
    UNITED STATES of America, Plaintiff, v. Tyreek Rashaun CLARK, Defendant.
    Criminal Action No. 3:09-CR-23.
    United States District Court, N.D. West Virginia, Martinsburg.
    Aug. 26, 2009.
    
      Thomas O. Mucklow, U.S. Attorney’s Office, Martinsburg, WV, for Plaintiff.
   ORDER ADOPTING REPORT AND RECOMMENDATION/OPINION

JOHN PRESTON BAILEY, District Judge.

I. Introduction

On this day, the above-styled matter came before the Court for consideration of the Report and Recommendation (“R & R”) of United States Magistrate Judge David J. Joel. On July 1, 2009, Magistrate Judge Joel held a hearing on Defendant’s Motion to Suppress Alleged Statements [Doc. 21]. Subsequent to that suppression hearing, Magistrate Judge Joel filed his R & R as to the defendant’s motion to suppress [Doc. 25] on June 12, 2009. In that filing, the magistrate judge recommended that this Court deny the motion.

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make a de novo review of those portions of the magistrate judge’s findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the petitioner’s right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.1984). Here, objections to Magistrate Judge Joel’s R & R were due within ten days after being served with a copy, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). To date, neither party has filed objections to the R & R. Additionally, defense counsel has informed this Court that no objections will be filed. Accordingly, this Court will review the report and recommendation for clear error.

II. Facts

The defendant was under investigation for video taped buys of crack cocaine which allegedly occurred on July 5, 2006, and July 13, 2006. The defendant was shot at a night club in Virginia on July 19, 2006. On August 3, 2006, Sgt. Ted Snyder met with the defendant at the Winchester Medical Center to conduct an interview about the ongoing investigation and the two buys described in the Indictment. Although the defendant was on medication during the interview, no evidence showed that this affected his thought process. During the meeting, the defendant was presented with a Cooperative Understanding Agreement, which he signed. At the evidentiary hearing, Sgt. Snyder testified that the defendant appeared to be alert and responsive and understood why Sgt. Snyder was there. Sgt. Snyder further testified that if the defendant had appeared otherwise, he would not have conducted the interview. This Court further notes that the defendant was paralyzed at the time of the interview; therefore, he could not physically leave the hospital bed. No evidence was produced that Sgt. Snyder was aware of the defendant’s paralysis.

The defendant was aware during the interview that he was involved in a criminal investigation being conducted by the Task Force and that charges would probably be filed against him but that he was not under arrest at the time of the interview. Following the defendant’s review and execution of the agreement, the defendant provided information as to the identity of several individuals, including himself, in some photographs. When asked to provide drug involvement of those individuals, defendant declined, saying that he did not want to be a “rat.” Defendant then added that he wanted to think over the situation before saying anything else. The interview was terminated by Sgt. Snyder at that point.

III. Legal Analysis

Although the defendant was unable to leave his hospital bed and was on some medications, this Court finds by a “totality of the circumstances” that his “... freedom of action was not curtailed to a degree associated with formal arrest”; therefore, the defendant was not in custody at the time of the interview, and Sgt. Snyder was not required to give a Miranda warning. United States v. Braxton, 112 F.3d 777, 781 (4th Cir.1997). The Government has proved by a preponderance of the evidence that the statements given by the defendant were voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). Although the defendant was paralyzed and on medications at the time of the interview, the evidence presented showed that he was alert and responsive during the interview; that his statements were freely given and that his “capacity for self-determination [was not] critically impaired.” United States v. Pelton, 835 F.2d 1067, 1071 (4th Cir.1987). Accordingly, after thorough review of the record and the transcript of the July 1, 2009, evidentiary hearing before Magistrate Judge Joel, this Court is of the opinion that the motion to suppress should be denied.

IV. Conclusion

Upon careful review of the R & R, it is the opinion of this Court that the magistrate judge’s Report and Recommendation [Doc. 25] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report. Accordingly, the Defendant’s Motion to Suppress Alleged Statements [Doc. 21] is hereby DENIED.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to all counsel of record herein.

REPORT AND RECOMMENDATION TO DENY DEFENDANT’S MOTION TO SUPPRESS ALLEGED STATEMENTS [21]

DAVID J. JOEL, United States Magistrate Judge.

I. INTRODUCTION

On July 1, 2009, came the United States of America by Erin Reisenweber, appearing for Thomas O. Mucklow, Assistant United States Attorney, and also came the Defendant, Tyreek Rashaun Clark, in person and by his counsel, Nicholas J. Compton, Assistant Federal Public Defender, for an evidentiary hearing in the above-styled criminal action. This is a Report and Recommendation on Defendant’s Motion to Suppress Alleged Statements [21].

