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United States v. Leyva

United States District Court, E.D. Michigan, Southern Division

October 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARIA ELENA LEYVA, Defendant.

          OPINION & ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS (DKT. 39) AND DENYING DEFENDANT'S MOTION TO SUPPRESS RESULTS OF SEARCH WARRANT (DKT. 40)

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE.

         Defendant Maria Elena Leyva is charged with (i) conspiracy to possess heroin with intent to distribute; and (ii) attempted possession of heroin with intent to distribute, in violation of 21 U.S.C. § 846. This matter is before the Court on Leyva's motion to suppress her statements made on October 23, 2016 (Dkt. 39) and Leyva's motion to suppress the results of a search pursuant to a warrant (Dkt. 40). A hearing on both motions was held on August 14, 2017, and supplemental briefing followed. For the reasons that follow, the Court denies both motions.

         I. BACKGROUND

         On October 20, 2016, law enforcement in Amarillo, Texas stopped a vehicle driven by Leyva's co-defendant, Richard O'Dell. Def's Br. in Supp. of Mot. to Suppress Statements at 1 (Dkt. 39); Gov't's Br. in Opp. to Mot. to Suppress Statements at 4 (Dkt. 49). The vehicle contained 5.6 kilograms of a substance that tested positive for the presence of heroin. Def's Br. at 1; Gov't's Br. at 4. Law enforcement seized the suspected heroin, and replaced it with “sham” heroin. Def's Br. at 1; Gov't's Br. at 4. The officers worked with O'Dell to conduct a controlled delivery of the sham heroin in the Detroit metropolitan area. Def's Br. at 1; Gov't's Br. at 4. The sham heroin was wrapped in eight separate packages and placed into a brightly colored gift bag. Def's Br. at 1; Gov't's Br. at 4-5. On October 23, 2016, law enforcement observed O'Dell deliver the brightly-colored gift bag to Leyva in Warren, Michigan. Def's Br. at 2; Gov't's Br. at 5. Officers then followed Leyva to a hotel in St. Clair Shores, Michigan. Gov't's Br. at 5.

         A. Pre-Miranda Statements

         At approximately 1:29 p.m. on October 23, Drug Enforcement Agency (“DEA”) Group Supervisor (“GS”) Sam Rahi and Special Agent (“SA”) Shane Reese approached Leyva at the hotel and identified themselves as police. Def's Br. at 2-3; Gov't's Br. at 5. GS Rahi had his gun in his hand, but was not pointing it at Leyva; SA Reese did not draw his gun. Def's Br. at 3; Gov't's Br. at 5. The officers instructed Leyva to stay where she was, Gov't's Br. at 5, and asked if she knew why the police were there, Def's Br. at 3; Gov't's Br. at 6. Leyva responded, “I'm in big trouble, ” and when asked to clarify, she said, “It's about the package I picked up from the old man.” Def's Br. at 3; Gov't's Br. at 6. GS Rahi asked her where the package was, and she told him that it was still in the car. Def's Br. at 3; Gov't's Br. at 6. At that point, GS Rahi handcuffed Leyva and asked if she wanted to cooperate; she said yes. Def's Br. at 3; Gov't's Br. at 6.

         GS Rahi then questioned Leyva about the person to whom she was supposed to take the package; she responded, “[a] man.” Def's Br. at 3; Gov't's Br. at 6. GS Rahi asked her if the delivery would take place in a hotel room, and whether she had a room at the hotel. Def's Br. at 3; Gov't's Br. at 6. She said “No.” Def's Br. at 3; Gov't's Br. at 6. He then asked if the man would be coming to the hotel to pick up the package, and Leyva said “Yes.” Def's Br. at 3; Gov't's Br. at 6.

         At this point, approximately 1:35 p.m., GS Rahi removed Leyva's handcuffs and instructed his surveillance team to resume their covert roles. Def's Br. at 3; Gov't's Br. at 6-7. GS Rahi asked Leyva to explain how the heroin deal was supposed to take place. Def's Br. at 3; Gov't's Br. at 7. Leyva informed him that she had met a man that morning who had told her to pick up the package and bring it to St. Clair Shores. Def's Br. at 3; Gov't's Br. at 7. GS Rahi then attempted to ask additional questions about this man, but Leyva gave non-responsive answers (“These are very intelligent people you are dealing with”; “Did you see me with the old man?”). Def's Br. at 3-4; Gov't's Br. at 7. Leyva asked, “What if they don't come, what happens next?” Def's Br. at 4; Gov't's Br. at 7. Upon being told that she would go to jail, Leyva said, “I want to cooperate. I want to cooperate. I will tell you everything.” Def's Br. at 4; Gov't's Br. at 7.

