United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO SUPPRESS STATEMENTS [ECF NO.
GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE
v. Arizona, 384 U.S. 436 (1965), established a
prophylactic rule in support of the Fifth Amendment requiring
investigators to inform a suspect of his right to an attorney
and right to remain silent before custodial interrogation.
Unless these Miranda rights are waived, law
enforcement officers are not allowed to interrogate the
suspect about a crime. Violations of this rule result in the
suppression of statements taken in violation of
Miranda in the Government's case in chief.
Except where the statements are involuntary, they may be used
for impeachment if a defendant testifies. See Pollard v.
Galaza, 290 F.3d 1030, 1033 (9th Cir. 2002)
(“Although a statement, taken in violation of
Miranda, may not be used substantively in the
prosecution's case-in-chief, such a statement, if
voluntary, may be used for impeachment should the Defendant
testify inconsistently.”); see also Harris v. New
York, 401 U.S. 222, 224 (1971).
Aaron A. Booker (“Defendant”) has moved to
suppress statements made to Naval Criminal Investigative
Service (“NCIS”) agents on March 13, 2017, May
25, 2017 and May 26, 2017, alleging that each statement was
obtained in violation of his Fifth and Sixth Amendment
rights. (ECF No. 27-17 at 9.)
response to the motion, the Government argued that although
none of the statements were custodial (and therefore, subject
to Miranda), it would not offer, in its
case-in-chief, any post-Miranda statements on March
13, 2017 and May 25, 2017. (ECF No. 31 at 9, ECF No. 60 at
1-2.) Instead, it reserves the right to use these two sets of
statements as impeachment should Mr. Booker testify at trial.
(Id. at 2.) With respect to the May 26, 2016
telephone call initiated by Mr. Booker to NCIS Agent Joseph
Warpinski, Defendant claims that the statement was the fruit
of an earlier Miranda violation and is tainted by
high pressure tactics employed during the May 25, 2017
custodial interrogation. The Government opposes and asserts
that Mr. Booker's telephone call and statements are
untainted by any alleged Miranda violations or
on the pleadings, evidence submitted at the evidentiary
hearing and arguments of counsel, the motion to suppress
statements is determined to be MOOT in part,
is GRANTED in part and DENIED in
23, 2018, a federal grand jury returned an indictment
charging Mr. Booker with the Possession of Stolen Explosives,
to wit, twenty MK3A2 grenades, also known as G911 grenades,
in violation of 18 U.S.C. §§ 842(h), 844(a)(1).
(ECF No. 15.)
October 2, 2018, Mr. Booker filed the instant Motion to
Suppress Statements. (ECF No. 27.) The Government filed its
original response and opposition on October 19, 2018. (ECF
No. 31.) An evidentiary hearing was held on January 15, 2019.
Supplemental briefing was requested by the Court and has been
filed by the parties. (ECF Nos. 42, 54, 60, 63, 67.)
Theft of 20 Grenades
to the Government, on January 20, 2016, the USS Pinckney, a
U.S. Navy destroyer, received 60 MK3A2 concussion hand
grenades packaged and sealed in three wooden crates with 20
grenades per crate. The grenades were stored inside of Ready
Service Locker-6 (“RSL”), and secured with a
heavy duty, military issued key lock accessible only to the
Gunner's Mates (“GM”) on duty.
August 26, 2016, there was a full inventory of explosives
onboard the USS Pinckney which accounted for all 60 grenades.
On February 8, 2017, another routine inventory was conducted
when it was discovered that one of the crates had a missing
seal and all 20 MK3A2 grenades were missing. Since access to
RSL-6 was limited, NCIS interviewed 15 sailors who had access
to RSL-6 between August 26, 2016 and February 9, 2017. At the
time the grenades were discovered missing, Mr. Booker, a GM,
was in the process of transferring to his new command in
Great Lakes, Illinois. He, reportedly, was the sole person
assigned to complete temperature checks for RSL-6 on a number
of days during his time on the USS Pinckney from November
2016 and January 8, 2017. Mr. Booker officially detached from
the command on February 14, 2017 and on March 6, 2017, he
checked into his new command in Great Lakes, Illinois.
