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United States v. Downs

United States District Court, D. Vermont

July 29, 2014




This matter came before the court on June 5, 2014 for an evidentiary hearing on Defendant Erik Downs's motion to suppress statements. (Doc. 18.) The parties completed post-hearing briefing on June 19, 2014, at which point the court took the matter under advisement.

Defendant is charged in a two-count indictment with distribution of 28 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and knowing possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Defendant contends that law enforcement interrogated him on November 5, 2013 at a Vermont State Police ("VSP") barracks in violation of his Miranda rights. The government opposes the motion.

The government is represented by Assistant United States Attorney Michael P. Drescher. Defendant is represented by Assistant Federal Public Defender Steven L. Barth.

I. Findings of Fact.

On November 5, 2013, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), the Federal Bureau of Investigation ("FBI"), and the Winooski Police Department coordinated a controlled buy from Defendant during which Defendant allegedly gave an undercover officer cocaine base in exchange for approximately $4, 000 in U.S. currency and an operable firearm. ATF Special Agent Scott Murray assisted in the operation and observed Defendant's vehicle pull into a parking lot off of Shelburne Road in Burlington, Vermont. An undercover police officer entered Defendant's vehicle to complete the controlled buy. After the undercover officer exited Defendant's vehicle, other agents approached to arrest Defendant. Defendant drove off as law enforcement officers yelled at him to stop and hit his departing vehicle with their hands to get his attention.

As Defendant fled the area, Special Agent Murray relayed over the radio that Defendant had evaded law enforcement and possessed the firearm and currency. He also requested the VSP to issue a "be on the lookout" for Defendant's vehicle traveling southbound towards Massachusetts on Interstates 89, 91, or Route 7. This route of travel reflected Defendant's probable destination to his residence in Massachusetts. Special Agent Murray travelled to the intersection of I-89 and I-91 to watch for Defendant's vehicle. He contacted ATF Resident Agent in Charge ("RAC") James Mostyn and requested that he station himself on Route 7 near Rutland, Vermont for the same purpose.

Several hours later, a VSP trooper located Defendant traveling southbound on Interstate 91, conducted a traffic stop, took Defendant into custody, and transported him to the VSP barracks in Rockingham, Vermont. Special Agent Murray was alerted to this development and traveled to the location of the stop where he searched Defendant's vehicle for the firearm and currency exchanged in the controlled buy. When this search proved unfruitful, Special Agent Murray traveled to the Rockingham barracks to interview Defendant. Upon his arrival at the barracks, Special Agent Murray was led into a small conference room where Defendant was seated in a chair to which he was handcuffed.

Special Agent Murray read Defendant his Miranda rights verbatim from an Advice of Rights and Waiver form. Defendant replied that he understood his rights and was willing to talk, but his handcuffs prevented him from signing the waiver form. Special Agent Murray exited the conference room and asked a VSP trooper to adjust Defendant's handcuffs. In the course of doing so, Special Agent Murray encountered RAC Mostyn, who had travelled to the VSP Rockingham Barracks after learning of Defendant's arrest. Special Agent Murray summarized the status of the investigation for RAC Mostyn, and the two agents returned to the conference room together and attempted to interview Defendant. A VSP trooper adjusted Defendant's handcuffs in a manner which would have allowed Defendant to sign the waiver form if he chose to do so. Special Agent Murray summarized Defendant's Miranda rights and asked him to sign the Miranda waiver form. Defendant asked whether he had to sign the form to which Special Agent Murray responded that signing the form was unnecessary, but that he had to advise Defendant of his Miranda rights and make sure that Defendant understood them. Defendant responded that he would speak with the agents but stated: "I don't want to sign anything." (Tr. 6/5/14 at 13:25-14:1.) At approximately 9:28 p.m., Special Agent Murray wrote on the Miranda waiver form: "REFUSED SIGNATURE/BUT AGREED TO SPEAK. SM." (Gov. Ex. 1.) Special Agent Murray explained to Defendant that he should not lie, and that if he did not want to discuss a particular subject he should say "I don't want to talk about that, " rather than making a false statement. (Tr. 6/5/14 at 16:3-4.)

Special Agent Murray asked Defendant whether he was attempting to run over the agents when he fled the scene of the controlled buy earlier that day. Defendant replied that he had panicked and was not trying to hit or harm anyone. Defendant declined to speak about the events leading up to the controlled buy, or the details of the controlled buy itself, but was willing to discuss what occurred thereafter. When asked where the firearm was located, Defendant stated that he threw it out of his vehicle's window and also threw out the $4, 000 as he traveled south on Route 7 somewhere near Shelburne, Vermont. Defendant explained that he traveled south on Route 7, took an unknown road east to the interstate, and was then intercepted by law enforcement. He advised that he made no stops in the interim. During the course of the interview, Defendant admitted that he had two prior drug distribution convictions in Massachusetts and that he had continued to sell illegal drugs in order to make money because he had a failing gift shop in Massachusetts.

Of primary importance to the agents was the recovery of the firearm, and they questioned Defendant about this in some detail, showing him a map of the area in an effort to locate where it might have been discarded. RAC Mostyn confronted Defendant with certain inconsistencies in his version of events, including Defendant's path of travel and timeline, which he found implausible in light of the distance travelled and the time that had elapsed. He also expressed disbelief that Defendant had abandoned the cash. After the agents pressed Defendant for further details regarding the whereabouts of the firearm and money, Defendant stated that he did not want to talk anymore and asked for a lawyer. Prior to this point, Defendant "was talking freely" with the agents and did not give "any indication" that he "no longer wished to be interviewed." (Tr. 6/5/14 at 37:16-20.) In response to Defendant's request, the agents ceased the interview. The interview in the conference room lasted approximately twenty-five to thirty minutes.

RAC Mostyn left the Rockingham barracks and joined law enforcement efforts to recover the firearm. Special Agent Murray remained at the barracks, periodically checking in on Defendant. Defendant asked Special Agent Murray about certain items located in his rental vehicle, including his cell phone, and asked the agent to ensure that the items would be returned to him rather than left in the vehicle when it was sent back to the rental agency.

II. Conclusions of Law and Analysis.

Defendant moves to suppress his statements, arguing that the government has not satisfied its burden to prove that Defendant knowingly and voluntarily waived his Miranda rights. Defendant argues that suppression is warranted on the further ground that he invoked his right to remain silent and was nonetheless subjected to custodial interrogation thereafter. The government opposes suppression, contending that Defendant knowingly and voluntarily waived his Miranda ...

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