United States District Court, N.D. Indiana, South Bend Division
Order Filed: July 16, 2014
For Jerome White, Defendant: H Jay Stevens - FCD, LEAD ATTORNEY, Federal Community Defenders Inc - SB/IN, Northern District of Indiana, South Bend, IN.
For United States of America, Plaintiff: Frank E Schaffer, LEAD ATTORNEY, U.S. Attorney's Office - SB/IN, South Bend, IN.
OPINION AND ORDER
JON E. DEGUILIO, United States District Judge.
This matter comes before the court on Defendant Jerome White's objection to factual and legal determinations in the Report and Recommendation [DE 26] from Magistrate Judge Christopher A. Nuechterlein denying the motion to suppress after conducting an evidentiary hearing. Upon de novo review of the objections made, see 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b),
the undersigned hereby ADOPTS the Report and Recommendation insofar as it denies the motion to suppress, but does so on the facts determined herein.
In sum, the motion to suppress is denied because the Government has met its burden in proving by a preponderance of the evidence tat White knowingly and voluntarily waived his Miranda rights, and did not unambiguously invoke his right to remain silent. See Colorado v. Connelly, 479 U.S. 157, 167-68, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); United States v. Stewart, 536 F.3d 714, 719 (7th Cir. 2008) (" The government bears the burden of demonstrating the admissibility of a confession . . . by a preponderance of the evidence" ) (citations omitted). Moreover, the government has shown that White's consent to search his home was voluntarily and knowingly given. See United States v. Matlock, 415 U.S. 164, 177, 177 n.14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (requiring that the Government bear the burden of demonstrating the admissibility of evidence resulting from a warrantless search by a preponderance of the evidence). As a result, the items found during the search of White's home need not be suppressed.
The events pertinent to the suppression motion occurred while White was in custody and interrogated at the South Bend Police Department on February 11, 2014 by South Bend Police Officer Rafino Gayton and Sergeant Beckham of the Metro Special Operations Section (MSOS), relative to an aborted controlled buy of 20 grams of heroin from a suspected heroin dealer, Demetrius Taylor.
After several recorded telephone calls between a confidential informant (" CI" ) and Taylor, the meeting place was set for the buy to occur on February 11th. On that day, as police neared the meeting place, Taylor believed that he was under surveillance and took off in his vehicle at a high rate of speed. With police chasing him, Taylor crashed into a snowbank. The Defendant Jerome White was a passenger in Taylor's car, and both Taylor and White fled on foot. A witness reported that one of the two possibly threw a gun away, but police did not locate any firearms in the vicinity. However, in Taylor's vehicle, police located a baggie containing approximately 0.1 grams of heroin in the driver's door. No guns were found in the vehicle.
Once apprehended, White and Taylor were taken into custody and interviewed. White's interrogation was recorded by audio and video. Following advice of his Miranda rights, which White said he understood, White told investigators that the plan was for him to be the watch-out while a heroin exchange took place. In reality, Taylor and White intended to rob the CI, but White denied knowing whether a gun was present.
White also admitted to having a previous conviction for possessing, delivering and manufacturing crack in the State of Michigan, but he told the officers that he was no longer dealing. Officer Gayton did not believe White, and so (at about the nineteen minute mark of the interrogation) began pressing White on whether he was currently involved in dealing:
MSOS: When was the last time you sold anything?
White: I ain't sold nothing.
MSOS: That's not what I, obviously you did sell something because you got arrested and charged with it, right, convicted?
(19:10:46) White: Oh yeah, so you're talking about Cincinnati.
MSOS: Yeah. So when was the last time you sold anything?
MSOS: Because you're hungry right-
White: Been a long time-
MSOS: You don't work and you're hungry right-
MSOS: And you're the man of the house and you want to make sure there is fking money coming in the house-
White: And I'm dependent on my wife right now.
MSOS: And you're dependent on your wife, you ain't never sold nothing?
White: You talking about since then?
White: Yeah, I ain't sold nothin.
MSOS: Yeah. You ain't selling nothin. So you couldn't call on your people right now and be like 'hey man, hey, let me get a zip?' you couldn't do that?
White: Nah I mean if I wanted to, I could.
MSOS: But when was the last time you did it? Because you don't stop. I can tell you didn't stop, I bought from you. Like not me personally.
White: You bought from me?
White: Nah, you didn't buy from me.
(19:11:30) MSOS: I didn't? You sure about that?
White: Yeah, when did you buy something from me?
MSOS: That's for me- are you 100% sure I didn't get shit from you?
White: I don't have to say anything-
MSOS: Not me personally. Maybe I had somebody do it for me. How do you know? You don't. Because you've been selling. And I know that. And I just want you to be honest. It ain't a trick bag. It's honesty, and your honesty goes a million miles in this room. It holds a lot of weight with me, and you're not being honest. See what I'm saying? So when was the last time you sold? Just throw it out there man. You already told on yourself. You were going to be part of the robbery. That's the
worst thing that could happen to you ...