UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT BOWERS, Defendant.
2:18-CR-00292-DWA
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Filed 01/20/22
AMBROSE, United States Senior District Judge
Case 2:18-cr-00292-DWA Document 677 Page 1 of 33
On October 27, 2018, over the course of approximately two and a half hours, tragedy struck in the Squirrel Hill neighborhood of Pittsburgh, Pennsylvania. The incident that unfolded that day involved a heartbreaking loss of life. Those who responded to the scene did so with a remarkable amount of selflessness and bravery. That those individuals were able to maintain their composure and act with such professionalism in the face of what they encountered is a testament to their training and character. The City of Pittsburgh and surrounding region are fortunate to have had them on site that day.
The matter before me involves statements that the Defendant is alleged to have made on that day while at the Tree of Life synagogue, during transport to the hospital, and while at the hospital. Specifically, Defendant Robert Bowers (Bowers) filed a Motion to Suppress Statements (ECF No. 296 redacted / 319 unredacted) pursuant to
The Motion is now ripe for resolution.
For the reasons set forth below, the Motion is DENIED.
Findings of Fact
A. Dispatch to Tree of Life:
At 9:55 a.m. on October 27, 2018, the Pittsburgh Bureau of Police (BOP) dispatcher reported multiple calls of an active shooter at the Tree of Life Synagogue.
Numerous factors coalesced to present an imminent threat both to the safety of the responding officers and to the public at large. First, law enforcement officers believed that shotguns had been reported being used. (Government Ex. 3, 009-9:55:18). Second, the officers believed that there were multiple active shooters based upon the dispatcher’s reports. (Government Ex. 3, 009-09:55:18; ECF No. 630, p. 20, 30, 145, 148, 154, 218) (they have shotguns.). Third, the officers knew that people were sheltering in place in the same building as the shooters. (Government Ex. 3, 019-09:57:01; ECF No. 630, p. 20-21). Fourth, the first responding officers were immediately fired upon with an automatic weapon and at least one officer, Dan Mead, was injured and required medical attention. (Government Ex. 3, 029-09:59:46; ECF No. 630, p. 147-148). The threat posed was so great that calls for every available unit in the city were made and surrounding roads were closed. (Government Ex. 3, 031-10:00:11). Dispatch was directed to call a rehabilitation facility located next door and instruct them to go on lockdown. (Government Ex. 3, 108-10:15:09). Given the scope and size of the incident, the Allegheny County Police, the State Police, the South Hills Area Government Council (SHACOG) SWAT team, and the North Hills SWAT team were called in to assist. (ECF No. 630, p. 13-14).
B. Entering Tree of Life:
At approximately 10:29 a.m., various officers made entry. (Government Ex. 3, 164-10:29:22). Among them, Officers Mescan,3 Saldutte, and Garris entered through the main entrance on the Wilkins Avenue side. (ECF No. 630, p. 24-26; Government Ex. 20H (Lobby)). At the same time, Officers Miller, Thimons,4 and Craig entered the synagogue via a different entrance. (ECF No. 630, p. 27). They confronted a very complicated floorplan. (ECF No. 630, p. 41-43). The building appeared to have expanded over time, with older and newer portions of the building offset. (ECF No. 630, p. 42, 259) (describing the challenge the flow of the building presented in that floors that went to, for example, the basement but didn‘t go up to the second floor, and ones that went from the first floor to the third floor but didn‘t go to the basement.). The nature of the floorplan compounded the difficulties the officers faced in that they were not able to reference east or west or second floor, third floor in terms of signaling to each other their presence or intended direction. (ECF No. 630, p. 37-38).
