U.S. v. GARREAU

, Rather, under the circumstances of this case, in which the omission on the inventory form was of the illegal contraband and comes in conjunction with substantial evidence that the item subject to the motion to suppress was seized as part of a search incident to arrest invalid under Gant, failure to adhere to a standardized procedure prevents the Government from satisfying its burden of showing that its conduct fell within the bounds of the inventory search exception to the warrant requirement.

property lawfully within the vehicle and stolen property. The Government presented insufficient evidence that an exception to the Inventory Policy permitted exclusion of contraband items from form HP-219D. This case differs from Garner, in which an inventory search was found valid even though law enforcement did not complete an inventory form, because the impound policy at issue in that case did "not require that results of an inventory search be listed on a specific form nor that the inventory search be conducted in a particular manner." 181 F.3d at 992. Additionally, in Garner the vehicle's contents were completely recorded in other ways through a towing report, a property record, and photographs of the vehicle's contents, ranging from trash to cash. Id. at 991.

The record is devoid of any information that the Highway Patrol sought to verify ownership of other items within the vehicle — such as the CDs, cell phone, children's toys, clothing, and the like — before deciding whether to list such items on the HP-219D.

The Government's argument that the inventory search exception applies appears to be an after-the-fact attempt to justify a search incident to arrest contrary to Gant. Trooper Stahl's report documents two separate searches. First, "[a] search of the vehicle was conducted" immediately after Garreau was arrested. Ex. 3, at 1-2. During this search, Trooper Stahl found the handgun. Id. Upon finding the handgun, Trooper Stahl examined the serial number and ran a check with State Radio to inquire whether the weapon was stolen. Id. at 2. Then, according to the report, arrangements were made for towing and an inventory was conducted. Id.; see also (T. 49). These reports indicate that Trooper Stahl at the scene conducted a search incident to arrest of Garreau's car that uncovered the handgun. The Government does not assert good faith reliance on the law as it existed prior to Gant. Rather, the Government attempts to justify the search and seizure of the gun based on the inventory search exception. Under these peculiar circumstances, the Government's use of an inventory search theory is an after-the-fact attempt to justify what was instead simply a search for incriminating evidence. Accordingly, evidence of the search of the vehicle and seizure of the firearm will be suppressed and, therefore, inadmissible at trial, unless an exception to the exclusionary rule applies.

The evidence does not clearly establish when the towing company was contacted. In his testimony, Trooper Stahl did not directly answer questioning regarding when the towing company was called relative to the search in which the gun was seized. (T. 20-21). Trooper Stahl's report initially mentions the search prior to and separate from any reference to towing. Ex. 3, at 2.

There are three general exceptions to the exclusionary rule. The first, called the "attenuated connection" exception, applies when the chain between the challenged evidence and the primary taint of illegality is so long or only linked by sophisticated argument such that exclusion is not warranted. Wong Sun, 371 U.S. at 487-88 (rejecting "but for" test for determining whether evidence is fruit of the poisonous tree and noting that in some cases connection between illegal conduct and discovery of challenged evidence will "become so attenuated as to dissipate the taint") (citing Nardone v. United States, 308 U.S. 338, 341 (1939)); see also United States v. Hinoiosa, No. 08:05CR145, 2005 U.S. Dist. LEXIS 39921, at *17 (D. Neb. 2005). Second, the "independent source" exception makes the evidence admissible if the Government can show that it derived the evidence from a lawful source independent of the illegal conduct creating the primary taint. Murray v. United States, 487 U.S. 533 (1988) (holding that the independent source doctrine applies not "only to evidence obtained for the first time during an independent lawful search," but "also to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality."); see also Wong Sun, 371 U.S. at 487 (citingSilverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920); Hinoiosa, 2005 U.S. Dist. LEXIS 39921, at *17. Third, the "inevitable discovery" exception applies when the Government can establish that the challenged evidence would have been inevitably discovered without reference to the illegal conduct creating the primary taint. See Nix v. Williams, 467 U.S. 431, 441 (1984) (adopting the inevitable discovery exception to the exclusionary rule).

