The opinion of the court was delivered by: Leon Jordan United States District Judge
This criminal case is before the court on the defendant's objections to the magistrate judge's report and recommendation [doc. 127]. The government has not responded to the objections within the time allowed, and the objections are ripe for the court's review. A transcript of the suppression hearing has been prepared and considered by the court [doc. 120]. For the reasons discussed below, the defendant's objections will be overruled.
The defendant is charged in a three-count superseding indictment with conspiracy to distribute and possess with the intent to distribute various controlled substances, possession of firearms in furtherance of drug trafficking, and possession of firearms by a felon, as well as forfeiture of real and personal property. The defendant filed a motion to suppress any statements he made on the day of his arrest [docs. 67 and 112], and a motion to suppress all the evidence obtained by way of a wire tap [doc. 61]. The magistrate judge recommended that both motions be denied.
Under 28 U.S.C. § 636(b), a de novo review by the district court of a magistrate judge's report and recommendation is both statutorily and constitutionally required. See United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985). However, it is necessary only to review "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b); see also United States v. Campbell, 261 F.3d 628, 631-32 (6th Cir. 2001).
A. Motion to Suppress Statements
On August 18, 2007, in response to a 911 call reporting a shooting, officers arrived at the defendant's property in Rhea County, Tennessee. The defendant's wife had been shot and killed. When Detective Chris Hall arrived, there were other officers present securing the scene. Detective Hall called Agent Luke Muhonen of the Tennessee Bureau of Investigation and asked him to come to the scene. The defendant was sitting by himself in the back of a police cruiser with the doors open. Detective Hall did not speak to the defendant until Agent Muhonen arrived over an hour later.
Hall and Muhonen discussed whether they should get a search warrant or consent before processing the crime scene. Agent Muhonen called the District Attorney who advised that they should attempt to get the defendant's consent. Detective Hall went the cruiser where the defendant was sitting in the back seat and read the Miranda warnings to the defendant. Detective Hall asked several times for consent to search the house, but the defendant did not answer. Finally, the defendant said he was getting sick and asked to get out of the cruiser. While standing outside, the defendant asked, "When are you going to get her out of there?" Detective Hall told him that they could not move her until they got a search warrant or he consented to a search. Defendant then agreed to the search and signed the consent form. Detective Hall asked the defendant if they were going to find any weapons inside the house, and the defendant told him that there was a shotgun in the house, an AK47 in the trunk of the car, and some other weapons that did not belong to him. During this time, the defendant also told Detective Hall that he and his wife had been using drugs that morning or the night before.
Agent Muhonen was given the responsibility of interviewing the defendant. The defendant was upset and wanted to leave the scene, however, so he was taken to the Sheriff's Department Annex for his interview. Agent Muhonen read the defendant his Miranda rights again, and he signed the waiver. Agent Muhonen wrote down the defendant's statement, which the defendant signed. The interview lasted about two hours.
Before the defendant was removed from the scene for his interview, Agent Muhonen heard him ask for a pill, an "'oxy' or a 'hydro' or something," but Agent Muhonen did not know about the defendant using drugs that morning before the shooting until he took his statement and the defendant admitted the use. The defendant was very tired during the interview and dozed off several times, and at times he was very upset and crying.
The defendant did not testify at the suppression hearing but submitted an affidavit. The affidavit states, in relevant part:
1. On the morning of August 18, 2008, law enforcement agents began arriving after I had called E-911. Shortly after the first EMT's and officers arrived, I was asked if I would answer some questions. I overheard another officer ("THP") state he was investigating a murder scene. I stated that I wanted an attorney but was asked "Why do you need an attorney? Did you do something wrong? and You want to help your wife don't you? among other things.
2. I was then told I was not under arrest. I was not handcuffed. I was not read any of my rights. The officers continued to question me and I answered some questions. I did not state at any time that there was an AK-47 in the trunk of my vehicle or a shotgun in my house.
3. I was later taken to the Rhea County Sheriff's office. The officers continued to question me, but I was not told that I was under arrest. Eventually, I was placed under arrest after ...