United States v. Dolberry

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal Case No. 15-0037
DWAYNE T. DOLBERRY, Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION
Defendant Dwayne Dolberry is charged with one count of Unlawful Possession of a
Firearm and Ammunition by a Person Convicted of Crime Punishable by Imprisonment for a
Term Exceeding One Year, in violation of 18 U.S.C. § 922(g)(1), arising from the seizure of a
loaded Keltec 9mm semi-automatic handgun from his person at the time of his arrest in March
2015. Indictment, Count One, ECF No. 3. The defendant has now moved to suppress all
physical evidence seized from, and all statements made by, him in connection with his arrest.
Def.’s Mot. to Suppress (“Def.’s Mot.”), ECF No. 10. Upon consideration of the memoranda of
law submitted by the defendant and the government, and the testimony and exhibits presented at
a suppression hearing on August 3, 2015, for the reasons set forth below, the defendant’s motion
is denied, except with respect to an issue conceded by the government.
I. BACKGROUND
On the evening of March 17, 2015, shortly after 5:00 p.m., Officer John Wright of the
Metropolitan Police Department’s (“MPD”) Gun Recovery Unit (“GRU”) was on duty in the
Trinidad neighborhood of Northeast, Washington, D.C. Rough Transcript of Suppression
Hearing (“Hearing Trans.”) at 8–10, United States v. Dolberry, No. 15-cr-037 (Aug. 3, 2015)
1
(testimony of Officer John Wright). 1 Officer Wright was driving an unmarked, gray Ford
Explorer, with passengers MPD Officer Vaillancourt and Bureau of Alcohol, Tobacco, Firearms
and Explosives (“ATF”) Special Agent Srivastava, headed to a gas pump on the 1800 or 1900
block of West Virginia Avenue. Id. at 10–11, 16, 36. The officers, including Officer Wright,
were dressed casually, but also wore police vests labeled with the word “police” on the front and
the back and belts with police “accoutrements,” including a firearm. Id. at 10, 44–45. 2
At approximately 5:19 p.m., when the officers were located “right by the gas pump,” they
heard a radio dispatch from the Fifth District about a “man with a gun,” described as “a black
male, black jacket, blue jeans, around 20 years of age,” located at “1275 Meigs” Place and last
seen in “an alley.” Id. at 11–12, 15–16. With Officer Wright “flooring it,” the officers
immediately responded to the vicinity of 1275 Meigs Place by making a left on Mt. Olivet Road
and a right on Montello Avenue. Id. at 16, 19. Officer Wright did not recall ever using the
vehicle’s siren, but testified that, if he had, “it may have been for a split second crossing West
Virginia onto Mt. Olivet.” Id. at 24. The officers’ vehicle “arrived at the block at a high rate of
speed” but went “slower through the block” so that the officers could look up and down the
alleys they passed. Id. at 47. Officer Wright testified that they traveled approximately “under
half a mile” and it took “maybe a minute” for him to get from the 1900 block of West Virginia
Avenue to the 1200 block of Meigs Place. Id. at 54, 60.
The officers encountered defendant Dolberry at the intersection of Meigs Place and
Trinidad Avenue. Id. at 18. The defendant was walking southbound on the west side of Trinidad
1
The Court’s citations to the transcript are from the court reporter’s draft of the proceedings.
2
Officer Wright inventoried the supplies that he carried: his police vest contained his “radio, satellite microphone
for the radio, flashlight, . . . cell phone or a wallet, notebook, pens, marker,” “maybe some small little bags,” “a pry
tool,” and “a badge,” Hearing Trans. at 45, and his belt contained “a firearm, handcuffs, OC spray, extra magazines,
[and] rubber gloves,” id. at 44–45.
2
Avenue, in a direction facing towards the officers’ vehicle. Id. at 21. Officer Wright noticed the
defendant because he matched the radio description—he is a black male, and was wearing blue
jeans and what Officer Wright originally thought was a black jacket. 3 Id. at 21, 60–61.
Photographs from the scene show that, in addition to blue jeans, the defendant was wearing a
black long-sleeved shirt with a black vest, a baseball cap, glasses, and gold chains around his
neck. Id. at 43; Gov’t Ex. 4. Officer Wright testified that upon seeing the vehicle, the defendant
“seemed startled” and his “eyes kind of got wide.” Hearing Trans. at 21. Officer Wright stopped
the vehicle “at or prior to the crosswalk” and greeted the defendant from inside of the vehicle.
