United States v. Fox

216 F.Supp.3d 1225

UNITED STATES of America, Plaintiff,

v.Randall FOX, Defendant.

NO. CR16–100RSL

United States District Court, W.D. Washington, at Seattle.

Signed October 25, 2016

James D. Oesterle, US Attorney's Office, Seattle, WA, for Plaintiff.

Dennis Carroll, Federal Public Defender's Office, Seattle, WA, for Defendant.

ORDER GRANTING IN PART DEFENDANT RANDALL FOX'S MOTION TO SUPPRESS STATEMENTS

Robert S. Lasnik, United States District Judge

This matter comes before the Court on defendant Randall Fox's "Motion to Suppress Oral Statements Made to Law Enforcement in Violation of Miranda v. Arizona ." Dkt. # 40. Having reviewed the memoranda and exhibits submitted by the parties, and having heard the testimony of Special Agent Richard Vanlandingham and oral argument by the parties, the Court finds as follows.

BACKGROUND

Defendant Randall Fox is charged with one count of conspiracy (under 18 U.S.C. § 371 ) and one count of Act to Prevent Pollution from Ships oil discharge violation (under 33 U.S.C. § 1908(a), 18 U.S.C. § 2, and 33 C.F.R. §§ 151.10(a–b), 155.350 ). Dkt. # 4 at 4–5, 7–8. The government alleges that defendant and his father, Bingham Fox, knowingly operated Bingham Fox's boat, the F/V Native Sun , without a functioning system to separate oily water from water, and knowingly discharged oil into navigable waters in potentially harmful quantities. Dkt. # 4 at 5. Defendant moves to suppress statements he made to Coast Guard investigators during the Coast Guard's 2013 vessel inspection of the F/V Native Sun.

That inspection transpired as follows. Around 4:30am on September 8, 2013, ten Coast Guard agents—Special Agents Richard Vanlandingham and Scott Trotter, Chief Warrant Officer Gary Medina, and seven others, including four uniformed, armed security officers—arrived at the dock where the F/V Native Sun was mooring to investigate reports that someone had been discharging oil from aboard the boat. Oral Testimony of Richard Vanlandingham (October 20, 2016) ("Vanlandingham Testimony"); Dkt. # 50, ¶¶ 6–7. The agents ordered the crew (including defendant, the vessel's captain) to exit the boat and stand on the dock while the Coast Guard security officers conducted a sweep of the boat. Vanlandingham Testimony; Dkt. # 50, ¶ 7.

After the security sweep concluded, Special Agent Vanlandingham, Special Agent Trotter, and Officer Medina informed defendant that they were conducting a preliminary investigation into allegations of a possible sewage/pollution discharge. Def. Pre–Trial Exhibit 507. Officer Medina told defendant that he would be interviewing each crew member individually, and that defendant, as the vessel's captain, would be interviewed twice—first and last. Id.

Officer Medina asked defendant to accompany him, Special Agent Vanlandingham, and Special Agent Trotter to the boat's wheelhouse for the first interview. Dkt. # 50, ¶ 9. The dimensions of the wheelhouse are approximately ten feet by twelve feet, and the wheelhouse has an exit door on both the port and starboard sides. Vanlandingham Testimony; Gov't Pre–Trial Exhibit 5.2 (photo of port side); Gov't Pre–Trial Exhibit 5.3 (photo of starboard side); Dkt. # 50, ¶ 9. During the first interview, defendant stood near the boat's helm, while the three Coast Guard agents stood in the aft of the wheelhouse, leaving the exit doors unobstructed. Dkt. # 50, ¶ 9. Both Special Agent Vanlandingham and Special Agent Trotter were armed, though neither was in uniform, and their weapons were not openly displayed. Vanlandingham Testimony.

Officer Medina led the interview with defendant. Dkt. # 50, ¶ 9. He asked defendant a series of questions about defendant's time on the boat, the boat's recent trips, and the other crew members. See generally Def. Pre–Trial Exhibit 504.2–504.12 (transcript of first interview); Dkt. # 50, Ex. 1 (recording of first interview). Defendant informed Officer Medina that he was living on the boat for the time being. Def. Pre–Trial Exhibit 504.7. Officer Medina asked defendant if he had ever discharged oily products overboard, to which defendant responded "absolutely not." Def. Pre–Trial Exhibit 504.8, 504.9. Officer Medina closed the ten-minute initial interview by asking defendant to return to the dock. Def. Pre–Trial Exhibit 504.12.

