United States District Court, W.D. Missouri, Southwestern Division
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
P. RUSH UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C § 636(b), the above-styled criminal action
was referred to the undersigned for preliminary review.
Defendant moves to dismiss or, in the alternative, for
severance for improper joinder. (See Doc. 112.)
Defendant also moves to suppress statements he made to law
enforcement on June 28, 2016. (See Doc. 110.) On
June 8, 2017, the undersigned held a hearing on the Motion to
Suppress. (See Doc. 159.) Defendant was present with
his attorney, John F. Appelquist. Abram McGull II represented
the United States. During the hearing, the Court heard
testimony from Det. Joseph Houdyshell, an investigator with
the Ozark Drug Enforcement Task Force, and Special Agent
Peery. After careful review of the evidence and for the
reasons set forth below, it is hereby
RECOMMENDED that Defendant's Motion to
Suppress, (Doc. 110), be DENIED and
Defendant's Motion for Severance, (Doc. 112) be
DENIED as moot.
2016, Detective Houdyshell and members of the Ozark Drug
Enforcement Task Force (“ODETF”) began conducting
an investigation after receiving information regarding the
sale of methamphetamine by Defendant Kelly Walker. On June
21, 2016, after conducting two controlled buys from
Defendant, Detective Houdyshell obtained two search warrants,
one for Defendant's place of employment in Newton County
and the other for his residence in Jasper County. (Doc. 159.)
On June 28, 2016, Detective Houdyshell, along with members of
the ODETF, served a search warrant on Defendant's
workplace, Barney's Quick Lube on East 32nd Street in
Newton County. (Id.) Upon locating Defendant,
officers escorted him to his vehicle where Detective Abbot
advised him of his Miranda warnings. (Id.)
Defendant stated that he understood his Miranda
rights. (Id.) Defendant then stated that he would
rather talk to the officers down at the station than at his
place of employment. (Id.) DEA Agent Doug Johnson,
Detective Matt Walker, and Detective Houdyshell were all
present when Defendant was read his Miranda rights
by another officer. (Id.) At no point during this
initial encounter did the Defendant indicate that he wished
to remain silent. (Id.) Rather, he indicated a
desire to speak with the officers at a different location.
arrival at the police station, Agent Sean Henry, Agent Doug
Johnson, and Detective Houdyshell placed Defendant in a
breakroom area. (Doc. 159.) Inside the breakroom,
Detective Houdyshell again read Defendant's
Miranda rights. (Id.) Detective Houdyshell
asked Defendant if he understood each of those rights
previously explained to him. (Id.) Defendant
responded by saying “yes.” (Id.)
Detective Houdyshell also testified that the officers
involved did not make any threats or make any promises to
Defendant during the interview. (Doc. 159.) He further stated
that no weapons were drawn, and that the officers did not
raise their voices at Defendant. (Id.) Detective
Houdyshell testified that the Joplin Police Department and
the ODETF reports showed Defendant had 116 prior contacts
with law enforcement ranging from a vehicle stop to an
the interview, Defendant was asked whether he was involved in
the purchase and sale of methamphetamine with two other
individuals who have since been indicted as co-conspirators.
(Id.) Defendant responded in the affirmative.
Conclusions of Law
contends that there is no evidence that he waived his
Miranda rights. Specifically, Defendant argues that
because the administration of Miranda warnings and
waiver were not memorialized in writing, he did not
intelligently and voluntarily waive his Miranda
rights prior to his interrogation. Further, he contends he
invoked his rights after being Mirandized at his
workplace. Defendant therefore moves the Court to suppress
his statements to law enforcement on June 28, 2016. The
Government responds that Miranda warnings and
waivers are not required to be given in writing and that
Defendant validly waived his rights. Thus, the Government
contends that there is no Fifth Amendment violation and
Defendant's Motion to Suppress should be denied. The
Court takes up the parties' arguments below.
assertion of the right to remain silent must be expressed
unequivocally and unambiguously. See Simmons v.
Bowerbox, 235 F.3d 1124, 1131 (8th Cir. 2001). A
defendant's statements during a custodial interrogation
are inadmissible absent an express or implied waiver. See
Berghuis v. Thompkins, 560 U.S. 370, 387-88 (2010). The
courts determine whether an express or implied waiver has
been established by examining the whole course of
questioning. Id. Once the defendant has been advised
of his Miranda rights, law enforcement officials can
continue their interrogation without a formal waiver;
however, once a defendant invokes his rights, all questioning
must cease. Id. A defendant can validly waive his
rights orally or in writing. See United States v.
