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United States v. Long

United States District Court, E.D. Missouri, Eastern Division

August 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRANCE LONG, JR., Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court following a hearing on Defendant Terrance Long, Jr.'s Motion to Suppress Evidence and Statements. The Government charged Defendant with a violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm). Defendant filed a motion to suppress on two grounds: (1) Defendant did not have authority to consent to a search of the residence where police officers seized the firearm; and (2) Defendant's statements “were made without benefit of Miranda warnings.” The Government attached a copy of the police report to its Response to the Motion to Suppress Evidence and Statements. Sergeant Michael Scego of the St. Louis Metropolitan Police Department, one of the officers present at the time of Defendant's statements and the search of Defendant's residence, testified at the hearing. Based upon the evidence adduced at the hearing, as well as the written and oral arguments of the parties, the Court recommends the denial of Defendant's motion.[1]

         Findings of Fact

         Sergeant Scego testified that he responded to 4548 Carter, a single family residence, in the City of St. Louis. Two police officers, Michael Growe and Nadja Curt, were at the address when Sergeant Scego arrived. The two officers were at the address because of a 911 call regarding a “flourishing” - - “that a subject had pulled a handgun on his live-in girlfriend.” Following his arrival at the residence, Sergeant Scego spoke with the mother of “the subject's” girlfriend. The mother stated that earlier that day, “the subject, ” identified as Defendant. was physically abusive and had a pistol. Following the conversation with the mother, Sergeant Scego, Officer Growe and one other officer went to the backyard of the residence. Sergeant Scego spotted Defendant in the backyard and asked to speak to him. Defendant voluntarily approached the officers and was patted down.

         Defendant voluntarily walked with the officers to the front of the residence. Standing in front of the residence, Officer Growe asked Defendant what happened. According to Sergeant Scego, Defendant stated that “he was involved in an argument with his girlfriend over personal matters.” At that point, Sergeant Scego testified, Officer Growe “kind of like stopped [Defendant] from talking for a second and then read him his rights.” Following recitation of Miranda rights, Officer Growe asked Defendant if he understood his rights. Defendant replied that he did and then stated “let's clear this up.” Officer Growe then questioned Defendant further about the incident. Defendant stated that he and his girlfriend had argued all week and that she threatened him with mace. Defendant admitted that he tried to protect himself. At that point, Officer Growe asked Defendant if he had been convicted and he said that he was on parole “for a gun.” Officer Growe then inquired whether Defendant had a silver and black pistol and Defendant answered, “fuck it, yeah, it's under my mattress, go get it.” At the time Defendant told police officers to retrieve his firearm, there were two police officers with him, Sargent Scego and Officer Growe. Defendant was not in handcuffs when he described his gun's location and gave permission to seize it.

         Following Defendant's statements, Officer Growe, Sergeant Scego and another officer, returned to Defendant's residence and entered through an open back door. Officer Growe went into a bedroom and “obtained the firearm.” The officers did not further search or seize anything from the residence. After exiting the residence, the officers returned to Defendant, placed him under arrest and again read him his Miranda rights. Officers conveyed Defendant to the North Patrol Division. At the station, Officer Growe offered Defendant an opportunity to make a written statement. He declined to do so.

         Conclusions of Law

         A. Statements

         Defendant moves to suppress his statements “because they were elicited in violation of Miranda when they were [the] product of a deliberate question first technique.” The Government counters that: (1) Defendant was not in custody at the time of his statements; and (2) was not subject to a “two-stage interrogation.”[2]

         Police officers are required to inform a suspect of Miranda rights when a suspect is in custody and subject to interrogation. Illinois v. Perkins, 486 U.S. 292, 297 (1990). Miranda warnings are not required for general “on the scene” questioning about the facts of a crime. United States v. Klein, 13 F.3d 1182, 1184 (8th Cir. 1994) (internal quotation marks omitted) (quoting Miranda v. Arizona, 384 U.S. 436, 477-78 (1966)).

         In United States v. Griffin, 922 F.2d 1343 (8th Cir. 1990), the Eighth Circuit concluded that “[c]ustody occurs either upon formal arrest or under any other circumstances where the suspect is deprived of his freedom of action in any significant way.” Id. at 1347 (emphasis in original). Custody determinations are “mixed questions of law and fact which require that the entire circumstances of the particular case be carefully assessed.” Id. In assessing custody, the Griffin court articulated six indicia, but described the list as “non-exhaustive”:

(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 of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning.

Id. at 1349. An officer accompanying a defendant as he moves about outside his residence does not in itself demonstrate the defendant is in custody. See United States v. Giboney, No. 16-3294, 2017 WL 3096336, at *4 (8th Cir. July 21, 2017).

         Applying the Griffin factors to circumstances here, it is clear that Defendant was not in custody. Defendant voluntarily spoke to Sergeant Scego in the backyard and accompanied Sergeant Scego and Officer Growe to the front of his residence. While standing in front of his residence, Defendant responded voluntarily to the officers' questions. Although the officers did not explicitly advise Defendant either that he was free to leave or his participation in the conversation was voluntary, nothing about the circumstances or officers' conduct demonstrated Defendant was unable to leave or stop the questioning. During the brief initial questioning, Defendant was not handcuffed or otherwise physically restrained, and the officers did not employ “strong arm tactics” or “deceptive stratagems.” Additionally, the officers did not place Defendant under arrest at the termination of the initial brief questioning. Instead, the ...


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