In this case, the inevitable discovery exception applies to the vehicle search and the seizure of the handgun. Otherwise unconstitutionally found evidence "need not be suppressed if the two prongs of the inevitable discovery doctrine are proved by a preponderance of the evidence: (1) there is a reasonable probability the evidence would have been discovered by lawful means in the absence of police misconduct, and (2) the government was actively pursuing a substantial, alternative line of investigation at the time of the constitutional violation."United States v. Munoz, 590 F.3d 916, 923 (8th Cir. 2010) (citingUnited States v. Thomas, 524 F.3d 855, 858 (8th Cir. 2008);United States v. Pruneda, 518 F.3d 597, 604 (8th Cir. 2008); see also Nix v. Williams, 467 U.S. 431, 444 448 (1984). The second prong "requires that the government prove that there was, at the time of the search . . . an actual other investigation that would have led to discovery of the otherwise unconstitutionally obtained evidence." Id. at 923-24 (quoting United States v. James, 353 F.3d 606, 617 (8th Cir. 2003). The prosecution must establish "by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means." Nix, 467 U.S. at 444. The Eighth Circuit has found that the inevitable discovery exception applies when unlawfully obtained evidence would have been identified during a lawful inventory search conducted according to an established police department procedure.See United States v. Alvarez-Gonzalez, 319 F.3d 1070, 1072 (8th Cir. 2003) (holding that "discovery of [defendant's] gun . . . was inevitable" because defendant would have been detained anyway and there was a "reasonable probability" that defendant's vehicle "would have been towed . . . and a routine inventory search of the vehicle would have been conducted," during which "the firearm would have been inevitably discovered").

In this case, although the handgun was found during a search incident to arrest contrary to Gant, the handgun would have been inevitably discovered as part of an inventory search following the arrest of Garreau for driving with a suspended license and on the outstanding warrant. The Inventory Policy requires an inventory of the contents of all vehicles impounded or taken into protective custody. Due to his arrest and inability to identify anyone who could pick up the vehicle from the site of the arrest, Garreau's vehicle would have been inevitably impounded, thereby mandating an inventory of the vehicle's contents. This inventory, under the terms of the Inventory Policy, would have included "all areas of the vehicle, trunk, glove compartment and luggage or other closed containers within the vehicle." Whether the location of the gun when seized is best characterized as an area of the trunk or a closed container within the vehicle, the gun would have been inevitably found as part of an inventory search, thereby satisfying prong one of the inevitable discovery test. The Government also has met its burden on prong two, for at the time of the search the police were actively pursuing an investigation into Garreau's warrant for driving with a suspended license. This is evident by the fact that Garreau was in custody for this offense when the search occurred. Accordingly, evidence of the search of the vehicle and seizure of the firearm is not suppressed under the exclusionary rule and, therefore, is admissible at trial.

B. Statements Made in Patrol Car

Garreau next argues that he was not advised of his Miranda rights prior to making incriminating statements while sitting handcuffed in Trooper Stahl's patrol car. He contends that he was in custody at the time he was questioned and was asked questions eliciting potentially incriminating answers, thereby entitling him to Miranda warnings.

To protect a suspect's Fifth Amendment right not to be "compelled in any criminal case to be a witness against himself," the Supreme Court created concrete constitutional guidelines requiring that the suspect "must 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." Miranda v. Arizona, 384 U.S. 436, 444 (1966). Miranda warnings, however, are not required for "[g]eneral on-the-scene questioning as to facts surrounding a crime." which does not present "the compelling atmosphere inherent in the process of in-custody interrogation."Miranda, 384 U.S. at 477-78. In order for Miranda to apply, the challenged statements must have been made while the suspect was in custody and in response to interrogation. United States v. Howard, 532 F.3d 755,761 (8th Cir. 2008).

The ultimate inquiry in the custody analysis "is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." United States v. LeBrun, 363 F.3d 715, 720 (8th Cir. 2004) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). "Two discreet inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." LeBrun, 363 F.3d at 720 (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)). A court must, in its analysis, "keep[] in mind that the [custody] determination is based on the objective circumstances of the interrogation, not the subjective views harbored by either the interrogating officers or the person being questioned." Id. (internal quotation and citation omitted).