Id. at 21, 25. The defendant stopped; he did not flee. Id. at 25, 51. As Officer Wright got out of
the vehicle and began walking towards the defendant, he asked the defendant in a “calm and
matter of fact” tone of voice “if he had anything on him” and “told him that we had just gotten a
call,” sounding “kind of apologetic . . . to keep whatever situation may be there calm.” Id. at 25,
50, 52. The defendant did not respond. Id. at 25. Officer Wright then asked the defendant in a
calm, conversational tone “if I could pat him down.” Id. at 25–26. The defendant “said yes, and
he moved his arms away from his body” calmly. Id. at 26. When Officer Wright patted down
the defendant, he “felt, on the left side of his jacket, a hard metal object he believed to be a
firearm.” Id. at 27.
Upon feeling what he believed to be a firearm, Officer Wright wrapped his arms around
the defendant and turned him towards the police vehicle as the other officers exited the vehicle.
Id. The defendant, with a “calm but defeated” demeanor, said something to the effect of, “y’all
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Officer Wright recognized the defendant and knew who he was. Hearing Trans. at 41. He testified that the
defendant “is someone in the neighborhood that gleans respect from the neighborhood. He’s always been courteous
and respectful any time I had an interaction with him, be it in passing or speaking. He carries himself like a mature
person.” Id. at 42. Officer Wright had never before, however, stopped, arrested, or participated in an arrest of the
defendant. Id. at 59.
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got me; y’all got me. It’s all good. I’m not going anywhere,” in what Officer Wright perceived
to be an attempt to deescalate the situation. Id. at 27–28. The defendant was placed in handcuffs
without resisting. Id. at 28. After the defendant was placed in handcuffs and shackles to prevent
him from running away, Officer Wright “asked him why he didn’t run.” Id. at 31. The
defendant responded with “something to the effect that he was ready to go back to jail, that he
knew this was coming.” Id. Officer Wright approximated that “maybe 30 or 40 seconds” passed
between his initial sighting of the defendant on the sidewalk until the time he restrained the
defendant in a bear hug. Id. at 54–55.
At approximately 5:20 p.m., Officer Vaillancourt called in and informed the radio
dispatcher that “the individual [was] stopped, and the weapon recovered.” Notice of Filing of
Rough Trans. of Excerpted Audio Recording in Gov’t Ex. 1 (“Audio Recording Trans.”) at 2,
ECF No. 16; see also Hearing Trans. at 61. Officers recovered from the left breast pocket of the
defendant’s vest a loaded 9mm semi-automatic handgun. See Hearing Trans. at 29.
II. LEGAL STANDARD
A. Physical Evidence
The Fourth Amendment prohibits law enforcement from conducting “unreasonable
searches and seizures,” and “this protection extends to a brief investigatory stop of persons . . . ,
whether or not an arrest follows.” United States v. Bailey, 622 F.3d 1, 5 (D.C. Cir. 2010) (citing
United States v. Arvizu, 534 U.S. 266, 273 (2002); Terry v. Ohio, 392 U.S. 1, 9 (1968); and
United States v. Cortez, 449 U.S. 411, 417 (1981)). When the government conducts an
unconstitutional search or seizure, the Court must exclude any evidence obtained as the “fruit” of
that search or seizure. Wong Sun v. United States, 371 U.S. 471, 484 (1963); United States v.
Matthews, 753 F.3d 1321, 1324 (D.C. Cir. 2014) (“The admissibility of all the incriminating
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evidence . . . depends upon the validity of the search.”). For suppression of the evidence, the
defendant must first establish that he was subjected to a search or seizure without a warrant, and
then the burden shifts to the government to justify the warrantless search or seizure. See United
States v. Brodie, 742 F.3d 1058, 1063–64 (D.C. Cir. 2014); United States v. Williams, 878 F.
Supp. 2d 190, 197 (D.D.C. 2012) (citing cases).
B. Statements
The Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), held that “the
prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” Id. at 444. The well-settled
procedural safeguards of Miranda require that law enforcement agents give the defendant, prior
to such a custodial interrogation, warnings “that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires.” Id. at 479. These procedural requirements of Miranda apply,
however, only when there is a custodial interrogation. See United States v. Vinton, 594 F.3d 14,
26 (D.C. Cir. 2010) (“Miranda warnings are required where a suspect in custody is subjected to
interrogation.” (quoting Rhode Island v. Innis, 446 U.S. 291, 300 (1980)) (internal quotation
marks omitted)).
