Case 8:10-cr-00069-RWT Document 24 Filed 06/28/10 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA :

v. : Criminal No. RWT-10-069

KRISTEN SMITH :

...oooOooo...

GOVERNMENT'S RESPONSE TO DEFENDANT'S

MOTION TO SUPPRESS STATEMENT, ADMISSION AND CONFESSIONS

The United States of America, by and through Rod J. Rosenstein, United States Attorney

for the District of Maryland, and Hollis Raphael Weisman, Assistant United States Attorney, submits

the following Response to Defendant's Motion to Suppress Statements, Admissions and Confessions.

FACTS OF THE CASE

The government expects the evidence to show that on October 31, 2009, in the early morning,

the defendant was driving a car that crashed on the Baltimore-Washington Parkway. Her passenger,

Jabari Outtz, died at the scene. The defendant got out of her car and spoke with at least one person

who stopped to help. That woman called 911. Some of the statements made by the defendant were

recorded on the 911 system as the caller spoke with the 911 operator.

Emergency medical services arrived on the scene, followed by the U.S. Park Police. Before

any officers spoke with the defendant, she was taken by ambulance to the emergency room at Prince

George's County Hospital.

Officer Lorde of the U.S. Park Police met the defendant in the treatment facility. She was

lying on a gurney, in hospital clothing. Believing she was under arrest, Lorde handcuffed one of her

wrists to the side of the gurney. He did not question her, but did hear her make a number of

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spontaneous utterances, including a request to "Lock me up and throw away the key." She also

admonished, “Don’t drive drunk,” and indicated, “I hope he’s okay.”

Shortly afterward, Officer Patrick arrived to assist Lorde. Patrick encountered the defendant

and Lorde in a trauma observation room. The defendant was lying on the bed. Patrick asked the

defendant what happened. She told him she had been traveling to Laurel, Maryland, from a club in

Washington D.C. She again expressed concern about the condition of her passenger.

While the defendant was lying on the bed, Patrick administered a horizontal gaze nystagmus

field sobriety test in an attempt to ascertain whether she was drunk. He believed that she was drunk.

Shortly afterward, Det. Fornshill arrived.

Det. Fornshill did not notice the defendant was handcuffed, and did not realize anyone had

made a decision to arrest the defendant. Fornshill asked the defendant a number of questions. The

defendant responded. When the interview was over. Fornshill noticed the handcuff and had it

removed. The police left the defendant in the hospital, without placing her under formal arrest.

ARGUMENT

The defendant has moved to suppress only those statements made to police officers, on the

grounds that they were both involuntary and made without a valid Miranda waiver. The government

submits that all the statements overheard by Officer Lorde, Officer Patrick and Det. Fornshill were

knowing, voluntary and intelligent. The statements overheard by Officer Lorde and Officer Patrick,

moreover, were not the product of custodial interrogation, and Miranda warnings were not required.

The government concedes that by the time Det. Fornshill arrived, the defendant was in custody, and

he should not have questioned her without a valid Miranda waiver. The government does not intend

to use any of the statements she made to Det. Fornshill in its case-in-chief.

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1. All the defendant’s statements were voluntary.

In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court re-articulated the test

for determining whether a statement is voluntary. It found that under the Fifth Amendment and Due

Process clause of the Constitution, a court “examines whether a defendant’s will was overborne by

the circumstances surrounding the giving of a confession.” Id. at 434, quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 223 (1973). (Internal quotation marks omitted.) This inquiry “takes into

consideration the totality of all the surrounding circumstances – both the characteristics of the

accused and the details of the interrogation.” Id. “If all the attendant circumstances indicate that the

confession was coerced or compelled, it may not be used to convict a defendant.” Malinski v. New

York, 324 U.S. 401, 404 (1945).

Such coercion or compulsion, however, must be the result of police action. United States

v. Jamison, 509 F.3d 623,629 (4th Cir. 2007). In United States v. Kimbrough, 477 F.3d 144, 147 (4th

Cir. 2007), the court explained, “The Supreme Court made clear in Miranda that “[b]y custodial

interrogation, [it] mean[t] questioning initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of action in any significant way.”

Nothing in this case indicates that the police did anything to overbear the defendant’s will.

In fact, the defendant’s own motion is silent as to what the alleged coercion is. The officers did not

threaten the defendant, or promise her anything if she made a statement. The defendant remained

cooperative while lying in the hospital bed. She knew where she was and what was going on. She

did not appear to be in pain. Thus, the defendant’s statements to the three officers were voluntary.

2. The defendant’s statements to Officer Lorde were spontaneous admissions.

When Officer Lorde was with the defendant, he was not questioning her. He did not engage

in interrogation or the functional equivalent of interrogation. While the defendant was lying in the

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trauma area, her statements overheard by Officer Lorde were “given freely and without compelling

[government] influences. . . .” United States v. Kimbrough, 477 F.3d at 149. Such statements are

“admissible and indeed, desirable.” Id. Such volunteered statements – not made in response to any

questioning by the police – do not implicate the Fifth Amendment and are therefore admissible.

The fact that the defendant was in a hospital, with constraints imposed by hospital factors,

does not implicate the Fifth Amendment. Non-police-imposed constraints do not amount to coercion

for purposes of the Fourth Amendment. See United States v. Jamison, 509 F.3d 623,629 (4th Cir.

2007) (“[W]e must be careful to separate the restrictions on [the defendant’s] freedom arising from

police interrogation and those incident to his background circumstances.”)

Because the statements were volunteered and voluntary, the defendant’s statements made in

Officer Lorde’s hearing are admissible.

3. The defendant’s statements to Det. Fornshill and Officer Patrick were voluntary.

The government acknowledges that when Officer Patrick and Det. Fornshill encountered the

defendant in the trauma room, she had been placed under arrest. Patrick asked only a few questions

incident to the horizontal gaze nystagmus. When Fornshill arrived, he did not even notice the

handcuff. The defendant was lying on the bed, in hospital clothing, with hospital bedding. She

appeared lucid. She was cooperative. Neither Patrick nor Fornshill threatened her. Neither officer

made any promises to the defendant if she spoke to him.

Because of the Miranda violation, the government does not intend to offer any of the

defendant’s statements to Patrick or to Fornshill in its case-in-chief. Should they become relevant,

however, they may be used for purposes of cross-examination, and may be admissible as

impeachment evidence. See United States v. Patane, 542 U.S. 630, 639 (2004) (“[S]tatements taken

without Miranda warnings (though not actually compelled) can be used to impeach a defendant's

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testimony at trial.”); Oregon v. Elstad, 470 U.S. 298, 307 (1985) (“Despite the fact that patently

voluntary statements taken in violation of Miranda must be excluded from the prosecution's case,

the presumption of coercion does not bar their use for impeachment purposes on cross-

examination.”)

CONCLUSION

For the reasons stated above, the government submits that all statements made by the

defendant to the police are voluntary, and that any statements made to Officer Lorde are admissible

in the government’s case-in-chief. The statements made to Officer Patrick and Det. Fornshill may

be used for purposes of impeachment and cross-examination.

Respectfully submitted,

Rod J. Rosenstein
United States Attorney for the
District of Maryland

/s/
______________________________
Hollis Raphael Weisman
Assistant United States Attorney
Bar No. 11465
United States Courthouse
6500 Cherrywood Lane, Room 400
Greenbelt, Maryland 20770
301-344-4029 301-344-4516 (FAX)

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