March 13, 2017 Interview
March 13, 2017, NCIS Special Agents Tom Donnelly and
Warpinski contacted Mr. Booker's commanding officer at
Great Lakes, Illinois to arrange for a command representative
to pull Mr. Booker out of training to meet with the agents
for questioning. (ECF. No. 52 at 45-46; Booker Declaration,
ECF No. 42-1 at 1.) Mr. Booker understood that he was being
ordered to submit to the interview. (Id.) The
interview took place at the NCIS offices located on the
second floor of the legal building, which are access
controlled for entry only. (ECF. No. 52 at 45.) The main
entrance door opens into a lobby area where there are three
interview rooms. SA Warpinski testified that the doors to
those interview rooms are unlocked. (Id.) Mr. Booker
was interviewed in one of the interview rooms. According to
SA Warpinski, Mr. Booker was free to walk out of that room
and out the main lobby door without assistance from an agent.
However, Mr. Booker was never informed that he was free to go
at any time.
Booker has offered a declaration from a former NCIS agent,
Anthony Perrin, that asserts that when the military tells a
member to report to NCIS, this directive is considered a
lawful order and a refusal to report can be charged as a
“minor offense” for failure to follow orders.
(Perrin Declaration, ECF 42-2.) Further, Mr. Perrin declared
that, while it was presented as a request, the military
imposes adverse consequences on individuals who elect not to
cooperate. Meanwhile, SA Warpinski testified that, in his
experience, he was unaware of individuals who refused to
submit to an interview being charged or punished.
interview of Mr. Booker was recorded. (ECF No. 40, Exh. 1A.)
SA Donnelly read Mr. Booker his Article 31(b) rights, the
equivalent of Miranda warnings, which is required
whenever a military member is interviewed about potential
incriminating evidence regardless of the setting or
circumstances. After reading his rights, the agent asked
if he wanted to talk to them. Mr. Booker stated, “I
don't mind. . . I just don't want to get involved,
that's all. Sure I will talk to you. But I can terminate
at any time, right?” Mr. Booker agreed to speak with
the agents without an attorney present. (Ex. 1A at
one hour into the interview, the agents told Mr. Booker that
they had seized evidence, sent it to the lab and had it
processed, and the evidence (including fingerprint and DNA
evidence) implicated Mr. Booker. (Id. at 11:28.) The
agents then informed Mr. Booker that they did not believe he
was being honest and they “know you did it.”
(Id.) Mr. Booker replied, “That's why I
want to stop this right now because this is kind of
overbroad.” When an agent asked: “You don't
want to talk to us anymore?” Booker replied
“no.” The agents left the room and returned after
15 minutes. Agent Donnelly then made a number of accusatory
statements that led Mr. Booker to briefly discuss the
evidence, dangers of the grenades, and a polygraph.
(Id. at 11:27-11:33.) Around time 11:33:40 on the
video recording, Mr. Booker stated that he did not want to
speak with the agents anymore.
the agents left the room and returned approximately 15
minutes later, explaining that they were waiting for a driver
to transport Mr. Booker back to his post. For the next 24
minutes, the agents confronted Mr. Booker and pressed him to
make a statement by letting Mr. Booker know that the case
involved public safety, the severe consequences if someone
ended up hurt by one of the grenades, and the fact that the
agents were not just going to go away. Finally, the interview
was concluded and the NCIS agents returned Mr. Booker to his
Discovery of Backpack with 18 Missing Grenades
April 20, 2017, a black backpack containing 18 MK3A2 grenades
was discovered on the side of the road on Interstate 15 near
mileposts 21 and 22 in northwest Arizona. The backpack with
the 18 grenades was turned over to an Arizona Department of
Public Safety (“AZDPS”) Officer on April 20,
2017. That officer then turned the bag and grenades over to
the Federal Bureau of Investigation (“FBI”). The
grenades had the same lot number as the missing grenades from
the USS Pinckney. The black bag was a standard military style
backpack with “GM2 BOOKER” handwritten on a tag
inside the bag.
May 25, 2017 Interview
25, 2017, Special Agents Warpinski and Bell arranged with Mr.
Booker's commanding officer to speak with Mr. Booker
again in Great Lakes, Illinois at the legal building. (ECF.
No. 52 at 52-53.) SA Warpinski testified at the January 15,
2019 hearing that Mr. Booker was notified that he needed to
report to NCIS offices and a command representative drove Mr.
Booker to the legal building. (Id. at 54.) There,
the agents met with Mr. Booker in the same NCIS office where
they had previously interviewed Mr. Booker. (Id.)
Mr. Booker again understood that attendance at the interview
had been ordered by his commanding officer. (Booker
Declaration, ECF No. 42-1 at 2.)
