United States District Court, D. Nebraska
AMENDED FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge.
matter is before the Court on the Motion to Suppress Evidence
(Filing No. 75) filed by Defendant, Lawrencia Merrick.
Defendant filed a brief (Filing No. 76) in support of the
motion and the government filed a brief (Filing No. 81) in
Court held an evidentiary hearing on the motion on October
31, 2017. Defendant was present with her attorney, Dana
Bradford. The government was represented by Assistant United
States Attorney, Lecia Wright. FBI Special Agent (SA) Bradley
J. Purscell testified on behalf of the government. Exhibits 1
and 2 were offered by the government and received by the
Court without objection. A transcript (TR.) of the hearing
was prepared and filed on November 7, 2017. (Filing No. 108).
The matter is now fully submitted to the Court. For the
following reasons, the undersigned magistrate judge
recommends that the motion be denied.
Purscell testified that he has been employed with the Federal
Bureau of Investigation (FBI) for over twenty-one years. He
has a college degree from Iowa State University and completed
sixteen weeks of training at the FBI academy. Prior to his
employment at the FBI, he was an Army officer. (TR. 5-6). He
is involved in criminal investigations within Indian Country
in the District of Nebraska, covering the Santee Sioux,
Winnebago, and Omaha Nation. (TR. 6).
April 23, 2017, at approximately 10:00 a.m., SA Purscell
received a call about a body discovered in Winnebago. The
call was from Winnebago Police Chief, Jason Lawrence. William
Redhorn's body was found face down in the grass on the
slope of a small hill of the front lawn of the Ho-Chunk
Building. There were indications of trauma to the face and
blood was present. (TR. 6-7). Apparently, a churchgoer had
called the police to report the body. Chief Lawrence then
called the FBI. Redhorn's body was identified by two
relatives. SA Purcell spoke to Redhorn's mother, who
indicated that he had been drinking and had left her home in
the early morning hours on April 23, 2017. (TR. 8).
approximately 9:00 p.m. on April 23, 2017, Chief Lawrence was
called by an off-duty Winnebago officer, Sergeant Gordon
Rave. (TR. 16). Sergeant Rave stated that he was mowing his
grass at his residence when he was approached by two
individuals, Defendant and Jeremiah Wolfe
“(Jeremiah”), and that Jeremiah said they wanted
to make a statements regarding the case they were
investigating. Sergeant Rave then informed them that it was
best to go to the police station. (TR. 16). Defendant and
Jeremiah arrived at the Winnebago Police Department and SA
Purscell introduced himself. The building is dedicated one
half for fire and rescue, and one half for police operations.
The police operations include the hallway, area for the
dispatcher, and offices. Defendant was not escorted to the
building, nor was she handcuffed upon arrival. (TR. 9-10).
Purscell conducted an interview of Defendant. The interview
lasted over an hour and was audio recorded. Defendant had a
cooperative demeanor during the interview, although she was
nervous and cried at one point. At no time during that
evening was she placed in handcuffs or restrained, and the
interview room was closed but not locked. SA Purscell told
Defendant that she was free to leave during the interview,
and at no point was she in custody. SA Purscell did not
provide Defendant with Miranda warnings because she
was not in custody and was told she was free to leave. SA
Purscell spoke conversationally during the interview and
never raised his voice nor made any promises of benefits. SA
Purscell did not have a prior knowledge of Defendant. After
interviewing Defendant, SA Purscell interviewed Jeremiah.
time SA Purscell interviewed Defendant, an autopsy of Redhorn
had not been performed and thus the cause or manner of
Redhorn's death had not yet been determined. (TR. 13-14).
At the end of Defendant's interview, SA Purscell asked
Defendant for her consent to retrieve clothing from her
residence that she shared with Jeremiah. (TR. 14). SA
Purscell followed Defendant and Jeremiah to their residence
on the Winnebago Reservation after Jeremiah's interview
concluded. (TR. 14). Defendant and Jeremiah retrieved the
clothing from the residence and SA Purscell provided them
with a receipt. SA Purscell then left the premises. On April
24, 2017, Defendant and Jeremiah were arrested on tribal
charges from the Winnebago Tribe. (TR. 15).
cross examination, SA Purscell testified that the call on the
23rd came in at about 10:00 a.m., and although he
later left to handle another call, he did come back. When he
returned, SA Purscell spoke with Chief Lawrence and at that
time there were no suspects with regard to the incident. An
autopsy had been scheduled for the next day. (TR. 18-20). SA
Purscell further testified that the call from Sergeant Rave
came in about 9:00 p.m. concerning the two individuals and
their desire to make a statement about “the
case.” The statements were about the recovery of the
body, but SA Purscell was not sure if the individuals were
witnesses or perhaps involved in the incident. (TR. 20-22).
SA Purscell further testified on cross examination that the
interview room door was closed, but not locked, that he did
not perform a rights advisory because it was a non-custodial
interview, and that Defendant was free to leave. (TR. 22).
government argues that Defendant was not in custody and,
therefore, this was not a custodial interview requiring the
advisement of Miranda warnings. The government
further argues that Defendant was, in fact, allowed to leave
at the conclusion of the interview. (Filing No. 81; TR.
24-25). Defendant argues that once the information came out
during her interview, the nature of the interview changed and
became an interrogation requiring Miranda warnings.
Defendant further argues that the environment surrounding her
interview shows that she was in custody. Namely that the
interview took place in a room used for questioning and that
the interview was recorded. Additionally, Defendant argues
that although she may have had a right to leave, there was no
intent for her to leave. (TR. 25-26). Given the questioning
of SA Purscell, Defendant also argues that the subsequent
attempt to interview Defendant preceded by Miranda
warnings is indicative of the necessity of the
Miranda warnings during the interview on April 23,
2017. (Filing No. 76). Defendant seeks suppression of any
statements she made during her interview, any police report
of the interview, and any diagram attached to the report.
(Filing No. 75; Filing No. 76).
obtained by the police during custodial interrogations cannot
be used in court during trial unless the defendant was first
informed of the right not to incriminate herself and the
right to a lawyer. Miranda v. Arizona, 384 U.S. 436,
444-45 (1966). It is undisputed that Defendant was
interrogated at the police station on April 23, 2017, and
that she was not provided with Miranda warnings. The
question before the Court then is whether Defendant was in
custody during the interrogation, thus making her
incriminatory statements inadmissible at trial. To determine
“whether a suspect is ‘in custody'” a
court examines “the extent of the physical or
psychological restraints placed on the suspect during
interrogation in light of whether a ‘reasonable person
in the suspect's position would have understood his
situation' to be one of custody.” United States
v. Laws, 819 F.3d 388, 396-97 (8th Cir. 2016)(quoting
United States v. Griffin, 922 F.2d 1343, 1347 (8th
Cir. 1990)). Factors indicating custody include:
(1) whether the suspect was informed at the time of
questioning that the questioning was voluntary, that the
suspect was free to leave or request the officers to do so,
or that the suspect was not considered under arrest; (2)
whether the suspect possessed unrestrained freedom of
movement during questioning; (3) whether the suspect
initiated contact with authorities or voluntarily acquiesced
to official requests to respond to questions; (4) whether
strong arm tactics or deceptive stratagems were employed
during questioning; (5) whether the atmosphere ...