United States v . Ellison 07-CR-144-SM 03/28/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America, Government
v. Case N o . 07-cr-144-01-SM Opinion N o . 2008 DNH 059 Richard Ellison, Defendant
O R D E R
Defendant, Richard Ellison, moved to suppress inculpatory
statements he made to police officers during an interview at the
Coos County House of Corrections (or jail) about his
participation in two convenience store robberies that occurred in
Concord about a year earlier. An evidentiary hearing was held,
after which defendant was allowed to supplement his suppression
motion to add a claim that police, o r , more accurately, jail
officials, failed to preserve a record of the interview generated
by a security camera in the jail library. The motion to suppress
(document n o . 10) is necessarily denied.
Background
On December 2 1 , 2006, Berlin Police Detective Richard
Plourde called Concord Police Detective Todd Flanagan. Plourde
told Flanagan that he had interviewed Ellison at the jail in Coos County in connection with an unrelated burglary investigation,
and learned that Ellison had information about the earlier
Concord robberies. Plourde summarized what Ellison had said and
Flanagan determined that Ellison’s information suggested that he
had inside knowledge about the Concord robberies that was both
accurate and of the type that “no one else would know about the
cases.”
Plourde told Flanagan that he had developed a rapport with
Ellison and that Ellison had indicated a willingness to speak to
the Concord police about the earlier robberies. The Concord
robberies occurred within a few minutes of each other, and, each
time, a woman entered the store with a firearm. Ellison was
being held at the Coos County jail on charges of assaulting his
former girlfriend, Robin Theriault, and he apparently told
Plourde that Theriault was the woman involved in the robberies.
After checking some facts and reviewing pertinent
investigative files, Flanagan went to Berlin, met Detective
Plourde, and both officers went to the jail to interview Ellison.
The interview took place in a room used as the jail library.
Ellison was brought to the library in restraints. Detective
Flanagan asked that the restraints be removed, which, after some
2 mechanical difficulty, they were. But, due to the mechanical
problem with one handcuff, some delay was experienced. The jail
guards finally had to use bolt cutters to remove i t .
Defendant was not restrained when the interview began. The
interview itself, but not preliminary discussions, was tape
recorded. Defendant was calm, not surprised to see the officers,
and seemed willing to talk. Flanagan explained that he was there
to speak to Ellison about the Concord robberies. Defendant was
also told that while no promises could be made to him, his
cooperation would be brought to the attention of the prosecutor
and the prosecutor would “determine how much weight to give it.”
Ellison was not given Miranda warnings. But Ellison was
told that he was not under arrest regarding the charges that
Flanagan was there to talk about; that he was free to leave at
any time; and that he did not have to answer any questions posed.
Ellison consented to the interview and answered questions posed,
implicating himself in the commission of the Concord robberies,
for which he was later indicted.
At the time of the interview Ellison was also suspected of
an unrelated possession of stolen property crime (a laptop
3 computer), and Flanagan told Ellison that he would try to help
Ellison out with that likely charge — but that no promises could
be made. Ellison told the detectives that he “didn’t want to be
charged” with the Concord robberies, but, again, neither Flanagan
nor Plourde made any promise that Ellison would not be prosecuted
based upon his own statements. Rather, Ellison was told that his
cooperation would be made known to the prosecutor, who would
“determine what happens.”
Ellison testified at the suppression hearing. He said he
understood Miranda’s protections at the time of the interview,
and confirmed that the warnings were not given. Ellison’s
version of the interview’s preliminary exchanges differed
markedly from Flanagan’s. Ellison testified that he told the
officers that he didn’t want to be charged with the Concord
robberies, and added that both Plourde and Flanagan repeatedly
promised him that he would never be charged with those robberies,
if the information he gave was truthful, and assuming he was not
the “aggressor” in the robberies. And, Ellison claimed that he
asked for legal counsel “at least five times.” Ellison says that
the officers’ response to his requests for counsel “was different
each time,” but, essentially, the officers told him he “didn’t
need a lawyer because [he] wasn’t being charged with a crime.”