II. BACKGROUND

1. On March 18, 2009, the Federal Grand Jury for the Northern District of West Virginia, Martinsburg Division, indicted the Defendant on two (2) counts.

2. The charges in the March 18, 2009, indictment against the Defendant are as follows:

Count One (1) — Distribution of Cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C) and

Count Two (2) — Distribution of Cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C)

3. On June 12, 2009, the Defendant filed a Motion to Suppress Alleged Statements [21].

4. On this date of July 1, 2009, the Court held an evidentiary hearing on Defendant’s motion to suppress alleged statements [21]. The Government called Sgt. Snyder to testify. Defense counsel cross-examined this witness at length and did not call any of his own witnesses.

III. FACTUAL PRESENTATION

A. A summary of the evidence the Government presented at the hearing is as follows:

The Defendant was under investigation for video taped buys of crack cocaine which allegedly occurred on July 5, 2006 and July 13, 2006. The Defendant was shot at a night club in Virginia on July 19, 2006. On August 3, 2006, Sgt. Ted Snyder met with the Defendant at the Winchester Medical Center for the purposes of conducting an interview about the ongoing investigation of the July 5, 2006 and July 13, 2006 incidents described in the indictment.

During the meeting, Defendant was presented with a Cooperative Understanding Agreement, which was signed by the Defendant. Sgt. Snyder testified that the Defendant appeared to be alert and responsive and to understand why Sgt. Snyder was there. Sgt. Snyder further testified that if Defendant had appeared otherwise, he would not have conducted the interview.

The Defendant was aware during the interview that he was involved in a criminal investigation being conducted by the Task Force and that charges would probably be filed against him but that he was not under arrest at the time of the interview. Following Defendants review and execution of the agreement, defendant provided information as to the identity of several individuals, including himself, in some photographs. When asked to provide drug involvement of those individuals; however, defendant declined saying that he did not want to be a “rat.” Defendant then added that he wanted to think over the situation before saying anything else. The interview was terminated by Sgt. Snyder at that point.

B. A summary of the evidence presented by the Defendant is as follows:

The Defendant does not dispute the Governments factual recitation of what occurred at the interview on August 3, 2006 in the Winchester Medical Center. However, the Defendant would add that the Defendant was paralyzed at the time of the interview and could not leave the hospital bed. Defendant submitted medical records which indicated that Defendant was on certain medications at the time of the interview. Defendant argues that because of Defendant’s medical condition at the time of the interview that those statements were not a product of Defendant’s free and rational choice. Defendant’s counsel pointed out on cross examination that Sgt. Snyder did not make an appointment to meet with the Defendant nor did he consult with any doctors or nurses prior to meeting with the Defendant. Sergeant Snyder testified that it is not typical procedure to make appointments in these situations and that neither a nurse nor a doctor would speak to him about Defendants condition, even if he had asked.

IY. LEGAL ANALYSIS

The Self-Incrimination Clause of the Fifth Amendment ensures that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V. The Government has the burden of proving by a preponderance of the evidence that the statement or confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

In considering the voluntariness of a statement or confession, the standard is whether [defendant’s] confession [was] the product of a rational intellect and free will, and is expressed in Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The voluntariness inquiry under the Due Process Clause of the Fifth Amendment requires the Court to determine “whether the defendant’s will has been ‘overborne’ or his ‘capacity for self-determination critically impaired.’ ” United States v. Pelton, 835 F.2d 1067, 1071 (4th Cir.1987) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). See also Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976) (per curiam) (In order to determine whether a statement is voluntary, the Court must look to see “whether the confession was extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of improper influence.”) (internal quotation marks and alterations omitted).

In United States v. Braxton, 112 F.3d 777, 781 (4th Cir.1997), the Court held that

[ T]o determine whether a defendant’s will has been overborne or his capacity for self-determination critically impaired, courts must consider “the ‘totality of the circumstances,’ including the characteristics of the defendant, the setting of the interview, and the details of the interrogation.” (citation omitted).

See, also, United States v. Long, 990 F.Supp. 468, 470 (D.C.W.V.1997). In United States v. Gray, 137 F.3d 765, 771 (4th Cir.1998), the Court said that “A statement or confession is given voluntarily when it is the product of ‘free and unconstrained choice’ of the person giving it.” (citation omitted). Furthermore, coercive police activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment. Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

However, “[t]he mere existence of threats, violence, implied promises, improper influence, or other coercive police activity ... does not automatically render a confession involuntary. The proper inquiry is whether the defendant’s will has been overborne or his capacity for self-determination critically impaired.” United States v. Braxton, supra (internal quotation marks omitted). “Because the police activity used to elicit an incriminating statement must be coercive before a statement will be held to be involuntary, it is not surprising that “ ‘very few incriminating statements, custodial or otherwise, are held to be involuntary.’ ” ” (Citation omitted). United States v. Braxton, supra at 786.

