USA v. Burkhardt et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA 	)
)
v. 	) 	CRIMINAL NO. 16-0276-WS
)
RYAN SCOTT BURKHARDT, 	)
)
Defendant. 	)
ORDER
This matter is before the Court on the defendant’s motion to suppress. (Doc. 55). The
parties have filed briefs in support of their respective positions, (Docs. 55, 64, 65), and the Court
held an evidentiary hearing at which testimony and exhibits were introduced into evidence. The
defendant seeks to suppress statements made to law enforcement on April 6 and April 8, 2016, as
well as statements made to the media on April 6, 2016. (Doc. 55 at 1; Doc. 65 at 1-2). After
careful consideration, the Court concludes that the motion to suppress is due to be denied.
DISCUSSION
I. Request for Counsel.
The defendant argues that, prior to making any statement on April 6, 2016, he requested
counsel but that law enforcement officers nevertheless proceeded to question him. (Doc. 55 at
2).
“We held in Edwards [v. Arizona, 451 U.S. 477 (1981),] that if a suspect invokes the
right to counsel at any time, the police must immediately cease questioning him until an attorney
is present.” Davis v. United States, 512 U.S. 452, 462 (1994). However, “[u]nless the suspect
actually requests an attorney, questioning may continue.” Id. Whether a suspect invoked his
right to counsel “is an objective inquiry,” and “if a suspect makes a reference to an attorney that
is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to counsel, our precedents do not
require the cessation of questioning.” Id. at 459 (emphasis in original). “Rather, the suspect
must unambiguously request counsel.” Id.
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Two law enforcement officers (and later a third) met with the defendant on April 6, 2016
and began by asking background questions to test his awareness of his location and recent
medical history. The defendant confirmed that he was at the police station, that he had come
from the hospital, and that he had had surgery on his left hand a day and a half earlier. He then
spelled his name for the officers. The defendant then used the word “attorney” several times:
• 	“I know I got some police officers talking to me and I don’t have an attorney with
me.”
• 	“I was told not to speak to any police officer without an attorney present.”
• 	“I was told not to speak to any police officer without an attorney … present.”
• 	“An attorney [told the defendant] not to speak to any officers without my attorney
present.”
The defendant then identified by name the attorney that had told him this, at which time the
defendant received a Miranda warning and consented to be questioned.
The Court agrees with the government that the defendant did not, by these statements,
“unambiguously request counsel.” Perhaps his statements could be construed by a reasonable
officer under the circumstances as a request for counsel, but they could just as easily (if not more
so) be construed by such an officer as reflecting merely the defendant’s repetition of advice he
had received without any decision to follow that advice. The defendant’s statements were no
less equivocal and ambiguous than those in the following cases, in each of which the statement
was held insufficient to require cessation of questioning: Davis, 512 U.S. at 462 (“Maybe I
should talk to a lawyer.”); Mincey v. Head, 206 F.3d 1106, 1127, 1132 (11th Cir. 2000) (“[G]o
ahead and run the lawyers,” uttered immediately after administration of Miranda warning);
United States v. Tran, 171 Fed. Appx. 758, 761 (11th Cir. 2006) (defendant made a “request to
retrieve his bankruptcy lawyer’s business card”).
Because the defendant did not unambiguously request counsel, the law enforcement
officers were not required to cease their questioning of him, and his later inculpatory statements
cannot be suppressed due to their continued questioning after the quoted statements.
II. Miranda Waiver.
As noted, the defendant made no inculpatory statements until after receiving a Miranda
warning. The defendant explicitly confirmed that he understood his right to have a retained or
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appointed lawyer present while being questioned, not to answer any questions or make any
statements without a lawyer present, and to cease talking at any time. The law enforcement
agents then asked the defendant, “[h]aving these rights in mind, do you want to talk to us?” The
defendant responded, “Pertaining to what?” The law enforcement agents told him the questions
would be about “why you’re here right now,” that they couldn’t tell him that talking would help
him, and that whether to answer questions was his choice. The defendant responded, “The only
thing I can do is say ask the question, and if I want to answer it, I’ll answer it.”
