United States District Court, D. Maryland
THEODORE D. CHUANG, District Judge.
On October 27, 2014, Defendant Juan Anthony Rosebar ("Rosebar") was indicted for possession with intent to distribute heroin. 21 U.S.C. § 841(a), possession of a firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c), and possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). Those charges stem from a search pursuant to a warrant of Rosebars apartment, which revealed 16.5 grams of heroin, 2.7 grams of marijuana, assorted drug paraphernalia, over S5.000 in cash, and a.40 caliber pistol. Rosebar has moved to suppress a statement he made to law enforcement during the search on the grounds that (1) he made the statement while in custody and in response to a question from an officer, but before receiving warnings under Miranda v. Arizona, 384 U.S. 436 (1966), and (2) his statement was involuntarily made, in violation of the Due Process Clause of the Fifth Amendment. In response, the Government has asserted that the officer's question was permissible under the public safety exception to the Miranda requirement, and that Rosebar's statement was voluntary, the Court held a hearing on the Motion, as well as on a separate Motion to Suppress Tangible and Derivative Evidence, on April 15, 2015. The evidence presented on this Motion consists of the testimony of Officer Brendan Taylor of the Prince George's County Police Department and a number of exhibits. Upon consideration of" the briefs, the evidence presented at the hearing, and the oral argument of counsel, the Motion to Suppress Statements is GRANTED, and Rosebar's statement is SUPPRESSED.
FINDINGS OF FACT
On April 25, 2014 at approximately 6:00 a.m., officers from the Prince George's County Police Department executed a search Warrant which authorized a search for heroin and other controlled dangerous substances, drug paraphernalia, and firearms, on Rosebars apartment in Oxon Hill. Maryland. Officers used a battering ram to force open the door, and about 10 members of the Department's Emergency Services Team TEST"), dressed in SWAT gear, entered the apartment first, likely with their firearms drawn. The EST conducted a protective sweep of the apartment, looking specifically for any individuals, but did not otherwise search the premises. The EST found Rosebar in the hallway, dressed only in a tank top and boxer shorts, and discovered Rosebar's fiancee and their young son in bed. The officers then moved the three occupants to the living room of the apartment and seated them on dining room chairs outside the kitchen. Once the EST officers determined there were no other people in the apartment, which took about five minutes, they departed.
As the EST officers left, a separate search team began to enter. The search team consisted of about seven armed officers, all of whom were in plainclothes with the exception of Officer Brendan Taylor, who was wearing a police uniform and a bulletproof tactical vest. Officer Taylor was a member of the Special Assignment Team, and, as such, was responsible for keeping Rosebar under observation to ensure the safety of his fellow officers while they searched the premises. Officer Taylor and a plainclothes detective were the first members of the search team to enter the apartment. Although armed, they did not have their firearms drawn.
When they walked in, they saw Rosebar, his fiancee, and their son still seated on chairs in the living room, with Rosebar facing them. Rosebar was not handcuffed. Rosebar was not attempting to leave his chair, and his demeanor was not belligerent. As Officer Taylor stood nearby, the detective asked Rosebar if there were "any guns or bombs in the apartment." Test. Ofc. Brendan Taylor, Hearing on Motions to Suppress. United Stales v. Rosebar, No. TDC-I4cr-0484. at 11:52:a.m. (D. Md. Apr. 15, 2015). Rosebar responded that there was a gun in the closet. At the time, Rosebar had not received Miranda warnings. The officers had not told him that he was free to leave, nor had they told him that he was not free to leave. Although Rosebar was not at that point officially under arrest, Officer Taylor would not have let him leave the apartment.
The search then proceeded, with Officer Taylor continuing to stand watch over Rosebar, When the officers had recovered heroin, approximately 15 minutes later, Officer Taylor placed Rosebar under arrest, handcuffed him. and escorted him to a police cruiser.
I. Miranda Rights
Rosebar argues that his statement referencing a gun in the closet should be suppressed because at the time he made the statement, he was subject to a custodial interrogation but had not been read his Miranda rights. The Government contends, first, that Rosebar was not in custody. and second, that even if he was in custody, the question was permissible under the public safety exception to the Miranda rule.
A. Custodial Interrogation
The test for whether an individual is "in custody" such that Miranda warnings are required is whether, under the totality of the circumstances, the "suspect's freedom of action is curtailed to a degree associated with formal arrest." Berkemer v. McCarly, 468 U.S. 420, 440 (1984); United Stales v. Hargrove, 625 F.3d 170. 178 (4th Cir. 2010). The analysis requires a court to determine, "first, what were the circumstances surrounding the interrogation: and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave." J.D.B v. North Carolina, 131 S.Ct. 2394, 2402 (2011) (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)). Thus, the operative question is whether "a reasonable man in the suspect's position would have understood his position" as being "in custody." Berkemer, 468 U.S. at 442; Hargrove, 625 F.3d at 178. Because the test is an objective one, "the subjective views harbored by either the interrogating officers or the person being questioned are irrelevant." United States v. Hashime, 734 F.3d 278 (4th Cir. 2013).
Here. objective indicators collectively establish that Rosebar was in custody for purposes of Miranda when the detective asked him whether there were any guns or bombs in the apartment. Rosebar had just been subjected to a sudden, forced entry of his apartment at 6:00 a.m. by 10 armed EST members, in SWAT gear, who used a battering ram to enter, rounded up him, his fiancee, and young son. and moved them to the living room. Although he was later given a shin and pants, Rosebar was wearing a T-shirt and boxer shorts when he was found by the EST. As the EST members left the apartment, another team of approximately seven armed officers entered to conduct a search of his apartment. When he was questioned about the presence of guns or firearms, he was under the watch of Officer Taylor, in uniform, armed, and wearing a tactical vest, whose job was to remain in place to guard him for the duration of the search. Although Rosebar was not initially told that he was under arrest, no one told him that he was free to leave, and Officer Taylor acknowledged in his testimony thai he would not have allowed Rosebar to leave had he tried. Once heroin was found. Officer Taylor formally placed him under arrest, handcuffed him, and escorted him to a police cruiser.
Under these circumstances, Rosebar could not reasonably have thought he was tree to leave. In particular, the overwhelming show of force, including the EST officers who forced him to the living room, the multiple armed search team members entering the premises, and the presence of a uniformed police officer standing watch over him as he was questioned, rendered the brief interview custodial. See Hashime, 734 F.3d at 280-81, 284 (finding a custodial interrogation at a suspect's house based in large part on the "broader setting' of the encounter, which started when a team of 15-30 armed federal and state law enforcement agents descended upon the defendant's home equipped with a battering ram and "streamed into the house with their guns drawn, " an officer woke the defendant with a gun pointed at him and ordered him to get up, and the officers ordered the defendant's family members outside, restricted their movements, and interrogated each of them individually); United States v. Colonna, 511 F.3d 431, 433, 435-36 (4th Cir. 2007) (finding a custodial interrogation where the defendant was awakened in his home when law enforcement officers kicked open the defendant's bedroom door and ordered him at gunpoint to dress and come downstairs, the defendant's home was "inundated" by approximately 24 officers, and he remained under guard during questioning). Notably, Rosebar was never told that he was free to leave or that he did not have lo answer the officer's question. Colonna, 511 F.3d at 436 (noting these factors in finding a custodial interrogation). Indeed, Officer Taylor candidly acknowledged that Rosebar was not free to leave when he testified that he would not ...