United States District Court, E.D. Virginia, Norfolk Division
[Copyrighted Material Omitted]
For Anthony Charles Hunter, Defendant: Richard Joseph Colgan, LEAD ATTORNEY, Office of the Federal Public Defender - Norfolk, Norfolk, VA; Lauren Tallent Rogers, Kaufman & Canoles PC (Norfolk), Norfolk, VA.
For USA, Plaintiff: Darryl James Mitchell, LEAD ATTORNEY, United States Attorney's Office, Norfolk, VA.
MEMORANDUM OPINION & ORDER
Raymond A. Jackson, United States District Judge.
Before the Court is Defendant Anthony Charles Hunter's Motion to Suppress Defendant's statements to law enforcement agents and all physical evidence obtained in violation of the Fifth and Sixth Amendments to the Constitution of the United States of America. Specifically. Defendant contends that the police conducted three separate custodial interrogations without first obtaining proper waivers of his rights under Miranda v. Arizona, and that he was questioned outside the presence of his appointed counsel after charges had been filed, in violation of the Sixth Amendment. Having reviewed the pleadings and held a hearing on the Motion to Suppress, this matter is now ripe for judicial determination. For the reasons stated below, Defendant's Motion to Suppress is GRANTED in part and DENIED in part. Specifically, the Motion to suppress statements and evidence related to police questioning on October 18, 2007, and October 20. 2007 is DENIED. Defendant's Motion to Suppress statements and evidence related to police questioning on October 22, 2007, is GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY
The instant Motion to Suppress stems from police interrogations of Mr. Hunter on October 18, 2007, October 20, 2007, and October 22, 2007. Norfolk Police arrested Defendant on state robbery warrants on the 300 block of Davis Street in Norfolk, Virginia, at approximately 10:00 p.m. on October 18, 2007.
Prior to questioning on October 18, 2007, Detective D. Jarvis of the Norfolk Police Department presented Defendant with a Legal Rights Advice Form. Gov. Ex. A. Defendant proceeded to read aloud the first question, which asked " Do you understand that you have the right to remain silent?" Defendant answered " yes" on the form. Detective Jarvis then proceeded to read aloud each of the remaining six questions. Defendant responded affirmatively to each of the six questions on the form and initialed next to each. Defendant further answered affirmatively that he " sign[ed] this paper with complete understanding of [his rights]," and that " I further state that I waive these rights and desire to make a statement." Finally, Defendant acknowledged that " This statement is completely free and voluntary on my part without any threat or promise from anyone." Defendant was subsequently interviewed by detectives from the Norfolk and Virginia Beach Police Departments until approximately 2:40 a.m. on
October 19, 2007. According to the Government, Defendant was asked several times whether he needed anything, was provided cigarettes and bottled water at his request, and was permitted to take a nap. After questioning, Defendant was transported to Norfolk City Jail.
On October 20, 2007, Defendant was transported to the Norfolk Police Department Police Operations Center for the purpose of obtaining a buccal swab. Defendant signed a consent form for the procedure. During the procedure, Defendant admitted that he had committed numerous commercial robberies between Richmond, Virginia and Charlotte, North Carolina. Norfolk Police provided Defendant with cigarettes and a bottle of Coca-Cola during questioning. After questioning, Defendant was returned to Norfolk City Jail.
Defendant was questioned for a third time on October 22, 2007. At approximately 6:30 p.m., Defendant was transported back to the Police Operations Center of the Norfolk Police Department for questioning by Chesapeake and Virginia Beach detectives. By that time, Defendant had been appointed counsel for his state court charges relating to robberies in Norfolk. Defendant appeared in state court on October 22, 2007. Later that day, Defendant was questioned by Detective J.G. Thomas of the Chesapeake Police Department (CPD) who advised Defendant of his Miranda rights by reading aloud a CPD Miranda Warning form. Gov. Ex. D. The form clearly advised Defendant of the nature of his Miranda rights and the consequences of abandoning them. After Defendant answered " um hum" to each of the Miranda Warning form questions, Officer Thomas began questioning about the alleged Chesapeake robberies. The Miranda Warning Form contains a " waiver" section, which was neither filled out nor signed. Shortly after questioning began, Defendant said " uh, I went to court today," to which Officer Thomas replied, " you went to court today?" Defendant then replied, " and um, I got a paper today um, for a lawyer. Talk to him about it." Defendant then signed his name at the bottom of the Miranda Warning form, leaving the waiver section completely blank.
On September 20, 2012, a Federal Grand Jury returned a fourteen-count Superseding Indictment charging Defendant with Interference with Commerce by Robbery and Conspiracy to Interfere with Commerce by Robbery (Counts 1, 3, 5, 6, 7, 8, 10, 11, 13, 14) in violation of 18 U.S.C. § 1951, and Use, Carry and Brandish a Firearm During and in Relation to a Crime of Violence (Counts 2, 4, 9, 12) in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Each of the ten alleged robberies took place between September 29, 2007 and October 18, 2007, in Virginia Beach, Chesapeake, Norfolk, and Suffolk, Virginia. The Indictment also included an allegation of criminal forfeiture, 21 U.S.C. § 853(p). This Court issued a Memorandum Opinion and Order denying Defendant's Motion to Dismiss on October 31, 2013. A Memorandum Opinion and Order denying Defendant's Supplemental Motion to Dismiss was issued on June 9, 2014. The Court heard argument on the instant motion on September 10, 2014.
Defendant now moves pursuant to Rule 12 of the Federal Rules of Criminal Procedure and the Fifth and Sixth Amendments of the United States Constitution to suppress " any and all statements and evidence seized in connection with the unlawful questioning of Mr. Hunter" on October 18, 2007, October 20, 2007, and October 22, 2007. Defendant's Motion, along with a
Memorandum of Law, was filed on June 19, 2013. The Government filed a response on July 19, 2013. Defendant filed a Reply on July 26, 2013. In addition to his Miranda and Sixth Amendment arguments, Defendant argues that he was " not mentally competent" at the time of his questioning, and as a result, ...