United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN, District Judge.
This matter is before the Court on Defendant Cameron Patterson's Second Motion to Suppress [ECF No. 45], filed on March 12, 2014. The Defendant argues that he was subjected to an unlawful custodial interrogation in violation of the Fifth Amendment and requests that the Court suppress any statements made by the Defendant during the interrogation. The Government responds that there was no violation of the Defendant's constitutional rights because the Defendant was not in custody at the time of the interrogation. For the reasons set forth in this Opinion and Order, the Court will deny the Defendant's Motion.
On May 29, 2013, the PNC Bank in Ossian, Indiana, was the victim of an armed robbery. On July 23, 2013, after the Defendant had been identified as a suspect, agents from the Federal Bureau of Investigation (FBI) interviewed the Defendant in their office in Fort Wayne, Indiana. By way of an Indictment filed on August 28, 2013, the Government charges that, on or about May 29, 2013, the Defendant committed armed bank robbery and assault with a dangerous weapon, and aiding and abetting, in violation of 18 U.S.C. §§ 2113(a) and (d) and 18 U.S.C. § 2. On March 12, 2014, the Defendant filed a Second Motion to Suppress [ECF No. 45] and requested an evidentiary hearing, which the Court conducted on August 18, 2014. The Defendant was present and represented by attorney Thomas N. O'Malley. The Government was represented by Assistant United States Attorney Daniel L. Bella. The Court granted the Defendant's motion to separate the witnesses. The Court heard testimony from FBI Special Agent Kelly Stewart ("Stewart") and Fort Wayne Police Department Detective and Task Force Officer Darrin Strayer ("Strayer"). Several exhibits were also admitted into the record. At the conclusion of the hearing, the Court took the Motion under advisement and gave the parties additional time to file briefs. The Defendant filed a Brief in Support of Motion to Suppress [ECF No. 67] on October 27, 2014, and requests that the Court suppress evidence that law enforcement officers obtained from him during the July 23, 2013, interview. The Government filed its Response on December 31, 2014. The Defendant filed his Reply on January 23, 2015. The matter is now fully briefed and ripe for ruling.
FINDINGS OF FACT
The Court makes the following findings of fact based upon the evidence and testimony presented during the evidentiary hearing conducted by on August 18, 2014.
FBI Special Agent Stewart was assigned to investigate a bank robbery that occurred at the PNC Bank in Ossian, Indiana, on May 29, 2013. During the course of the investigation Stewart received information leading him to suspect that the Defendant was involved in the robbery. Stewart then provided task force officers with a list of addresses the Defendant was known to frequent.
On July 23, 2013, Task Force Officer Strayer went to check some of the addresses while driving a dark colored, unmarked van. Strayer observed an individual enter the residence at one of the addresses, 4761 Holton Avenue, and also observed a white Dodge Magnum parked outside, which source information suggested might have been purchased with bank robbery proceeds. Strayer called Stewart and observed the individual-later identified as the Defendant-exit the house, reenter, then exit again and start walking northbound on Holton Avenue. Strayer performed spot checks to verify that the Defendant was still walking northbound on Holton Avenue while Stewart drove to the area in a green, unmarked Ford Taurus. Stewart was familiar with the Defendant based on photos from the Bureau of Motor Vehicles and an FBI database. Stewart reached the intersection of Holton and Oxford at the same time as the Defendant, and was able to positively identify the Defendant.
Holton Avenue is a one-way street, so Stewart and Strayer circled around the block while they formulated a plan to approach the Defendant. Stewart parked on the east side of Holton, just short of 3409, and Strayer parked on the west side of Holton on the other end of the residence. When the officers exited their vehicles, the Defendant was located in a driveway between 3409 and 3417 Holton. Stewart was wearing khakis with a collared shirt and dress shoes. Strayer was wearing shorts. Both officers were armed and had a holstered gun under their untucked shirts, so that they were not visible.