One of the issues to be considered therefore, is whether the defendant was in custody at the time the statement was made. It is well established that persons who are “ ‘taken into custody or otherwise deprived of [their] freedom of action in any significant way’ ” must be given Miranda warnings before being questioned. Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam) (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). In Miranda, the Supreme Court afforded protection to the Fifth Amendment privilege against compelled self-incrimination “from the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation.” Berkemer v. McCarty, 468 U.S. 420, 428, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). “[C]ourts must consider the totality of the circumstances, including the characteristics of the defendant, the setting of the interview, and the details of the interrogation.” Id. at 781, 104 S.Ct. 3138 (internal quotation marks omitted); see also United States v. Howard, 115 F.3d 1151, 1154 (4th Cir.1997) (“An individual is ‘in custody’ for Miranda purposes when, under the totality of the circumstances, the ‘suspect’s freedom of action is curtailed to a degree associated with formal arrest.’ ”) (quoting Berkemer, 468 U.S. at 440, 104 S.Ct. 3138).

Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.

Accord Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

Defendant cites Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) for the proposition that since the Defendant’s statements were made in a hospital that they should be deemed involuntary. However, Mincey is not factually similar to this case. In Mincey, the interview took place just a few hours after Defendant had been seriously wounded. Id. At 398-399. In addition, the Defendant in Mincey was depressed almost to the point of coma, confused and unable to think clearly and was encumbered with tubes needles and breathing apparatus. Id. At 398-399.

V. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

The issue presented is whether given the totality of the circumstances, the defendants freedom of action was curtailed to a degree associated with formal arrest and whether his statements were freely given during the interview at the hospital on August 3, 2006.

1. The Court finds that the Defendant was under investigation for the alleged distribution of crack cocaine on July 5, 2006 and July 13, 2006.

2. The Defendant was shot at a night club in Virginia on July 19, 2006 and was taken to the Winchester Medical Center.

3. A couple weeks after the injury on August 3, 2006, Sgt Ted Snyder went to the Winchester Medical Center for the purposes of conducting an interview about the ongoing investigation of the July 5, 2006 and July 13, 2006 incidents described in the indictment.

4. During the meeting, Defendant was presented with a Cooperative Understanding Agreement, which was signed by the Defendant.

5. The Defendant was made aware during the interview that he was involved in a criminal investigation being conducted by the Task Force and that charges would probably be filed against him but that he was not under arrest at the time of the interview.

6. Although the Defendant was on medication at the time of the interview, there was no evidence that this medication effected his thought process. In fact, the testimony was that Defendant was alert and responsive during the interview.

7. Further, the Defendant was alert and responsive enough to decline answering any more questions when he was asked to provide drug involvement of other individuals he had identified stating that he did not want to be a “rat.” The interview was terminated by Sgt. Snyder at that point.

8. Although Defendant was unable to leave his hospital bed and was on some medications, the court finds by a “totality of the circumstances” that his “... freedom of action was not curtailed to a degree associated with formal arrest”; therefore, the Defendant was not in custody at the time of the interview and Sgt. Snyder was not required to give a Miranda warning. United States v. Braxton, 112 F.3d 777, 781 (4th Cir.1997);.

9. The Government has proved by a preponderance of the evidence that the statements given by the Defendant Clark were voluntary. Lego v. Twomey, 404 U.S. 477, 489 [92 S.Ct. 619, 30 L.Ed.2d 618 (1972) ].

10. Although Defendant was paralyzed and on medications at the time of the interview, the evidence presented showed that he was alert and responsive during the interview; that his statements were freely given and that his “capacity for self-determination [was not] critically impaired.” United States v. Pelton, 835 F.2d 1067, 1071 (4th Cir.1987).

Therefore, the undersigned Magistrate Judge recommends that the District Court DENY Defendant’s Motion to Suppress Alleged Statements [21],

VI. RECOMMENDATION AND CONCLUSION

For the above reasons, the undersigned Magistrate Judge hereby RECOMMENDS that the District Court DENY Defendant’s Motion to Suppress Alleged Statements [21].

The Court notes the Defendant’s objection to the ruling.

Within ten (10) days of receipt of service of this Report and Recommendation, any party who appears pro se and any counsel of record may file with the Clerk of the Court any written objections to this Recommendation. The party should clearly identify the portions of the Recommendation to which the party is filing an objection and the basis for such objection. The party shall also submit a copy of any objections to the Honorable John Preston Bailey. Failure to timely file objections to this Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon this Recommendation. 28 U.S.C. § 636(b)(1).

The Court directs the Clerk of the Court to provide a copy of this Report and Recommendation to all counsel of record, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.

DATED: July 7, 2009. 
      
      . Defendant Clark now walks with the assistance of a cane.
     