The opinion of the court was delivered by: JOHN T. CURTIN
Defendant Michael LaPorta appeals the United States Magistrate Judge's denial of his motion to suppress his confession and recorded statements. He claims that he was stopped and detained without a warrant or probable cause. He moves to suppress the evidence obtained from him while he was being held in investigative custody in violation of his Fourth Amendment rights. The Magistrate Judge denied his motion, finding that the initial encounter between the defendant and the FBI agents was consensual and the subsequent confession and taped statements were voluntarily given. This court must make a de novo determination of the Magistrate Judge's recommendation.
The Magistrate Judge issued a detailed finding of facts which is reviewed briefly here to emphasize certain points.
Two FBI agents waited outside LaPorta's garage until he left in his car. They followed him for several blocks before pulling him over, using a flashing red light and possibly a siren. They deliberately waited until he was alone to stop him. Tr. 9, 54. Agent Johnson walked up to the driver's side, introduced himself, showed his credentials, and asked LaPorta if he would come down to FBI Headquarters with them. Tr. 10. LaPorta replied, "Okay," and was given permission to lock his car. Tr. 10. He then climbed into the back seat of the FBI car, and Johnson sat down next to him. The agents never touched LaPorta, nor physically restrained him in any way. Tr. 103.
LaPorta was never informed that he was free to refuse to come with the agents. Tr. 58. Agent Johnson testified that he did not want to let LaPorta drive in his own car, because LaPorta might have changed his mind on the way and this would take things out of the agents' control. Tr. 63-64. Both agents were armed but never displayed their weapons. Tr. 92. A shotgun was on a rack inside the car in open view.
2. The Interview at Headquarters
The agents entered FBI Headquarter through a secured garage after hours, at about 6 p.m. They ushered LaPorta into a small conference room and shut the door. At this point, LaPorta had not yet been told why the agents wanted to talk to him, even though he had asked on the ride downtown.
In the conference room, Agent Johnson finally told LaPorta that the FBI felt there was enough evidence to indict him on charges of car-burning but wanted his cooperation in the investigation. He gave LaPorta information received from a cooperating witness and showed him a videotape. LaPorta refused to cooperate until the agents mentioned further evidence and went off the record. Eventually LaPorta signed the confession which he now seeks to suppress.
LaPorta's interview lasted about two hours. He remained in the conference room with the door shut with at least one agent present (Tr. 85), except when he was escorted to the restroom by Agent O'Connor. He was never told he was free to leave or given any type of Miranda warning. LaPorta never asked to leave (Tr. 103) or to stop answering questions, and he never asked for an attorney. Tr. 77. He only asked to telephone his wife, and was permitted to do so from the conference' room. Tr. 76. He told her he would be delayed. Tr. 96.
The next day, LaPorta arranged to meet with the agents to be "wired" with a concealed tape recorder. LaPorta also seeks to suppress the tape made during his subsequent conversation with another suspect.
The defendant moved to suppress his confession and his taped conversation with another suspect because they were illegally obtained in violation of his Fourth Amendment rights against unwarranted seizure. Stopping an automobile and detaining its occupant constitutes a "seizure" within the meaning of the amendment, thereby requiring a warrant, even though the purpose of the stop is limited and the resulting detention is quite brief. Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). However, a brief, warrantless detention is permissible "when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity." United States v. Place, 462 U.S. 696, 707, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983); citing Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). LaPorta argues that the FBI agents stopped his car and detained him for two hours without a warrant or probable cause. He had not been indicted for the offense they were investigating, and he had done nothing to give rise to a reasonable suspicion that he was currently engaged in any criminal activity.
The government contends that no Fourth Amendment seizure occurred; rather, LaPorta accompanied the FBI agents voluntarily. The test for what constitutes seizure is an objective one: whether in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). Factors such as the display of a weapon, physical touching of the person by the officer, and language ...