Zamarripa, 544 F.2d 978, 981 (8th Cir. 1976); Martin
v. United States, 691 F.2d 1235, 1239 (8th Cir. 1982).
“Failure to utilize a written waiver form and
tape-recording equipment” does not mean statements made
during an interrogation must be suppressed. See United
States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005).
government bears the burden of proving by a preponderance of
the evidence that a defendant's waiver of his
Miranda rights was voluntary, knowing and
intelligent. See United States v. Caldwell, 954 F.2d
496, 508 (8th Cir. 1992); United States v.
Sepulveda-Sandoval, 729 F.Supp.2d 1078, 1102 (D.S.D.
2010) (citing Colorado v. Connelly, 479 U.S. 157,
168 (1986)). That is, the Government must show the
defendant's waiver of the right against
self-incrimination was “the product of a free and
deliberate choice rather than intimidation, coercion, or
deception.” See United States v. Jones, 23
F.3d 1307, 1313 (8th Cir. 1994). Moreover, a waiver of those
rights must be made with “a full awareness of both the
nature of the right being abandoned and the consequences of
the decision to abandon it.” Id.
case, Defendant waived his Fifth Amendment right to remain
silent and to have counsel present. The evidence shows that
Defendant was advised of his Miranda rights twice:
first, when he was arrested and for a second time prior to
his interview with officers at the police station in Joplin.
Both times Defendant acknowledged that he understood those
rights. During the initial encounter, Defendant did not
indicate that he wished to remain silent. Rather, he
indicated a desire to speak with the officers at a different
location. See Simmons, 235 F.3d at 1131 (8th Cir.
200) (“[T]o invoke one's right to remain silent,
one must unequivocally express his desire to remain
silent.”) Defendant also had the opportunity to invoke
his rights before answering questions or speaking with the
officers. Instead, Defendant proceeded to make statements to
Detective Houdyshell at the police station. See
Berghuis, 560 U.S. at 387 (noting the actions and words
of a defendant interrogated can establish an implied waiver
of Miranda rights). The facts in this case
demonstrate that Defendant did not invoke his right to remain
silent when arrested at his workplace or at the police
station in Joplin.
Process requires that incriminating statements or confessions
be voluntary.” See United States v. Reynolds,
743 F.Supp.2d 1087, 1091 (D.S.D. 2010). To determine the
validity of a Miranda waiver, courts analyze the
totality of the circumstances surrounding the interrogation.
See United States v. Dunning, 666 F.3d 1158, 1165
(8th Cir. 2012). During the interrogation, the officers did
not make any threats or promises to Defendant; nor did the
officers draw their weapons or raise their voices. These
facts show that Defendant did not make statements because of
any deception, intimidation, or coercion by law enforcement
officers. See United States v. Elburki, No. CRIM.A.
13-00003-01, 2013 WL 3832461, at *5 (W.D. Mo. July 23, 2013)
(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986))
(noting that a valid waiver of Miranda rights can be
established “only if the totality of the circumstances
surrounding the interrogation reveals both an uncoerced
choice and the requisite level of comprehension”).
courts consider factors such as detention length, the
repetitive and prolonged nature of questions, the
suspect's age, intelligence and education, familiarity
with the criminal justice system, and physical and mental
condition. See Reynolds, 743 F.Supp.2d at 1091. In
this case, reports from the Joplin Police Department and the
ODETF show Defendant had 116 prior contacts with law
enforcement prior to his arrest on June 28. Such contacts
demonstrate that he was familiar with police proceedings and
would be familiar with the right to remain silent and have
counsel present. See United States v.
Ortega-Montalvo, 850 F.3d 429, 435 (8th Cir. 2017)
(finding a defendant's criminal history indicative of
being aware of rights and protections, because the defendant
“was experienced in the legal system and likely aware
of his rights”) (quoting United States v.
Dunning, 666 F.3d 1158, 1165 (8th Cir. 2012). Despite
this background and experience, Defendant chose to speak to
Detective Houdyshell after being advised of his rights.
See Jones, 29 F.3d at 1313 (“The
‘totality of the circumstances' in each case may
include the ‘background, experience, and conduct of the
suspect.'”). Given these circumstances, the Court
concludes that Defendant knowingly, voluntarily, and
intelligently waived his Miranda rights. See
id. (“Only if the ‘totality of the
circumstances surrounding the interrogation' reveals both
an uncoerced choice and the requisite level of comprehension
may courts properly conclude that the Miranda rights
have been waived.”). As such denial of Defendant's
Motion to Suppress is appropriate.