United States v. David Joseph Longbehn

850 F.2d 450, 1988 U.S. App. LEXIS 8929, 1988 WL 65900

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 29, 1988
• Docket: 87-5373
• Status: Published

Opinions

LAY, Chief Judge.

David Joseph Longbehn appeals from his judgment of conviction for making false statements to an agent of the Federal Bureau of Investigation (FBI) in violation of 18 U.S.C. § 1001. For the reasons discussed below, we reverse the decision of the district court.¹

Background

On September 11, 1986, Special Agent Timothy Shanley of the Minnesota Bureau of Criminal Apprehension obtained a search warrant authorizing the search of Long-behn’s residence. The affidavit supporting the warrant application alleged that Long-behn, a St. Paul Police Officer, had supplied privileged police information to his uncle, William Sisson, in exchange for gratuities. At that time Sisson was under investigation as the leader of an alleged ring of methamphetamine manufacturers. Prior to executing the warrant, Agent Shanley directed Lt. Richard Dugan, head of the St. Paul Police Narcotics Unit, to locate and transport Longbehn to his residence so that he would be present during the execution of the search warrant. Longbehn was located at the police department firing range where he was detained until Dugan arrived.

When Dugan arrived at the firing range, he asked Longbehn to accompany him to his squad car, where he instructed Long-behn to remove his gun and gunbelt and place them in the trunk of the squad car. After Longbehn complied, Dugan informed Longbehn that a search warrant for his house was being signed and that Longbehn would have to ride with Dugan to police headquarters. Dugan gave Longbehn the choice of leaving his own vehicle at the firing range or having another officer drive it. Longbehn was not allowed to drive his own vehicle.

Dugan and Longbehn then drove to the St. Paul Police Annex Building where Longbehn was instructed to wait outside Deputy Chief Nord’s office. After approximately twenty to thirty minutes, Dugan and. Longbehn proceeded to Longbehn’s residence in Dugan’s vehicle where they were met by Agent Shanley and FBI Agents Michael Kelly and Robert Jacko. After the agents presented their credentials and the search warrant, Longbehn was advised by Agent Kelly that the agents were there to execute the warrant. The ensuing search lasted approximately sixty to ninety minutes. At least one of the agents chaperoned Longbehn for the duration of the entire search.

The record reflects that although Agent Kelly advised Longbehn that the agents were not at his residence to conduct an interview, three separate agents asked Longbehn probing and substantive questions about the ongoing investigation during the execution of the search warrant. No Miranda warnings were given. Questions were first put to Longbehn by Agent Jacko. Jacko specifically questioned Long-behn about his relationship to Sisson and his knowledge of Sisson’s livelihood. Jacko also asked Longbehn if Sisson had request ed that Longbehn provide him with police information. Although Longbehn acknowledged that Sisson had made such a request, Longbehn stated that he had denied Sis-son’s request. These statements form the basis of the indictment. The record further reflects that Agents Kelly and Shan-ley also asked Longbehn a series of probing questions concerning Longbehn’s relationship with Sisson, his knowledge of the activities of Sisson, and items of evidence that had been seized from Longbehn’s residence.

After the search was completed, Dugan returned Longbehn to police headquarters. At that time, Deputy Chief Nord instructed Longbehn that he was to surrender his badge and identification and that he was being placed on administrative leavé until further notice. Longbehn was also instructed not to have any contact with the police department. Nord then informed Longbehn that he was free to leave. Between two-and-one-half to four hours elapsed from the time Longbehn was confronted by Dugan at the police firing range until his discharge from Deputy Chief Nord’s office.

Longbehn was subsequently indicted for making false statements to an agent of the FBI in violation of 18 U.S.C. § 1001. Following his indictment, Longbehn moved to suppress his statements, to suppress certain evidence seized from his residence pursuant to the execution of the search warrant, and to dismiss the indictment. The district court denied Longbehn’s motions. Longbehn then entered a conditional plea of guilty pursuant to Fed.R.Crim.P. 11(a)(2). This appeal followed. On appeal, Longbehn maintains that the statements that form the basis of the indictment were the product of custodial questioning in the absence of Miranda warnings. In addition, Longbehn argues that his statements are not within the prohibition of section 1001.² Because we conclude that Long-behn was deprived of his freedom to such a significant degree as to require Miranda warnings before questioning, we reverse the decision of the district court.

