United States v . Ellison 07-CR-144-SM 03/28/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Government

v. Case N o . 07-cr-144-01-SM Opinion N o .

Richard Ellison, Defendant

O R D E R

Defendant, Richard Ellison, moved to suppress inculpatory

statements he made to police officers during an interview at the

Coos County House of Corrections (or jail) about his

participation in two convenience store robberies that occurred in

Concord about a year earlier. An evidentiary hearing was held,

after which defendant was allowed to supplement his suppression

motion to add a claim that police, o r , more accurately, jail

officials, failed to preserve a record of the interview generated

by a security camera in the jail library. The motion to suppress

(document n o . 10) is necessarily denied.

Background

On December 2 1 , 2006, Berlin Police Detective Richard

Plourde called Concord Police Detective Todd Flanagan. Plourde

told Flanagan that he had interviewed Ellison at the jail in Coos County in connection with an unrelated burglary investigation,

and learned that Ellison had information about the earlier

Concord robberies. Plourde summarized what Ellison had said and

Flanagan determined that Ellison’s information suggested that he

had inside knowledge about the Concord robberies that was both

accurate and of the type that “no one else would know about the

cases.”

Plourde told Flanagan that he had developed a rapport with

Ellison and that Ellison had indicated a willingness to speak to

the Concord police about the earlier robberies. The Concord

robberies occurred within a few minutes of each other, and, each

time, a woman entered the store with a firearm. Ellison was

being held at the Coos County jail on charges of assaulting his

former girlfriend, Robin Theriault, and he apparently told

Plourde that Theriault was the woman involved in the robberies.

After checking some facts and reviewing pertinent

investigative files, Flanagan went to Berlin, met Detective

Plourde, and both officers went to the jail to interview Ellison.

The interview took place in a room used as the jail library.

Ellison was brought to the library in restraints. Detective

Flanagan asked that the restraints be removed, which, after some

2 mechanical difficulty, they were. But, due to the mechanical

problem with one handcuff, some delay was experienced. The jail

guards finally had to use bolt cutters to remove i t .

Defendant was not restrained when the interview began. The

interview itself, but not preliminary discussions, was tape

recorded. Defendant was calm, not surprised to see the officers,

and seemed willing to talk. Flanagan explained that he was there

to speak to Ellison about the Concord robberies. Defendant was

also told that while no promises could be made to him, his

cooperation would be brought to the attention of the prosecutor

and the prosecutor would “determine how much weight to give it.”

Ellison was not given Miranda warnings. But Ellison was

told that he was not under arrest regarding the charges that

Flanagan was there to talk about; that he was free to leave at

any time; and that he did not have to answer any questions posed.

Ellison consented to the interview and answered questions posed,

implicating himself in the commission of the Concord robberies,

for which he was later indicted.

At the time of the interview Ellison was also suspected of

an unrelated possession of stolen property crime (a laptop

3 computer), and Flanagan told Ellison that he would try to help

Ellison out with that likely charge — but that no promises could

be made. Ellison told the detectives that he “didn’t want to be

charged” with the Concord robberies, but, again, neither Flanagan

nor Plourde made any promise that Ellison would not be prosecuted

based upon his own statements. Rather, Ellison was told that his

cooperation would be made known to the prosecutor, who would

“determine what happens.”

Ellison testified at the suppression hearing. He said he

understood Miranda’s protections at the time of the interview,

and confirmed that the warnings were not given. Ellison’s

version of the interview’s preliminary exchanges differed

markedly from Flanagan’s. Ellison testified that he told the

officers that he didn’t want to be charged with the Concord

robberies, and added that both Plourde and Flanagan repeatedly

promised him that he would never be charged with those robberies,

if the information he gave was truthful, and assuming he was not

the “aggressor” in the robberies. And, Ellison claimed that he

asked for legal counsel “at least five times.” Ellison says that

the officers’ response to his requests for counsel “was different

each time,” but, essentially, the officers told him he “didn’t

need a lawyer because [he] wasn’t being charged with a crime.”

4 Ellison further testified that he spoke about the Concord

robberies in the hope of resolving an unrelated burglary charge

and a marijuana charge, as well as the laptop computer stolen

property matter. Ellison insisted that with respect to the

Concord robberies he was told repeatedly that he was “not ever

going to be charged with this,” though the officers did say that

he might have to be called as a witness.

Discussion

At the hearing on November 2 7 , 2007, the court found that

the interview did not constitute a “custodial interrogation,” in

that Ellison was not “in custody” within the meaning of Miranda.

Ellison was being held on unrelated charges involving arson, he

was interviewed not in his cell but in the library. He was not

in restraints, the officers were not armed, he was free not to

answer questions, free to stop answering at any time, and free to

leave (i.e., to leave the library and return to his cell or an

authorized place), and he was so informed at the outset. Ellison

was of calm demeanor, understood why Flanagan was there and

voluntarily agreed to answer questions about the Concord

robberies. The duration of the interview was comparatively short

and the tone was conversational. In short, there was no added

imposition on his freedom of movement associated with the

5 interview, beyond the normal conditions of confinement he was

already experiencing. Indeed, his freedom of movement was

somewhat expanded in that the library was a less imposing and

less restrictive setting than he would otherwise experience in

the general prison population, or in his cell. Ellison was not

subjected to any measure of compulsion above and beyond the mere

fact of his imprisonment for unrelated reasons.

