U.S. v. NUSS

2005 | Cited 0 times | D. Maine | December 29, 2005


Walter Nuss has filed an amended motion for discovery (DocketNo. 9) seeking the following items: 1. All registration forms, applications, visitor logs or other documents (in paper or electronic form) that provide the names, addresses, telephone numbers and/or campsites for all campground visitors at the Acadia National Park from August 7, 2005 to August 20, 2005. 2. The names, address(es), telephone number(s) and dates of birth for the alleged victim and his parents. 3. Campground maps of the Blackwoods campground at Acadia National Park.The Government has voluntarily provided the defendant's attorneywith the campground maps as requested by item number three. Theregistration forms in item number one are not documents to beoffered by the Government as part of its case and are notgenerally discoverable under Rule 16 because they do not meet themateriality threshold. Defendant suggests that an "alternatesuspect" could be unearthed through his review of these forms.However, the "alternate suspect" theory has no supporting factsto sustain it. Defendant alleges he talked to some man named"John" who was charging his cell phone in the bathroom earlier onthe day of the incident. "John," like the defendant, had a moustache. Based upon these facts alone Nuss suggests that "John"is an alternate suspect and that he needs to examine two weeks ofregistration records in an attempt to identify him further. TheGovernment is not required to produce the requested recordsabsent knowledge on its part that the records contain exculpatoryevidence.

Finally, Nuss seeks the names, addresses, and dates of birth ofthe alleged victim and his parents in order to have theopportunity to properly prepare for trial, specifically for crossexamination of the accuser, a right that has constitutionaldimensions. The Government notes that Rule 16 does not requirepretrial production of the names of witnesses and further notesthat a string of cases have held that it is not an abuse ofdiscretion in a noncapital case for the trial court to refuse toorder the Government to produce the names of witnesses prior totrial. See, e.g., United States v. Jordan, 466 F.2d 99, 101(4th Cir. 1972). The cases cited by the Government do not provideme with much helpful guidance as to when the court would properlyexercise its apparent discretion to require that the name of awitness be provided to the defendant. Nor has my independentresearch revealed any case involving facts similar to thesewherein the court compelled early disclosure of a child victim'sname. The Government cites as the reason for its reluctance toproduce the complaining witness's name, the "trauma" that thechild has experienced and continues to experience as a result ofthis incident last August. While the Government could ask forvarious protective orders regarding the disclosure of the namesand addresses of the alleged victim and his parents, it has notchosen to proceed in that fashion. It simply takes the positionthat it does not have to disclose the names at this time. WhileI have misgivings about that course of action in a case of thisnature, I can find no case that provides me with persuasiveauthority that I could order the immediate production of the names on the basis of the recordpresently before me. Therefore I DENY the amended motion fordiscovery, but I caution the Government that ultimately theposition it is taking could result in a continuance of the trialof this matter.

Nuss has also moved to suppress statements made to park rangersand evidence seized from his truck/camper. (Docket No. 10.) Basedupon an evidentiary hearing conducted before me on December 28,2005, I am satisfied that Nuss was not subject to a custodialinterrogation. I am further satisfied that Nuss consented to thesearch of his camper, indeed he voluntarily, albeit reluctantly,opened the camper for the officers to inspect.

A. Custodial Interrogation/Police Coercion

As the First Circuit Court of Appeals has succinctly explained: It is well established that Miranda warnings must be communicated to a suspect before she is subjected to "custodial interrogation." United States v. Ventura, 85 F.3d 708, 710 (1st Cir. 1996). A "custodial situation necessitating Miranda warnings arises . . . where `there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.'" United States v. Masse, 816 F.2d 805, 809 (1st Cir. 1987) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). The term "interrogation" encompasses not only express questioning but also "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (internal footnotes omitted).U.S. v. Li, 206 F.3d 78, 83 (1st Cir. 2000).

In the present case the park rangers clearly were engaged inthe process of questioning Nuss and thus the issue is whether ornot that questioning was custodial in nature. Although therangers skated dangerously close to a custodial event, I amsatisfied it never became a situation where the restraint theyexercised rose to the degree associated with a formal arrest. Theonly facts in the record that would suggest custody were the initial statement by Ranger Wilson that the questioningcould occur at the picnic site or at park headquarters and themanner in which the rangers parked their vehicle to block egressfrom the campsite. I do not consider the fact that the officershad sidearms and were wearing park ranger uniforms to beindicative of a custodial situation. In fact, no attempt was evermade to transport Nuss to park headquarters, he was not placed inhandcuffs and he was told on at least two occasions that he wasnot being "detained." The rangers agreed to call his friend toinform her that he would be late for their dinner date, but theynever suggested that Nuss would not be free to leave the campsitethat evening. Nuss never asked the rangers to move their vehicleso he could leave and their act of parking the vehicle in thedriveway was not in and of itself particularly menacing orrestrictive. Nuss was free to move around the campsite, and therangers themselves came and went, making calls to supervisors andtrying to determine how to proceed. The duration of theinterview, between one and one and one-half hour, was lengthy,considering the relative simplicity of the investigation, but inlarge part the interview was longer than needed because of Nuss'sdigressions onto irrelevant topics. I am not convinced that thelengthy nature of the interview transformed a relatively benignsituation into a custodial one.

Even in the absence of a Miranda violation the government hasthe burden to prove by a preponderance of the evidence that thedefendant's statements were voluntary and not the product ofimproper police coercion. Colorado v. Connelly, 479 U.S. 157,167-68 (1986); Lego v. Twomey, 404 U.S. 477, 489 (1972). Theallegedly coercive tactic in this case is apparently the "threat"to take Nuss to either "park headquarters" or the "AttorneyGeneral," depending upon which version of the events is believed. However, under both Nuss's version and Ranger Wilson's version,this "threat" did not amount to a coercive police tactic. Nussdoes not maintain that the rangers repeatedly threatened to puthim in handcuffs nor does he suggest he was threatened withviolence or retaliation if he did not talk to them. He was toldit would appear that he was uncooperative if he did not providethem with answers to their questions. Such a statement hardlyrises to the level of a coercive police tactic.

B. Consent to Search

Under the test set forth in Schneckloth v. Bustamonte,412 U.S. 218 (1973), one's consent is voluntary if one's will was notoverborne in the sense of suffering a "critically impaired . . .capacity for self-determination." Id. at 225; see alsoUnited States v. Wilkinson, 926 F.2d 22, 25 (1st Cir. 1991)(Breyer, C.J.) (overruled on other grounds as recognized byUnited States v. Manning, 79 F.3d 212 (1st Cir. 1996)).

In the present case Nuss was faced with the dilemma that oftenconfronts those who are asked to consent to a search. He had tomake a conscious choice whether it would be better for him toconsent and appear cooperative or deny consent and bear theconsequences. The fact that Nuss was seventy years old, had neverbeen confronted by law enforcement before, and was nervous aboutthe situation he found himself in certainly factored into hisdecision-making, but it did not render his ultimate consentinvoluntary in the sense that it was anything other than his owndecision. Nuss himself, apparently at considerable inconvenience,cranked open the camper. Had he chosen not to do so, the rangerswould have been forced to either obtain a warrant or else foregothe search. Nuss knew they did not have a warrant because hespecifically asked them that question. The fact that he took some time before he decided toallow the search supports my conclusion that it was his voluntarydecision to proceed in this fashion.

Based upon the foregoing, I now DENY the motion to suppressstatements and physical evidence taken from the camper/truck.

So Ordered.

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