At the time Officer Wollman and Garreau conversed, Garreau was in handcuffs, under arrest, and sitting in the back seat of a locked patrol car. Garreau was, without question, in custody within the meaning of Miranda at the relevant time.

Garreau, without question, was subject to "interrogation" by Officer Wollman. "[I]nterrogation includes both direct questions and words or actions that an officer should know are reasonably likely to elicit an incriminating response from the suspect."United States v. McGlothen, 556 F.3d 698, 701 (8th Cir. 2009) (internal citations omitted), cert. denied 129 S.Ct. 2812 (2009). Determining whether specific questions or statements amount to interrogation depends on the circumstances of each case, particularly whether they are objectively and reasonably likely to result in incriminating responses by the suspect, as well as the nature of the context in which they are given. Rhode Island v. Innis, 446 U.S. 291, 300-02 (1980). After the handgun was found, Officer Wollman went to Trooper Stahl's patrol car to talk to Garreau. There, Officer Wollman identified himself and said that he and Trooper Stahl had found the stolen gun in the vehicle Garreau had been driving. Officer Wollman then asked Garreau about the gun, whereupon Garreau admitted that he knew the gun was stolen. Garreau had said nothing about a stolen gun being in the vehicle before the gun was found. Officer Wollman's question was the kind of investigative query that was at least reasonably likely to elicit an inculpatory reply from Garreau and thus constituted "interrogation" under Miranda.

Garreau's statements, confessing knowledge of the handgun being stolen, were therefore the result of custodial interrogation, prior to which he should have been, but was not, advised of hisMiranda rights. Consequently, his statements must be suppressed and cannot be used as substantive evidence at trial. See United States v. Stoneman, No. CR 09-30101-RAL, 2010 U.S. Dist. LEXIS 38837, at *16-17 (D.S.D. Apr. 20, 2010) (citing Miranda, 384 U.S. at 475); see also Harris v. New York, 401 U.S. 222, 226 (1971).

Suppressed statements made in response to a custodial interrogation, however, may be admitted for impeachment purposes if the defendant testifies at trial, so long as the statements were voluntary. See Harris, 401 U.S. at 226. The premise behind allowing tainted evidence to be used as impeachment is simple: If the defendant takes the witness stand and gives testimony that is inconsistent with his own previously recorded statements or other evidence, the Constitution does not require the Government to leave the lie unchallenged, for to do so would permit the defendant to use the law as a means of effectuating perjury.United States v. Baftiri, 263 F.3d 856, 857 (8th Cir. 2001); see also United States v. Rowley, 975 F.2d 1357, 1361 (8th Cir. 1992) (voluntary statements, even if otherwise inadmissible, may be used to impeach a testifying defendant).

Garreau's statements to Officer Wollman were made voluntarily and were not the product of coercion, express or implied. No threats or promises were made to Garreau and no undue influence or pressure was exerted on him. Garreau agreed to talk about the handgun with Officer Wollman at the scene and did so without hesitation. There can be little doubt that Garreau's statement was voluntary and not the offspring of coercive action that undermined his ability to exercise his free will and decide for himself what he wanted to do. This being the case, Garreau's inculpatory statement relating to the stolen gun is admissible at trial for impeachment purposes when and if he testifies. See Oregon v. Haas, 420 U.S. 714, 720-24 (1975);Harris, 401 U.S. at 223-26; see also United States v. Havens, 446 U.S. 620, 624-28 (1980) (holding that the rationale of Haas andHarris permits the use of illegally obtained evidence to impeach statements made by the defendant on cross-examination); Stoneman, 2010 U.S. Dist. LEXIS 38837, at *17 (concluding that the defendant's incriminating but voluntary statements, made without the necessary waiver of Miranda rights, were admissible for impeachment purposes).