         GS Rahi asked again about the man who was supposed to pick up the sham heroin and what type of vehicle he would be driving. Def's Br. at 4; Gov't's Br. at 7. Leyva said that she did not know, but said that she would make a call. Def's Br. at 4; Gov't's Br. at 7. GS Rahi and SA Reese allowed Leyva to make two unrecorded phone calls in Spanish. Def's Br. at 4; Gov't's Br. at 7-8. SA Reese, who has limited Spanish proficiency, advised GS Rahi that Leyva had told the person on the phone that “everything was good.” Def's Br. at 4; Gov't's Br. at 8. Following the calls, GS Rahi asked again for a description of the man, and Leyva told him that the man “may not come until tomorrow.” Def's Br. at 4; Gov't's Br. at 8. At this point, GS Rahi turned Leyva over to the Warren police for transportation to the Warren police station. Def's Br. at 4; Gov't's Br. at 8.

         Inside the police vehicle, Leyva asked if she could call her daughter. Def's Br. at 4; Gov't's Br. at 8. GS Rahi dialed three numbers for Leyva, but no one answered. Def's Br. at 4; Gov't's Br. at 8. GS Rahi then advised Leyva that she could try to call again once at the police station. Def's Br. at 4; Gov't's Br. at 8. The Government states that the conversation between the agents and Leyva likely concluded around 1:45 or 1:50 pm. Gov't's Br. at 8.

         B. Miranda warning and post-Miranda statements

         Upon her arrival to the Warren police station, Leyva was left alone in an interview room. Gov't's Br. at 9. At approximately 2:30 p.m., DEA Task Force Officer (“TFO”) Ryan Pylak and SA Brandon Kushel entered the room to interview her. Id. Both TFO Pylak and SA Kushel were present at the St. Clair Shores hotel earlier that day, but neither had participated in the conversation between Leyva, GS Rahi, and SA Reese. Id.

         When the agents entered the room, Leyva was speaking on her cell phone in Spanish. 10/23/2016 Tr., Ex. A. to Def's Mot. to Suppress Statements at 1 (Dkt. 39-1). She ended her call, and then asked the agents if she could make another. Id. They allowed her to do so; she made two more calls, which both went to voicemail. Id. at 1-2. After Leyva typed a text message to whomever she was attempting to reach, SA Kushel asked how her English was.[1] Id. at 2. Leyva responded, “A little.” Id. SA Kushel followed up and asked, “Are you comfortable speaking and communicating in English language, or no?” Id. Leyva told him, “I needed a, somebody who speaks, somebody speak Spanish?” Id. SA Kushel and TFO Pylak conferred with one another and, upon realizing that they did not have an interpreter available, determined that Leyva had a strong enough command of English for them to proceed. Id. SA Kushel told Leyva that they would proceed in English, and told her to let him know if she did not understand something. Id. at 3. Leyva agreed. Id.

         SA Kushel and TFO Pylak then spent approximately four minutes explaining Leyva's rights under Miranda v. Arizona, 384 U.S. 436 (1966). Id. at 3-8. During this time, Leyva made two references to an attorney, id. at 5, 7, which she argues were invocations of her right to counsel, Def's Br. at 9-11. She also stated once again that she needed someone who spoke Spanish. 10/23/2016 Tr. at 8. Nonetheless, when TFO Pylak asked, “[S]o do you wish to cooperate with us and talk to us?” she responded, “Yes, I'll cooperate.” Id. at 7-8. SA Kushel then asked, “So you don't wish to have your lawyer present then, ” and she said “No.” Id. at 8. The agents provided Leyva with a form indicating that she understood and was waiving her Miranda rights, which Leyva signed. Id. at 9; Warren Police Dep't Const'l Rights Cert. of Notification, Ex. C to Def's Reply (Dkt. 57-3).

         The agents then questioned Leyva regarding her involvement in and knowledge of the sham heroin transaction. 10/23/2016 Tr. at 11-27. Leyva told the agents that she had traveled from Kansas City to Chicago, and then on to Detroit, at the request of a person from Mexico. Id. at 14-17. She was told that she would receive $5, 000 for transporting a package in Detroit. Id. at 20. Leyva further claimed that she was given a phone by a man she met at K-Mart earlier on October 23, and that this man told her to destroy her own phone. Id. at 21-24.

         Near the end of the conversation, the agents asked Leyva if she would give them permission to look at her cell phone. Id. at 27. At this point, Leyva said “No, ” and said she needed her lawyer. Id. at 29. The agents ended the conversation and seized Leyva's cell phone as they left. Id. at 30.

         SA Kushel filed an application for a warrant to search the cell phone on November 2, 2016. App. For Search Warrant, Ex. A to Def's Mot. to Suppress Results of Search Warrant (Dkt. 40-1). In support of his application, SA Kushel included statements from Leyva's post-Miranda interview. Def's Mot. to Suppress Results at 2 (Dkt. 40). The search warrant was issued, and the Government was able to recover text messages. Id. Leyva now seeks to suppress (i) the statements she made in both her pre- and post-Miranda interviews; and (ii) the results of the search warrant.

         II. ANALYSIS

         Leyva argues that the statements she made to police both before and after receiving Miranda warnings should be suppressed. First, she argues that her pre-Miranda statements should be excluded even for impeachment purposes.[2] Second, she argues that the Miranda warnings she received were ineffective due to the police's use of a two-pronged interrogation. Finally, she argues that her Miranda waiver was invalid, due to her limited English proficiency, her ignored invocations of the right to counsel, or because her statements were involuntary due to police coercion. The Court will address each argument in turn.

