US v . Murray CV-03-194-JD 03/10/04
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 03-194-JD
Opinion N o . 2004 DNH 042
Roderick Murray
O R D E R
Roderick Murray has moved to suppress statements he
allegedly made to police while they questioned him as part of
a bank robbery investigation on the ground that the
questioning violated Miranda v . Arizona, 384 U.S. 436 (1966).
He also seeks suppression of a written confession he provided
at the close of the questioning, after he had executed a
written waiver of his Miranda rights, on the ground that the
confession was nevertheless involuntary. The government
objects to suppression.
With its objection, the government submitted the
affidavits of the two officers to whom Murray allegedly
confessed, Lieutenant Scott Carline of the Newmarket, New
Hampshire police department and Detective Daniel Rivard of the
Manchester, New Hampshire police department. Both Murray and
the government have also submitted documentary evidence,
including reports of the investigation prepared by Carline and
Chief Rodney Collins of the Newmarket police department, a
photograph of the room where Murray was questioned, and an
image from a bank security camera which Murray was shown
during the questioning. The following findings of fact are
based on these materials as well as the testimony of Carline
and Rivard at an evidentiary hearing of February 1 3 , 2004.
See United States v . Schaefer, 87 F.3d 5 6 2 , 570 (1st Cir.
1996) (noting that court “may receive and consider any
relevant evidence” at suppression hearing).
Background
Murray was working at his job as a bagger at a Vista
Foods supermarket in Manchester on October 2 0 , 2003, when a
group of five men came in his direction: Carline, Rivard,
Collins, Special Agent John Mulvaney of the Federal Bureau of
Investigation, and store manager Roy Burke. Carline and
Rivard walked in the front rank of this group while the others
remained several feet behind. Carline and Rivard approached
Murray from one side of the register where he was working; the
other men took a position at a distance of approximately six
feet from Murray on the other side of the register. None of
the law enforcement officers was in uniform. Rivard, wearing
his badge on a chain around his neck and his sidearm in a
holster on his hip, introduced himself to Murray as a
2
detective with the Manchester police. Because Rivard was not
wearing a sportcoat, these items would have been visible to
Murray. Carline, however, was wearing a jacket, so his badge
and gun remained out of sight.
The officers were investigating a series of three bank
robberies and another attempt at one which had occurred in
Manchester and Newmarket, New Hampshire, and Brattleboro,
Vermont, between September 1 1 , 2003, and October 1 0 , 2003.
The investigation led to Vista Foods in Manchester after
authorities discovered a receipt from the store in the pocket
of a shirt abandoned in a wooded area approximately two miles
from the bank which had been robbed in Newmarket. A witness
to the Newmarket robbery identified the shirt as that worn by
the perpetrator. The witness also identified the Newmarket
bank robber as the same person shown holding up the
Brattleboro bank in an image from its security camera. A
photograph taken of the culprit in the Manchester robbery
showed that h e , t o o , strongly resembled the Brattleboro
suspect.
Upon their arrival at the supermarket, Rivard, Carline,
and Collins showed the photograph from the Brattleboro robbery
to several Vista employees, some of whom remarked that it
depicted a person who resembled one of their co-workers,
3
Murray. 1 The officers also learned that Murray had not been
at work on the day of either the Newmarket or Brattleboro
robbery but that he was working on the day of the Manchester
robbery. This latter piece of information was significant
because Murray had access to a white van while at work that
resembled a vehicle reportedly driven by the suspect in the
Manchester robbery. The officers also learned that Murray had
previously been convicted of bank robbery in Massachusetts.
It was after compiling this information that the officers
approached Murray. According to his affidavit, Rivard
“immediately recognized” Murray as the person depicted in the
surveillance photographs from the Manchester and Brattleboro
robberies. Rivard testified that as a result he “[p]robably”
would not have let Murray leave without speaking to him. In
any event, when Rivard asked Murray to speak to him and
Carline, Murray responded, “No problem.” Murray then
accompanied Rivard and Carline to an upstairs office suite at
the supermarket, which could be accessed only by exiting the
building and re-entering through a different door. Rivard and
Carline sat down with Murray in a large office while Mulvaney
and Collins waited in a smaller office nearby. The large
1
After obtaining this information, the officers contacted
Mulvaney, who then met them at the supermarket.
4
office contained four or five desks arranged at intervals
along the perimeter of the room.
Rivard and Carline advised Murray at the outset that he
was not under arrest and that they were not there to force him
to do or say anything. During the course of the questioning,
the officers made a number of similar statements to Murray,
who acknowledged each time that he understood. Murray was
never expressly told that he was “free to leave,” however.