4 Ellison further testified that he spoke about the Concord
robberies in the hope of resolving an unrelated burglary charge
and a marijuana charge, as well as the laptop computer stolen
property matter. Ellison insisted that with respect to the
Concord robberies he was told repeatedly that he was “not ever
going to be charged with this,” though the officers did say that
he might have to be called as a witness.
Discussion
At the hearing on November 2 7 , 2007, the court found that
the interview did not constitute a “custodial interrogation,” in
that Ellison was not “in custody” within the meaning of Miranda.
Ellison was being held on unrelated charges involving arson, he
was interviewed not in his cell but in the library. He was not
in restraints, the officers were not armed, he was free not to
answer questions, free to stop answering at any time, and free to
leave (i.e., to leave the library and return to his cell or an
authorized place), and he was so informed at the outset. Ellison
was of calm demeanor, understood why Flanagan was there and
voluntarily agreed to answer questions about the Concord
robberies. The duration of the interview was comparatively short
and the tone was conversational. In short, there was no added
imposition on his freedom of movement associated with the
5 interview, beyond the normal conditions of confinement he was
already experiencing. Indeed, his freedom of movement was
somewhat expanded in that the library was a less imposing and
less restrictive setting than he would otherwise experience in
the general prison population, or in his cell. Ellison was not
subjected to any measure of compulsion above and beyond the mere
fact of his imprisonment for unrelated reasons.
Ellison’s claim that the simple fact of his incarceration
during the interview renders any interrogation by police
“custodial,” is incorrect. The totality of the circumstances
determines whether a person already incarcerated is “in custody”
for purposes of Miranda, and under these circumstances, Ellison
was not “in custody.” See United States v . Menzer, 29 F.3d 1223,
1230 (7th Cir. 1994); United States v . Willoughby,
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United States v . Ellison 07-CR-144-SM 03/28/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America, Government
v. Case N o . 07-cr-144-01-SM Opinion N o . 2008 DNH 059 Richard Ellison, Defendant
O R D E R
Defendant, Richard Ellison, moved to suppress inculpatory
statements he made to police officers during an interview at the
Coos County House of Corrections (or jail) about his
participation in two convenience store robberies that occurred in
Concord about a year earlier. An evidentiary hearing was held,
after which defendant was allowed to supplement his suppression
motion to add a claim that police, o r , more accurately, jail
officials, failed to preserve a record of the interview generated
by a security camera in the jail library. The motion to suppress
(document n o . 10) is necessarily denied.
Background
On December 2 1 , 2006, Berlin Police Detective Richard
Plourde called Concord Police Detective Todd Flanagan. Plourde
told Flanagan that he had interviewed Ellison at the jail in Coos County in connection with an unrelated burglary investigation,
and learned that Ellison had information about the earlier
Concord robberies. Plourde summarized what Ellison had said and
Flanagan determined that Ellison’s information suggested that he
had inside knowledge about the Concord robberies that was both
accurate and of the type that “no one else would know about the
cases.”
Plourde told Flanagan that he had developed a rapport with
Ellison and that Ellison had indicated a willingness to speak to
the Concord police about the earlier robberies. The Concord
robberies occurred within a few minutes of each other, and, each
time, a woman entered the store with a firearm. Ellison was
being held at the Coos County jail on charges of assaulting his
former girlfriend, Robin Theriault, and he apparently told
Plourde that Theriault was the woman involved in the robberies.
After checking some facts and reviewing pertinent
investigative files, Flanagan went to Berlin, met Detective
Plourde, and both officers went to the jail to interview Ellison.
The interview took place in a room used as the jail library.
Ellison was brought to the library in restraints. Detective
Flanagan asked that the restraints be removed, which, after some
2 mechanical difficulty, they were. But, due to the mechanical
problem with one handcuff, some delay was experienced. The jail
guards finally had to use bolt cutters to remove i t .
