United States District Court, D. Arizona
David G. Campbell United States District Judge
Defendant Kyle Gray has filed a motion to suppress the statement of his co-defendant, Devan Leonard. Doc. 44. Defendant Leonard subsequently filed a motion to suppress the same statement. Doc. 52. The motions are fully briefed, and the Court held an evidentiary hearing on November 24, 2015. Doc. 63. For the reasons stated below, the Court will grant Defendant Leonard’s motion and deny Defendant Gray’s motion.
On March 18, 2015, FBI Special Agent Ryan Butler and Navajo Criminal Investigator Darrell Boye interviewed Devan Leonard about the disappearance and murder of T.S. At the time, Leonard was in tribal custody at the Window Rock Detention Center for an unrelated matter. He was 25 years old and had completed two years of college. The officers spoke with Leonard in a small room with a table and three chairs. The interviewing officers were dressed in plain clothes, and, although Butler was armed, his weapon was not visible. Leonard was also in plain clothes and unrestrained. During the interview, Leonard requested and was provided a candy bar and water. The interview began at 10:32 a.m. and lasted about two hours.
Agent Butler started the interview in this way: “I want to kind of tip my hand and tell you a little bit about my investigation, tell you a little bit about what I’ve done, because I really think it’s in your best interest to - to talk to me about this.” Doc. 52-1 at 5-6. Butler said this was not something he normally does, but he wanted to be “up front” with Leonard because it was “the fair thing to do.” Id. at 5, 7. Butler told Leonard “I want to tell you about my case. But I can’t - I can’t really do that until we go over your rights.” Id. at 8.
Butler then orally advised Leonard of his Miranda rights. Butler told Leonard that he has “the right to talk to a lawyer for advice before we ask you any questions at all. Okay? You - you - you know, you don’t have to talk to us alone.” Id. at 10. Butler advised Leonard:
If you can’t afford a lawyer, one will be appointed to you before any question if you wish. Now, that’s - that’s more for people that have been arrested. I mean even though you’re being held federal - or tribally, you’re not under arrest from me. You know, I’m not arresting you. But all that - basically, all that is trying to do is reinforce the point that even if you’re worried that you can’t pay for a lawyer, there’s ways that we can get you a lawyer if - if, you know, you’re worried about it. Okay?
Id. at 10-11. Butler told Leonard “[i]f you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.” Id. at 11.
Butler asked Leonard to review the FBI’s Advice of Rights form, which stated:
You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.
Doc. 52-2 at 2. After reviewing the form, Leonard sought to clarify what would happen if he signed it. Butler told Leonard that signing the form means “it makes sense to you and you understand” the form. Doc. 52-1 at 12.
After Leonard confirmed that he understood the form, Butler asked him to read aloud the “Consent” portion of the form, which states: “I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer present.” Doc. 52-2 at 2. Immediately after Leonard read this, the following exchange occurred:
Leonard: And I want a lawyer present.
Butler: You want a lawyer present? Okay.
Leonard: That’s just how I was - that’s what [inaudible].
Butler: Okay. That’s fine. That’s fine. You don’t have to answer any questions. You - if you want to have a lawyer present, then - then - then that’s fine. I’m just going to note on here that - that you want to have a lawyer.
Leonard: I need to call my - my lawyer.
Boye: Who is he?
Boye: Let me call him for you.
Leonard: I got to talk to my family first.
Leonard: It says that if I can’t afford it, then I’ll have one appointed to me.
Butler: Okay. All right.
Boye: Well, the only way - the only way you can have one appointed for you is if you were arrested. The Court appoints that lawyer for you.
Leonard: It’s like my own public defender, huh?
Butler: Exactly. Exactly.
Boye: Yeah. So that’s the only way you can get - you have to be arrested for you ...