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United States v. Gilmore

United States District Court, D. Arizona

September 11, 2017

United States of America, Plaintiff,
v.
James Dee Gilmore, Jr., Defendant.

          ORDER

          Honorable G. Murray Snow United States District Judge.

         Pending before the Court is Defendant James Dee Gilmore's Motion to Suppress Statements and Request for Voluntariness Hearing. (Doc. 20). For the reasons stated below, the motion is granted in part and denied in part.

         BACKGROUND

         On May 16, 2017 at 2:35pm, Defendant James Gilmore drove a truck into the United States through the San Luiz, Arizona Port of Entry. Customs and Border Protection (CBP) officers found evidence of contraband in the spare tire of the truck. CBP officers handcuffed Mr. Gilmore and escorted him to the secondary inspection area. Mr. Gilmore told the CBP officer that he worked as a hay loader and was driving to Yuma. Mr. Gilmore said that the truck was owned by a mechanic in Mexico. The CBP officers found a plastic bag with methamphetamine in Mr. Gilmore's pocket, after which they escorted Mr. Gilmore to a holding cell. Meanwhile, other officers confirmed that the spare tire in Mr. Gilmore's truck contained forty-seven pounds of Methamphetamine.

         At some point, CBP Officer Soto visited the cell to take Mr. Gilmore's intake photo. Soto recognized Mr. Gilmore from a previous encounter at the border. Mr. Gilmore claims in his briefing that Officer Soto told him that he should “work with the Feds-that if he worked with them he would probably go home.” Mr. Gilmore also claims that Officer Soto later returned to the cell and encouraged Mr. Gilmore to work with the special agents before his transfer to the county jail. Officer Soto said that they had found a lot of drugs in the spare tire and that other people were released to go home after they spoke with agents and told them truth. Mr. Gilmore claims that Special Agent Sheridan then came to the holding room and said that he heard from Officer Soto that Mr. Gilmore wanted to talk. Mr. Gilmore said, “I guess.” Special Agent Sheridan said that it could take a few days to get an attorney, and that they might be able to clear up the problem now if Mr. Gilmore revoked the invocation of his rights.

         At hearing, Officer Soto testified that he took Mr. Gilmore's photo and asked if Mr. Gilmore remembered their previous encounter. He further said, “well you just got to be honest.” He then asked Mr. Gilmore what he did for work, but that there was no other interchange between them.

         At 5:40pm, Mr. Gilmore was escorted to an office for questioning with Homeland Security Investigations Special Agents Crawford and Sheridan. After brief introductions, Agent Crawford asked “Do you have an idea of why you're here?” and Mr. Gilmore responded, “Somewhat. I mean, I knew I was - that thing I as supposed to throw away in my pocket but I - I didn't get it thrown away, like, I supposed to. I forgot about it.” The special agents then advised Mr. Gilmore of his Miranda rights. When they asked, “Would you like to speak with us or would you rather speak with an attorney?” Mr. Gilmore asked whether he was being held for the bag in his pocket, and when the special agents stated that the CBP officers discovered Methamphetamine in the spare tire, he said, “I think I . . . wanna speak with attorney I think.” As the special agents ended the interrogation, Mr. Gilmore made several unsolicited statements about his truck and his intended destination. Agent Sheridan then asked standard booking questions and escorted Mr. Gilmore to a holding cell. During questioning, Mr. Gilmore noted that he was experiencing stomach pain and asked for Tylenol and to see a doctor. The special agents told him that he could see a doctor when they transferred him to the county jail. The facts of the first interrogation are undisputed.

         The videotapes taken of persons accessing Mr. Gilmore's holding cell show no interaction between Mr. Gilmore and Mr. Soto after he was removed from his holding cell and invoked his right to an attorney. But, according to testimony, at 6:27pm, someone called Agent Crawford and told her that Mr. Gilmore wanted to speak with her and Agent Sheridan. After deliberating about whether a suspect could revoke their right to have an attorney, the special agents determined that Mr. Gilmore could speak with them, and they escorted Mr. Gilmore back to their office.

         The parties do not dispute the details of the second interview. At 6:47pm, Special Agent Crawford said to Mr. Gilmore, “you asked to speak with us again and to un-invoke your rights and you wanted to talk to us.” Mr. Gilmore responded, “Mm-hm” and nodded his head in agreement. The special agent then read the Miranda warnings. Mr. Gilmore said, “Yeah I'll wave my rights.” He took a written document listing his rights, initialed each right that he was waving, and then signed and dated the document. The special agents then conducted an interrogation for one hour.

         After the interrogation, Special Agent Sheridan escorted Mr. Gilmore to the Yuma County detention center. Agent Sheridan testified that Mr. Gilmore made several unsolicited statements during the drive, including information about a drug trafficker who recruited him and the process and price to traffic drugs. Mr. Gilmore stated that he rejected this offer.

         DISCUSSION

         I. Miranda Waiver

         Mr. Gilmore asks the Court to suppress his statements “made after he was stopped at the border and drugs were found in the spare tire of the vehicle he was driving . . . because they were custodial statements elicited after Mr. Gilmore had invoked his right to counsel.” (Doc. 20). Mr. Gilmore made incriminating statements to law enforcement in three separate circumstances. Each is analyzed separately.

         A. Mr. Gilmore's First Interrogation with Agents Crawford and Sheridan

         1. ...


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