Before Steadman, Glickman, and Washington, Associate Judges.
Appeal from the Superior Court of the District of Columbia (Hon. Nan R. Shuker, Trial Judge)
Washington, Associate Judge: On August 19, 1998, a grand jury indicted appellee, Darryl Turner, on two counts of armed first-degree sexual abuse pertaining to Vera Duncan, *fn1 one count of first-degree sexual abuse and two counts of first-degree premeditated and felony murder pertaining to Jacqueline Birch, *fn2 one count of first-degree sexual abuse and two counts of first-degree premeditated murder pertaining to Dana Hill, *fn3 and two counts of first-degree sexual abuse pertaining to Brenda Williams. *fn4 On August 5, 1999, Turner filed a motion with the trial court to suppress tangible evidence, identifications, and statements that had been made at the Federal Bureau of Investigation ("F.B.I.") field office in Washington, D.C. on December 10, 1997. These statements were made in response to police questioning after Turner was informed that the officers had a search warrant authorizing them to take samples of his blood, saliva, and head and pubic hair. On November 4, 1999, the trial court granted the motion in part. The government filed this timely appeal. The issues on appeal are:
(1) whether a murder suspect who voluntarily accompanies the police to the F.B.I. building for investigative questioning is placed in "custody" for purposes of Miranda, *fn5 when the police announce during the questioning that they have and will immediately execute a search warrant for evidence secreted in the suspect's body, and then continue questioning the suspect while the search is conducted; and (2) even if the suspect was in "custody" and his Miranda rights were violated, whether the statements were voluntarily made so that they may be used for impeachment purposes. Because we find that the trial court correctly determined that a search warrant for hair and bodily fluids, executed in a police dominated environment, creates a restraint on the freedom of one's movements of a degree associated with formal arrest, we affirm the trial court's ruling that statements made by Turner in response to police questioning after the warrant was revealed, should be suppressed. However, on this record, we cannot conclude that Turner's statements were involuntary. Therefore, we affirm in part and reverse in part.
At the motions hearing, Metropolitan Police Department Detective Daniel Whalen testified that on May 8, 1997, the dead body of Latesha Blocker was discovered in an abandoned building located at 766 Princeton Street, N.W., next door to Turner's home. On August 9, 1997, the dead body of Emily Dennis was discovered in a crawl space under Turner's apartment. As a consequence of these deaths, an intensive, door-to-door police investigation commenced in the neighborhood, and many residents were interviewed.
On November 18, 1997, the dead body of Jacqueline Birch was discovered in the same abandoned building in which Ms. Blocker's body had earlier been found. Detective Whalen learned that Turner was with Ms. Birch in his home approximately thirty-eight hours before her death, and this was the last time she was seen alive. Additionally, because Turner was known to be acquainted with the three women, Detective Whalen obtained a search warrant for his home, which he executed on November 25, 1997. Turner was not home, but upon request, Mrs. Turner accompanied Detective Whalen to police headquarters to give a statement. Turner arrived at the police station looking for his wife, and Detective Whalen asked Turner to give a statement. Turner agreed. In response to questions, Turner said that he had never seen any of the women, that anyone who said otherwise would be lying, and that anyone who said he was outside of his home socializing on Sunday, November 16th, would be lying.
On December 1, 1997, the dead body of Dana Hill was discovered in a vacant building located on Florida Avenue. Hill, who had family ties in the Princeton Street neighborhood, appeared to have been sexually assaulted before she died. On December 9, 1997, Detective Whalen obtained a search warrant authorizing the collection of blood, saliva, and head and pubic hair samples from Turner.
The statements at issue in this appeal occurred on December 10, 1997. Turner was located by Detective Whalen who told him that he had several additional questions regarding the deaths, and asked Turner if he was willing to accompany the officers. Turner responded that he was willing to accompany the officers. Detective Whalen then advised Turner that he was not under arrest and that, upon completion of their interview, he would take Turner to the destination of his choice. Detective Whalen stated that Turner went with the officers willingly, but if Turner "had not wanted to comply I certainly . . . would have taken some measures to take him into temporary custody." Detective Whalen drove Turner and the three other officers in his uncaged police vehicle to the Washington Field Office of the F.B.I. ("WFO"), a facility that Detective Whalen described as a "secure building." Turner was not restrained in any way.
Turner was taken into the nurses' station. Detective Whalen, prior to telling Turner that he had a search warrant for his body, asked him in the presence of the other three officers "if there was anything else[,] or anything in his earlier statement that he wanted to change[,] or anything additional he wanted to tell me." Turner said "no," and that "he stood by what he had said earlier." Detective Whalen told Turner about Hill and asked him if he had had "any contact with Ms. Hill, knew of her, [or] had any kind of sexual activity with her." Turner told Detective Whalen that he had heard of her death, but did not know her nor had sexual contact with her. Detective Whalen told Turner that tests were being conducted on the women and that if anything were found, he would have to explain it. Turner said he understood.
At the end of their conversation, Detective Whalen advised Turner that he had a search warrant for bodily fluids, hair, and saliva. Detective Whalen told Turner that the warrant was signed by a Superior Court judge, that it ordered him to provide the samples, and that he was required to comply with the order. Detective Whalen further stated that because Turner never resisted, he never had to "raise the stakes any and tell [Turner] that he couldn't go. It never became an issue." The record indicates that the only time Detective Whalen pledged to take Turner to the location of his choice after the interrogation was when he initially picked Turner up earlier that day.
Turner was told by Detective Whalen that the purpose of obtaining the samples was to permit comparison with any evidence found on the bodies of the dead women. When Detective Whalen asked Turner if he understood the significance of this comparison, Turner replied, "[Y]es, I do." Detective Whalen then asked Turner, "[Is] there anything you want to change or tell me[,] that you were, you know, you were with any of these women." According to Whalen, Turner said, "[N]o, I'm not changing anything[.] I wasn't with any of them." Detective Whalen told him to "speak now or forever hold [his] peace," and Turner stated, "[N]o, I stick by what I'm saying." *fn6 At that point, the samples of Turner's saliva, head hair, and blood were taken with the assistance of a nurse and in the presence of three other officers.
Turner was left alone with Detective Whalen when pubic hair samples were taken to afford him privacy and was asked again if there was anything he wanted to say. Detective Whalen assured Turner that he did not ask about any such encounters to embarrass him and that any information Turner provided would not be shared with his wife. Turner was cautioned that if anything were found on the women, or if his DNA matched evidence found on either of the women's bodies, his denial of having known them or having had sexual relations with either of them could have serious repercussions. Turner said that "he understood this[,] and that he stood by his account that he did not know any of them and had not been with any of them."
After the search warrant was fully executed and the samples of Turner's blood, saliva, and head and pubic hair were taken, Detective Whalen informed Turner that he had obtained what the court requested, the procedure was over, and that he would take Turner to the place of his choosing. Detective Whalen testified that he was with Turner that day for about an hour and that the execution of the search warrant took between five and ten minutes. At no time was Turner handcuffed or otherwise restrained. Turner was not arrested until January 29, 1998, more than seven weeks ...