United States v. Michael Walker ( 2018 )

FILED
NOT FOR PUBLICATION
NOV 09 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10325
Plaintiff-Appellant, D.C. No.
1:15-cr-00293-SOM-KSC-2
v.
MICHAEL WALKER, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding
Argued and Submitted August 14, 2018
San Francisco, California
Before: SCHROEDER, SILER,** and MURGUIA, Circuit Judges.
The United States appeals the District Court’s pretrial order suppressing
statements made by the defendant, Michael Walker, to military investigators in the
Criminal Investigations Division following the murder of his wife. The District
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Court, after an evidentiary hearing, held that the defendant was detained and hence
subject to custodial interrogation once the questioning turned to the subject of
extramarital relationships. The District Court suppressed all statements made after
that time.
The government first contends that Walker was not in custody until he
received warnings under Miranda v. Arizona, 384 U.S. 436 (1966), some time after
the initial questioning about extramarital affairs. The warnings were apparently
administered after the government reviewed the contents of his cell phone,
revealing a specific extramarital relationship. Before that time, the investigators
had not referred to any possible evidence of Walker’s motive or guilt of the murder
of his wife. Prior to the warnings, Walker had been provided a lunch break and
access to the restroom. Moreover, the earlier questioning concerning extramarital
relationships did not pertain to any serious criminal offense or focus on any
particular relationship, and the language used by the investigator was not
threatening or coercive. The facts here do not indicate Walker was in custody and,
therefore, no Miranda warnings were required. See United States v. Kim, 292 F.3d
969, 974 (9th Cir. 2002). In addition, there is no indication that Walker's
statements were a product of police coercion and made involuntarily. See
Colorado v. Connelly, 479 U.S. 157, 167 (1986). The District Court erred in
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suppressing the statements made during that earlier questioning. Accordingly,
Walker's statements prior to the warnings are admissible for all purposes. See
Michigan v. Harvey, 494 U.S. 344, 350-51 (1990).
The thrust and tone of the interview materially changed, however, when the
cell phone information reflected the existence of a specific relationship that
prompted investigators to suspect Walker’s guilt and the need for the Miranda
warnings. Once the warnings were given, and Walker responded affirmatively that
he wished to have counsel and wanted to stop talking with the investigator, the
interrogation nevertheless continued, over Walker’s protests, on the subject of his
relationship with “Lisa.” The District Court did not err in ruling that Walker was
in custody during this questioning. The government bears the burden of
establishing that the statements made post-Miranda warnings were voluntary,
despite the violation of Miranda rights. See United States v. Haswood, 350 F.3d
1024, 1027 (9th Cir. 2003). The court must consider a number of factors relating
to the defendant’s situation and the officer’s conduct to determine voluntariness.
See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). In this case, Walker
had not eaten since the previous evening, had already endured questioning for
more than an hour and a half, and responded with mumbles and complaints, while
the interrogator in forceful and threatening tones urged him to answer by inter alia,
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invoking the will of God. The District Court did not err in holding that the
statements made under such interrogation were involuntary and inadmissible for
any purpose. See id.; Pollard v. Galaza, 290 F.3d 1030, 1033–34 (9th Cir. 2002).
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
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FILED
NOV 9 2018
U.S. v. Walker , Case No. 17-10325 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SILER, Judge, concurring in part and dissenting in part.
I concur with the decision by the majority that the district court erred in
suppressing the statements made by Walker during the questioning before he
received warnings under Miranda v. Arizona, 384 U.S. 436 (1966). However, I
beg to differ from the majority memorandum that the district court did not err in
ruling that Walker was in custody during this questioning.
Certainly, the government bears the burden of establishing that the
statements made after the Miranda warnings were voluntary. See United States v.
Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003). The prosecution admits that those
statements post-Miranda cannot be used as evidence in chief during the trial, but
the prosecution suggests that they were voluntary statements which could be used
in the cross-examination of Walker, if he chooses to testify at trial. Although at the
time of questioning, Walker had not eaten since the previous evening, he had been
on duty at the hospital and willingly came with the officers to the building where
he was questioned. Moreover, although he was questioned for more than an hour
and a half, he also was given a lunch break and released after the questioning. He
was never searched or patted down, and, he was taken to quarters after the
interrogation. He voluntarily went with the officers to the office to give a
statement, for he was the person who notified authorities that his wife had been
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killed. It was logical that the investigating officers would question Walker in a
location away from his dwelling where the crime occurred and where evidence
might be found before it was disturbed.
Walker was never told he was under arrest, nor was he told he could not
leave. Although the questioning by Mitchell was overbearing, that did not make
the statements involuntary. As the majority states, the government bears the
burden of establishing that the statements were voluntary. However, we consider
voluntariness under a de novo review. United States v. Preston, 751 F.3d 1008,
1020 (9th Cir. 2014)(en banc). In this case, Walker was 35 years old, an Army
sergeant, and a medic. He had a high school education and some college,
including several criminal justice courses. I would find that the district court erred
when it concluded that the statement made after the Miranda warnings were
involuntary. I would therefore allow the post-Miranda statements to be used for
impeachment purposes only. See Oregon v. Elstad, 470 U.S. 298, 307 (1985).
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