Rivard began the questioning by spending several minutes
asking Murray about his personal background, refraining from
making any inquiries about his criminal record.
After again telling Murray that the officers did not
intend to force him to do anything, Rivard told Murray that
they were investigating a string of local bank robberies.
Murray initially disclaimed knowledge of any robberies.
Rivard then displayed the surveillance photographs from the
Manchester and Brattleboro robberies and asked Murray whether
he recognized the person depicted and whether he thought it
looked like him. According to Rivard, Murray did not make any
verbal response to either of these questions, although he
began showing signs of nervousness.
Carline then accused Murray of being the person in the
photographs, which he denied. Perceiving “deception” in
5
Murray’s response, Carline advised him that “it was time to be
truthful” and offered to make a favorable recommendation to
the FBI as to Murray’s sentence if he cooperated. For his
part, Rivard told Murray that the officers knew he was
responsible for the robberies and that they wanted only the
truth. Although Murray states in the body of his motion to
suppress that “he was told ‘you’re not leaving, just tell us
what happened’ or words to that effect,” both Rivard and
Carline expressly denied in their testimony that such a
statement was made during the questioning.
A few moments later, Carline asked Murray how many
robberies he had committed. Murray responded that he had
committed three and, in response to a follow-up question from
Rivard, said that the robberies had occurred in Manchester,
Brattleboro, and Newmarket. At the time Murray made these
admissions, approximately thirty minutes had passed since
Rivard began questioning him. During that period, Murray had
never asked to leave or otherwise to halt the questioning and
neither Carline nor Rivard did anything to restrain Murray’s
movements or even raised their voices. Both officers
conceded, however, that Murray was not free to leave once he
had inculpated himself.
Carline then left the office while Rivard questioned
6
Murray about the Manchester and Brattleboro robberies. Before
this line of questioning began, Murray asked for and received
permission from Rivard to smoke cigarettes, and proceeded to
do s o . Murray provided a detailed account of the Manchester
and Brattleboro robberies. Rivard then stepped out while
Murray provided a detailed account of the Newmarket robbery to
Carline. Murray took no more than an hour to recount all of
the robberies. At some point during that period, Collins
entered to bring Murray a cup of coffee and left shortly
thereafter.
After leaving the office again to report to Mulvaney,
Carline returned to tell Murray he wanted a written statement,
then read Murray his Miranda rights from a Newmarket Police
Department form. Murray indicated that he understood those
rights and was waiving them by signing on the bottom of that
same form. He subsequently wrote out and signed a statement
admitting to the three robberies and the additional attempt
and signed and dated each of the surveillance photographs as
well as the note he had allegedly passed to the Newmarket
teller. He was later indicted on two counts of bank robbery
in violation of 18 U.S.C. § 2113(a) arising out of the
Manchester and Newmarket robberies.
7
Discussion
“[A] person questioned by law enforcement officers after
being ‘taken into custody or otherwise deprived of his freedom
of action in any significant way’ must first ‘be warned that
he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a
right to the presence of an attorney, either retained or
appointed.’” Stansbury v . California, 511 U.S. 3 1 8 , 322
(1994) (quoting Miranda,
384 U.S. at 4 4 4 ) . This rule proceeds
from the recognition that “any custodial interrogation [is]
inherently coercive and that, therefore, careful procedures
[are] needed to protect the accused.” United States v .
Christian,
571 F.2d 6 4 , 67 (1st Cir. 1978) (citing Miranda,
384 U.S. at 455-58).
The “ultimate inquiry” in determining whether a defendant
was in custody within the meaning of Miranda “is simply
whether there was a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.”
Stansbury, 511 U.S. at 3 2 2 ; see also United States v .
Fernandez-Ventura, 132 F.3d 8 4 4 , 846 (1st Cir. 1 9 9 8 ) . In
making this inquiry, the court should consider all the
circumstances of the interrogation, including “‘whether the
suspect was questioned in familiar or at least neutral
8
surroundings, the number of law enforcement officers present
at the scene, the degree of physical restraint placed upon the
suspect, and the duration and character of the
interrogation.’” United States v . Jones, 187 F.3d 2 1 0 , 218
(1st Cir. 1999) (quoting United States v . Masse,
816 F.2d 8 0 5 ,
809 (1st Cir. 1987)). No single element, however, makes an
interrogation either custodial or non-custodial within the
contemplation of Miranda. Id.