Defendant was not restrained when the interview began. The
interview itself, but not preliminary discussions, was tape
recorded. Defendant was calm, not surprised to see the officers,
and seemed willing to talk. Flanagan explained that he was there
to speak to Ellison about the Concord robberies. Defendant was
also told that while no promises could be made to him, his
cooperation would be brought to the attention of the prosecutor
and the prosecutor would “determine how much weight to give it.”
Ellison was not given Miranda warnings. But Ellison was
told that he was not under arrest regarding the charges that
Flanagan was there to talk about; that he was free to leave at
any time; and that he did not have to answer any questions posed.
Ellison consented to the interview and answered questions posed,
implicating himself in the commission of the Concord robberies,
for which he was later indicted.
At the time of the interview Ellison was also suspected of
an unrelated possession of stolen property crime (a laptop
3 computer), and Flanagan told Ellison that he would try to help
Ellison out with that likely charge — but that no promises could
be made. Ellison told the detectives that he “didn’t want to be
charged” with the Concord robberies, but, again, neither Flanagan
nor Plourde made any promise that Ellison would not be prosecuted
based upon his own statements. Rather, Ellison was told that his
cooperation would be made known to the prosecutor, who would
“determine what happens.”
Ellison testified at the suppression hearing. He said he
understood Miranda’s protections at the time of the interview,
and confirmed that the warnings were not given. Ellison’s
version of the interview’s preliminary exchanges differed
markedly from Flanagan’s. Ellison testified that he told the
officers that he didn’t want to be charged with the Concord
robberies, and added that both Plourde and Flanagan repeatedly
promised him that he would never be charged with those robberies,
if the information he gave was truthful, and assuming he was not
the “aggressor” in the robberies. And, Ellison claimed that he
asked for legal counsel “at least five times.” Ellison says that
the officers’ response to his requests for counsel “was different
each time,” but, essentially, the officers told him he “didn’t
need a lawyer because [he] wasn’t being charged with a crime.”
4 Ellison further testified that he spoke about the Concord
robberies in the hope of resolving an unrelated burglary charge
and a marijuana charge, as well as the laptop computer stolen
property matter. Ellison insisted that with respect to the
Concord robberies he was told repeatedly that he was “not ever
going to be charged with this,” though the officers did say that
he might have to be called as a witness.
Discussion
At the hearing on November 2 7 , 2007, the court found that
the interview did not constitute a “custodial interrogation,” in
that Ellison was not “in custody” within the meaning of Miranda.
Ellison was being held on unrelated charges involving arson, he
was interviewed not in his cell but in the library. He was not
in restraints, the officers were not armed, he was free not to
answer questions, free to stop answering at any time, and free to
leave (i.e., to leave the library and return to his cell or an
authorized place), and he was so informed at the outset. Ellison
was of calm demeanor, understood why Flanagan was there and
voluntarily agreed to answer questions about the Concord
robberies. The duration of the interview was comparatively short
and the tone was conversational. In short, there was no added
imposition on his freedom of movement associated with the
5 interview, beyond the normal conditions of confinement he was
already experiencing. Indeed, his freedom of movement was
somewhat expanded in that the library was a less imposing and
less restrictive setting than he would otherwise experience in
the general prison population, or in his cell. Ellison was not
subjected to any measure of compulsion above and beyond the mere
fact of his imprisonment for unrelated reasons.
Ellison’s claim that the simple fact of his incarceration
during the interview renders any interrogation by police
“custodial,” is incorrect. The totality of the circumstances
determines whether a person already incarcerated is “in custody”
for purposes of Miranda, and under these circumstances, Ellison
was not “in custody.” See United States v . Menzer, 29 F.3d 1223,
1230 (7th Cir. 1994); United States v . Willoughby, 860 F.2d 1 5 ,
23 (2d Cir. 1988); Leviston v . Black, 843 F.2d 3 0 2 , 303 (8th Cir.
1988); United States v . Conley, 779 F.2d 9 7 0 , 972 (4th Cir.
1985); Cervantes v . Walker, 589 F.2d 424 (9th Cir. 1978).
Accordingly, the Miranda warnings were not required, as Ellison
was not “in custody” for Miranda purposes. His statements are
not subject to suppression on grounds of presumptive
involuntariness, due to Flanagan’s failure to advise him of those
rights and to obtain a waiver.
