief. The testimony of Annis, Walters, de la Rocha and Schumacher belies Ducheneaux's contentions that he was so impaired by alcohol and drugs that he could not have possibly given voluntary statements to officers or waived his rights. Ducheneaux was able to provide detailed information regarding what he did, who he was with, where he went and even how much money he received in the days and nights preceding the April 16th interview. MH Tr. 63-66, 149-50, 229-33. He was also able to provide Annis and Walters, during the April 16th interview itself, with the names of persons, together with the quantities and dollar amounts involved, that were engaged in drug activity. MH Tr. 72, 150-54. Significantly, he was able to stand facing a motel hallway wall, in a "spread eagle formation", for 30-45 minutes and did not have any balance, dexterity or physical mobility problems. MH Tr. 121-22, 125-26. His assertion that he was told by officers that if he did not talk to them, he would be brought before the Court (who they said was a "mean man") and put in jail for a long time, see MH Tr. 237-38, is astounding and served to taint the overall credibility of his testimony.
[¶22] During the April 16th interview with Annis and Walters, Ducheneaux:
1. Responded to questions posed to him appropriately and in complete sentences;
2. Was friendly, open and helpful in his discussions with officers;
3. Did not slur his speech;
4. Did not have any difficulty standing, walking or sitting;
5. Appeared to understand what was going on;
6. Was alert and even at times bored (waiting for officers to return during breaks);
7. Did not appear to be paranoid, suffering from psychosis or hallucinating;
8. Was in control of his faculties and not disoriented or confused;
9. Was able to draw a picture of how much methamphetamine he used that day; and
10. Did not exhibit manifestations of impairment or intoxication.
MH Tr. 70-71, 80-81, 96-97, 101, 132, 160-61. Similarly, when de la Rocha and Schumacher met with him the next day, Ducheneaux:
1. Was polite and respectful;
2. Appeared to understand what was being asked of him;
3. Was not confused or disoriented in any way;
4. Spoke in complete sentences and provided answers to questions that made sense;
5. Was not hyperactive or agitated;
6. Was not lethargic or sleepy;
7. Did not appear to be hallucinating, paranoid, depressed or suffering from psychosis, but was in touch with reality;
8. Did not have slurred speech, bloodshot eyes or a detectable odor of alcohol;
9. Was not unstable in his walk or balance; and 10. Appeared to be totally sober and not under the influence of drugs.
MH Tr. 146-47, 167, 175-76.
[¶23] While it is true that the sample Ducheneaux provided on April 16th showed high levels of methamphetamine and amphetamine in his urine and that he had previously used marijuana, Mathison, the State chemist, was unable to draw any exact conclusions as to how much methamphetamine and marijuana Ducheneaux had consumed, when he had consumed it, or if the drugs had any effect on him at the time of his interviews. MH Tr. 8-9, 12-13, 18-19, 22-23, 25-26, 40-41, 47; The same is true with respect to Ducheneaux's alcohol consumption and whether it had any effect on him at the time he was interviewed. MH Tr. 27-38, 43-45; see also United States v. Allen, 40 Fed. Appx. 313, 314-15 (8th Cir. 2002) (confession was knowing and voluntary, despite evidence that the defendant was intoxicated by alcohol and methamphetamine). (5)
[¶24] Alcohol and drug intoxication do not automatically render a confession involuntary; rather, the test is whether such an impairment caused the defendant's will to be overborne. United States v. Korn, 138 F3d 1239, 1240 (8th Cir.), cert. denied, 525 U.S. 947 (1998); Makes Room For Them, 49 F3d at 415; United States v. Casal, 915 F2d 1225, 1229 (8th Cir. 1990), cert. denied, 499 U.S. 941 (1991). After a thorough review of the circumstances surrounding his statements, the Court concludes that Ducheneaux's will was not overborne and his waiver of rights was knowing and intelligent. Allen, 40 Fed. Appx. at 314-15; United States v. Turner, 157 F3d 552, 555-56 (8th Cir. 1998); Korn, 138 F3d at 1240; see also United States v. Bordeaux, 980 F2d 534, 538-39 (8th Cir. 1992); United States v. Givens, 712 F2d 1298, 1301-02 (8th Cir. 1983), cert. denied, 465 U.S. 1009 (1984). Confident that he was not intoxicated to the point where he was incapable of giving voluntary statements or waiving his rights, the Court finds and concludes that Ducheneaux's inculpatory statements on April 16th and 17th are admissible in the Government's case in chief.
[¶25] Based on the foregoing and in accordance with §636(b)(1), it is the determination of the Court that Ducheneaux's April 16, 2001 custodial statements were made after he knowingly, voluntarily and intelligently waived his rights, that his April 17, 2001 non-custodial statements were made voluntarily, and that both sets of statements may be used at trial by the Government in the presentation of its case. The Court therefore RECOMMENDS that Ducheneaux's Motion to Suppress Statements, Docket No. 45, be denied in all respects.
Failure to file written objections to the within and foregoing Report and Recommendations for disposition within 10 days from the date of service shall bar an aggrieved party from attacking such Report and Recommendations before the assigned United States District Judge. See 28 USC §636(b)(1) and Fed. R. Civ. P. 72.
1. Amphetamine showed up in the drug test results because it is a metabolite of methamphetamine. MH Tr. 20-21.
2. In view of the circumstances surrounding the April 16th interview, the Court also finds and concludes that Ducheneaux was "detained" within the meaning of 18 USC §3501.
3. The same is true with respect to the voluntariness requirements found in §3501.
4. After Ducheneaux was informed of his rights and said he understood them, Annis wrote "understands" on the Advice of Rights Form. See MH Tr. 61 & Ex. 2.
5. The defendant in Allen, Robert Paul Allen, is the same person Ducheneaux shared a motel room with in Eagle Butte on April 16th. Allen was charged and convicted in the District of South Dakota, Central Division, of distribution of a controlled substance. 40 Fed. Appx. at 314. In his appeal to the Eighth Circuit, Allen raised the same intoxication claim as Ducheneaux makes here. Id. The Appeals Court, however, affirmed the District Court's decision (which adopted this Court's Report and Recommendation) denying Allen's suppression motion. Id. at 314-15.