Murray argues that he was taken into custody within the
meaning of Miranda when the investigators first approached him
near the register. The court disagrees. Although four
different law enforcement officers had headed in Murray’s
direction, only Carline and Rivard actually walked up to him,
with the others trailing and remaining six feet or so away
while their colleagues interacted with Murray. None of the
men drew his weapon or flashed his badge, though Rivard’s gun
and badge were visible. After approaching, Rivard simply
introduced himself to Murray and asked whether he would speak
to him and Carline. Murray immediately agreed, without any
physical contact or verbal importuning. Finally, this brief
interaction took place entirely within surroundings familiar
to Murray, his place of employment.
Under these circumstances, the number of law enforcement
9
officers present at the scene, while significant, fails to
lend a custodial character to this encounter. See United
States v . Nishnianidze, 342 F.3d 6, 13-14 (1st Cir. 2003)
(holding that defendant not in custody where three officers
came to interview h i m ) , cert. denied, 124 S . C t . 1107 (2004);
Masse, 816 F.2d at 809-10 (holding that defendant not in
custody when approached by two plainclothes officers who
identified themselves and asked to converse with him, though
other plainclothes officers in a r e a ) . The court finds that
Murray was not in custody before or during his interaction
with the officers at the cash register. See United States v .
Lanni,
951 F.2d 4 4 0 , 441-42 (1st Cir. 1991) (upholding
determination that defendant not in custody where two agents
arrived at her door, identified themselves, and indicated they
wished to t a l k ) .
In the alternative, Murray argues that Rivard and Carline
took him into custody “once he was cornered in the room with
multiple police officers and confronted with a photograph of
the suspect, which clearly resembled him.” The court
acknowledges the presence of factors which might lend a
custodial character to this encounter. While Rivard’s
interaction with Murray started off amicably, the tone changed
when the officer confronted the suspect with the bank
10
surveillance photographs in response to Murray’s denial of
involvement in the robberies under investigation. Courts have
considered the fact that police confronted a suspect with
“damning evidence of guilt” as weighing in favor of custody.
United States v . Carter, 884 F.2d 3 6 8 , 372 (8th Cir. 1 9 8 9 ) ;
see also United States v . Wauneka,
770 F.2d 1434, 1439 (9th
Cir. 1985) (affirming conclusion that defendant in custody
because, inter alia, police told him he matched description of
suspect); State v . Dedrick,
132 N.H. 2 1 8 , 225 (1989) (applying
federal l a w ) .
Furthermore, the officers responded to Murray’s continued
denials with accusations that Murray was lying, a tactic which
has been recognized as contributing to a custodial atmosphere.
See United States v . Beraun-Panez, 812 F.2d 5 7 8 , 580 (9th Cir.
1987) (holding that agents had placed defendant in custody b y ,
among other actions, “accusing [him] repeatedly of lying” and
“insisting on the ‘truth’ until he told them what they
sought”); Dedrick, 132 N.H. at 225 (affirming ruling that
defendant in custody based “[m]ost significantly” on officers’
accusations of guilt “[d]espite his vehement denials”); 2
Wayne R. LaFave et a l . , Criminal Procedure § 6.6(f), at 540
(2d ed. 1999) (“surely a reasonable person would conclude he
was in custody if the interrogation is close and persistent,
11
involving . . . the discounting of the suspect’s denials”);
accord Lanni, 951 F.2d at 443 (weighing agent’s expression of
disbelief at suspect’s profession of innocence in favor of
custody).
Murray places particular emphasis on his claim that, by
the time Rivard and Carline escorted him to the office, they
“had clearly concluded that, based on the photograph and all
the other evidence, the defendant was the robber. He knew
that they were not going to let him go free.” As the
government points o u t , however, “subjective beliefs held by
the interrogating officers or the person being interrogated
are not germane” to the question of whether a suspect is in
custody so as to necessitate Miranda warnings, which turns
solely on “how a reasonable man in the suspect’s shoes would
have understood his situation.” United States v . Ventura, 85
F.3d 7 0 8 , 711 (1st Cir. 1996) (internal quotation marks
omitted); Nishnianidze,
342 F.3d at 1 3 .
Nevertheless, the Supreme Court has recognized that “[a]n
officer’s knowledge or beliefs may bear upon the custody issue
if they are conveyed, by word or deed, to the individual being
questioned.” Stansbury, 511 U.S. at 3 2 5 ; accord United States
v . Streifel, 781 F.2d 9 5 3 , 959 (1st Cir. 1986) (calling
officers’ intentions to arrest “relevant only to the extent
12
that they were communicated to the defendants”). In the
court’s view, both Rivard and Carline not only harbored a
strong belief that Murray had committed the robberies they
were investigating before they began questioning him, but they
communicated this belief to Murray in no uncertain terms. In
his affidavit, Carline says he told Murray that he “thought he
was the person in the photograph” from a bank surveillance
camera, while Rivard testified that he told Murray the police
knew he was the person in the photograph. Both officers also
suggested to Murray that he was not being truthful in claiming
otherwise. These facts therefore bear on the analysis of
whether a reasonable person in Murray’s position would have
understood his status, weighing in favor of a determination of
custody. However, “this is simply one circumstance, to be
weighed with all the others” in answering the question.