As officers fanned out to search and clear the building, they encountered deceased victims, injured and uninjured congregants, a spent magazine, and rifle casings covered in blood. (Government Ex. 3, 165-10:29:38 and 166-10:29:56; ECF No. 630, p. 28, 32-34, 38). While moving through the building they also came upon locked doors and called for breaching equipment. (ECF No. 630, p. 221-222). Each locked
Given the threat to safety, Mescan sought to employ technological assistance to minimize risk. For instance, he called for a tactical K-9. Mescan also sought to deploy robotics equipment located in the weapons truck. (Government Ex. 3, 263-10:50:09, 265-10:50:23, 269-10:51:02, 288-10:53:24). Due to the rapid deployment of the SWAT team, the weapons truck arrived after they had made entry into the Tree of Life. (ECF No. 630, p. 39). Certain of the robotics equipment would have assisted them in locating people or suspects. (ECF No. 630 p. 39-40). However, given the lack of any available assistive technology, and because of the priority of life, the SWAT team members continued to push through the structure with the equipment, manpower and tools then available to them. (ECF No. 630 p. 41).
C. Engagement with Bowers:
At 10:53 a.m. several officers pushed into Room TT (Classroom 11). (ECF No. 630, Government Ex. 20E). Unbeknownst to them, Bowers was hiding in the room. (ECF No. 630, p. 91). Bowers and the officers exchanged gunfire and Bowers shot both Officers Burke and Matson.
Officers Burke, Saldutte, and Miller retreated from Room TT up the stairs to Classroom UU. Saldutte and Miller applied a tourniquet to Burke‘s arm in an effort to control the bleeding. (ECF No. 630 p. 52; Government Ex. 3, 309-10:58:17).
At the same time, other SWAT officers dragged Matson out of the hallway and down the stairs to the medics. (ECF No. 630 p. 50). Matson sustained multiple gunshot wounds to his left arm, left leg and his head and was losing copious amounts of blood. Medics
The situation was extremely chaotic and dangerous. (ECF No. 630 p. 51-52). The building remained unsecured. At this point three officers had been shot and at least eight victims had been discovered. (Government Ex. 3, 210-10:38:33). Bowers remained barricaded in Room TT and had a tactical advantage with respect to positioning. (ECF No. 630 p. 91). SWAT officers believed that the possibility of additional suspects and additional problems was extremely high.... (ECF No. 630 p. 52). Mescan credibly testified:
So we‘re dealing with one problem, in this case this particular gunman, but multiple gunmen inside the location, and we‘re sure that our backs aren‘t safe, meaning it‘s – in other situations other than active shooter, you usually know where the person is located, and it‘s kind of like in front of me. In this particular case, because we hadn‘t secured the entire structure, the possibility of us having additional suspects and additional problems was extremely high, which stressed our manpower.
(ECF No. 630 p. 52).
At 11:00 a.m. the SWAT team and Bowers exchanged a second volley of gunfire. (ECF No. 630 p. 52-53; Government Ex. 3, 313-11:00:11). Given the elevated threat of additional injury or death, Mescan called for the use of explosives to assist in Bowers’ seizure. (ECF No. 630 p. 55) (I‘m requesting an IV bag, which is basically saline water, wrapped in det cord, and we‘re going to use that water and packing material along with the explosives to seize the suspect.) (Government Ex. 3, 328-11:02:41).
D. Communications with Bowers:
Moments later, Thimons heard a man‘s voice coming from Room TT. (Government Exhibit 3, 332-11:03:14). Although multiple people initially spoke to
While Thimons spoke with Bowers, officers continued training their weapons at the doorway to Room TT. (ECF No. 630 p. 176). Bowers’ indication that he was giving up and that he was injured did not diminish the danger posed to either the officers or to the public in general. Bowers’ injuries were unverified. He could have been attempting to lure them into Room TT and ambush them. The number of active shooters remained unknown. The SWAT team‘s continued efforts to identify what the shooter(s) was wearing confirms my finding that they remained uncertain as to the number of shooters. (ECF No. 630 p. 59).5 Entering Room TT under these dangerous circumstances ran counter to SWAT training. (ECF No. 630 p. 174).
