United States District Court, E.D. Washington
ORDER DENYING MOTIONS TO SUPPRESS, DISMISS AND
RULINGS AT PRETRIAL CONFERENCE
O. RICE Chief United States District Judge
THE COURT are Defendant's Motion to Suppress Statements
Obtained in Violation of Miranda (ECF No. 41),
Motion to Suppress Statements Obtained in Violation of
Massiah (ECF No. 62), Motion to Dismiss Count 3
based on the Second Amendment (ECF No. 63), and Motions in
Limine (ECF Nos. 42, 64). A pretrial conference and
evidentiary hearing was held on May 2, 2018. Defendant was
present and represented by David Fletcher, J. Stephen
Roberts, Jr., and Amy H. Rubin, all from the Federal
Defenders of Eastern Washington and Idaho. AUSA Patrick J.
Cashman appeared on behalf of the Government. The Court
reviewed the motions, responses, all supplemental briefing
and the file therein, considered the testimony of the
witnesses and exhibits, heard from counsel, and is fully
informed. This order supplements and memorializes the
Court's oral rulings at the hearing.
Motion to Suppress Statements Re: Miranda (ECF No.
claims the statements he made to Officer Boling were the
result of custodial interrogation in violation of
Miranda. The Court finds the statements Defendant
made to Officer Boling were during a consensual encounter not
requiring Miranda warnings.
Force Officer Lee Boling was the only witness who testified.
Officer Boling's testimony is fully accepted, this Court
finds he was fully credible and detailed in his testimony.
The Court finds that Officer Boling contacted Defendant's
defense attorney on state charges and notified him that he
was conducting a federal investigation for federal
violations. Defendant's attorney contacted the Defendant,
explained that there was a federal investigation and
authorized Officer Boling to meet with Defendant.
Defendant's attorney expressly denied representing
Defendant on the federal investigation.
voluntarily agreed to meet Officer Boling in a Safeway
grocery store parking lot to sign certain paperwork, verify
his signature, be advised of his appeal rights, and be
advised of his future restrictions regarding firearms.
Officer Boling met with Defendant in a public place, without
a show of force, without verbal commands. Washington State
Patrol Trooper Pichette was present only to witness
Defendant's signature. While Trooper Pichette was in full
uniform and a marked car, Officer Boling was in plain clothes
and a rental pick-up truck without markings or any display of
force or authority. Only because it started to downpour rain,
Officer Boling invited Defendant to sit in the passenger seat
of his pick-up to conclude the interview. At no time did
Defendant seek to leave, request the cessation of
questioning, or ask for an attorney. Trooper Pichette went to
his own car during this time and any show of force because of
his uniform was thereby cancelled, as he was no longer
present for the conversation that continued.
viewing the encounter demonstrates to this Court that
Defendant freely attended the meeting in a public place, was
free to leave at any time, his movement was not restrained
whatsoever, he was not in custody, and he freely left the
meeting after about 40 minutes. The Court emphasizes that
only Officer Boling testified and the Court finds him fully
credible, so the evidence before the Court is uncontradicted.
After examining the totality of circumstances, the Court
concludes well beyond a preponderance of the evidence that
Defendant was not in custody and thus, no Miranda
warnings were required. See United States v.
Cazares, 788 F.3d 956, 980-81 (9th Cir. 2015) (test and
factors to consider).
Motion to Suppress Statements Re: Massiah (ECF No.
claims the statements he made to Officer Boling were obtained
in violation of his right to have his counsel present
according to Massiah v. United States, 377 U.S. 201,
Sixth Amendment right to counsel is offense-specific. See
McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). That is,
he had a right to counsel only on the offenses for which he
had been charged, and on any other offenses that constituted
the “same offense” under the Blockburger
test. See Texas v. Cobb, 532 U.S. 162, 167-73
(2001); Blockburger v. United States, 284 U.S. 299,
304 (1932). Defendant's attorney on the state charges
affirmatively represented that he did not represent Defendant
on the federal investigation. The federal charges do not
constitute the same offense under Blockburger.
Therefore, there has been no Sixth Amendment Massiah
violation. See United States v. Danielson, 325 F.3d
1054, 1066 (9th Cir. 2003).
Motion to Dismiss Count 3 based on the Second Amendment
(ECF No. 63).
seeks to dismiss count 3 of the Superseding Indictment
charging a violation of 18 U.S.C. § 922(g)(8). 18 U.S.C.
§ 922(g)(8) prohibits any person who is subject to a
court order restraining them from “harassing, stalking,
or threatening an intimate partner…” from
possessing a firearm while the order is in place.
the Second Amendment protects an individual right to keep and
bear arms, the scope of that right is not unlimited.
United States v. Chovan, 735 F.3d 1127, 1136 (9th
Cir. 2013) (citing District of Columbia v. Heller,
554 U.S. 570, 626-27 (2008)). The Ninth Circuit joined the
Third, Fourth, Seventh, Tenth, and D.C. Circuits in holding
that [a] two-step framework . . . applies to Second Amendment
challenges to various firearms restrictions post-Heller.
Chovan, 735 F.3d at 1137. Under this test,
“[t]he first question is “whether the challenged
law imposes a burden on conduct falling within the scope of
the Second Amendment's guarantee. . . . If the challenged
regulation burdens conduct that was within the scope of the
Second Amendment as historically understood, then ...