United States v . Leese, 176 F.3d 7 4 0 , 744 (3rd Cir. 1999)
(internal quotation marks omitted).
A number of the other circumstances surrounding the
questioning cut against Murray’s argument that he was in
custody before he ultimately received Miranda warnings.
First, Murray willingly accompanied the investigators to the
supermarket office, exiting and re-entering the building to do
so. See United States v . Mahan, 190 F.3d 4 1 6 , 422 (6th Cir.
13
1999) (fact that defendant voluntarily accompanied agent to
different conference room at workplace amidst questioning
weighed against custody); 2 LaFave § 6.6(f), at 539 (2d ed.
1999) (“Merely having the suspect move a short distance to
facilitate conversation does not in itself constitute
custody.”) Once Murray arrived there, moreover, the officers
did nothing to restrain his physical movements. They remained
seated throughout the encounter except when rising to leave
and re-enter the room after Murray’s initial incriminatory
statement.
Second, the room in which the questioning took place was
large, evidently serving as the office space for at least four
different people. See United States v . Crossley, 224 F.3d
8 4 7 , 862 (6th Cir. 2000) (weighing fact that defendant
questioned in “relatively large” room against custody).
Third, only Carline and Rivard joined Murray in the office,
while Collins and Mulvaney remained in a different room. 2 As
previously discussed, the presence of two officers during
questioning does not tend to render it custodial. Fourth, in
the absence of any contrary suggestion from Murray, the office
itself did not represent an unfamiliar environment as it was
2
The court considers Collins’s brief entry into the office
to bring Murray a cup of coffee to be insignificant for
purposes of assessing the number of officers in the room.
14
part of the supermarket where he worked. See Leese, 176 F.3d
at 744 (upholding conclusion that questioning defendant in
supervisor’s office not custodial). Fifth, the length of time
which elapsed between when Rivard started his questioning and
when Murray finished his oral statement did not exceed ninety
minutes and Murray was permitted to smoke and drink coffee
during that time. See Fernandez-Ventura, 132 F.3d at 848
(declining to hold that a detention of eighty minutes “is
strongly indicative of arrest”); United States v . Brunette,
76
F. Supp. 2d 3 0 , 34-35 ( D . M e . 1999) (concluding defendant not
in custody where questioning lasted only one hour, during
which he smoked), aff’d,
256 F.3d 14 (1st Cir. 2 0 0 1 ) .
Finally, and most importantly, the officers repeatedly
advised Murray that he was not under arrest and that they did
not intend to force him to do or say anything. See United
States v . Ortega-Santana, 869 F.2d 1 2 , 14 (1st Cir. 1989)
(upholding determination that defendant not under arrest
primarily because he was twice told he was free to leave);
McCown v . Callahan,
726 F.2d 1 , 5 (1st Cir. 1984) (holding
that Miranda warnings not required where suspect was told he
was not under arrest and not required to answer questions).
Indeed, Rivard gave this assurance both at the outset of his
questioning and immediately before announcing that the
15
detectives were there as part of a bank robbery investigation.
The foregoing considerations all weigh against a determination
that Murray was in custody while in the supermarket office.
On balance, the court concludes that the officers’
questioning of Murray in the office did not rise to the level
of custodial interrogation at any point before he received his
Miranda warnings. The court recognizes that certain facets of
the questioning, particularly the confrontation of Murray with
the photographs and the rejection of his denials of
involvement, make this a close call. Nevertheless, in the
court’s view, the prevailing “‘feel’ of the situation,” Lanni,
951 F.2d at 4 4 3 , was non-custodial, characterized by the
officers’ repeatedly telling Murray he was not under arrest or
other compulsion and refraining from the use of any physical
restraint upon him, even in such subtle ways as standing up or
raising their voices.
