BARRY J.
PORTMAN
Federal Public Defender
STEVEN G. KALAR
Assistant Federal Public Defender
440 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXX XXX
IN THE UNITED STATES DISTRICT
COURT
FOR THE NORTHERN DISTRICT OF
CALIFORNIA
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UNITED STATES OF AMERICA,
Plaintiff,
v.
XXX XXX,
Defendant.
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No. CR 00-0000 ABC
DEFENDANT’S MOTION TO SUPPRESS STATEMENTS
Hearing Date:
January 29, 2003 at 1:30 pm
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TO: UNITED STATES ATTORNEY, PLAINTIFF;
AND KEVIN V. RYAN UNITED STATES ATTORNEY, NORTHERN DISTRICT OF CALIFORNIA; AND
KYLE WALDINGER, ASSISTANT UNITED STATES ATTORNEY
PLEASE TAKE NOTE that on January 29, 2003 Mr. XXX
XXX by and through counsel will move this Court to suppress involuntary
statements elicited from him while he was in custody. This motion is based on the following memorandum of points and
authorities, the Constitution of the United States, all relevant statutory
authority and caselaw, and such argument as the Court will entertain at the
January 29th hearing.
Introduction
In this motion Mr. XXX XXX moves this Court
to suppress a confession elicited from him after his arrest for possession of a
firearm.
Background
Mr. XXX XXX is charged in a one-count
indictment returned by the grand jury on October 9, 2002. In that indictment, Mr. XXX XXX stands
accused of possessing a pistol after having suffered a prior conviction for a
crime punishable by sentence exceeding one year. Exhibit A, Indictment.
Mr. XXX XXX Grew Up as a Victim of a
Culture of Violence
Mr. XXX XXX is a young man who was effectively
abandoned by his parents as a child, and raised by his grandmother. His mother is currently on parole for what
the defendant believes are narcotics convictions. The defendant’s father was killed when he was shot in the
head. Mr. XXX XXX was in the California
Youth Authority was his father was murdered B a murder that has never been
solved. With little supervision and
even less parental involvement as he was growing up, Mr. XXX XXX only made it
to his sophomore year in high school and has never received his GED.
Only twenty-one years old, Mr. XXX XXX
has a very minor adult criminal history.
He was convicted in February of 2002 for possession of cocaine base for
sale, and received a three year probationary sentence with forty-five days
jail. His probation was later revoked. He also has a misdemeanor conviction in May
of 2000 for taking a vehicle without an owner’s consent, and for evading a
police officer B he received three days in jail for that case. Despite this very minor criminal history,
the vagaries of the guidelines (with enhancements for recency and an offense
during probation) probably place
Mr. XXX XXX on the cusp of Criminal History category IV, with 7 criminal
history points. Early estimates place
Mr. XXX XXX in Offense Level 24, which
would result in the high guideline range of 77-96 months after trial.
Mr. XXX XXX has himself been victimized
by the violence that plagues many San Francisco neighborhoods. On September 21, 2001, he was shot while on
Haight Street. He suffered two wounds
to his chest, one to his stomach, and was found by officers laying in a pool of
blood. One of the bullets entered
above his heart, and the defendant still suffers nerve damage from that wound
and was in physical therapy before arrested.
The San Francisco Police Department has still not solved this September
21 shooting.
The July 28, 2002 Offense
In the
present case, Mr. XXX XXX is accused of possession of a firearm on July 28,
2002 near Grove and Buchanan. See
Exhibit B, SFPD Incident Report No. 021023904. The incident allegedly took place at or around 16:45 in the
afternoon. Id. at TR001. According to San Francisco Police Officer
Miller, he responded along with several officers to Grove and Buchanan in
response to calls regarding “shots fired.”
Id. at Bates TR005. One
officer allegedly spotted Mr. XXX XXX running south on Laguna, just south of
Hayes. Id. Mr. XXX XXX allegedly hid, then ran again
down Linden towards Octavia. Id.