Strayer exited the vehicle first, identified himself as FBI, and asked the Defendant to show his hands two or three times. Strayer briefly lifted his shirt and placed his hand on his gun while Stewart came around the corner and displayed his FBI credentials to the Defendant. Stewart told the Defendant that his name kept coming up in an investigation. When the Defendant asked what the investigation was about, Stewart replied that he did not want to discuss the details in the driveway. Stewart asked the Defendant if he was willing to come to Stewart's office to further discuss the issue and clear his name. The Defendant said he was willing to talk with Stewart and Strayer. They walked to the passenger side of Stewart's vehicle and Stewart asked the Defendant if he had any weapons and then said "[h]ey, just for officer safety reasons, let me just do a quick check." (Tr. 15-16.) The Defendant turned to place his hands on Stewart's vehicle and spread his legs, but Stewart told him not to do that, he did not want to "make a big scene out here". (Tr. 15-16, 102-03.) Stewart was trying to keep the "pickup" low key without alerting a whole lot of people. Stewart said "[d]on't do that. Just lift up your shirt so I could see your waistband." (Tr. 16.) The Defendant raised his shirt, Stewart did a quick pat down of his outer pockets, and then the Defendant lowered his shirt. As he opened the front passenger door for the Defendant, Stewart said "I just want to make sure you're voluntarily coming with us, correct?" ( Id. ) The Defendant said "Oh yeah, that's fine, ' or something to that effect." ( Id. ) The Defendant then entered the vehicle. The time elapsed from initial contact to the Defendant entering Stewart's vehicle was approximately three or four minutes.
Strayer did not want to leave his vehicle parked on Holton so they drove separately to nearby Irwin Elementary where Strayer parked his vehicle, then sat in the backseat of Stewart's car behind the Defendant. The three men engaged in small talk, discussing sports and other things, while they drove to the FBI office, which is located on the tenth floor of the First Source Bank building at 200 East Main Street. They entered through the public garage, parked in a reserved spot on the fourth floor, and took the public elevator up to the tenth floor. Upon exiting the elevator they walked down the hall past the law office that shares the floor until they reached the door to the FBI office, which is entered by swiping a card and punching a code. Upon entering the office, there is a conference room immediately to the left that can be entered by swiping an access card. The room contains a rectangular table with chairs around it and some other equipment located along two of its walls. The Defendant sat in the chair closest to the door with the door located at his "two o'clock" position. Stewart sat in a chair on the far side of the table from the door, and Strayer sat near him at a corner of the table to take notes. Stewart testified that there was nothing between the Defendant and the door, and that the door has a regular handle which does not lock from the inside and can be exited at any time. Likewise, the outer door has a simple push bar to exit the FBI offices, and does not lock from the inside.
Stewart had told the Defendant he wanted to talk and give the Defendant an opportunity to clear his name, but Stewart testified that he was attempting to obtain incriminating statements from the Defendant, in which the Defendant would admit his guilt. Stewart began interviewing the Defendant about the PNC Bank robbery. Initially, the Defendant told an alibi story about his whereabouts during the robbery. Stewart then accused the Defendant of being involved in the robbery. Upon making that accusation, about half way through the interview, Stewart reassured the Defendant that he could talk freely, and was not going to be arrested that day. Although Stewart cannot recall the exact words he used, it was something to the effect of "[u]nless you tell me you murdered someone or something, that rose to that level of a crime, you're not going to be under arrest today." (Tr. 26.) The Defendant then proceeded to tell Stewart about his and his companions' roles in the robbery.
The Defendant said that he was at Darnell Bontempo's house that day, with Dante Travier and Freddie Church, Jr., and they talked about driving by the PNC Bank in Ossian, initially to check it out. The Defendant, Travier, and Church used Bontempo's van and drove to the bank. Once there, they decided to rob it. The three men entered the bank. The Defendant's job was to watch the door to ensure that no one left the bank. Travier had the gun. After the robbery, they left the bank, with the Defendant driving the van. They drove to another location, following Travier's directions, where there was a white Toyota Camry with another driver waiting for them. They exited the van and entered the white car.
