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United States of America v. Richard Chandler Black Cloud

June 1, 2011


The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court


Before the Court is the Defendant's Motion to Suppress Evidence filed on April 19, 2011. See Docket No. 25. The Government filed a response in opposition to the motion on May 2, 2011. See Docket No. 28. An evidentiary hearing was held on May 24, 2011 in Bismarck, North Dakota. The Court denies the motion for the reasons set forth below.


On January 20, 2011, a criminal complaint was filed charging the defendant, Richard Chandler Black Cloud, with one count of sexual abuse of a minor. See Docket No. 1. An indictment was subsequently issued on February 23, 2011. See Docket No. 16. The indictment alleges that Black Cloud: knowingly engaged in a sexual act with another person, namely C.I.B., who had attained the age of twelve (12) years, but who had not attained the age of sixteen (16) years, and who was at least four (4) years younger than RICHARD CHANDLER BLACK CLOUD, and the sexual act consisted of contact between the penis and the vulva.

See Docket No. 16 (capitals in original). In the affidavit supporting the complaint, FBI Special Agent Francis Gasper describes his interview of Black Cloud:

On 01/19/2011, BLACK CLOUD was interview[ed] by SA GASPER. During the interview, BLACK CLOUD stated during the summer of 2009 C.I.B. brought him to C.I.B.'s mother's house in Cannonball, North Dakota. BLACK CLOUD had been drinking that evening and went to the house after he had a fight at another location in Cannonball. BLACK CLOUD went on to state that C.I.B. wanted to have sex with him. BLACK CLOUD stated that C.I.B. took her pants and underwear off, and she unbuttoned BLACK CLOUD's pants. BLACK CLOUD then stated that C.I.B. put a condom on his erect penis. After that, BLACK CLOUD and C.I.B. had sexual intercourse. BLACK CLOUD's penis was inside of C.I.B.'s vagina. While he was having sex with C.I.B., BLACK CLOUD stated that it did not feel right to him. BLACK CLOUD stated it did not feel right because C.I.B. was too young. After he had sex with C.I.B. for five (5) or ten (10) minutes BLACK CLOUD stated he stopped. BLACK CLOUD went on to state that he was aware that C.I.B. was underage when he had sex with C.I.B.

See Docket No. 1 (capitals in original).

FBI Agent Gasper and FBI Agent Chad Coulter testified regarding their interview with Black Cloud. The FBI agents testified that they interviewed Black Cloud on January 19, 2011 at the Ruth Meier's Hospitality House in Bismarck, North Dakota. See Exhibit Nos. 1-5 (which depict the area where the interview took place at the Ruth Meier's Hospitality House). When the FBI agents arrived at Ruth Meier's Hospitality House they identified themselves to the desk attendant and asked to speak with Black Cloud. The desk attendant led the FBI agents to an office, then brought Black Cloud to speak with them. The agents asked Black Cloud if he would speak with them, told him that he did not have to speak with them, and told him that he was not under arrest. Black Cloud agreed to speak with the FBI agents and they entered the office and closed, but did not lock, the door. Black Cloud was not handcuffed or physically restrained before, during, or after the interview. Black Cloud sat near the door, and the FBI agents did not block the exit. The agents testified that Black Cloud did not ask to leave and was not prevented from leaving the office. Black Cloud also wrote out a handwritten statement during the interview. See Exhibit Nos. 6 and 7. Black Cloud was not arrested following the interview. The FBI agents concede that Black Cloud was not advised of his rights under Miranda. The record reveals that at the onset of the interview Black Cloud asked whether he needed a lawyer.

On April 19, 2011, Black Cloud filed a motion to suppress evidence of the statements he made to the FBI agents and a written statement he provided to the agents. See Docket No. 25. Black Cloud contends that he was in custody during the interview on January 19, 2011, and that the failure to advise him of his Miranda rights violated his rights under the Fifth and Sixth Amendments. Black Cloud further contends that the FBI agents threatened him that, if he did not provide a written confession, more serious charges would be filed against him. The FBI agents deny threatening Black Cloud with more severe charges. The Government contends that Miranda warnings were unnecessary because Black Cloud was not in custody during the interview.


Law enforcement officers must administer Miranda warnings whenever a suspect is "taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning." Miranda v. Arizona, 384 U.S. 436, 478-479 (1966). A person is in custody when he is either formally arrested or his freedom of movement is constrained to a degree equivalent with formal arrest. United States v. Brave Heart, 397 F.3d 1035, 1038 (8th Cir. 2005). The Miranda custody test is an objective test; two discrete inquiries are essential: (1) the circumstances surrounding the interrogation, and (2) given those circumstances, whether a reasonable person would have felt free to terminate the interrogation and leave. Yarborough v. Alvarado, 541 U.S. 652, 663 (2004) (citing Thompson v. Keohane, 516 U.S. 99, 133 (1995)). In Berkemer v. McCarty, 468 U.S. 420, 442 (1984), the Supreme Court affirmed that an objective test is preferable to a subjective test because under the objective analysis the police do not have the burden of anticipating the frailties or idiosyncrasies of every person whom they question.

It is well-established in the Eighth Circuit that the totality of the circumstances must be examined and that six common indicia of custody are to be considered in determining whether an individual was held in custody: (1) whether the suspect was informed during the interview that the questioning was voluntary, that he could ask the officers to leave, or that he was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect voluntarily acquiesced to official questioning or initiated contact with authorities; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether there was a police-dominated atmosphere; and (6) whether the suspect was placed under arrest at the termination of the questioning. United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990). "The first three indicia are mitigating factors which, if present, mitigate against the existence of custody at the time of questioning. Conversely, the last three indicia are aggravating factors which, if present, aggravate the existence of custody." United States v. Axsom, 289 F.3d 496, 500-01 (8th Cir. 2002).

The Eighth Circuit does not require that the Griffin factors be followed ritualistically in every case. United States v. Czichray, 378 F.3d 822, 827 (8th Cir. 2004). "When the factors are invoked, it is important to recall that they are not by any means exclusive, and that 'custody' cannot be resolved merely by counting up the number of factors on each side of the balance and rendering a decision accordingly." Id. The most obvious way to demonstrate that a person is not in custody is to tell him that he is not in custody and that he may terminate the questioning at any time. Id. at 826; Brave Heart, 397 F.3d at 1039. The Court will use the Griffin factors as a framework for analysis and discuss each one in turn.


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