Despite the dangerous and volatile situation, Thimons used his training as a hostage negotiator to build a rapport with Bowers in order to effectuate a surrender. He
At 11:04 a.m., Thimons could see Bowers’ hands emerge from the doorway to Room TT / Classroom 11. (ECF No. 630 p. 178; ECF No. 631 p. 127-128; Government Ex. 3, 337-11:04:30). He army-crawled out on his arms, elbows, and stomach, pausing several times acting as though he was too injured to continue. (ECF No. 630 p. 178-179). Thimons encouraged him, indicating that Bowers had to control his access to medical care by continuing to crawl towards them. (ECF No. 630 p. 179). The danger the situation still posed precluded the SWAT team from ascending the stairs and seizing Bowers. (ECF No. 630 p. 179). SWAT did not know whether Bowers was armed, what his intentions were, or whether he had accomplices. Thimons asked Bowers his name and age and Bowers responded. (ECF No. 630 p. 17, 181-182; Government Ex. 3, 346-11:06:18). Thimons credibly testified that he asked these questions in order to keep Bowers alert and awake and focused on him so as to prevent Bowers from planning additional hostile moves, as well as to begin to assess the scope of the incident. (ECF
Thimons also asked Bowers about weapons. (ECF No. 630 p. 182). Again, Thimons did so in order to gauge the threat Bowers posed. Bowers responded that he had a Glock handgun on his waist and on his ankle. He also stated that he had an AR-15 but left that weapon in Room TT. (ECF No. 630 p. 182-183). Another SWAT officer asked Bowers why he gave up. Bowers responded that he had run out of ammunition. (ECF No. 630 p. 163-164).
Officers Saldutte and Mescan both expressed concerns about the possibility that Bowers was wearing an improvised explosive device. Their communications about the threat concerning improvised explosive devices reinforce my finding that the situation remained dangerous and volatile despite the fact that numerous SWAT officers had guns trained on Bowers. Mescan credibly testified that it is not uncommon in active shooter situations that individuals also have improvised explosive devices. (ECF No. 630 p. 61). Consequently, SWAT operators instructed Bowers to pull his jacket up, pull up his shirt, and expose both his stomach and his back in order to demonstrate either the presence or absence of explosives. (ECF No. 630 p. 185). During the silence while Bowers was exposing his back and stomach as directed, Thimons asked Bowers why he did it. (ECF No. 630 p. 186). Bowers responded that he‘s had enough, that Jews
I find credible testimony that SWAT‘s focus was not on obtaining a statement or conducting an interrogation. (ECF No. 630 p. 64-65). Rather, Thimons was trying to keep Bowers’ attention focused on him and simply asked the first question that popped into his mind. (ECF No. 630 p. 207). Thimons admitted that he was at least, in part, curious about why Bowers had taken such action, but he also stated that there was a public safety purpose in asking the question. (ECF No. 630 p. 213). Specifically, Thimons sought to identify Bowers’ motive in order to determine the scope of the threat.9 Bowers’ references to Jews, his attack on a synagogue, and the use of a rifle suggested to Thimons that it was a terroristic attack. (ECF No. 630, p. 187). Given Bowers’ response, Thimons asked if he had any bombs or explosives. Bowers responded that he did not. (ECF No. 630 p. 189).
That safety remained the SWAT team‘s paramount concern and that the threat of danger persisted is underscored by Mescan‘s refusal to take a picture of Bowers and forward it to incident command. (ECF No. 630 p. 67-68; Government Ex. 3, 362-11:09:34). Mescan explained that incident command wanted to positively identify
Similarly, the scene was too volatile and dangerous to advise Bowers of his Miranda rights at this time. (ECF No. 630 p. 64-65). Mescan testified:
The situation is continuing. It‘s live. The individual is not in custody. We still have potentially another shooter. We don‘t have everybody in the synagogue accounted for as far as we know. The critical incident or the active scene is still ongoing.
Though we‘re dealing with this problem, we have multiple operators now showing up that we‘re redirecting other places to recheck locations in the synagogue.
We know that we have an IED that‘s been discovered, or what we‘ve learned is an IED discovered in the main or the old prayer area that our EOD10 techs are handling. So there‘s a lot going on that‘s all safety priority and priority of life. It has nothing to do with investigative means whatsoever.
(ECF No. 630 p. 64-65).
E. Bowers is Handcuffed:
Thimons encouraged Bowers to continue crawling down the steps in his direction. (ECF No. 630 p. 190). At 11:13 a.m., Bowers made it to the door threshold where SWAT officers were positioned. No longer in direct view of Room TT, Thimons and other agents pulled Bowers into a safe room (Room QQ), away from the threat of harm, disarmed him and handcuffed him with flexible plastic handcuffs. (ECF No. 630 p. 190-191).