Ellison’s claim that the simple fact of his incarceration

during the interview renders any interrogation by police

“custodial,” is incorrect. The totality of the circumstances

determines whether a person already incarcerated is “in custody”

for purposes of Miranda, and under these circumstances, Ellison

was not “in custody.” See United States v . Menzer,

(7th Cir. 1994); United States v . Willoughby,

5 ,

23 (2d Cir. 1988); Leviston v . Black,

0 2 , 303 (8th Cir.

1988); United States v . Conley,

7 0 , 972 (4th Cir.

1985); Cervantes v . Walker,

(9th Cir. 1978).

Accordingly, the Miranda warnings were not required, as Ellison

was not “in custody” for Miranda purposes. His statements are

not subject to suppression on grounds of presumptive

involuntariness, due to Flanagan’s failure to advise him of those

rights and to obtain a waiver.

6 I credit Detective Flanagan’s testimony, and do not credit

Ellison’s, in finding that neither Flanagan nor Plourde promised

Ellison that he would never be charged with the Concord

robberies, as an inducement to answer their questions. While it

is possible that such promises were made, or implied, I find

Flanagan’s account to be more credible — that Ellison was only

told that his information (cooperation) would be brought to the

attention of the prosecutor and that the prosecutor would

determine what benefit might be extended as a result.

Even if Ellison was tricked, in that he was led to believe

that he would not be charged with the Concord robberies, it is

relatively rare for such trickery to sink to the level of

coercion, rendering the elicited statements involuntary. See

United States v . Flemmi,

8 , 91 n.5 (1st Cir. 2000).

The critical issue with respect to this suppression motion, with

regard to a general coercion claim, is whether the government has

met its burden to prove that, under the totality of the

circumstances, defendant’s statements to Flanagan and Plourde

were the product of a free and deliberate choice, rather than the

product of coercive official tactics. See Moran v . Burbine,

1 2 , 421 (1986); see also Colorado v . Connelly,

(1986); United States v . Jackson,

(1st

7 Cir. 1990); Bryant v . Vose,

6 4 , 367-68 (1st Cir. 1986).

I find that the government met that burden.

Only confessions procured by coercive official tactics are

excluded as involuntary. United States v . Byram,

(1st Cir. 1998); Flemmi,

1 . “[S]ome types of

police trickery can entail coercion: consider a confession

obtained because the police falsely threatened to take a

suspect’s child away from her if she did not cooperate.” Byram,

(citing Lynumn v . Illinois,

2 8 , 534

(1963) (police threatened removal of defendant’s children if she

did not cooperate)). But, as noted by the Court of Appeals for

the First Circuit in Byram, “[g]iven the narrowed definition of

coercion in Connelly, it would be very hard to treat as coercion

a false assurance to a suspect that he was not in danger of

prosecution.”

Ellison’s statements were voluntary, even if

he was led to believe that he was not in danger of prosecution

for the robberies under investigation.

With regard to defendant’s claim that he demanded to speak

with legal counsel before talking to the officers (“at least five

times”), I do not find that testimony credible. While there

probably was some discussion of counsel, and while the officers

8 probably did brush aside or avoid the subject, the fact remains

that Ellison was not subjected to a custodial interrogation, so

the police officers were not required to cease questioning upon

his request for counsel, unless Ellison initiated further

communication, exchanges, or conversation, or unless counsel was

first provided. See Edwards v . Arizona,

(1981).

Finally, Ellison, unpersuasively argues for suppression on

grounds that the interviewing police officers (or jail officials)

breached a duty to preserve videotape evidence of the interview

generated by a security camera. Defense counsel determined that

the interview was likely recorded by a security camera, but only

a video, not an audio, record would have been made. Counsel also

noted that the tape or digital medium was written over every

forty days or s o , and so was no longer available. The re-use of

the video medium appears to have been a routine practice of the

jail — done according to a uniform procedure, generally

applicable, and not directed at this defendant. Moreover, there

is no reason to think the video alone, without an audio

recording, would have disclosed anything helpful to the

defendant. In any case, the record does not support a finding of

bad faith destruction of any exculpatory evidence by either jail

officials or Detectives Flanagan and Plourde.

9 Conclusion

Ellison’s statements, made during the noncustodial interview

were voluntary and uncoerced. The motion to suppress (document

n o . 10) is denied in all respects.

SO ORDERED.

Steven J./McAuliffe :hief Judge

March 2 8 , 2008

cc: Donald A . Feith, AUSA Michael R. Smith, Esq. U.S. Probation U.S. Marshal

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