After Officer Medina had interviewed the other crew members, he met with the rest of the Coast Guard team, who explained that they had discovered a blue discharge hose connected to a submersible pump. This pump was placed in the bilge of the engine room, and the blue hose led overboard. The engine room bilge contained oily water; oil was evident on both the pump and the hose. The team found a second pump and hose, also leading overboard from the bilge, in another part of the engine room. Vanlandingham Testimony; Dkt. # 50, ¶ 10; Def. Pre–Trial Exhibit 507.

Officer Medina called defendant for his second interview, again attended in the wheelhouse by Special Agents Vanlandingham and Trotter. As before, defendant stood near the helm, while the three agents stood aft, leaving the two exit doors clear. Vanlandingham Testimony; Dkt. # 50, ¶ 10; Def. Pre–Trial Exhibit 507. Immediately after beginning the interview, Officer Medina informed defendant that

we've identified that your blue hose down below has oil in it. And it's attached to a pump, which we just saw a few minutes ago, that goes down to the bilge, down to the engine room.

Def. Pre–Trial Exhibit 504.12. Officer Medina then asked defendant a number of questions about the hose and pump, which defendant answered at length. Def. Pre–Trial Exhibit 504.12–504.19. In response to one of defendant's answers about how long the hose and pump had been in place, Officer Medina told defendant that

Now, like I said, we talk to everybody, you know, and the consensus I would say through everybody is it's been like this for a long time.... Not just for now. It's not only a week or two. It's been like this for a long time.

Def. Pre–Trial Exhibit 504.20. When asking defendant how many times he had used the bilge pump, Officer Medina informed defendant that he'd "been down in the engine room and [had] looked around and [had] a fair number in [his] head.... Because from what we understand from the crew or from other folks too is that those bilges fill up pretty quick." Def. Pre–Trial Exhibit 504.25. Later in the interview, Officer Medina told defendant that

these are my facts that I have: You're the captain of this boat.... We found oil in your bilge hose that you—that somebody has set up to go overboard. We found that oil in that hose, that's a fact. We found a pump attached to that hose, that's a fact. You have physically and verbally told me that you've pumped it over at least a couple of times every other day. That's a fact.

Def. Pre–Trial Exhibit 504.42. After defendant stated that he did not know whether an inspection of the hose would produce oil, Officer Medina told defendant that "We pulled oil out of it. So that means that oil is coming out of that discharge hose." Def. Pre–Trial Exhibit 504.43. The second interview lasted about forty minutes. Dkt. # 50, Ex. 3 (recording of second interview). In total, the Coast Guard vessel inspection team remained on the F/V Native Sun for roughly four and a half hours. Vanlandingham Testimony.

During the vessel inspection, the agents never issued Miranda warnings or told defendant that he was free to leave or to end the questioning; defendant never attempted to end the interviews. Dkt. # 50, ¶ 10. Defendant argues that the statements he made during the two interviews should be suppressed as products of an un-Mirandized custodial interrogation.

DISCUSSION

The Fifth Amendment right against self-incrimination requires the exclusion of statements elicited in a custodial interrogation unless the suspect was first issued warnings pursuant to Miranda v. Arizona , 384 U.S. 436, 444–45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Whether an officer must deliver Miranda warnings before interrogating a suspect depends on whether the suspect is "in custody" at the time of the questioning. United States v. Kim , 292 F.3d 969, 974 (9th Cir. 2002). " ‘[C]ustody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion." Howes v. Fields , 565 U.S. 499, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012).

To determine whether a suspect was in custody, a court looks at all of the objective circumstances of the interrogation and asks whether the law enforcement officers "established a setting from which a reasonable person would believe that he or she was not free to leave." Kim , 292 F.3d at 973–74 (quoting United States v. Beraun–Panez , 812 F.2d 578, 580 (9th Cir. 1987) ). Relevant circumstances include (1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual. Id. at 974.

Applying those factors to this case, the Court concludes that, during the second interview on September 8, defendant was in custody for Miranda purposes.¹

1. The language used to summon defendant.

"In determining whether suspects were ‘in custody’ for Miranda purposes, the Supreme Court has considered whether they voluntarily approached or accompanied law enforcement officers understanding that questioning would ensue. " Kim , 292 F.3d at 974 (emphasis in original). The language used by law enforcement to invite—or compel—a suspect to an interview sheds light on whether the suspect's attendance was truly voluntary. See United States v. Bassignani , 575 F.3d 879, 884 (9th Cir. 2009).

In this case, defendant was not exactly "summoned" by law enforcement: rather, the ten-person Coast Guard vessel inspection team was waiting at the dock to meet the F/V Native Sun as it moored before sunrise. With the rest of his crew, defendant was ordered onto...