Furthermore, the government relies on two cases in which
the First Circuit upheld a determination that a defendant was
not in custody under circumstances more strongly indicative of
formal arrest than those present here. In Nishnianidze, two
FBI agents and a local detective knocked on the door of the
small room where the defendant was staying at approximately 8
a.m., waking him and his son. 342 F.3d at 1 2 . After the
16
defendant let them i n , the officers questioned him for forty-
five minutes, asking him to hand over certain documents, never
telling him he was free to g o , and keeping his roommate from
entering. See id. at 13-14. In Lanni, two FBI agents arrived
at the defendant’s home at 8 a.m., before she had dressed or
eaten breakfast, and proceeded to question her for four hours
of “increasing intensity,” never telling her she was free to
leave and having her complete eighty handwriting exemplars.
951 F.2d at 442-43. Just before confessing, the defendant had
begun to cry when one of the agents told her that her claim of
innocence “did not make any sense.” Id. The decisions in
Nishnianidze and Lanni provide support for the court’s
conclusion that under the circumstances presented Murray was
not in custody for purposes of Miranda at any time before he
finished making his oral confession to the robberies and the
attempt.
Murray also argues that not only his oral statements, but
also the written statement he gave after receiving his Miranda
warning, should be suppressed on the ground that these
utterances “were coerced, and therefore not voluntary.” Like
determining the custodial nature of an interrogation,
assessing the voluntary nature of a confession requires the
court to examine the totality of the surrounding
17
circumstances. Arizona v . Fulminante, 499 U.S. 2 7 9 , 286
(1991); United States v . Burns,
15 F.3d 2 1 1 , 216 (1st Cir.
1994). Based on the factors already discussed in support of
its conclusion that Murray was not in custody at any point
before he completed his oral confession, the court similarly
concludes that the confession was not coerced. S e e , e.g.,
United States v . Rosario-Peralta,
199 F.3d 5 5 2 , 564 (1st Cir.
1999) (upholding determination of voluntariness where agents
did not make threats or raise their voices and defendants
indicated they understood their rights).
Finally, the court determines that the written confession
which Murray provided after he was read his Miranda rights was
also not the product of coercion. “In deciding the
voluntariness of [a post-warning] statement, a valid waiver of
Miranda rights is normally dispositive.” United States v .
Esquilin, 208 F.3d 3 1 5 , 319 (1st Cir. 2000) (citing Oregon v .
Elstad,
470 U.S. 2 9 8 , 314 (1985)); see also 2 LaFave § 6.2(c),
at 460 (“the fact that [Miranda] warnings were given is an
important factor tending in the direction of a voluntariness
finding”). Here, Carline read Murray a Miranda warning from a
preprinted police department form, which was subsequently
handed to him. Murray then signed the form in a blank
provided under a section entitled “WAIVER,” indicating that he
18
understood his Miranda rights and was waiving them
voluntarily, knowingly, and intelligently. Murray has not
suggested that he did n o t , in fact, understand his rights or
the import of his waiving them. 3 Furthermore, Carline was the
only one in the room with Murray when he gave the written
statement and procured it simply by asking.
Under these circumstances, the court cannot conclude that
Murray’s written confession was involuntary. Murray asserts
that suppression of the written confession is dictated by
United States v . Byram, 145 F.3d 405 (1st Cir. 1 9 9 8 ) . There,
however, the statement in question shared “a substantial
nexus” with an initial Miranda violation and was “not itself
preceded by an adequate Miranda warning” because none was
required at that point, when the defendant was called to
testify at his friend’s criminal trial.
Id. at 409-10. Here,
however, not only was there no Miranda violation with regard
to Murray’s oral confession, but Murray in fact received a
Miranda warning before executing the written confession.
Furthermore, the defendant in Byram made his initial
inculpatory statement while in custody on an unrelated charge
3
In fact, according to Carline’s affidavit, Murray
initially rebuffed the suggestion that he should cooperate in
the investigation because “the last time he cooperated, he
ended up serving four years in Massachusetts,” an apparent
reference to his prior bank robbery conviction.
19
and after his questioner assured him “that he was not
‘implicated in any of this.’” Id. at 4 0 6 . Murray, in
contrast, was neither in custody nor lulled into a misplaced
sense of security by Carline or Rivard, who affirmatively
accused him of criminal activity. Byram is therefore
inapposite.
Conclusion
For the foregoing reasons, Murray’s motion to suppress
his alleged oral and written confessions (document n o . 1 2 ) is
denied.
SO ORDERED.
Joseph A . DiClerico, J r .
United States District Judge
March 1 0 , 2004
cc: Jonathan R. Saxe, Esquire
Donald A . Feith, Esquire
U.S. Probation
U.S. Marshal
20
