2004 | Cited 0 times | D. Maine | July 30, 2004


Errol E. Libby, Jr. is charged in a one count indictment withknowingly possessing firearms after having been convicted of astate misdemeanor crime of domestic violence. This matter wasbefore the court on Libby's amended motion to suppress. (DocketNo. 17.) Libby seeks to suppress both physical evidence andstatements made to law enforcement personnel, raising issuesunder the Fourth, Fifth and Sixth Amendments to the United StatesConstitution. Based upon the evidence presented at the hearingand the affidavits and exhibits submitted in conjunction with theamended motion, I now recommend that the court adopt theseproposed findings of fact and DENY the motion to suppress,provided, however, that the court should order that thestatements the Government concedes were obtained in violation ofMiranda v. Arizona, 384 U.S. 436 (1966) cannot be used as partof the Government's case in chief.

Proposed Findings of Fact

From approximately October 9, 2003, through February 8, 2004,Stefani Page and Errol Libby, Jr. lived together in Libby's housein Wilton, Maine, sharing an upstairs bedroom and domesticresponsibilities, including the care of three, and sometimesfour, minor children residing in the household. (Page Aff. ¶¶ 1 — 4,Docket No. 24.)1 Page had equal access to the sole key tothe residence. (Id. ¶ 5). Approximately two weeks prior toLibby's arrest on February 8, Page decided to leave thehousehold. She proceeded to pack her belongings, but Libbyinduced her to stay. The night of February 8 Libby and Page had afight and Page determined to leave for good, but, fearing for hersafety and the safety of her baby, she did not have time to takeher belongings with her. (Id. ¶ 6.) Retreating to a neighbor'shouse, Page called the police and they arrived at the scene tointerview her. When asked by the police she informed them thatLibby had guns in the house in an upstairs closet. She gave thepolice consent to go into the house and get the guns. (Id. ¶7.)2

Kevin McCutcheon was the Wilton police officer who responded tothe domestic disturbance call. (McCutcheon Aff. ¶ 2, Docket No.25.) Page described the domestic disturbance to McCutcheon andshowed an apparent injury she had suffered to the officer.According to McCutcheon, Page appeared "visibly scared and haddescribed Mr. Libby as violent." (Id. ¶ 5.) McCutcheondetermined in his mind that there was a safety risk and he calledfor backup before he went to Libby's residence. Deputy Rackliffeof the Franklin County Sheriff's Department arrived at the sceneand both officers went together to Libby's house. Libby let theminto the residence, denied any wrongdoing vis-à-vis Page, anddenied that there were guns in the upstairs closet. (Id. ¶ 6.)The officers made observations consistent with evidence that ascuffle had occurred inside the Libby residence consistent with Page's version of events. They placedLibby under arrest. (Id. ¶ 7.)

Once Libby was placed in custody, and without benefit of anyMiranda warnings, McCutcheon questioned Libby about hisownership of the guns. Libby admitted the guns were his andapparently conceded that he knew he was not allowed to possessfirearms. Libby was on state probation at the time and McCutcheonhad contact with Libby's state probation officer and knew thatthe probation officer wanted a "hold" placed on Libby because ofthe marijuana and guns that had been found in the residence.McCutcheon prepared a police report describing these events.

The following morning, February 9, 2004, Libby went to theMaine District Court for arraignment on the state charges ofdomestic assault and criminal threatening (and perhaps inconnection with the state probation violation). Libby requested acourt appointed attorney at his arraignment. Following thearraignment he was remanded to the Franklin County Jail.

On February 9, 2004, Michelle St. Clair, a Franklin Countydeputy sheriff who "specializes" in federal firearms offenses,went to the bail room of the county jail to speak with Libby.Before going to the jail, St. Clair had received informationabout Libby from the Franklin County District Attorney's officeand possibly from a conversation with Deputy Rackliffe.Apparently she had rudimentary knowledge that firearms had beendiscovered in Libby's residence the preceding evening during asearch. She also had police reports from 2002 relating to theunderlying domestic assault conviction that was the basis of thefederal firearms charge. St. Clair had not been present at thearraignment, but Libby told her that he had requested a courtappointed lawyer when he was arraigned. St. Clair fully advised Libby ofhis Miranda rights and Libby indicated that he wished to answerquestions, whereupon St. Clair questioned him about the firearmsdiscovered in his residence.

