United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
D. Thalken United States Magistrate Judge.
matter is before the court on the Motion to Suppress
Statement (Filing No. 21) filed by defendant Aaron Jensen
(Jensen). Jensen, a non-Indian, is charged in the Indictment
with the September 1, 2016, assault within the boundaries of
the Winnebago Indian Reservation of an Indian female, a
person similarly situated to a spouse, after Jensen had been
convicted of crimes of domestic abuse in violation of 18
U.S.C. §§117 and 1152. Jensen seeks to suppress any
statement or admission Jensen made to law enforcement
officers on September 1, 2016.
court held a hearing on the motion on November 22, 2016.
Jensen was present with his counsel, Assistant Federal Public
Defender Julie B. Hansen. The United States was represented
by Special Assistant U.S. Attorney Erin R. Eldridge. The
court heard the testimony of Acting Lieutenant Justin Lee
McCauley (Lt. McCauley) of the Winnebago Police Department
(WPD) and Special Agent Stephen Friend (Agent Friend) of the
Federal Bureau of Investigation (FBI). The court also
received in evidence the following exhibits: an FBI Advice of
Rights form (Exhibit 1); an audio disk of interview (Exhibit
2); and a transcript of interview (Exhibit 3). A transcript
(TR.) of the hearing was prepared and filed on November 29,
2016 (Filing No. 30).
September 1, 2016, in the late morning hours, Lt. McCauley
was on duty with the WPD when he received a dispatch report
of a white minivan being driven erratically and the occupants
engaging in a fight (TR. 4). Lt. McCauley drove to the
general area and located the stopped minivan across from a
gas station on the Winnebago Reservation (TR. 4). As he
arrived, Lt. McCauley observed an open passenger side door
with a man hunched over inside the minivan, moving back and
forth. (TR. 4). Lt. McCauley saw someone inside, swinging
arms, and thrashing about (TR. 4). As Lt. McCauley pulled up
and parked his patrol vehicle behind the minivan, a male,
later identified as Aaron Jensen, was observed pulling a
female, later identified as M.S., by her hair out of the
minivan while swinging his fists (TR. 4-5). Lt. McCauley
testified there were “fists all over, legs all
over” describing the scene (TR. 5). Lt. McCauley
“screamed and hollered at the man to let go of
her” (TR. 5). Lt. McCauley pointed his Taser at Jensen
and ordered Jensen to stop (TR. 5-6). Jensen sat up and
appeared shocked to see Lt. McCauley (TR. 6). Jensen's
eyes were big and glossy, he was sweating, and he screamed
“She's crazy, bro, she's crazy bro, she's
trying to kick me” (TR. 6). As Jensen sat up, he let go
of M.S. and M.S. rolled backward and did a complete flip over
on the ground (TR. 6). As Lt. McCauley got closer to Jensen,
he shouted “she's crazy, she's crazy, she's
trying to get her brothers to beat me up” (TR. 6). Lt.
McCauley ordered Jensen to get on the ground and Jensen
complied (TR. 7). Lt. McCauley handcuffed Jensen, sat him up,
and walked him back to Lt. McCauley's patrol car (TR. 7).
As he was walking Jensen back to the patrol car, Lt. McCauley
asked M.S., who was bleeding, if she were okay and she nodded
her head as being okay (TR. 7-8).
McCauley put Jensen in the patrol car and asked Jensen his
name and whether he was Native American (TR. 8). Jensen said
“not really” but that he had some Native American
relatives (TR. 8). Lt. McCauley asked Jensen if he was
enrolled in a federally recognized tribe and Jensen said no
(TR. 8). Lt. McCauley radioed dispatch requesting Thurston
County officers to assist because he had a non-Native
American suspect (TR. 9). Lt. McCauley left Jensen in the
back of the patrol unit and went to assist M.S. at the
minivan (TR. 9). In the meantime, a patrol car from the
Thurston County Sheriff's Office arrived on the scene
(TR. 9). Lt. McCauley went back to the minivan to assist M.S.
and noticed a small cylindrical glass tube, four to five
inches long, commonly used for smoking crack and
methamphetamine on the ground near the minivan (TR. 9; 18).
Lt. McCauley picked the pipe up and asked M.S. if the pipe
was hers (TR. 10). M.S. told Lt. McCauley she does not do
drugs and the pipe was Jensen's (TR. 10). M.S. said she
only drinks and that Jensen does drugs but never in front of
her (TR. 10). Lt. McCauley took the pipe back to the patrol
car to place in an evidence bag when Jensen, without being
questioned, saw the pipe and said the pipe was not his (TR.
10). When asked if it belonged to M.S., Jensen said he
didn't know but it didn't belong to him (TR. 11).
Friend was traveling to Winnebago on unrelated matters and
happened upon the road-side scene with the minivan (TR. 33).
He stopped to assist (TR. 33). Agent Friend directed Lt.
McCauley to transport M.S. to the hospital and Jensen to be
transported to the WPD so Jensen could be interviewed (TR.
