DAVID G. CAMPBELL, District Judge.
Defendant Jeffrey Farber has filed a motion to suppress certain statements he made to a law enforcement officer and a motion to sever counts in the indictment. Doc. 40 and 42. The Court held an evidentiary hearing on May 30, 2013. For the reasons that follow, the Court will suppress the statements and deny the motion to sever.
A string of related attempted bank robberies occurred from July 3, 2012 through January 4, 2013. Doc. 48 at 1. Only the robbery on July 3, 2012 was successful, with $94, 800 being taken. Id. Two banks had holes cut in the roofs and hoax bombs placed in the banks. Id. In a third attempted robbery, a hoax bomb was left in a bank. Id. In a fourth attempted robbery, a shot was fired through a window after a caller asked for money. Id.
Defendant Jeffrey Farber was linked to the crimes and placed under surveillance. Id. at 2. During surveillance, investigators saw Defendant repeatedly visit a storage facility. Id. Upon Defendant's arrest, his storage unit was searched and found to contain an unregistered machinegun and three unregistered short-barreled shotguns, along with bomb-making material and heavy power tools. Id. at 3. Defendant kept twelve legal firearms at his home. Id.
Defendant was arrested on February 6, 2013 and invoked his Miranda rights. Doc. 40 at 2. Defendant was transported to the Maricopa County 4th Avenue Jail by Detective Daniel Snodgrass, who testified at the evidentiary hearing that he had participated in surveillance of Defendant and was aware of some background information regarding the case, including that Defendant likely had been a member of the Las Angeles Police Department ("LAPD"). During the transport, Snodgrass engaged Defendant in "small talk" about his time with the LAPD. Id. Defendant stated he had been an officer for approximately eight years and had also served in the Army Special Forces and Navy. Id. Defendant described the circumstances which led to his medical retirement from the LAPD. Id . Snodgrass asked and Defendant responded that he had taken a lump sum payout instead of monthly payments for his retirement. Id. at 2-3. Snodgrass also asked what Defendant did for a living. Id. at 3. Defendant said he did some day trading and that he knew someone who made $95, 000 in one day. Id.
The next day, Snodgrass transported Defendant to the U.S. Marshals Service. Id. During the transport Snodgrass said to Defendant "at least you didn't hurt anybody doing what you did." Id. Defendant replied, "[n]o, I didn't hurt anybody." Id. Defendant is charged with one count of Armed Bank Robbery, three counts of Attempted Armed Bank Robbery, one count of Use of a Firearm During a Crime of Violence, and four counts of Possession of Unregistered Firearms. Doc. 18 at 1-4.
II. Miranda Violation.
Defendant argues that Snodgrass functionally interrogated him without legal counsel present. Doc. 40 at 2-3. Suspects who invoke their right to counsel cannot be questioned without a lawyer present. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). This protection applies not only to direct interrogation, but also to the functional equivalent of interrogation. Rhode Island v. Innis, 446 U.S. 291, 292 (1980). It therefore prohibits "not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. An incriminating response is "any response... that the prosecutio n may seek to introduce at trial." Id. at 301 n. 5 (emphasis original). The test to determine whether a functional interrogation has occurred is objective and based on what an officer should have known, not on an officer's actual intent to interrogate. Id. at 301-02.
The government argues that Snodgrass was not seeking incriminating information because the government already knew of Defendant's military and police background. Doc. 51 at 3. The government may have independently corroborated the Defendant's law enforcement experience, but that has no bearing on whether Defendant's statements were incriminating responses. Because the government is now seeking to introduce Defendant's statements at trial, they are deemed incriminating responses for purposes of this motion. Innis, 446 U.S. at 301 n. 5.
The government argues that Snodgrass's questions on February 6, 2013 about Defendant's work and law enforcement background were only small talk. Doc. 51 at 3. Small talk is not always the functional equivalent to interrogation, see Mickey v. Ayers, 606 F.3d 1223, 1235 (9th Cir. 2010), but Snodgrass did more than discuss the weather. He asked Defendant questions about specific issues that could demonstrate Defendant's motive and knowledge for the bank robberies, including his police training, the financial terms of his retirement, and what Defendant did for a living. These questions were reasonably likely to elicit responses that could be helpful to the prosecution at trial, suggesting that Defendant had knowledge of explosives and firearms, and had financial need. Accordingly, Defendant's answers to Snodgrass's questions on February 6, 2013 were the functional result of interrogation.
The government argues that Snodgrass's statement on February 7, 2013 - "at least you didn't hurt anyone doing what you did" - did not seek any information; the Defendant simply volunteered the response "[n]o, I didn't hurt anyone." Doc. 51 at 3. While testifying, Snodgrass stated that his comment was meant to put Defendant at ease. Snodgrass may not have intentionally evoked an incriminating response, but the issue is not his intent, it is whether his statement was reasonably likely to evoke an incriminating response. Innis, 446 U.S. at 301-02. Words phrased as a statement may constitute functional interrogation. U.S. v. Padilla, 387 F.3d 1087, 1093 (9th Cir. 2004) (deciding that an officer's statement to a defendant that it was his "last chance" to cooperate with the investigation was functional interrogation). The Court concludes that Snodgrass's statement was reasonably likely to elicit an incriminating response. It was a comment about the crimes for which Defendant was charged, and virtually any response would likely have had some incriminating effect. Accordingly, the Defendant's statement made on February 7, 2013 was the functional result of interrogation.
The Court concludes that Defendant's statements on February 6 and 7 were elicited in violation of his right to counsel. As a result, the Court will grant ...