U.S. v. URKEVICH

LAURIE SMITH CAMP, District Judge

This matter is before the Court on the Report and Recommendation (Filing No. 55) issued by Magistrate Judge Thomas D. Thalken recommending denial of the Motion to Suppress (Filing No. 33) filed by the Defendant, Jerry Urkevich. No objections have been filed to the Report and Recommendation as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.

The Defendants seek an order suppressing physical evidence obtained from five separate searches of Urkevich's residence at 1924 So. 14th Street, Omaha, Nebraska, and also of statements made on three separate occasions during or after three of the searches. Judge Thalken determined the following with regard to the physical evidence:

1) probable cause existed to support the issuance of the January 4, 2001 and August 9, 2001 search warrants issued primarily upon information obtained from a confidential informant; 2) probable cause existed to support the issuance of the May 29, 2002 search warrant issued primarily upon information obtained from an anonymous tipster; 3) probable cause existed to support the issuance of the January 7, 2003 search warrant issued primarily upon information related to a stolen vehicle parked in a garage on the same property as Urkevich's residence; 4) even if probable cause did not exist to support the four search warrants described, the Leon good faith exception to the warrant requirement would apply; 5) the January 4, 2001, August 9, 2001, and May 29, 2002, search warrants properly authorized "no-knock" entries; 6) Urkevich voluntarily consented to the search of his residence on January 24, 2003.

With regard to Urkevich's statements, Judge Thalken found: 1) the statements given on January 5, 2001, August 9, 2001, and January 24, 2003, were preceded by advice of Miranda rights, voluntary and not induced by coercive police behavior; and 2) the statements were not the fruits of unlawful searches, and even if one of the search warrants and/or the consent search were constitutionally deficient the statements were not derived directly from the allegedly unconstitutionally-obtained evidence and therefore were sufficiently distinguishable to be purged of the alleged primary taint of the searches.

Notwithstanding the absence of objections, pursuant to 28 U.S.C. § 636(b)(1)(C) and NELR 72.4, the Court has conducted a de novo review of the record. The Court has read the parties' briefs in support of their motions (Filing Nos. 34, 35) and the transcript (Filing No. 44). The Court has also viewed the evidence, which includes a videotape.

The Court finds that one issue merits discussion. Urkevich's Motion to Suppress included the issue of an involuntary waiver of his Miranda rights with regard to all three of his statements. (Filing No. 33.) Viewing the evidence with regard to the January 24, 2003, statement, the Court notes that Officer Desler testified that Urkevich answered "yes" on January 24, 2003, when in custody and asked at the conclusion of the administration of his Miranda rights whether he wished to talk with Desler. (TR 35.) Desler also wrote Urkevich's response to the question: "Knowing your rights in this matter, are you willing to talk to me now?" as "yes." (Ex. 6.) Judge Thalken accepted this version of the evidence. (Filing No. 55, at 8.)

However, the transcript of the interview and the videotape indicate first an unintelligible answer to the pertinent question followed by "Whatever." (Ex. 7, 8.) This ambiguous response was followed by Desler's following statement:

And that's your right, Jerry, if, if I ask you a question and you don't want to answer or we get to some, talking about somebody that you don't want to talk to me about, just tell me you don't want to talk to me about it. It's not gonna . . . change the way things are done between you and I. All right, we've talked a little bit in the past and, and I think most of the time you've been pretty honest with me when you've talked to me. So . . . (Unintelligible) how long were you in jail last time that day you turned yourself in. You got out.

(Ex. 8.)

Urkevich then answered Desler's questions. It does not appear from the videotape that he was threatened, coerced, or forced to give a statement. He had given two previous statements. Therefore, under the totality of the circumstances, including the entire record surrounding the answer to the pertinent final question discussed, the Court finds that Urkevich impliedly waived his Miranda rights and voluntarily gave a statement on January 24, 2003. State of North Carolina v. Butler, 441 U.S. 369, 373 (1979) (concluding that while an express waiver of the right to remain silent is "strong proof" of a waiver of Miranda rights, an implied waiver can be inferred from a suspect's actions and words).

Turning to the central issue of a voluntary waiver of rights and generally to the voluntariness of Urkevich's statement, whether Urkevich's waiver of his Miranda rights on January 24, 2003, was express or implied is not material. However, the record should be clarified. The Court finds that because Judge Thalken correctly applied the law to the facts, the Court adopts the Report and Recommendation, noting that the Court concludes that Urkevich's waiver of his Miranda rights on January 24, 2003, was an implied waiver.

IT IS ORDERED:

1. The Magistrate Judge's Report and Recommendation (Filing No. 55) is adopted; and

2. The Motion to Suppress (Filing No. 33) filed by the Defendant, Jerry Urkevich, is denied.