USA v. Whitmore

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICHAEL GLENN WHITMORE,
Defendant.
Case No. 3:21-cr-00038-SLG-MMS
ORDER REGARDING MOTION TO SUPPRESS
Before the Court at Docket 48 is defendant Michael Glenn Whitmore’s
Motion to Suppress Statements Obtained in Violation of Miranda v. Arizona. The
government responded in opposition at Docket 61. Neither party requested oral
argument or an evidentiary hearing, and neither is necessary for the Court’s
determination of the motion.
In March 2021, during a warranted search of his home, Mr. Whitmore was
questioned by FBI Special Agent Marissa Taggart and Anchorage Police Officer
Leonard Torres while sitting in a law-enforcement vehicle parked outside of his
home.1 The agents appear to have inadvertently failed to record the initial portion
of the questioning of Mr. Whitmore, and there is no recording of the agents reading
1 Docket 48 at 2; Docket 61 at 2.
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Mr. Whitmore his Miranda rights.2 Mr. Whitmore asserts that his “statements
made during the custodial interrogation should be suppressed unless the
government can establish that Mr. Whitmore was adequately advised under
Miranda and that he knowingly and intelligently waived his rights.”3
The government does not contest that Mr. Whitmore was subject to custodial
interrogation or that the agents were required to advise him of his rights pursuant
to Miranda v. Arizona.4 Instead, the government responds that even though it was
not captured on the recording, TFO Torres “read Defendant his Miranda rights from
the [Anchorage Police Department] issued Miranda Warning card. The language
of the APD Miranda Warning card comports with Miranda and was free of defects.”5
The government has filed a declaration of TFO Torres attesting to these facts.6
The government also responds that Mr. Whitmore knowingly and intelligently
2 Docket 48 at 2.
3 Docket 48 at 1. Although a waiver of Miranda rights must be made voluntarily, knowingly, and
intelligently, Mr. Whitmore does not assert that his Miranda waiver was not voluntary, and thus
the government does not address the voluntariness factor in its response. Docket 61 at 5, n.1.
See also Miranda v. Arizona, 384 U.S. 436, 444 (1966) (setting forth standard for waiver).
4 Docket 61 at 3.
5 Docket 61 at 4.
6 Docket 60 (Decl. of Leonard Torres).
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waived his Miranda rights, as demonstrated by Mr. Whitmore’s statements to the
agents and the fact that he is a “sophisticated individual.”7
I. Legal standard
Pursuant to Miranda v. Arizona, the government may not introduce a
defendant’s statements made during a custodial interrogation unless “[p]rior to any
questioning, the person [was] warned that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a
right to the presence of an attorney, either retained or appointed.”8 When a
defendant asserts that he did not receive adequate Miranda warnings, the
government bears the burden of proving that adequate warnings were given.9 “In
order for the warning to be valid, the combination or the wording of its warnings
cannot be affirmatively misleading. The warning must be clear and not susceptible
to equivocation.”10
The government also bears the burden of proving the validly of a defendant’s
waiver of Miranda rights by a preponderance of the evidence.11 “To satisfy this
burden, the prosecution must introduce evidence to establish that under the
7 Docket 61 at 6–7 (citing transcript of interview at Docket 49-1).
8 384 U.S. at 444.
9 United States v. San Juan-Cruz, 314 F.3d 384, 388 (9th Cir. 2002).
10 Id. at 387 (citing United States v. Connell, 869 F.2d 1349, 1352 (9th Cir. 1989)).
11 Colorado v. Connelly, 479 U.S. 157, 168–69 (1986).
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‘totality of the circumstances,’ the defendant was aware of ‘the nature of the right
being abandoned and the consequences of the decision to abandon it.’”12 “The
government’s burden to make such a showing ‘is great,’ and the court will ‘indulge
every reasonable presumption against waiver of fundamental constitutional
rights.’”13
II. Analysis
Mr. Whitmore’s motion relies entirely on the fact that the government has
the burden of proving both the adequacy of the given Miranda warnings and a valid
waiver of his Miranda rights and that the warnings and waiver were not recorded
in this case. However, Mr. Whitmore has submitted no evidence to dispute the
adequacy of the Miranda warnings or the validity of his waiver of rights. In contrast,
the government has presented unrefuted evidence regarding the Miranda
warnings given and Mr. Whitmore’s subsequent waiver.
A. The Miranda warnings were adequate.
The government filed a declaration of Officer Torres in which he declares
that he read Mr. Whitmore Miranda warnings “directly from the APD issued
Miranda Warning card, in its entirety.”14 The APD Miranda Warning card
12 United States v. Garibay, 143 F.3d 534, 536–37 (9th Cir. 1998) (quoting Moran v. Burbine, 475
U.S. 412, 421 (1986)).