Libby has now moved to suppress the firearms and the statementsmade on February 8 and 9. The Government concedes that thestatements made to Deputy McCutcheon after Libby was placed underarrest and while locating firearms in the residence should besuppressed as the product of an unwarned custodial interrogation.Thus the statements at issue are limited to the initialdiscussion between Libby and McCutcheon when McCutcheon firstcame to the house and the subsequent interview conducted by St.Clair.


1. The Fourth Amendment Issue

The Government justifies this search as a valid third partyconsent search of a residence. Libby, on the other hand, arguesthat two factors vitiate the validity of any consent ostensiblygiven by Stefani Page. First, he argues that Page had severed thejoint tenancy of the residence by voluntarily leaving the homethe evening of the search. Second, Libby maintains that the FirstCircuit Court of Appeals has never recognized the validity ofthird party consent when the third party was not present at thescene and the occupant of the residence did not himself consentto the search. The evidence is undisputed that Page affirmativelyconsented to the search and in fact told the officers where theywould find the firearms. In these circumstances, under existingFirst Circuit precedent, I am satisfied that Page's consent wasvalid. The undisputed facts in this case demonstrate that Stefani Pagewas a joint resident in Libby's house and had apparent authorityto consent to the search. See Illinois v. Rodriguez,497 U.S. 177, 186-87 (1990) (concluding that a law enforcement officer mayrely on a person's "apparent authority" to consent to search ifthe reliance is in good faith and reasonably based on all thefacts available at the time of the search). The officers knewPage cared for Libby's children and attended to various householdtasks during the period of cohabitation. They shared a bedroomand she had access to all parts of the house. Although she hadannounced her intent to leave the domicile, her property remainedat the house when she consented to the search. She certainly hadnot "moved out" of the residence, as that term is commonlyunderstood. She fled the residence in fear for her personalsafety and she clearly intended to return to reclaim her personalbelongings.

In United States v. Trzaska the court concluded that consentobtained from defendant's estranged wife was valid, even thoughshe and her children had moved out of the apartment two weeksbefore the search. 859 F.2d 1118, 1120 (2d Cir. 1988). InTrzaska, the estranged wife called police from a relative'shouse and informed them that defendant, who was on probation, hadnumerous firearms in the apartment. She then consented to thesearch of the apartment and accompanied police while theyperformed the search. The court ruled that where the recordsupported a finding of common authority and joint use of theproperty, the wife's consent was valid despite her physicallocation. Id.; accord United States v. Crouthers,669 F.2d 635, 642-43 (10th Cir. 1982) (concluding that consent ofdefendant's wife was valid even though she had moved out ofapartment two weeks earlier and was living with parents, becauseshe had not abandoned marriage or apartment completely and still retained key); UnitedStates v. Long, 524 F.2d 660, 661 (9th Cir. 1975) (observingthat wife who was joint owner of house had right to give consenteven though husband had changed locks, where wife left house outof fear of husband and where she collected personal belongingsduring the search); United States v. Lawless, 465 F.2d 422 (4thCir. 1972) (determining that wife's consent to search was valideven though she abandoned premises on night of search where attime of consent, wife was clearly entitled to be present in homeand until night in question wife had joint rights in residence).

As the attached affidavit of Stefani Page makes clear, shepossessed common authority over and joint access to Libby'sresidence when she gave police consent to search for firearms.Page had lived with Libby for a matter of months as an intimatepartner. Her infant son and two of Libby's young children, agessix and four, lived with them. Libby's third child, age two,lived with them on weekends. Because Libby worked during the day,Page assumed responsibility for the care of all of the children,the cooking and laundry. She paid house-related bills and orderedoil for the house furnace. She and Libby shared a joint bankaccount, from which household expenses were drawn. She hadunlimited access to the residence and had equal access to theonly key. She stored her possessions in the house, as well asitems belonging to her infant son. She was free to invite friendsin. Approximately two weeks before the search of the residence,Libby and Page had an argument and she decided to leave. Shepacked some of her belongings and informed Libby of her decision.He convinced her to stay. On the night of the search, she fledfrom the residence to a neighbor's house because of Libby'sviolent behavior. She did not have time to take her possessionswith her. Even though not married to Libby, on these facts, Page had common authority overand joint access to his residence when she consented to thesearch. Her consent was therefore valid.