At the time of the court hearing, the FBI had initiated a policy to record interviews, but that was not the policy at the time of the interview. The interview room was not equipped with recording equipment at the time of the interview, but it is today with the implementation of the new policy. At the time of the Defendant's interview, the FBI's default position was not to record interviews, and special permission had to be obtained to record an interview.
Stewart had previously recorded interviews in other cases. However, he had not made arrangements ahead of time to record the Defendant's interview because the Defendant's interview was unforeseen. Testimony indicated that at the beginning of the day, Strayer simply went to check addresses and conduct spot surveillance. Moreover, Stewart did not have probable cause to arrest the Defendant, and had the Defendant refused to talk with the officers, Stewart would have instead walked away. Thus, at the beginning of the day, Stewart did not know whether the officers would see the Defendant, and if so, whether the Defendant would agree to talk with the officers.
The interview lasted approximately two hours. After the interview, the Defendant was concerned about when he would be arrested, as he had a family and would need to arrange his affairs. Stewart said it would likely be one to two weeks before the issuance of an arrest warrant. The Defendant agreed that he would turn himself in when the time came, and furnished a phone number for Stewart to reach him. Stewart assured the Defendant that he would have some time to arrange his affairs, but probably not long. The Defendant accepted the officers' offer to give him a ride back, and the officers dropped the Defendant off at the corner of McKinnie and Lafayette, as the Defendant requested.
The Defendant was not handcuffed or otherwise restricted at any point during the July 23, 2013, encounter and interview. He was allowed to keep his cellphone and other personal effects on his person. The Defendant was in the continuous presence of at least one of the officers over the course of the encounter, from initial pickup until the officers dropped him off after the interview. Miranda warnings were not given to the Defendant at any point during the encounter.
On May 1, 2014, Stewart spoke with Assistant United States Attorney Lesley Miller Lowery, about his interview of the Defendant on July 23, 2013. At that time Lowery was handling the case. Strayer met with Lowery along with Stewart. After the meeting with Lowery, Lowery gave Stewart a copy of her notes that she took while speaking with Strayer and Stewart. Lowery requested that Stewart prepare a 302 report to document the details surrounding the interview. Because Lowery asked detailed questions, Stewart wanted a framework to begin drafting the document. He wanted to make sure he hit the "big ticket items." Stewart had already prepared a 302 report pertaining to the interview conducted on July 23, 2013. That report was limited to what the Defendant allegedly said about the robbery. Lowery was asking for a 302 report that documented how the Defendant was identified, the details surrounding his ride to the office, and other things outside of what the Defendant directly told Stewart. Stewart and Strayer used Lowery's notes to prepare the 302 report. Lowery wanted to know as closely as possible the words that were used when the Defendant was picked up and the words used pertaining to the comment that he "was not being [placed] under arrest unless he told us something about murder or something like that." (Tr. 29.) Stewart thought about Lowery's request and about the exact words he used pertaining to the Defendant leaving the FBI's office that day or not. Stewart remembered that "she was very keyed in on that phrase, and I wanted to make sure that what I was surmising was as close to accurate as possible." ( Id. )
In Lowery's notes, she wrote that Stewart told her he had said to the Defendant that: "Unless you tell me you killed someone, you're walking out of here at the end of this/at the end of this, you're going home". (Tr. 30.) In Stewart's May 19, 2014, 302 report after the meeting with Lowery, Stewart wrote that he told the Defendant "unless he confessed to a murder, he would be leaving the office and was not under arrest." (Tr. 31.)
Before testifying in this matter, Stewart listened to a recorded noncustodial interview he did on May 1, 2013, of a different defendant in another bank robbery case. Stewart told that defendant "[o]kay. So understand something before we start asking you questions, okay? No matter what you tell us right now, unless you tell us you did something just out of this world criminal that I can't let you leave here for, you're ...