6 I credit Detective Flanagan’s testimony, and do not credit
Ellison’s, in finding that neither Flanagan nor Plourde promised
Ellison that he would never be charged with the Concord
robberies, as an inducement to answer their questions. While it
is possible that such promises were made, or implied, I find
Flanagan’s account to be more credible — that Ellison was only
told that his information (cooperation) would be brought to the
attention of the prosecutor and that the prosecutor would
determine what benefit might be extended as a result.
Even if Ellison was tricked, in that he was led to believe
that he would not be charged with the Concord robberies, it is
relatively rare for such trickery to sink to the level of
coercion, rendering the elicited statements involuntary. See
United States v . Flemmi, 225 F.3d 7 8 , 91 n.5 (1st Cir. 2000).
The critical issue with respect to this suppression motion, with
regard to a general coercion claim, is whether the government has
met its burden to prove that, under the totality of the
circumstances, defendant’s statements to Flanagan and Plourde
were the product of a free and deliberate choice, rather than the
product of coercive official tactics. See Moran v . Burbine, 475
U.S. 4 1 2 , 421 (1986); see also Colorado v . Connelly, 479 U.S.
157, 167 (1986); United States v . Jackson, 918 F.2d 236, 242 (1st
7 Cir. 1990); Bryant v . Vose, 785 F.2d 3 6 4 , 367-68 (1st Cir. 1986).
I find that the government met that burden.
Only confessions procured by coercive official tactics are
excluded as involuntary. United States v . Byram, 145 F.3d 405,
407 (1st Cir. 1998); Flemmi, 225 F.3d at 9 1 . “[S]ome types of
police trickery can entail coercion: consider a confession
obtained because the police falsely threatened to take a
suspect’s child away from her if she did not cooperate.” Byram,
145 F.3d at 408 (citing Lynumn v . Illinois, 372 U.S. 5 2 8 , 534
(1963) (police threatened removal of defendant’s children if she
did not cooperate)). But, as noted by the Court of Appeals for
the First Circuit in Byram, “[g]iven the narrowed definition of
coercion in Connelly, it would be very hard to treat as coercion
a false assurance to a suspect that he was not in danger of
prosecution.” Id. Ellison’s statements were voluntary, even if
he was led to believe that he was not in danger of prosecution
for the robberies under investigation.
With regard to defendant’s claim that he demanded to speak
with legal counsel before talking to the officers (“at least five
times”), I do not find that testimony credible. While there
probably was some discussion of counsel, and while the officers
8 probably did brush aside or avoid the subject, the fact remains
that Ellison was not subjected to a custodial interrogation, so
the police officers were not required to cease questioning upon
his request for counsel, unless Ellison initiated further
communication, exchanges, or conversation, or unless counsel was
first provided. See Edwards v . Arizona, 451 U.S. 477 (1981).
Finally, Ellison, unpersuasively argues for suppression on
grounds that the interviewing police officers (or jail officials)
breached a duty to preserve videotape evidence of the interview
generated by a security camera. Defense counsel determined that
the interview was likely recorded by a security camera, but only
a video, not an audio, record would have been made. Counsel also
noted that the tape or digital medium was written over every
forty days or s o , and so was no longer available. The re-use of
the video medium appears to have been a routine practice of the
jail — done according to a uniform procedure, generally
applicable, and not directed at this defendant. Moreover, there
is no reason to think the video alone, without an audio
recording, would have disclosed anything helpful to the
defendant. In any case, the record does not support a finding of
bad faith destruction of any exculpatory evidence by either jail
officials or Detectives Flanagan and Plourde.
9 Conclusion
Ellison’s statements, made during the noncustodial interview
were voluntary and uncoerced. The motion to suppress (document
n o . 10) is denied in all respects.
SO ORDERED.
Steven J./McAuliffe :hief Judge
March 2 8 , 2008
cc: Donald A . Feith, AUSA Michael R. Smith, Esq. U.S. Probation U.S. Marshal