C. Statements Made at Hughes County Jail

Garreau also seeks to suppress the statements he made to Officer Wollman and Special Agent Baldwin at the Hughes County Jail under the "fruit of the poisonous tree" doctrine set out inWong Sun v. United States, 371 U.S. 471 (1963). The Government does not intend to introduce these statements in its case in chief, but requests that this Court find that the statements were not coerced and may be used for impeachment purposes. Garreau argues that his admissions flow from an illegal search of the car he was driving. The Court, however, has determined that the vehicle search and seizure of the firearm are admissible under the inevitable discovery exception to the exclusionary rule and for this reason, Garreau's argument does not succeed. Determination of whether Garreau's subsequent statements emanated from, or were tainted by, the Miranda violation requires additional analysis.

The Fourth Amendment generally requires a "`broad application' of the exclusionary rule." United States v. Fellers, 397 F.3d 1090, 1094 (8th Cir. 2005) (quoting Oregon v. Elstad, 470 U.S. 298, 306 (1985)). In the Fourth Amendment context, the exclusionary rule serves to deter unreasonable searches and seizures regardless of the probative value of their fruits. Id. at 1095. "Under the fruit of the poisonous tree doctrine, the exclusionary rule bars the admission of physical evidence and live witness testimony obtained directly or indirectly through the exploitation of police illegality." United States v. Simpson, 439 F.3d 490, 493 (8th Cir. 2006) (internal citations omitted).

As discussed above, the exclusionary rule has general exceptions for "attenuated connection," "independent source," and "inevitable discovery." On this issue, the attenuated connection exception merits further discussion. When the fruit of a Fourth Amendment violation is a confession, the exclusionary rule is applied "to ensure that the confession is not causally linked to the initial illegality."Id. (citing Brown v. Illinois, 422 U.S. 590, 602-03 (1975)). In such cases, Miranda warnings subsequent to the police illegality will not, by themselves, attenuate the taint of an unconstitutional search and seizure. Brown, 422 U.S. at 602; see also United States v. Vega-Rico, 417 F.3d 976, 979 (8th Cir. 2005) (noting that "[t]he giving of Miranda warnings, followed by the making of a voluntary statement, does not, in and of itself, mandate a statement's admissibility.").

To break the causal chain between a prior Miranda violation and subsequently made statements, Wong Sun requires that the latter statements be "sufficiently an act of free will to purge the primary taint." 371 U.S. at 846. In determining whether a confession is the product of a free will, courts consider "Miranda warnings, the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and particularly, the purpose and flagrancy of the official misconduct." Vega-Rico, 417 F.3d at 976 (quoting United States v. Hernandez-Hernandez, 384 F.3d 562, 565) (8th Cir. 2004).

Garreau's statements were sufficiently an act of free will to purge the primary taint. On the one hand, the length of time between the prior Miranda violation and Garreau's statements at the Hughes County Jail — approximately one hour and seven minutes in between the arrest and interrogation, of which 10-15 minutes consisted of a ride in the patrol car — was not particularly long. (T. 39); See Brown, 422 U.S. at 604 (statement separated from illegal arrest by less than two hours not attenuated); Taylor v. Alabama, 457 U.S. 687 (1982) (confession six hours after illegal arrest not purged of taint of illegal arrest); Dunaway v. New York, 442 U.S. 200, 203 (1979) (incriminating statements made within an hour of illegal arrest not sufficiently attenuated). However, the length of time, in conjunction with intervening circumstances including the change in location and the substitution of Agent Baldwin for Trooper Stahl, weigh in favor of a finding of attenuation. In addition, it is undisputed that Garreau received Miranda warnings and waived his Miranda rights prior to making any statements at the jail, and the facts further demonstrate that Officer Wollman and Agent Baldwin conducted the interview in a professional manner and acted with no bad purpose. It also appears that questioning by Officer Wollman at the scene was brief.