III. DISCUSSION
The defendant’s motion to suppress the loaded gun seized from his vest pocket is
discussed first, followed by consideration of his motion to suppress the statements he made to the
police both before and after his arrest.
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A. Physical Evidence
The defendant seeks to suppress the gun and ammunition recovered from his person,
arguing that this search and seizure was unlawful because the officers lacked reasonable
suspicion to stop and frisk him. Def.’s Mot. at 2–3; Hearing Trans. at 75–76. The government
responds that the defendant was not stopped or seized within the meaning of the Fourth
Amendment until after he consented to a pat-down, at which point there was probable cause for
his arrest. Gov’t Opp’n to Def.’s Mot. to Suppress Physical Evidence & Statements (“Gov’t
Opp’n”) at 4–6, ECF No. 12; Hearing Trans. at 65.
Generally, “searches [and seizures] must be supported by a warrant obtainable upon a
showing of probable cause,” United States v. Jackson, 415 F.3d 88, 91 (D.C. Cir. 2005), but
“[a]s an exception to the Fourth Amendment’s warrant requirement, officers may conduct a brief
investigative ‘Terry stop’ so long as they have ‘reasonable, articulable suspicion’ of criminal
conduct,” United States v. Goddard, 491 F.3d 457, 460 (D.C. Cir. 2007) (per curiam) (citing
Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). While “Terry stops require only that officers
have a ‘minimal level of objective justification,’” id. (quoting INS v. Delgado, 466 U.S. 210, 217
(1984)), “[t]he prohibition against unreasonable seizures requires that all seizures, even ones
involving ‘only a brief detention short of traditional arrest,’ be founded upon reasonable,
objective justification,” United States v. Gross, 784 F.3d 784, 786 (D.C. Cir. 2015) (citing
United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)).
The law is clear that “not all interactions between police officers and citizens amount to a
‘seizure’ for Fourth Amendment purposes.” Id. “A Fourth Amendment seizure occurs only
when an officer, by means of physical force or show of authority, has in some way restrained the
liberty of a citizen.” Id. (quoting Terry, 392 U.S. at 19 n.16 (1968)) (internal quotation marks
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omitted). No seizure has taken place “[u]nless a reasonable person would have believed that he
was not free to leave.” Id. at 787 (quoting United States v. Maragh, 894 F.2d 415, 418 (D.C. Cir.
1990)) (internal quotation marks omitted). This “reasonable person test asks . . . what a
reasonable man, innocent of any crime, would have thought had he been in the defendant’s
shoes.” Id. (quoting Goddard, 491 F.3d at 460) (internal quotation marks omitted).
The D.C. Circuit recently emphasized, in United States v. Gross, the “settled principle
that a seizure does not occur simply because a police officer approaches an individual and asks a
few questions.” Id. (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)) (internal quotation
marks omitted). The Court explained,
Even when officers “have no basis for suspecting a particular individual, they
may generally ask questions of that individual . . . as long as the police do not
convey a message that compliance with their requests is required.” And, “[w]hile
most citizens will respond to a police request, the fact that people do so, and do so
without being told they are free not to respond, hardly eliminates the consensual
nature of the response.”
Id. (internal citation omitted; alterations in original) (quoting Bostick, 501 U.S. at 435, and
United States v. Drayton, 536 U.S. 194, 205 (2002)).
While it is the government’s burden to justify a warrantless seizure, see United States v.
Brodie, 742 F.3d at 1064, the defendant bears the burden to show that a seizure has occurred in
the first place, see United States v. Williams, 945 F.2d 192, 196 (7th Cir. 1991) (“If the initial
encounter was entirely consensual such that no seizure occurred, then the government has no
burden to show any degree of suspicion, and the [evidence seized] is not the fruit of an
unconstitutional act.”). Certain factors must be present for what has been termed “an ordinary
encounter” to rise to the level of a seizure, thereby implicating the Fourth Amendment. These
factors include, “the threatening presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or the use of language or tone of
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voice indicating that compliance with the officer’s request might be compelled.” Goddard, 491
F.3d at 460 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). Courts
additionally consider “the demeanor of the approaching officer, . . . whether the officer wore a
uniform, and the time and place of the encounter.” Id. (internal quotation marks and citations
omitted). “By itself, the presence of a police car is an insufficient show of authority to make a
reasonable, innocent person feel unfree to leave,” particularly “where the officers d[o] not use
their siren or flashers, d[o] not command the defendant to stop, d[o] not display their weapons,
and d[o] not drive aggressively to block or control the defendant’s movement.” Id. at 461.