33). Thurston County officers transported Jensen to the WPD
where Jensen was interviewed by Agent Friend about an hour
later (TR. 33-34; 39). Before the interview, Agent Friend was
told by Lt. McCauley that Lt. McCauley had driven up on the
scene and observed Jensen pulling the victim out of the
vehicle by her hair (TR. 38). Agent Friend remembers being
told that a used meth pipe was recovered at the scene but he
recalled no other discussion about drugs or alcohol with Lt.
McCauley (TR. 38-39). Before he interviewed Jensen, Agent
Friend had Jensen unhandcuffed and moved to an interview room
(TR. 39). Agent Friend recalled that Jensen was agitated and
Agent Friend asked if a preliminary breath test was taken
(TR. 40; Exhibits 2 and 3). Agent Friend was informed the
level was .06 (TR. 40; Exhibits 2 and 3). Agent Friend did
not smell any alcohol on Jensen (TR. 40).
interview began at approximately 1:51 p.m. (Ex. 1). The
interview was tape recorded and the recording and a
transcript of the recording were reviewed by the court (TR.
34; Exhibits 2 and 3). At the outset of the interview, Agent
Friend advised Jensen of his
Miranda rights which Jensen waived
by signing the Advice of Rights form (Exhibits1-3; TR. 36).
Jensen was clear and calm when he read the consent form prior
to the interview (Exhibit 2 and 3). When asked about the meth
pipe found at the scene, Jensen said he didn't know where
it came from and he hadn't used meth in years (TR.43;
Exhibits 2 and 3). At various times during the interview and
in response to questions asked regarding what happened,
Jensen stated he did not want to get M.S. in trouble
(Exhibits 2 and 3). During the interview Jensen did not slur
his words and his answers were, generally, responsive to the
questions (Exhibits 2 and 3). Listening to the tape recording
of the interview and reading the transcript of the interview
leads one to conclude Jensen's statement to Agent Friend
asserts he was either intoxicated by alcohol or
methamphetamine, or both, at the time he gave statements to
Lt. McCauley and Agent Friend. As such, Jensen claims such
statements were involuntary and inadmissible.
touchstone for the admissibility of a defendant's
statements is voluntariness. Brown v. Mississippi,
297 U.S. 278 (1936). “A statement is involuntary when
it was extracted by threats, violence, or express or implied
promises sufficient to overbear the defendant's will and
critically impair his capacity for self-determination.”
United States v. Perry, 714 F.3d 570, 574 (8th Cir.
2013) (quoting United States v. LeBrun, 363 F.3d
715, 724 (8th Cir. 2004)). “To determine whether a
confession is voluntary, we look at ‘the totality of
the circumstances, examining both the conduct of the officers
and the characteristics of the accused.'”
United States v. Vega, 676 F.3d 708, 718 (8th Cir.
2012) (quoting United States v. Boslau, 632 F.3d
422, 428 (8th Cir. 2011)). Among the factors the court
considers are “the degree of police coercion, the
length of the interrogation, its location, its continuity,
and the defendant's maturity, education, physical
condition, and mental condition.” United States v.
Wallace, 713 F.3d 422, 426 (8th Cir. 2013) (quoting
Vega, 676 F.3d at 718).
the government's burden to “prove by a
preponderance of the evidence that the challenged statements
were voluntary.” Boslau, 632 F.3d at 429
(quoting LeBrun, 363 F.3d at 724). In this case, the
interview by Agent Friend took place at 1:51 p.m. on the 1st
of September after Jensen had been taken into custody. Agent
Friend testified Jensen was agitated when the interview
started. Given the circumstances which preceded the
interview, Jensen's condition of agitation and sweating
is understandable. Precautions were taken when a preliminary
breath test was taken from Jensen resulting in a reading of
.06, a level not prohibitive of driving a motor vehicle.
Listening to the recording of the interview does not reflect
a subject who was so incapacitated he could not provide a
voluntary statement. The government's burden in this
matter was met by the evidence produced at the hearing. While
Jensen suggests and implies he was intoxicated or under the
influence of methamphetamine to the extent that any statement
he gave was involuntary, Jensen presented no evidence other
than the testimony of Lt. McCauley and Agent Friend that his
statement was involuntary.
well settled that a law enforcement official is required to
advise an individual of his or her Miranda rights
before questioning if that individual is in custody.
United States v. Williams, 760 F.3d 811, 814 (8th
Cir. 2014). In this case, Jensen was in custody for
Miranda purposes from the inception with his
encounter with Lt. McCauley at the roadside scene or when
questioned by Agent Friend at the jail.
regard to the statements Jensen made to Lt. McCauley at the
roadside scene about the glass pipe found outside of the
white minivan, Jensen was not questioned by Lt. McCauley when
the glass pipe was brought to the patrol car. Lt. McCauley
testified he was putting the pipe in an evidence bag when
Jensen, upon seeing the glass pipe, said it did not belong to
him. “Interrogation in the Miranda context
refers to express questioning and to words or conduct that
officers should know is reasonably likely to elicit an