Libby alleges that Page had malicious motives when she informedpolice about the guns and consented to the search of theresidence, and that her ill will rendered her consent invalid.This argument fails. As Matlock v. United States, 415 U.S. 164,171 (1974) and its progeny make clear, Page was not waivingLibby's Fourth Amendment right by consenting to the search. Bysharing his home with Page, Libby assumed the risk that she mightpermit police to enter and inspect the areas of the home overwhich she had common authority. Where Page had the legal right toconsent to the search, her motives for doing so are irrelevant.

Libby's able counsel cites cases from state appellate courtsand other circuit courts of appeal that have wrestled with anddistinguished certain factual aspects, when dealing with thequestion of third party consent by an estranged wife or domesticpartner. However, the crucial case for purposes of my analysis isUnited States v. Donlin, 982 F.2d 31, 33 (1st Cir. 1992),wherein the First Circuit Court of Appeals held that an estrangedwife with common authority over the premises could validlyconsent to search even though the defendant objected to searchand even though the estranged wife sought to remove herbelongings from the premises in order to stay elsewhere. Libbysuggests that this case does not control the outcome of hismotion because Page, unlike Donlin's wife, was not actually atthe house at the time of the search. But I believe thisdistinction is without a difference. Donlin's wife was in thehallway of the apartment with her sister because her husband wasintoxicated and extremely violent. She was not actually in theapartment with the defendant, anymore than Page was in Libby'shouse at the time of the search. Page had merely fled to a neighbor's house, rather thanan apartment hallway, and the distinction that Libby attempts todraw fails. In my view, Donlin controls the outcome of thiscase once the court finds that Page had apparent authority toconsent to this search.

2. The Statements Made to Law Enforcement

(a) The February 8 statements to McCutcheon

These February 8 statements to McCutcheon require littlediscussion. The Government concedes that McCutcheon solicitedunwarned statements from Libby after he had been placed underarrest. Those statements cannot be used by the Government duringits case in chief. Their relevance vis-à-vis the February 9statement to St. Clair is discussed below. The initial statementsby Libby, denying Page's accusations and denying any knowledge ofguns, were not the product of a custodial interrogation as theofficers had not yet placed Libby under arrest, he was in his ownhome, and the exchange appears to have been relatively brief.Those statements were not obtained in violation of Miranda.

(b) The February 9 statement to St. Clair

Libby challenges the February 9 statement on both Fifth andSixth Amendment grounds. He claims that his right to counsel hadattached at his state court arraignment and that on these factsthat right extended to the federal firearms investigation. HisFifth Amendment challenge is two-pronged. First, he argues thathe unambiguously asserted his right to counsel when advised ofhis Miranda rights and that Deputy St. Clair neverthelessproceeded to question him. Second, he claims that the February 9statement is the unconstitutional product of the unwarnedFebruary 8 statement and therefore subject to suppression under the doctrine set forth in Missouriv. Seibert, ___ U.S. ___, 124 S.Ct. 2601 (June 28, 2004). I willaddress each of his arguments in turn.

The Sixth Amendment right to counsel is "offense specific."Texas v. Cobb, 532 U.S. 162, 167 (2001) (quoting McNeil v.Washington, 501 U.S. 171, 175 (1991)). "`It does not attachuntil prosecution is commenced, that is, at or after theinitiation of adversary judicial criminal proceedings — whetherby way of formal charge, preliminary hearing, indictment orinformation, or arraignment.'" Id. at 167-68 (quoting McNeil,501 U.S. at 175.) The Supreme Court in Cobb expressly rejectedthe notion that once the Sixth Amendment right to counselattaches as to charged offenses, it prevents questioning as toany crime that is "factually related" to the charged offenses.Id. at 168. The right to counsel only encompasses "offensesthat, even if not formally charged, would be considered the sameoffense under the Blockburger test." Id. at 173 (citingBlockburger v. United States, 284 U.S. 299 (1932)). UnderBlockburger, "the test to be applied to determine whether thereare two offenses or only one, is whether each [statutory]provision requires proof of a fact which the other does not." 284U.S. at 304.

