The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge
Chief Judge Curtis L. Collier
Defendant David Donaldson ("Defendant") filed a motion to suppress a statement he allegedly made to an Alcohol, Tobacco, and Firearms ("ATF") special agent on November 21, 2005 (Court File No. 74). The Government responded (Court File No. 81), and the Defendant replied (Court File No. 82). United States Magistrate Judge Susan K. Lee issued a Report and Recommendation ("R&R"), recommending this Court deny Defendant's motion (Court File No. 89). Defendant filed an objection to the R&R (Court File No. 90). The Government filed a notice of no objection to the R&R (Court File No. 91).
This Court will ACCEPT and ADOPT IN PART the magistrate judge's R&R and will DENY Defendant's motion to suppress based upon the Fifth Amendment. The Court refrains from making a determination as to whether Defendant's Sixth Amendment right to counsel was violated because the parties did not fully argue and the R&R did not fully address whether and to what extent the dual sovereignty doctrine applies to Defendant's Sixth Amendment claim. The Court will ORDER both parties to file briefs addressing the relevance of the dual sovereignty doctrine with the magistrate judge for further consideration.
Defendant states "[t]he facts underlying [Defendant's] motion are not in dispute and are accurately reflected in the Magistrate Judge's recitation in the Report and Recommendation" (Court File No. 90, p. 2). Similarly, the Government raised no objections to the facts recited in the R&R (Court File No. 91). As such, the Court adopts the undisputed factual findings of the Magistrate Judge (Court File No. 89, pp. 1-4).
In reviewing the R&R of a magistrate judge, the district court judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C).
In an interrogation by ATF Special Agent Stephen Gordy ("SA Gordy"), Defendant denied firing the gun in question, but admitted throwing it into the woods. Defendant now seeks to suppress his admissions in that interrogation from being used against him in relation to his federal felon in possession of a firearm charge, 18 U.S.C. § 922(g)(1). Defendant argues his interrogation violated his rights under the Fifth and Sixth Amendments to the Constitution of the United States of America, and thus his admission is inadmissible.
A. Alleged Fifth Amendment Violation
The Fifth Amendment protects a person from being compelled to incriminate himrself. See, e.g., Miranda v. Arizona, 384 U.S. 436, 467 (1966). Because of the pressures and psychological stress exerted on those in custody, officers of the law are required to adequately and effectively apprise such individuals of their rights and must fully honor their decision should they seek counsel before answering questions. Id. If an individual agrees to answer questions without counsel, the officer can then question the individual freely. Davis v. United States, 512 U.S. 452, 458 (1994). However, if the individual requests counsel, at any time, the officer must cease his questioning and wait until the individual's lawyer is present. Id. Once the individual requests counsel, he cannot be questioned again while in custody on any offense. Id. However, "[t]he mere fact that the government is aware that a suspect has an attorney, or is soon to have one, does not unambiguously assert the suspect's right to deal exclusively with the police through counsel during custodial interrogation." United States v. Suarez, 263 F.3d 468, 483 (6th Cir. 2001) (citing McNeil v. Wisconsin, 501 U.S. 171, 177-182 (1991)).
Here, SA Gordy read a Miranda warning to Defendant prior to interviewing him (Court File No. 89, p. 3). Defendant has not disputed the sufficiency of this Miranda warning to inform him of his rights (see id., n.2). Defendant also does not assert he requested counsel at this interview, or that he did so at a previous custodial interview (see Court File Nos. 86, p. 7; 90, p. 9) - i.e. Defendant does not argue he expressly invoked his Fifth Amendment right, as is required by law. See McNeil, 501 U.S. at 176-77; Suarez, 263 F.3d at 482-83 (citing Edwards v. Arizona, 451 U.S. 477, 484 (1981)) (A suspect facing a custodial interrogation must request the assistance of counsel in a way indicating the suspect's "desire to deal with the police only through counsel.")
Instead Defendant argues, by obtaining counsel for his state claims, an exercise of his Sixth Amendment right, he implicitly asserted his Fifth Amendment, Miranda right (Court File No. 90, pp. 8-9). Thus, Defendant reasons, because he had counsel at the time for his state offense, Defendant did not need to request counsel expressly ...