Similarly, “the presence of multiple officers” wearing “gear, including guns and handcuffs”
“does not automatically mean a stop has occurred.” Id. “There must be some additional conduct
by the officer[s] to overcome the presumption that a reasonable person is willing to cooperate
with a law enforcement officer.” Id. (quoting Gomez v. Turner, 672 F.2d 134, 142 (D.C. Cir.
1982)).
Here, nothing indicates that a stop or seizure occurred when Officer Wright approached
the defendant and asked if he would consent to a pat-down. Officer Wright did not use sirens
when approaching the defendant nor did he drive aggressively to block to the defendant’s
movement. Similarly, Officer Wright—the only one of the three officers to first approach the
defendant—did not command the defendant to stop, nor did he did display any weapons.
Instead, Officer Wright stopped the police vehicle at the edge of the crosswalk and greeted the
defendant. He then stepped out of the vehicle, calmly walked toward the defendant, and asked
the defendant if he “had anything on him.” Under our binding precedent, this, without more, did
not constitute a Terry stop. See Gross, 784 F.3d at 788. 4
4
At the hearing, defense counsel attempted to distinguish Gross from the instant case, arguing that the officers in
Gross had been cruising around the neighborhood on an open-ended investigation. Hearing Trans. at 76. By
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Officer Wright then requested the defendant’s consent to perform the pat-down. “[A]
search conducted pursuant to a valid consent is constitutionally permissible” and “wholly valid.”
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); see also United States v. Ashley, 37 F.3d
678, 679 (D.C. Cir. 1994) (“[A] suspect’s objectively reasonable consent to a body search
indicates consent to a traditional frisk search . . . .” (internal quotation marks and citation
omitted)). “[W]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search,
he has the burden of proving that the consent was, in fact, freely and voluntarily given.”
Schneckloth, 412 U.S. at 222 (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).
For consent to be valid, it must be freely and voluntarily given. Id. “[T]he question whether a
consent to a search was in fact ‘voluntary’ or was the product or duress or coercion, express or
implied, is a question of fact to be determined from the totality of all the circumstances.” Id. at
227. Thus, “[i]n determining the voluntariness of a consent, a district court must examine the
totality of all the surrounding circumstances—both the characteristics of the accused and the
details of the interrogation.” United States v. Rodney, 956 F.2d 295, 297 (D.C. Cir. 1992)
(quoting Schneckloth, 412 U.S. at 226) (internal quotation marks omitted); see also United States
v. Wilson, 605 F.3d 985, 1027 (D.C. Cir. 2010) (per curiam). “Relevant factors include: the
youth of the accused; his lack of education; or his low intelligence; the lack of any advice to the
accused of his constitutional rights; the length of the detention; the repeated and prolonged
nature of the questioning; and the use of physical punishment . . . .” Rodney, 956 F.2d at 297
(quoting Schneckloth, 412 U.S. at 226). “In examining all the surrounding circumstances to
contrast, here, the defense argued, officers were responding to an anonymous tip about a man with a gun, “in kind of
an investigatory mode.” Id. This is a distinction without a difference. The court’s decision in Gross was predicated
on the distinction between those factual circumstances which render a citizen’s interaction with police consensual or
push it into the realm of a Terry stop. See 784 F.3d at 787–88. For these purposes, the factual circumstances here
are virtually indistinguishable from those in Gross. See id.
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determine if in fact the consent to search was coerced, account must be taken of subtly coercive
police questions, as well as the possibly vulnerable subjective state of the person who consents.”
Schneckloth, 412 U.S. at 229. “[I]f under all the circumstances it has appeared that the consent
was not given voluntarily—that it was coerced by threats or force, or granted only in submission
to a claim of lawful authority—then” “the consent [is] invalid and the search unreasonable.” Id.
at 233.
Here, sufficient evidence was presented at the evidentiary hearing through the credible
testimony of Officer Wright that the defendant freely and voluntarily gave his consent to a frisk.
The defendant is a mature adult, who had previously engaged in interactions with Officer
Wright. The evidence is undisputed that Officer Wright asked the defendant a direct question
whether he consented to a pat-down and that he clearly heard the defendant say “yes.” This
affirmative answer was corroborated by the defendant’s actions in raising his arms to facilitate
the pat-down. The context in which consent was given was not sufficiently coercive to render
the consent invalid. Although there were three officers on the scene, only one had exited the
vehicle and was speaking to the defendant. Additionally, no guns were drawn, the conversation
took place on a public sidewalk, and the defendant’s way was not blocked by the car or other
officers on the scene.
