On May 1, 2018, the Eleventh Circuit Court of Appeals decided the United States v. Richardson[i], in which the court examined whether statements made by the defendant were admissible and whether information received from court order for cell phone geographical information were admissible under the Fourth Amendment. The relevant facts of Richardson are as follows:
In 2011, Judge Corrigan sentenced Appellant to time served and three years of supervised release for an unrelated offense. The sentence affected Appellant’s enrollment at a university, so he sought to end the supervised release. But Judge Corrigan denied the request.
Appellant’s troubles then began to compound. He was arrested in October, November, and December 2012 for various burglaries and thefts. Under his supervised release terms, Appellant was required to submit a monthly report regarding contact with law enforcement. Despite his arrests, Appellant reported each month that he had not been arrested or questioned by law enforcement. A petition for revocation of supervised release was ultimately filed, and Appellant was ordered to appear in court.
Instead of addressing his legal troubles in court, the evidence at trial revealed that Appellant began working on his “Mission Freedom.” Appellant found Judge Corrigan’s home address and telephone number on the Internet and researched rifles and ammunition. Appellant then visited a sporting goods store and examined a hunting rifle. Several days later, he reentered the same sporting goods store and hid until closing. Once the store emptied, Appellant went to the gun department, cut the plastic trigger guard on the rifle to free it from a security cable, and grabbed some ammunition.
Two days later, Appellant bought a movie ticket from a theater near Judge Corrigan’s home. Several hours later, Judge Corrigan sat watching television with his wife in their home. Then suddenly there was a loud bang; Judge Corrigan was struck by shards of metal from the window frame near where he was sitting, and a bullet lodged itself in the family-room closet. Less than two hours later, Appellant entered a bar near Judge Corrigan’s home. An employee stated that Appellant looked like he had just walked out of the woods; Appellant also had a fresh injury on his eye that looked like a “scope bite”: an injury that occurs when a rifle’s recoil causes the scope to strike the shooter.
Arrest and Interrogation
Two days after the shooting, the police went to arrest Appellant at his apartment for failing to appear at his revocation hearings. The police also searched the apartment and found evidence linking Appellant to Judge Corrigan’s shooting. First, the police found a rifle in Appellant’s bedroom closet. Like the rifle stolen from the sporting goods store, the rifle’s trigger guard had been cut and covered with electrical tape; the tape on the rifle matched tape that was found in the bushes outside Judge Corrigan’s home. Moreover, the gun’s size and rifling were consistent with the bullet recovered from Judge Corrigan’s home. And it appeared Appellant had used the rifle as his DNA was found on its scope. In addition to the rifle, the police recovered ammunition, Appellant’s cellphone, and bolt cutters. Finally, the police found a sham order with Judge Corrigan’s forged signature that ostensibly pardoned Appellant’s entire criminal history.
Appellant was ultimately taken to a local sheriff’s office so the FBI could question him. After expressing a desire to go home, an agent advised Appellant that he had to stay. An agent then presented Appellant with an advice of rights card, and the agents read the card aloud to Appellant. After each line, an agent asked Appellant if he understood and Appellant either nodded or said yes. Appellant then refused to sign a waiver, but said he would answer the questions.
During the questioning, Appellant stated that he had been at home on the night of the shooting and claimed to have no knowledge of the rifle. Appellant also stated that if his fingerprints were on the rifle, it was because he had touched the rifle while getting his shoes out of a pile of clothes after his arrest. Towards the end, Appellant acknowledged that the video recording of the questioning was admissible in court and that he could request an attorney. Appellant believed, however, that he had not said anything incriminating.[ii]
Richardson was subsequently indicted on 25 counts for various crimes related to this incident. He filed a motion to suppress his statements and argued that his statements were obtained in violation of the Fifth Amendment. He also argued that his Fourth Amendment rights were violated when the police obtained data from the cellular phone tower without a search warrant. His motion to suppress was denied, and he was later convicted by a jury on the charges. He appealed the denial of his motion to suppress to the Eleventh Circuit Court of Appeals.
On appeal, Richardson argued that the FBI agent violated his rights under the Fifth Amendment, therefore his statements should be suppressed. He also argued that his Fourth Amendment rights were violated when the police obtained information, without a warrant, from the cellular phone tower which showed he was near the scene of the shooting at the judge’s home. [Note: The issues pertaining to sufficiency of evidence to sustain convictions under state law will not be discussed in this article.]