Officer Deeley and another officer eventually ran Mr. XXX XXX down and
arrested him at gunpoint on Hayes, east of Octavia. Id. According to
Officer Deeley, Mr. XXX XXX was “holding the right side of his body with his
right hand as if he was supporting something.”
Id. The officer believed
that Mr. XXX XXX was supporting a gun. Id.
Officers responding to the shooting
found a Mercedes that had bullet holes in it.
Id. They recovered five
bullet casing from 745 Buchanan. Id.
One witness, XXX XXX, described the
shooting as involving a group of ten black males in addition to Mr. XXX XXX:
Officer Takota #1260 (3ED4D) located and spoke with
(R/W) XXX XXX, one of the initial callers regarding the incident. XXX XXX told
him that he was [redacted] when he heard gunshots. XXX XXX said he went to the
front window [redacted] and looked out onto Hayes Street and saw a group of
about 10 black males running east on Hayes towards Laguna. He said he then saw another black male,
later identified as (B) XXX XXX, by himself, running east on Hayes on the south
side of the street. XXX XXX said XXX XXX was wearing a black knit cap and black
clothing. XXX XXX said he saw XXX XXX stop near the laundromat on the south
side of the street near the corner. XXX XXX said XXX XXX then raised a gun in
this right hand and fired several times towards the north side of Hayes. XXX
XXX said he could not see what XXX XXX was shooting at. XXX XXX said that XXX
XXX then ran south on Laguna from Hayes.
Id. Witness XXX XXX identified Mr. XXX XXX in a “cold-show.”
Another witness,
XXX XXX, said that he had seen a black suspect with a gun running on Laguna
from Hayes. Id. at Bates
TR005. This witness also identified Mr.
XXX XXX in a cold-show. Id.
Officer Cesena recovered Aa gun on the
ground near a tree in front of XXX XXXStreet.”
Id. at TR008.
At 23:50 of the same day, Mr. XXX XXX
was interviewed, presumably by SFPD Officer Chaplin. See Exhibit B, Chronological Report of Investigation at
Bates TR00128. Officer Chaplin
summarized the taped interview as follows:
2350 Conducted taped interview w/XXX XXX. Mirandized XXX XXX and he told me he had the
gun for his own protection. XXX XXX
said he was fired upon first and only returned fire to defend himself. XXX XXX said he ran from the police because
he panicked. XXX XXX said he only fired
once. XXX XXX said he purchased the gun
only a few hours prior to the incident for $125 on the street. XXX XXX said the only other time he fired
the gun was immediately after purchasing it.
XXX XXX said he fired it into a piece of wood to verify the weapons
operability. XXX XXX said he did not
know the caliber of the gun but assumed it was a .25 cal. because it was so
small.
Id. Omitted from Officer Chaplin’s summary are several
important facts that reveal, under a totality of the circumstances, that Mr.
XXX XXX’s confession was not voluntary.
Mr. XXX XXX had used marijuana heavily that day, and was using it right
up to the point that he was arrested. Exhibit
C, Declaration of XXX XXX re: Confession at 1 & 2. He simultaneously drank large amounts of
very hard liquor, “Hennessy” cognac. Id.
at 1 & 3. He was drunk and high
when he was interviewed by the San Francisco Police officer on the evening of
July 28. Id. at 1 & 5.
The officer that interviewed Mr. XXX
XXX B presumably Officer Chaplin B spoke to Mr. XXX XXX extensively
about the case before the officer turned on the tape recorder and began
the interview. Id. at 1-2 &
7.
Before Mr. XXX XXX was Mirandized,
the officer represented that he was the person who would decide whether the
young man’s case would Ago federal.” Id.
at 2 & 8. The officer also
represented that Ait [the case] was not going to go federal.” Id.
Each of those representations was made before the taped interview
began, and before Mr. XXX XXX was read his Miranda rights.
Mr. XXX XXX was in custody when he was
interviewed by this officer, and before the defendant was read his Miranda
rights. Id. at 2 & 9.
Discussion
Mr. XXX XXX’s intoxication and heavy
drug use before the confession, and the deceptive tactics used by the officer
who interviewed him, render his statements involuntary. They must accordingly be suppressed.