Warpinski began the interview by directing Mr. Booker not to
say anything and to listen for a little while. (ECF No. 54-1
at 1.) He proceeded to inform Mr. Booker, among other things,
that a backpack bearing his DNA was discovered near a highway
in Arizona and was found to contain 18 of the missing
grenades. Agent Warpinski then explained that the agents had
an entire case against Mr. Booker and that Mr. Booker had two
options when it came to acceptance of responsibility: he
could refuse to acknowledge responsibility or he could
acknowledge what happened, who was involved and account for
the last two grenades. SA Warpinski then read Mr. Booker his
Article 31(b) rights, and Mr. Booker requested legal counsel.
agents left the room at approximately 8:57 on the video
recording, and when they returned nine minutes later, they
informed Mr. Booker that they were preparing to execute
search warrants as follows: 9:06:38 [Agents
SA Warpinski: All right man, um, I got some questions for you
that are not related to the case that are safety questions.
Um, we are, we have a series of search warrants that we are
about to go execute um we have one for your car, we have one
for your house. Um, and I want to know, I mean there's
two ways we can do these things, we can breakdown your door,
which I know you don't want us to do because you
don't want to pay for it. Um, if you want to tell us
where your keys are, give is (sic) your keys, so we can just
open your door, um same things goes for your car.
A. Booker: Can I be present when you do this?
SA Warpinski: Uh you can.
SA Bell: We will take you with you, (sic) you are not going
to be in the house or in, you can be outside the residence in
the car with me or something. You are not going to be in
A. Booker: Do you have to?
SA Bell: Oh, we are doing it dude, I don't, I don't,
yeah, I don't know you listened to Joe in the beginning,
but this is big time.
A. Booker: Oh yeah, I see.
SA Bell: This is joint terrorism FBI stuff, right.
A. Booker: No, no, no I was willing to . . . I am still
willing to cooperate (unintelligible - SA Bell talking over
SA Bell: So, so I hope you understand it now it's,
it's gone a little bit beyond the military right. These
aren't military warrants; these are Federal search
Booker stated that he believed that the agents had engaged in
good cop/bad cop and that ultimately he wanted the agents to
see that there was no evidence of any crime at his home or
his car. This remark prompted the following exchange:
SA Bell: I know you have never met me, but I want you to,
because you never met me, I want you to know me. I don't
bullshit dude; I got no issues; I got nothing to do with
that, right. The good cop/bad cop thing is not a real thing.
What today was, you know why we came back today really right?
A. Booker: Because of the pictures and stuff.
SA Bell: No, well okay. That was part of it, we didn't
have to come back today. We did that right. Joe is completely
100% truthful with you; the evidence speaks for itself.
A. Booker: Uh huh.
SA Bell: Today was an opportunity for you just to talk and
tell us your story.
A. Booker: Yeah.
SA Bell: So we could go back and do good work, write good
reports, talk to the right people and tell them exactly what
you told us.
point, Mr. Booker spoke about his backpack and explained why
he would not be involved with stealing the grenades. The
agents responded that they could not speak with him since he
invoked his right to counsel, and they could not consider
anything he said without a waiver of his rights. At 9:11 in
the interview, Mr. Booker stated that he wanted to talk about
“my history of leaving stuff behind.” At this
point, he advised the agents that he is on anxiety medication
and would need to take it in a half hour. The NCIS agent then
reviewed Mr. Booker's Article 31(b) rights with him again
and Mr. Booker waived his Article 31(b) rights and spoke to
the agents. After his waiver, Mr. Booker confirmed ownership
of the backpack and acknowledged he traveled along the remote
section of Interstate-15 where the grenades were located. He
stated the backpack was stolen from him approximately one
year earlier after he left it in the armory of USS Pinckney,
which upset him because it contained a GM Pin on the front
that is extremely difficult to find. He stated that he had
seen the grenades outside of their packing crates and
received training on their use.
end of the interview, Mr. Booker requested to be present at
the search of his vehicle and his residence. Thereafter, Mr.
Booker was handcuffed and advised that he was a suspect in an
investigation for the theft of 20 MK#A2 grenades. (ECF 54-1,
p. 56.) Afterwards, Mr. Booker rode with the agents to his
command to pick up his keys for his residence, and then they
drove to his home.
arriving at his home, Mr. Booker was unhandcuffed throughout
the execution of the search warrant at Mr. Booker's home
and re-handcuffed when he was transported back to the base at
the conclusion of the search at approximately 5:30 p.m. that
afternoon. (ECF No. 52 at 30-31.) During the search, the GM
pin that Mr. Booker claimed was on his backpack when it was
stolen was found in his residence. He acknowledged it was the
same pin, and he could not provide a reason why he still had
the pin if it was stolen with the backpack. After the home
search, the agents and Mr. Booker returned to the Naval Base
to complete the search of his vehicle in Mr. Booker's