The Statements and the Fifth Amendment
The court then set out to determine if Richardson’s statements were the product of a Fifth Amendment violation. The court first stated
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” Absent certain procedural safeguards, a statement given during custodial interrogation is presumed to be compelled in violation of the Constitution. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). To dispel that presumption of compulsion, the person in custody must be advised of certain rights. Id. The person in custody may then waive his rights, but to be operative the waiver must be made voluntarily, knowingly, and intelligently. Id. If the Government violates a person’s right against compelled self-incrimination, then generally the compelled statements must be suppressed. Missouri v. Seibert, 542 U.S. 600, 608 (2004).
…Once the Miranda protections attach and the Miranda warnings have been given, the police are not obligated to stop asking questions. Berghuis v. Thompkins, 560 U.S. 370, 381 (2010). Rather, the suspect must either invoke or waive his rights. Id. A waiver can be implied when, as here, the suspect is advised of his rights and acts in a manner inconsistent with the exercising of those rights. Id. at 385…[iii] [emphasis added]
Here, the court of appeals noted that Richardson was advised of his Miranda rights. He then said that, while he would not sign the waiver form, he would answer questions. The FBI agent then asked him questions, which he answered. The court held that Richardson acted in a manner inconsistent with asserting his Fifth Amendment rights and this amounted to “at least an implied waiver” of his rights.[iv]
As stated above, once a suspect is advised of their rights under Miranda, the suspect must invoke his rights or waive his rights. When a suspect is advised of his rights, as was Richardson, and then acts in a manner inconsistent with the exercise of those rights, as did Richardson by saying he would answer questions, but not sign the form, a valid waiver of those rights is implied. Thus, the court held that Richardson waived his rights under Miranda.
The next issue pertaining to the suppression of Richardson’s statements was whether the waiver was effective in light of Richardson’s mental health history. Regarding effective waivers, the court stated
Although a waiver must be made voluntarily, knowingly, and intelligently, the Supreme Court has essentially bifurcated the analysis into whether the waiver was: (1) uncoerced (i.e. voluntary), and (2) made with the requisite level of comprehension (i.e. knowingly and intelligently). See Moran v. Burbine, 475 U.S. 412, 421 (1986). When performing the analysis, courts evaluate the totality of the circumstances. Id… This Court has previously recognized that “a mental disability does not, by itself, render a waiver involuntary[.]” United States v. Barbour, 70 F.3d 580, 585 (11th Cir. 1995)[v] [emphasis added]
The court then examined relevant factors to determine the first part of the test above, which is whether the waiver was voluntary (uncoerced). The court found no evidence that law enforcement took advantage of Richardson’s disability and used it to coerce him into waiving his rights. In fact, the FBI agent testified that he did not know of Richardson’s previous mental health treatment at the time of the interview. As such, the court held that the waiver was voluntary.
The court then examined the second part of the test above, which is whether the waiver was given “knowingly and intelligently.” Here, the court stated that they look to objective evidence regarding Richardson’s competency to waive his rights. The objective evidence was that the FBI agent read Richardson his rights and after each line, Richardson acknowledged that he understood. In fact, Richardson even asked the agent questions for clarification, which the agent answered. Additionally, Richardson engaged in a conversation with the agent. Further, at the end of the interview, Richardson stated that he knew the recording of his interview could be used in court and knew that he could have asked for an attorney, but he did not feel that he made any incriminating statements. Based upon this evidence, the court of appeals held that the district court did not err in determining that Richardson had the mental capacity to knowingly and intelligently waive his rights.
Therefore, the court of appeals affirmed the denial of the motion to suppress regarding Richardson’s statements.
The Cell Tower Data and the Fourth Amendment
The court then examined whether the agents violated the Fourth Amendment when they obtained the cellular phone tower data without a warrant. Richardson argued that obtaining his location data without a search warrant violated the Fourth Amendment.
The court noted precedent from the Eleventh Circuit and stated
[Richardson’s] argument is foreclosed by United States v. Davis, which held that obtaining cell-tower data without a warrant did not violate the Fourth Amendment. 785 F.3d 498, 513, 518 (11th Cir. 2015) (en banc).[vi] [emphasis added]
In Davis, investigators obtained the defendants geographic location data from Metro PCS by obtaining a court order under the Stored Communications Act (SCA), 18 USCA § 2701, which allows the government to obtain such data upon a showing of “specific and articulable facts [ ] that there are reasonable grounds to believe” the records requested “are relevant and material to an ongoing criminal investigation.” This showing must be made before “a court of competent jurisdiction.”
Based upon Davis, Richardson acknowledged that his argument failed, and the agents did not violate the Fourth Amendment when they obtained his location data without a search warrant.
Thus, the court of appeals affirmed the denial of the motion to suppress regarding the Fourth Amendment issue.
[i] No. 16-14800 (11th Cir. Decided May 9, 2018 Unpublished)
[ii] Id. at 2-5
[iii] Id. at 7-8
[iv] Id. at 8
[vi] Id. at 11