I. Statements Made by Suspects who Are
Under the Influence of Alcohol or Controlled Substances May Not Be Voluntary,
and Must Be Suppressed
The touchstone of the admissibility of statements
against the defendant is whether the statement is “voluntary.” The government faces a much more difficult
task in proving that custodial statements made by inebriated suspects, or
suspects under the influence of controlled statements, are “voluntary” and
therefore admissible.
Pursuant to the Due Process Clause, a confession that
is involuntary must be suppressed for all purposes. Mincey v. Arizona, 437 U.S. 385, 397‑98 (1978); see
also Henry v. Kernan, 197 F.3d 1021, 1029 (9th Cir. 1999) ("Post‑Miranda
confessions which are found to be involuntary may not be admitted for any
purposes, including impeachment.").
To be admissible, the government has the burden of proving a confession’s
voluntariness by a preponderance of the evidence. See Lego v. Twomey, 404 U.S. 477, 488‑89
(1972). “The Supreme Court of the
United States has always set high standards of proof for the waiver of
constitutional rights . . . . The federal courts are to indulge every
reasonable presumption against waiver of such fundamental rights.” Gladden v. Unsworth, 396 F.2d 373,
376 (9th Cir. 1968).
The
overarching test for the voluntariness of a confession is that it "must be
the product of a rational intellect and a free will.’" United States v. Tingle, 658 F.2d
1332, 1335 (9th Cir. 1981) (quoting Blackburn v. Alabama, 361 U.S. 199,
208 (1960)). A confession may be
involuntary despite proper Miranda warnings. See Oregon v. Elstad, 470 U.S. 298, 318 (1985); 18 U.S.C.
3501(b); cf. Colorado v. Connelly, 479 U.S. 157, 160 (1986).
In deciding whether a confession was voluntary, courts
are to examine "the totality of the circumstances" to determine
whether the confession was "made freely, voluntarily and without
compulsion or inducement of any kind."
Withrow v. Williams, 507 U.S. 680, 689 (1993) (citations and
internal quotation marks omitted); see also United States v. Harrison,
34 F.3d 886, 890 (9th Cir. 1994) ("We consider the totality of the
circumstances and determine whether the government obtained the statement by
physical or psychological coercion or by improper inducement so that the
suspect’s will was overborne." (citations and internal quotation marks
omitted)).
Two years after the Miranda decision, the
Supreme Court made it clear that eliciting a drug-induced statement can render
the statement involuntary and inadmissible:
If an individual’s will was overborne or if his
confession was not the product of a rational intellect and a free will, his
confession is inadmissible because coerced.
These standards are applicable whether a confession is the product of
physical intimidation or psychological pressure and, of course, are equally
applicable to a drug-induced statement . . . . Any questioning by police
officers which in fact produces a confession which is not the product of a free
intellect renders that confession inadmissible.
Townsend v. Sain, 372 U.S. 293, 308 (1963) (internal citations and footnotes
omitted).
The Ninth Circuit has embraced the reasoning of the Townsend
decision and extended it to defendants who provide statements while
intoxicated:
In these and most other cases where the voluntariness
of a confession has been discussed, there has been the element of police
interrogation. Where there is such
interrogation, the likelihood of finding coercion and hence, lack of
voluntariness, is enhanced. But, in our
opinion, voluntariness is not necessarily established by proving that the
confession was spontaneous or by proving the absence of an improper purpose on
the part of the questioning officers.
If by reason of mental illness, use of drugs, or extreme intoxication,
the confession in fact could not be said to be the product of a rational
intellect and a free will, to use the test of Townsend v. Sain, it is
not admissible and its reception in evidence constitutes a deprivation of due
process.
Unsworth,
396 F.2d at 381.
Mr. XXX XXX’s statement in the present case was not
the product of a rational intellect and free will, and should be suppressed.