For cases involving a "two-step" interrogation — an interrogation in which there is a subsequent administration ofMiranda warnings to a suspect who previously provided a voluntary but unwarned statement — the Eighth Circuit has adopted the approach that, in order for the subsequent statements to be fruit of the poisonous tree, the two-step interrogation must be a "designed, deliberate, or calculated circumvention ofMiranda." United States v. Elzahabi, 557 F.3d 879, 884 (8th Cir.), cert. denied, 129 S.Ct. 2781 (2009); accord United States v. Torres-Lona, 491 F.3d 750, 757 (8th Cir. 2007).

Unlike the defendant in Missouri v. Seibert, 542 U.S. 600 (2004), Garreau was not subjected to an interrogation technique intended to drain the substance out of Miranda or to thwart its purpose. No improper tactics were employed by Officer Wollman or Agent Baldwin, and the two questioning sessions were separated by both time and location. Where, as here, the initial statement was voluntary, the proper inquiry is whether Garreau's subsequent statements, after being properly advised of his rights, were voluntary based on the surrounding circumstances. See Elstad, 470 U.S. at 318. The Court concludes that these statements were indeed voluntary.

No evidence was presented that Officer Wollman used compulsion in eliciting Garreau's first statement, that the Miranda waiver signed by Garreau before the second statements was not knowing, voluntary, or intelligent, or that the later statements were in any way coerced. The subsequent statements not only concerned the handgun but also Garreau's use of illegal drugs, the latter being a separate and independent basis for a Miranda advisement prior to questioning him on this subject matter. Garreau's statements at the Hughes County Jail were knowingly, voluntarily, and intelligently made. Under the circumstances, the statements were not invalidated by his prior, illegally obtained statement and need not be suppressed. United States v. Walker, 518 F.3d 983, 985-86 (8th Cir. 2008)

D. Urine Sample

Garreau also moves under the fruit of the poisonous tree doctrine to suppress the urine sample that he consented to at the Hughes County Jail. For the same reasons that the Hughes County Jail statements need not be suppressed, neither must the urine sample.

The Supreme Court has held that the failure to give Miranda warnings does not require the suppression of physical evidence derived from a suspect's unwarned, but voluntary, statements.United States v. Patane, 542 U.S. 630, 641-44 (2004); see also United States v. Buchanan, No. CR 07-50118-AWB, 2008 WL 2704865, at *2-3 (D.S.D. 2008) (denying motion to suppress derivative evidence obtained after an Edwards violation based on the Exclusionary Rule), aff'd, 574 F.3d 554 (8th Cir. 2009). In addition, Garreau consented to providing the urine sample and that consent was voluntary based on the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 226-27 (1973); see also United States v. Mendenhall, 446 U.S. 544, 557-58 (1980) (the evidence plainly supported the trial court's view that the defendant's consent to search of her person at DEA office was freely and voluntarily given). His custodial status does not suffice under the circumstances to vitiate the voluntariness of his consent. See United States v. Watson, 423 U.S. 411, 424-25 n. 14 (1976); see also United States v. Sanders, 424 F.3d 768, 773-74 (8th Cir. 2005) (applying personal and environmental characteristics and concluding that the search of the defendant's person was voluntarily given).

The Government has advised the Court that it will not utilize evidence derived from the urine sample. (Doc. 23, at 7). The Government does request, however, that the Court find that the urine sample was not obtained as a deliberate, intentional attempt to illegally secure evidence. As discussed above, the Court finds that none of the evidence at issue in Garreau's motion was obtained as part of such an attempt. Therefore, the urine sample may also be offered for impeachment purposes at trial.

IV. CONCLUSION

Based on the foregoing, it is hereby

ORDERED that Defendant's factual Objections to the Report and Recommendation for Disposition of Motion to Suppress Evidence and Statements (Doc. 37) are sustained. It is further

ORDERED that Defendant's Motion to Suppress Evidence and Statements (Doc. 14) is denied with respect to the search of the car, the evidence of a firearm found in the car, the statements made at the Hughes County Jail, and the urine sample, but granted with respect to the statements made in the patrol car. It is further

ORDERED that the Court declines to adopt the Magistrate Judge's Report and Recommendation (Doc. 29) and Corrigendum/Clarification of Report and Recommendation (Doc. 32).