Officer David Blahut11 assisted Officer Miller in placing Bowers in handcuffs. During a pat down, they discovered two loaded magazines and a gun at Bowers’
This did not, however, render the scene safe. Concerned that other actors were still in the building, at Mescan‘s directive, Thimons conducted a ruse. He told Bowers that they had seen him and his partner enter the synagogue on the surveillance cameras and asked Bowers where his partner was. (ECF No. p. 85, 117, 132-33, 194, 210-211). Bowers responded with a puzzled look and stated that he acted alone. (ECF No. p. 85) (That must have been some fucking Jew. I came in here all by myself.). Additionally, seeking to further address any pending safety issues, officers inquired as to Bowers’ mode of arrival at the Tree of Life. Mescan explained that it is not uncommon for active shooters to arrive in a vehicle containing explosive devices and / or a cache of weapons. (ECF No. p. 83-84). Bowers responded that he drove a green Hyundai Sonata. Mescan directed the Explosive Ordinance Disposal (EOD) Team to establish a perimeter around the car. (Government Ex. 3, 430-11:22:33).
F. Medical Attention:
Once Bowers was removed to Room QQ, the SWAT team turned its attention to Officer Burke, who was bleeding profusely and required medical attention. Bowers’ presence in the hallway had prevented either Burke from being evacuated or medics from getting to his location. Because the scene remained dangerous given the potential
Bowers also needed medical attention but the danger the situation posed with evacuating Burke momentarily delayed the arrival of medics. Laying on the floor, Bowers complained that his handcuffs were too tight. (ECF No. 630 p. 234). Blahut responded that Bowers would be treated humanely and that medics were responding. At this point, Bowers volunteered, Good. These people are committing genocide to my people, and I just want to kill Jews. (ECF No. 630 p. 234-235). I find credible Blahut‘s testimony that he had not been asking Bowers any questions because [h]e was in custody, and he wasn‘t Mirandized. (ECF No. 630 p. 236). Bowers was very calm, not screaming, and seemed very alert and polite. (ECF No. 630 p. 236).
Medics Shawn Eigenbrode and Leone Barone responded to the request for aid to Bowers. (ECF No. 630 p. 265-266). Bowers had a wound to his left upper leg and a wound to the left elbow. Both were bleeding but not profusely. (ECF No. 630 p. 267). The flex cuffs were moved to the front at the medics’ request so that they could better render aid. They applied a tourniquet to Bowers’ left arm. (ECF No. 630 p. 268). He was alert, eyes open, paying attention, responding to questions, and answering appropriately. (ECF No. 630 p. 267-268).
Bowers had to be evacuated on a canvas stretcher down the fire escape because the synagogue remained an active site and potentially dangerous. (ECF No.
G. Transport to the Hospital:
At the bottom of the fire escape, Bowers was handed off to others for transport to Allegheny General Hospital (AGH). (ECF No. 630 p. 275). City of Pittsburgh paramedics Anthony DeSantis and Gregory Guckert, aided by a TAC medic, provided care and transport for Bowers. (ECF No. 631 p. 9-12). Several other individuals rode in the ambulance as well. A City of Pittsburgh Police Officer‘s body camera captured most of the ambulance ride. (Government Ex. 22).
DeSantis, who has 28 years of experience as a paramedic, assessed Bowers’ condition and documented his treatment. (ECF No. 631 p. 7-9; Government Ex. 23). He determined that Bowers was conscious and breathing on his own and administered an IV due to Bowers’ blood loss and corresponding low blood pressure. (ECF No. 631 p. 19-21). All other vitals were in the normal range. Bowers was oriented to person, place and time and received the highest possible score on the Glasgow Coma Scale. (ECF No. 631 p. 23-24).