II. The
Totality of Circumstances Reveals that Mr. XXX XXX’s Statements Were Not
Voluntary
“No one factor is determinative” of whether Mr. XXX
XXX’s statements were voluntary. See United States v. Kelley, 953
F.2d 562, 564 (9th Cir. 1992). Instead,
given the totality of circumstances of this case, the government cannot meet
its burden of establishing “by a preponderance of evidence” that Mr. XXX XXX’s
statement was voluntary. Id.
First, the Court should take notice of Mr. XXX XXX’s
comparatively young age and relative minor adult criminal history. The defendant is not an elderly, hardened
felon who has heard the Miranda admonitions dozens of times. His youth and comparative lack of criminal
sophistication undercuts the voluntariness of any statements he made. Further complicating matters is the
defendant’s comparative lack of education; he only completed his sophomore year
of high school, and never received his GED.
Moreover, the Court must also be concerned with the
officer’s extended conversation with Mr. XXX XXX before the tape
recorder was turned on in the interrogation cell. Mr. XXX XXX was not Mirandized by that officer until the
tape recorder was engaged, and therefore was interrogated by an officer, while
in custody, in a pre-Miranda setting.
Notably, the officer was well-aware that the conversation after the tape
recording began would be provided to the defense and to the Court B it is
highly suspicious that the officer elected to hide many of his comments and
questions “off-record.” This extended
conversation before Miranda warnings raises the problem referred to as
Athe cat of the bag” issue. See
Medeiros v. Shimoda, 889 F.2d 819, 824 (9th Cir. 1989). This Court must determine the voluntariness
of Mr. XXX XXX’s statements after this pre-Miranda interrogation
based “upon an evaluation of “the entire course of police conduct’ and the surrounding
circumstances.’” Id. (emphasis added).
Aggravating this pre-Miranda interrogation
concern is the fact that the officer made false promises to Mr. XXX XXX to
elicit statements from him. The officer
falsely represented that he made the call on whether a case “went federal,” and
also falsely represented that the case “would not go federal.” As this Court (and many gun suspects) know, “going
federal” with a state felon-in-possession case dramatically increases a
defendant’s sentencing exposure. By
promising to keep the case in state court, the interrogating officer (falsely)
assured Mr. XXX XXX that his confession would reap immediate benefits.
Of course, the officer promptly breached his promise
to the defendant. Mr. XXX XXX was
interviewed near midnight on July 28; by 4:00 pm on July 30 the officer had
contacted Inspector Kelley at the Alcohol, Tobacco, and Firearm Triggerlock
program and was advised that the defendant was a Triggerlock candidate. Exhibit D, Chronological Report.
These facts alone are sufficient to bring the
government’s assertion of Avoluntariness” into question. The fact that Mr. XXX XXX was under the
influence at the time of the interview, however, makes the government’s burden
nearly insurmountable. Indeed, the
defendant was under the influence of two substances as he was interviewed: he
had been using marijuana heavily that entire morning and up to the point of his
arrest at roughly 4:00 that afternoon. See
Exhibit C, Declaration of XXX XXX.
Moreover, he had been drinking very hard alcohol (cognac), very heavily
throughout the day as well. Id. As explained in his declaration, Mr. XXX XXX
was under the influence when interviewed B and that fact should have been clear
to the interviewing officer. Id.
Because the totality of the circumstances demonstrate
that Mr. XXX XXX did not knowingly and voluntarily provide a statement to the
interrogating officer on the night of July 28, this Court should suppress that
statement and preclude its admission at trial.
Conclusion
For the foregoing reasons, Mr. XXX XXX respectfully
requests that the Court suppress his confession given on the evening of July
28, 2002.
Dated: December 11, 2002
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
STEVEN G. KALAR
Assistant Federal Public Defender
Facts discussed in this background section
are drawn from discovery provided by the government and are provided for the
convenience of the Court. Recitation of
these facts and allegations is not a concession of their accuracy.
It
is difficult for counsel to precisely determine a defendant’s criminal history before receiving the presentence report in a
case.
This is, again, an estimate of the offense level and is not a concession
that Offense Level 24 is the correct level for Mr. XXX XXX after trial.