         A. Voluntariness of Pre-Miranda Statements

         Leyva argues that her statements made to GS Rahi at the hotel in St. Clair Shores should be suppressed for any purpose because she was not given Miranda warnings. Def's Br. at 6-7. She contends that the situation “was a custodial interrogation in which coercion is inherent, and as such distinguishes the line between voluntary and involuntary statements.” Id. at 6.

         The Government responds that Leyva's statements are still admissible for purposes of impeachment because they were made voluntarily. Gov't's Br. at 17. In reply, Leyva contends that the question of voluntariness is “at best[] academic” as she did not receive a Miranda warning, and all of her statements are therefore inadmissible. Def's Reply Br. at 6 (Dkt. 57). Additionally, Leyva raises for the first time an allegation that SA Reese threatened her in Spanish while at the hotel. Id. at 2, 6. She claims that he told her that if she did not cooperate, she would not see her grandchildren again. Id. Leyva also testified at the suppression hearing that SA Reese told her that she would never see her children or grandchildren again. 8/14/2017 Hr'g Tr. at 83 (Dkt. 76).

         Voluntary statements that are inadmissible due to the government's failure to provide Miranda warnings are nonetheless admissible for impeachment purposes. Oregon v. Elstad, 470 U.S. 298, 307 (1985) (citing Harris v. New York, 401 U.S. 222 (1971)). A statement is involuntary if it is “not ‘the product of a rational intellect and a free will.'” United States v. Delaney, 443 Fed.Appx. 122, 128 (6th Cir. Nov. 21, 2011) (quoting Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989)). “A ‘necessary predicate' to finding a confession involuntary is that was produced through ‘coercive police activity.'” Id. (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)). The Sixth Circuit has established three requirements for finding that a statement was involuntary as a result of police coercion: “(i) the police activity was objectively coercive; (ii) the coercion in question was sufficient to overbear the defendant's will; and (iii) the alleged police misconduct was the crucial motivating factor in the defendant's decision to offer the statement.” United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999). The Government bears the burden of proving by a preponderance of the evidence that a statement was made voluntarily. Id.

         Leyva has not pointed to any police activity at the hotel, where she made her unwarned statements, that was “objectively coercive.” She notes that when the police approached her, “GS Rahi's gun was at the ready, although SA Reese did not draw his weapon.” Def's Br. at 6. The mere presence of a police weapon does not render a statement involuntary, particularly where, as here, “the display of weapons was not intended to ‘extort' a confession by coercive means.” McCall v. Dutton, 863 F.2d 454, 459-460 (6th Cir. 1988) (upholding district court's determination that there was no coercive police activity even where the petitioner “had been handcuffed, placed on the ground, and surrounded by numerous police officers who ‘yelled' and pointed weapons at him”). Leyva later mentions that she was “threatened” that if someone did not arrive at the hotel to pick up the package, she would go to jail. Def's Br. at 18. But a threat to arrest is only coercive where the threat could not have been “lawfully executed.” See United States v. Johnson, 351 F.3d 254, 263 (6th Cir. 2003) (holding that a threat to arrest defendant's half-sister was not coercive because the police had probable cause to believe that the half-sister had committed a crime). Here, there is no dispute that GS Rahi could and did lawfully arrest Leyva.

         Leyva also raises in her reply and supplemental briefs an allegation that SA Reese threatened her in Spanish at the hotel. See Def's Reply Br. at 6; Def's Supp. Br. at 17 (Dkt. 82). The Court does not find Leyva's allegation credible. She testified at the suppression hearing that SA Reese threatened her in Spanish, telling her she would never see her children or grandchildren again, and then asked if she wanted to cooperate. 8/14/2017 Hr'g Tr. at 83. However, GS Rahi testified that he did not hear SA Reese speak to Leyva in Spanish. Id. at 20-21. He also stated that SA Reese was never alone with Leyva for any significant period of time; the only time that SA Reese and Leyva were alone together was for about a thirty-second period where GS Rahi was still within earshot. Id. at 21. GS Rahi testified that this thirty-second period was after Leyva had agreed to cooperate. Id.

         Leyva also neglected to mention this alleged threat in her initial motion - where she spent several pages detailing the facts surrounding her arrest at the hotel - which suggests that such threat either did not happen or did not have quite the effect on Leyva as she would like the Court to believe. Additionally, when she was interrogated at the police station, Leyva made no mention of her desire to see her children or grandchildren. See generally 10/23/2016 Tr. She did not appear to be frightened as a result of a threat made by SA Reese. On the contrary, she was quite calm and again was permitted to use her cell phone several times to make phone calls and to attempt to send text messages. Therefore, even if SA Reese made such a threat, and such threat was objectively coercive, it was not “sufficient to overbear [Leyva's] will.” Mahan, 190 F.3d at 422.

         Accordingly, as there was no police coercion at the hotel, Leyva's statements were made voluntarily and thus may be used ...


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