At the hearing, the defense disputed the credibility of Officer Wright’s testimony,
contending that the timing of events as he testified to them was not possible. See, e.g., Hearing
Trans. at 62–63, 73–76. More specifically, the defense argued that the officers could not
possibly have traveled from their initial location at or near a gas pump on West Virginia Avenue
to where they encountered the defendant in under one minute, as captured in the real-time audio
recording of the radio broadcast of the event, see id. at 15; Gov’t Ex. 1, particularly at five
10
o’clock in the evening in Washington, D.C., see Hearing Trans. at 73. As a consequence, the
defense argued, none of Officer Wright’s testimony about the defendant’s alleged consent should
be believed. Id. at 75.
The defendant’s suppression motion rests largely on whether Officer Wright’s testimony
regarding his interaction with the defendant is credible and, in particular, whether the events
culminating in the defendant’s arrest unfolded at a speed that casts doubt on the officer’s
rendition of what occurred. The D.C. Circuit provides the “greatest deference” to a district
court’s credibility determinations unless the “district court credits exceedingly improbable
testimony.” United States v. Delaney, 651 F.3d 15, 18 (D.C. Cir. 2011) (quoting United States v.
Mapp, 476 F.3d 1012, 1017 (D.C. Cir. 2007)) (internal quotation marks omitted). Such
improbable testimony may be established when “empirical evidence contradicts the testimony
heard by the district court,” or when “there is such clear contradiction between the witnesses as
would demonstrate clear error to credit either or both witnesses’ testimony.” Id. at 19. In cases
“where an officer’s credibility is so impugned as to require exclusion of his testimony,” however,
the D.C. Circuit has noted that “the problems with the officer’s account are numerous and bear
directly on the contested issue.” Id. The defendant attempts to squeeze this case into that
category of problematic cases by citing the “empirical evidence” of the short time that elapsed
between the radio dispatch relaying the description of the “man with a gun” and the arrest of the
defendant.
The Court disagrees, and finds no reason to doubt Officer Wright’s credibility. As the
government pointed out at the hearing, see Hearing Trans. at 79, driving approximately a half-
mile in one minute is possible while traveling at thirty miles per hour. Also, review of the real-
time audio recording of the radio call indicates that the radio broadcast for the “man with a gun”
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occurred a little over two minutes before Officer Vaillancourt called in to the dispatcher and
announced, “We have that individual stopped, and the weapon recovered.” Gov’t Ex. 1; Audio
Recording Trans. at 1, 3. Based on the short distance traveled and Officer Wright’s testimony
that he was “flooring it,” as well as Officer Wright’s uncontroverted testimony that the defendant
stopped right away, readily consented to a pat-down, and was completely cooperative, the Court
finds highly plausible that the entire event at issue occurred in about two minutes. In other
words, the empirical evidence in this case, in the form of the dispatch recording, corroborates
rather than contradicts, Officer Wright’s testimony.
Consequently, because the only evidence indicates that the defendant freely and
voluntarily consented to the frisk, the frisk was constitutionally permissible and did not violate
his Fourth Amendment rights. Moreover, when Officer Wright felt an object readily identifiable
as a weapon, he developed probable cause to confiscate the gun and arrest the defendant. See,
e.g., Sibron v. New York, 392 U.S. 40, 44 (1968) (“If the police officer finds such a weapon or
any other thing the possession of which may constitute a crime, he may . . . arrest such person.”);
see also United States v. Askew, 529 F.3d 1119, 1134 (D.C. Cir. 2008) (en banc) (indicating that,
had the search been allowable under the Fourth Amendment, the resulting arrest upon finding a
gun during the search was allowable); see also Ashley, 37 F.3d at 679 (“[I]f an officer discovers,
during a pat-down search of the outer garments, an object ‘whose contour or mass’ makes it
readily identifiable as contraband, its seizure is justified.” (quoting Minnesota v. Dickerson, 508
U.S. 366, 375 (1993))). Cf. United States v. Holmes, 505 F.3d 1288, 1292 (D.C. Cir. 2007)
(“[A]n officer conducting a legitimate Terry stop who ‘discover[s] contraband other than
weapons . . . cannot be required to ignore the contraband, and the Fourth Amendment does not
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require its suppression.’” (quoting Michigan v. Long, 463 U.S. 1032, 1050 (1983)) (alterations in
original)).