13 Id. (quoting United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984)).
14 Docket 60 at 2.
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accurately advises a suspect of his Miranda rights and is not misleading or
confusing.15 A report by Agent Taggart indicates that “[a]fter being advised of the
identity of the interviewing Agents and the nature of the interview, FBI TFO Torres
read Whitmore his Miranda Rights. Whitmore waived his rights and provided the
following information.”16 The record before the Court demonstrates that the
Miranda warnings given to Mr. Whitmore were adequate.
B. Mr. Whitmore’s waiver of his rights was valid.
The Ninth Circuit has held that a “recitation of the rights . . . accompanied by
the officer’s confirming that [the defendant] understood his rights, is sufficient to
establish that [the defendant] knew his rights.”17 Officer Torres declared that after
reading Mr. Whitmore Miranda warnings, he “read the waiver questions on the
APD Miranda Card to him in its entirety.”18 The waiver reads: “Do you understand
each of these rights I have explained to you? Having these rights in mind, do you
wish to talk to us now?”19 Officer Torres declared that “Michael Whitmore verbally
15 Compare Docket 61-1 (copy of APD Miranda Warning card) with the requirements set forth in
Miranda, 384 U.S. at 444. Cf. United States v. Noti, 731 F.2d 610, 614 (9th Cir. 1984) (Supreme
Court does not require verbatim recitation of Miranda warnings as long as they are not
misleading).
16 Docket 48-2 at 1.
17 United States v. Cazares, 121 F.3d 1241, 1244 (9th Cir. 1997).
18 Docket 60 at 3.
19 Docket 61-1 (copy of APD Miranda Warning card).
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stated that he understood his rights and that he was willing to speak with us.”20 A
Miranda “waiver need not be audio-recorded to be valid.”21 The defense has not
contradicted Officer Torres’ declaration, and the Court finds that Mr. Whitmore
made a valid, express waiver of his rights prior to the start of the audio recording.
The audio recording, although incomplete, does not undermine the
conclusion that Mr. Whitmore validly waived his rights. Officer Torres declared that
“[o]nce the recorder was operational, I confirmed with Michael Whitmore that I
indeed read him his Miranda rights. I confirmed that he indeed stated he was
willing to talk to the agents and that he understood his rights.”22 The recording of
the questioning begins with Officer Torres—having realized that the Miranda
warnings and waiver were not recorded—“summarizing” to Mr. Whitmore “what
[they] had just talked about.”23 Officer Torres stated that “I read you your Miranda
rights, and you stated that you were willing to talk and you understood them.”24 As
Officer Torres says this to Mr. Whitmore, Mr. Whitmore says “mm-hmm” and “yeah”
20 Docket 60 at 3.
21 United States v. Torres-Nieves, 367 F. Supp. 3d 1235, 1244 (D. Or. 2019) (citing United
States v. Cazarez, 121 F.3d 1241, 1244 (9th Cir. 1997).
22 Docket 60 at 3.
23 Def. Exh. 1 at 00:04 (audio); Docket 49-1 at 2 (transcript of audio) (under seal).
24 Def. Exh. 1 at 00:10–00:18; Docket 49-1 at 2 (transcript of audio).
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in a manner demonstrating that he was confirming Officer Torres’ recollection of
what happened prior to the recording.25
Moreover, the Supreme Court has held that a Miranda waiver can be
implied, and that “[a]s a general proposition, the law can presume that an individual
who, with a full understanding of his or her rights, acts in a manner inconsistent
with their exercise has made a deliberate choice to relinquish the protection those
rights afford.”26 Officer Torres’ declaration and the recording demonstrate that Mr.
Whitmore understood his rights, knew he was being recorded, and yet proceeded
to give a lengthy, detailed, and incriminating statement to two law enforcement
officers. Even without an express waiver, the Court would find that Mr. Whitmore
impliedly waived his Miranda rights because he “may impliedly waive the rights by
answering an officer’s questions after receiving Miranda warnings.”27
The Court finds by a preponderance of the evidence that Mr. Whitmore was
adequately advised of his Fifth Amendment rights prior to custodial interrogation
and that the totality of the circumstances demonstrates that Mr. Whitmore’s waiver,
whether express or implied, was made voluntarily, knowingly, and intelligently—
25 Docket Exh. 1 at 00:10–00:18; Docket 49-1 at 2 (transcript of audio).
26 Berghuis v. Thomkins, 560 U.S. 370, 385 (2010).
27 United States v. Rodriguez, 518 F.3d 1072, 1080 (9th Cir. 2008) (quoting United States v.
Rodriguez–Preciado, 399 F.3d 1118, 1127, amended, 416 F.3d 939 (9th Cir. 2005)). See also
North Carolina v. Butler, 441 U.S. 369, 369–73 (1979) (valid waiver of Miranda rights can be
inferred “from the actions and words of the person interrogated.”).
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Mr. Whitmore was aware of those rights and the consequences of waiving them,
and thus his waiver was valid.
CONCLUSION
In light of the foregoing, IT IS ORDERED that the motion to suppress at
Docket 48 is DENIED.
DATED this 20th day of December, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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