Discussion

As indicated, Longbehn was not given Miranda warnings at any time on September 11, 1986. The government maintains Longbehn was not under formal arrest or in custody at the time, and that therefore there was no need for the Miranda warnings. The government also asserts that even if Longbehn were in custody, Miranda warnings were unnecessary because as a member of the St. Paul Police Department, Longbehn was both aware of his rights and how to assert them.

The fact that Longbehn was not formally arrested on September 11,1986, does not end our inquiry. The formality of “arrest is certainly not a prerequisite to a finding of custodial interrogation * * United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir.1985). The full panoply of protections prescribed by Miranda is required for official interrogations where “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Thus, the relevant inquiry in this case is whether Longbehn’s freedom of action was curtailed to a degree associated with formal arrest. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984). In determining whether Longbehn was subjected to custodial interrogation, we should consider the “totality of the circumstances.” Helmel, 769 F.2d at 1320. In doing so, we believe that Longbehn’s detention and supervision, in combination with the totality of the events and physical actions of law enforcement personnel both before and after the search, deprived Longbehn of his freedom to such a significant degree as to require Miranda warnings before he was questioned by law enforcement personnel.

The record reveals that Longbehn was detained at his place of employment beyond his usual work hours, and then compelled to accompany law enforcement officers on what would otherwise be his own time. Following his initial detention at the police department firing range, law enforcement personnel confronted Longbehn and immediately instructed him to remove his privately owned gun and gunbelt and place them in the trunk of a police vehicle where they were secured. Although Longbehn’s vehicle was present at the scene, the police officers precluded him from using it. Rather, they required Longbehn to be transported under supervision in a police vehicle to police headquarters and then to his residence. There he was forced to open his home and submit to the execution of its search by five officers, during which he was continuously chaperoned and, despite protestations to the contrary, overtly interrogated by three separate officers. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980) (interrogation includes direct questioning, or any “practice that the police should know is reasonably likely to evoke an incriminating response from a suspect * .”). Finally, after the search of his residence was completed, Longbehn was transported back to police headquarters. Only after being placed on administrative leave was Longbehn told by Deputy Chief Nord that he was free to go.

Although the government maintains that Longbehn was not deprived of his freedom of action to a significant degree, we find no evidence presented in this record which illustrates that Longbehn was free to leave before being discharged by Nord. Rather, we conclude that Longbehn’s detention was police-dominated, inherently coercive, and tantamount to a formal arrest. Cf. Wilson v. Coon, 808 F.2d 688, 690 (8th Cir.1987). Thus, Longbehn should have been given Miranda warnings before he was questioned by law enforcement personnel.

We also reject the government’s contention that even if Longbehn were in custody, his position as a police officer obviates the requirement of a Miranda warning. The requirement of Miranda warnings is not contingent either upon a defendant’s actual or presumed knowledge of his rights or on his status but, rather, must be honored in all instances of custodial interrogation. See United States v. Espinosa-Orlando, 704 F.2d 507, 514 (11th Cir.1983); Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150.

The Constitution precludes the government from using any statement against an accused in a criminal case “stemming from custodial interrogation * * * unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. Because Longbehn was subjected to custodial interrogation without the benefit of these procedural safeguards, we reverse the judgment of the district court.

1 . Magistrate Janice M. Symchych recommended that Longbehn’s oral statement be suppressed for the same reasons now recited by this court. On the government’s objection, the district court, conceding that it was presented with a close question, overruled this recommendation and denied Longbehn’s motion to suppress. The factual record is virtually undisputed.

2 . Longbehn argues that his statements to Agent Jacko fall within the so-called "exculpatory no" exception to 18 Ü.S.C. § 1001. The “exculpatory no" doctrine provides a defense to prosecution under section 1001 for an individual who merely supplies a negative and exculpatory response to an investigator's questions. See United States v. Capo, 791 F.2d 1054 (2d Cir.1986), rev'd on other grounds, 817 F.2d 947 (2d Cir.1987) (en banc); United States v. Medina de Perez, 799 F.2d 540 (9th Cir.1986); United States v. Tabor, 788 F.2d 714 (11th Cir.1986); United States v. Abrahams, 604 F.2d 386 (5th Cir.1979); United States v. Chevoor, 526 F.2d 178 (1st Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976). In view of our holding, we need not address this issue.