B. Statements
Defendant Dolberry has also moved to suppress statements he made in connection with
his arrest. Specifically, the defendant requests suppression of (1) his statement “yes” giving
consent to the pat-down, (2) his statement upon his arrest to the effect of “y’all got me . . . I’m
not going anywhere,” and (3) his statement in response to Officer Wright’s question asking him
why he did not run from police to the effect of “I was ready to go back to jail.” Def.’s Mot. at 4–
6.
To prevail on a motion to suppress statements obtained in violation of Miranda, the
defendant must show that the statements resulted from custodial interrogation. See Miranda, 384
U.S. at 444; Vinton, 594 F.3d at 26–27. A custodial interrogation is “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” Miranda, 384 U.S. at 444. Thus, for Miranda to
apply, the defendant must be in custody and an interrogation must be taking place. Vinton, 594
F.3d at 26.
For the reasons previously discussed, the defendant was not in custody or otherwise
detained when he responded “yes” to Officer Wright’s request for consent to frisk him. Thus,
that statement was made freely and not obtained in violation of Miranda.
With respect to the defendant’s second statement to the effect of “y’all got me . . . I’m not
going anywhere,” the government does not dispute that the defendant made the statement while
in custody, as he made the statement while under formal arrest. See Gov’t Opp’n at 3. Thus, it is
clear that the custodial prong of the Miranda test is met with respect to this statement, see United
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States v. Gaston, 357 F.3d 77, 82 (D.C. Cir. 2004) (“The ultimate inquiry . . . is simply whether
there is a formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest.” (internal quotation marks and citations omitted)), and the issue turns on whether
the defendant was subject to interrogation at the time. “Interrogation, as conceptualized in the
Miranda opinion, requires a measure of compulsion above and beyond that inherent in custody
itself.” United States v. Morton, 391 F.3d 274, 276 (D.C. Cir. 2004) (quoting Innis, 446 U.S. at
300) (internal quotation marks omitted). The test is whether the police action was “reasonably
likely to elicit an incriminating response.” Id. (quoting Innis, 446 U.S. at 301).
Here, there is no evidence that the police did anything reasonably likely to elicit an
incriminating response from the defendant. The officers were arresting the defendant but were
not questioning him at all when he made the statement, nor did the officers do anything to
“compel” the defendant to incriminate himself. The defendant was therefore not under
interrogation, see Morton, 391 F.3d at 276, and the statement need not be suppressed.
With respect to the defendant’s third statement to the effect of, “I was ready to go back to
jail,” the government originally conceded in its papers that the statement falls under the scope of
Miranda since the statement was made when the defendant was in custody and in response to a
police officer’s question. Gov’t Opp’n at 3. The government thus represented that the statement
would not offered by the government in its case-in-chief at trial. Id. The government
nevertheless requested at the hearing a “ruling on the voluntariness” of the statement “for the
purposes of possible impeachment.” Hearing Trans. at 4–7. See United States v. Murdock, 667
F.3d 1302, 1305–1306 (D.C. Cir. 2012) (“In order to introduce statements at trial—whether in its
case in chief or as impeachment evidence—the government bears the burden of proving that the
14
statements were voluntary.” (citing Lego v. Twomey, 404 U.S. 477, 489 (1972))). The Court
reserves ruling on this issue until trial, when and if the need arises.
IV. CONCLUSION
For the foregoing reasons, the defendant’s motion to suppress is GRANTED IN PART
and DENIED IN PART. Specifically, the motion is DENIED with respect to the physical
evidence recovered from the officers’ search of the defendant’s person and two of his statements,
noted above. The defendant’s motion is GRANTED AS CONCEDED with respect to the
defendant’s third statement, to the effect of “I was ready to go back to jail” in response to an
officer’s question, and the Court RESERVES ruling on the voluntariness issue.
An Order consistent with this Memorandum Opinion will be contemporaneously entered.
Date: August 11, 2015 Digitally signed by Hon. Beryl A. Howell
DN: cn=Hon. Beryl A. Howell, o=U.S.
District Court for the District of Columbia,
ou=United States District Court Judge,
email=howell_chambers@dcd.uscourts.go
v, c=US
Date: 2015.08.11 18:43:29 -04'00'
__________________________
BERYL A. HOWELL
United States District Judge
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