Applying this analysis in Cobb, the Supreme Court rejectedappellant's argument that his confessions that he murdered awoman and infant in the course of a burglary should be excludedbecause at the time of the confession he was represented on theburglary. Because burglary and murder were not the same offenseunder Blockburger, the Court wrote, the Sixth Amendment rightto counsel "did not bar police from interrogating [Cobb]regarding the murders, and [Cobb's] confession was thereforeadmissible." Cobb, 532 U.S. at 174. In this case, by the time Libby spoke with Deputy St. Clair inthe Franklin County Jail, Libby had been formally charged withthe state crimes of domestic assault and criminal threatening andhad appeared in court on those charges. He had requestedcourt-appointed counsel. The Government does not dispute that hisright to counsel attached as to the state charges no later thanhis arraignment on those charges. The subject of Deputy St.Clair's investigation and interview, however, was Libby's gunpossession, as to which no charges had been filed. She wasinvestigating whether Libby had violated federal law,specifically 18 U.S.C. § 922(g)(9), which prohibits peopleconvicted of misdemeanor crimes of domestic violence frompossessing firearms. As in Cobb, the offenses with whichdefendant had been charged (assault and criminal threatening) andthe federal crime Deputy St. Clair was investigating (unlawfulgun possession), although factually related, could not beconsidered the same offense under the Blockburger test. Eventhough the right to counsel had attached as to the state crimes,therefore, it did not extend to the federal crime and questioningwas permissible.

Libby argues that even if the interview was not automaticallybarred under the Sixth Amendment by his earlier request forcounsel in the state case, questioning should have ceased as soonas he informed Deputy St. Clair that he had requested counsel athis state arraignment. He argues that by mentioning his requestfor counsel at the state arraignment he invoked his right tocounsel for the sake of the interview and that any furtherquestioning should have ceased. For this reason, in Libby's view,his apparent assent to answer questions lacked validity.

The Government provides a comprehensive examination of a seriesof cases wherein the court has viewed a reference to counselduring the Miranda warning as ambiguous and therefore not requiring the officer to ceasespeaking with the defendant. If a defendant subjected tocustodial interrogation unequivocally invokes his right tocounsel, all questioning must cease. Miranda, 384 U.S. at473-74. To activate the prohibition on continued questioning,however, the request for counsel must be unambiguous. Davis v.United States, 512 U.S. 452, 458-62 (1994). Applying thisanalysis, the Supreme Court in Davis found that continuedpolice questioning was permissible even after defendant stated,"Maybe I should talk to a lawyer," concluding that his statementwas ambiguous. Id. at 62. The Government provides acomprehensive list of circuit precedent applying Davis thatfinds the defendant's particular statement to be ambiguous. SeeBui v. DiPaolo, 170 F.3d 232, 238-39 (1st Cir. 1999) (defendantinvoked rights, then said, "Who said I did this?"); Diaz v.Senkowski, 76 F.3d 61, 63 (2nd Cir 1996) ("Do you think I need alawyer?"); Burket v. Angelone, 208 F.3d 172, 197-98 (4thCir.2000) ("I think I need a lawyer."); Dormire v. Wilkinson,249 F.3d 801, 805 (8th Cir. 2001) (continued questioning appropriatewhere defendant asked, "Could I call my lawyer?" becausestatement could have been inquiry about his right to calllawyer).

Libby's comment regarding his appearance in state court and hisrequest for a court appointed attorney at that proceeding fallswithin the heartland of this precedent when viewed in the contextof his immediate response that he was agreeable to answeringquestions. He did not request that an attorney be provided to himbefore any questioning.

Libby's final challenge relates back to the statements elicitedfrom him by McCutcheon the night prior to St. Clair'squestioning. In Seibert the United States Supreme Court heldthat Miranda warnings given mid-interrogation, after thedefendant gave an unwarned confession, were ineffective, and thusa confession repeated after warnings were given was inadmissible at trial. 124 S.Ct. 2601.Libby attempts to argue that this case is applicable to hissituation. It is not. In the present case the two interrogationswere separated by a considerable period of time (approximatelytwenty hours), a change of location, and a new and differentinvestigating officer and agency. Furthermore, there was nothingdeliberate about the officers' conduct in that there is noevidence to suggest that McCutcheon and St. Clair had anythingapproaching an organized interrogation technique. Based on thesecircumstances, there is no reason that the subsequent waivergiven to St. Clair should be viewed as invalid or tainted inanyway by McCutcheon's conduct.


In view of the foregoing, I now recommend that the court DENYthe amended motion to suppress (Docket No. 17), provided that theGovernment is prohibited from using the statements made toMcCutcheon following the arrest as part of its case in chief.

1. Further details surrounding the nature of those domesticresponsibilities and living arrangements, as set forth in theaffidavit and made part of these findings, are set forth below inmy discussion of Page's authority to consent to the search.

2. After Libby had been removed from the scene, Page and herfather went to the premises to retrieve the majority of herbelongings. (Id. ¶ 8.)

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