Wednesday, June 06, 2012

Defendant Wins Remand Because of Failure to Give Miranda Warnings

US v. Benard, 2012 WL 1890059 (10th Cir. 2012) (published). A rare defense win. Defendant convicted of drug offenses appealed the denial of his suppression motion and gets a remand on one issue.
Initial stop: Police had probable cause to stop defendant's vehicle based on a reasonable belief the car contained contraband. The police had been investigating a suspected drug dealer who operated out of a tire store and had wiretapped his phone. "Tommy" frequently called to buy drugs. Defendant was the individual observed visiting the store after several such calls. Following one call and visit, the officers requested that someone stop the defendant's vehicle. The trooper who stopped him was not told of the surveillance but ran a check on the vehicle and received a message it was not insured. The officer stopped him based on the apparent insurance violation. The Court affirmed the validity of the initial stop based on the fact that the officers had probable cause to believe the car contained contraband because "Tommy" had arranged to buy cocaine from the dealer and then showed up at the right time. Thus, the Court did not reach the alternative holding that the stop was justified based on the no-insurance violation. It also did not reach the scope of the detention issue.
Pat-Down Search: The defendant consented to a pat-down search. The district court's finding that consent was not coerced was not clearly erroneous because only two officers were present and only one officer approached the defendant. The officers did not draw their weapons. The officer's voice was "authoritative" but "not aggressive or threatening." The encounter was on a public street.
Miranda issues: The defendant was never Mirandized. The denial of the motion to suppress defendant's statements made during the pat-down search was not error because he was not in custody until he was handcuffed and formally placed in custody following the discovery of marijuana in his pocket. However, the statements he made following his formal arrest should have been suppressed. The trooper's question about what else might be in the car (to which Defendant responded there might be a gun left by his girlfriend -- why do these guys always think it's ok for their girlfriends and wives to leave guns in the car?) was not justified by the public safety exception because defendant was already in custody and police already had control of the car.
Withdrawal of conditional plea: The court rejects the government's argument that defendant should not be allowed to withdraw his conditional plea on remand because the most damaging evidence against him was not suppressed. However, it is for the defendant to choose whether or not to withdraw his plea upon remand.