The defendant now argues that his “Miranda warnings were ineffectual as he was in a
post-operative painful state and under medication.” (Doc. 55 at 2). It is clear that the defendant
waived his Miranda rights; the question is whether he did so effectively.
“Miranda holds that the defendant may waive effectuation of the rights conveyed in the
warnings provided the waiver is made voluntarily, knowingly and intelligently.” Moran v.
Burbine, 475 U.S. 412, 421 (1986) (internal quotes omitted). A waiver is voluntary if “it was the
product of a free and deliberate choice rather than intimidation, coercion, or deception.” Id. The
defendant suggests that, given his pain and medication, his agreement to speak without a lawyer
was involuntary, (Doc. 55 at 3), but he has identified no evidence of intimidation, coercion or
deception by the law enforcement agents or anyone else. Based on its review of the evidence
and assessment of the credibility of the witnesses, the Court finds that there was no such
intimidation, coercion or deception and that the defendant’s Miranda waiver was voluntary.
A Miranda waiver is knowing and intelligent if “made with a full awareness of both the
nature of the right being abandoned and the consequences of the decision to abandon it.” Moran,
475 U.S. at 421. The defendant’s own statements regarding speaking without an attorney proves
he was fully aware of his right to an attorney and of his right not to speak without one, and the
Court so finds. The defendant’s own statement that he would answer only those questions he
wanted to answer proves he was fully aware of his right to cease talking at any time, and the
Court so finds. The defendant’s repeated questions to the law enforcement officers as to whether
answering particular questions would help him proves he was fully aware that speaking could
result in incriminating evidence against him, and the Court so finds.
The defendant attempts to portray himself as so wracked by pain and pain medication that
he was unable to comprehend what was going on or to validly relinquish his Miranda rights.
The Court has reviewed all the video evidence introduced by the parties and considered the
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testimony of the law enforcement agents, and it finds that the defendant, throughout the entirety
of his encounter with the law enforcement agents, understood perfectly well all that transpired
and never lost comprehension of his Miranda rights, including the right to cease talking at any
time or to refuse to answer any particular question or questions. The Court agrees with the
witnesses that the defendant’s momentary lassitude when the agents arrived and during the perp
walk (on which time frames the defendant relies almost exclusively) was feigned, as
demonstrated by his sharp and alert behavior at all other times during the encounter.
Although the defendant frames the issue as one regarding the validity of his Miranda
waiver, in his reply brief he suggests his challenge is to the voluntariness of his confession rather
than of his waiver of the right not to speak. (Doc. 65 at 2-4). The result is the same, since the
evidence is the same and the Court’s findings regarding the defendant’s condition are the same.
Because the defendant effectively waived his Miranda rights, and because his subsequent
confession was voluntary, the defendant’s inculpatory statements cannot be suppressed on this
basis.
III. Perp Walk.
The defendant asserts that the perp walk violated the Fourth Amendment and compels
suppression of statements he made to the media. (Doc. 55 at 4). Because the defendant offered
neither evidence nor legal authority for the proposition that the media acted as the state for
purposes of the Fourth Amendment, the Court denied his motion for subpoenas to several media
representatives. (Doc. 69). The defendant at the evidentiary hearing asked a single question
directed to this issue and declined to respond to the government’s objection, which the Court
therefore sustained. There is thus presented no factual or legal basis for the defendant’s
argument, and his statements to the media will not be suppressed.
IV. April 8 Statements.
Neither in briefing nor at the evidentiary hearing has the defendant identified any basis
for suppressing these statements. Indeed, the defendant has not addressed the April 8
questioning at all other than to note that it occurred. There is thus presented no factual or legal
basis for suppressing statements made on April 8, and they will not be suppressed.
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CONCLUSION
For the reasons set forth above, the defendant’s motion to suppress is denied in its
entirety.
DONE and ORDERED this 10th day of March, 2017.
s/WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
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