At 11:35 a.m., Pittsburgh Homicide Detective Robert Shaw read Bowers his Miranda warnings. (ECF No. 631 p. 45). Bowers, whose eyes were open, and who
I find credible Shaw‘s testimony that he did not interrogate Bowers once Bowers invoked his Miranda rights. (ECF No. 631 p. 46-47). He did, however, ask Bowers questions about how he was feeling. Knowing that Bowers had sustained multiple gunshot wounds, and, knowing that the ride to the hospital would be approximately twenty minutes, Shaw asked Bowers if he was okay and told him to hang in there. (ECF No. 631 p. 47). These questions / comments did not amount to custodial interrogation.
The ambulance departed for the hospital at approximately 11:49 a.m. (ECF No. 631 p. 108). During the ride, Bowers appeared calm, lucid, aware, cooperative, and polite. (ECF No. 631 p. 48). He did complain of pain on a few occasions but did not appear to be in agony. (ECF No. 631 p. 48).
At 12:25 p.m., after the Tree of Life had been thoroughly checked and cleared, and any potential threats regarding accomplices and explosive devices had been resolved, Mescan declared the scene secure and safe. (ECF No. 631 p. 91-92; Government Ex. 3, 322-12:25:42). I find credible Shaw‘s and Patcher‘s testimony that they were unaware that Mescan had declared the site safe at any time before they left the hospital at the end of the day. When Shaw initially got in the ambulance with Bowers, all he knew was that there had been multiple fatalities and that law enforcement personnel had been injured. He understood that this was a higher profile
H. At the Hospital:
Upon arrival at the hospital, Shaw and Patcher stayed with Bowers at the request of medical personnel. (ECF No. 631 p. 51-52). During their stay with Bowers at the hospital, both Shawn and Patcher asked Bowers several questions motivated by a concern regarding danger to the public and officers. (ECF No. 631 p. 53) (Shaw said you know, Rob, this is a public safety statement. I just want to know just so nobody else gets hurt, is there anything that we should be concerned about that‘s remaining at the synagogue?) and (ECF No. 631 p. 123) (Patcher explained that they prefaced questions to Bowers with comments about wanting to make sure that nobody else would get hurt [o]ne, to elicit a truthful response and two, to show that this was not us trying to investigate the crime. It was simply to ensure that nobody else was injured.). Bowers responded by identifying the AR-15 rifle and three handguns that he had used but denied any other threats. (ECF No. 631, p. 53, 56). Shaw also inquired about dangers present at Bowers’ home. Bowers denied anything other than black powder.
At approximately 4:15 p.m., Shaw attempted to re-Mirandize Bowers. Bowers expressed an interest in speaking but stated that he wanted his counsel present. (ECF No. 631 p. 56).
Conclusions of Law
Bowers contends that officers interrogated him at the scene, in the ambulance, and at the hospital, in violation of this Fifth and Sixth Amendment rights and Miranda v. Arizona, 384 U.S. 436 (1966). He also urges that the Court should suppress any statements made in the course of medical treatment under the Fifth Amendment and Miranda because the statements were made under circumstances induced by officers either prior to being Mirandized or after he invoked his Miranda rights; because he maintained a reasonable expectation of privacy in all communications with medical personnel during the course of medical treatment under the Fourth Amendment and HIPPA; and because he maintains a federal constitutional privacy interest in his medical information. The Government counters that all statements are admissible because Bowers was not subject to custodial interrogation under Miranda or because an exception to Miranda applies and that any communications with medical providers are not protected.
(A) Custodial Interrogation
The Fifth Amendment provides that No person ... shall be compelled in any criminal case to be a witness against himself.
For a person to be in custody when he has not been arrested, something must be said or done by the authorities, either in their manner or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so. United States v. Taylor, 22 F. Supp.3d 387, 390 (M.D. Pa. 2014), citing, United States v. Willaman, 437 F.3d 354, 359 (3d Cir. 2006) (internal quotation marks and citations omitted). In other words, there must be circumstances that are thought generally to present a serious danger of coercion. Howes v. Fields, 565 U.S. 499, 508-09 (2012). The Third Circuit Court explained that, in determining whether someone is in custody, it is guided by the following factors:
- whether the officers told the suspect he was under arrest or free to leave;
- the location or physical surroundings of the interrogation;
- the length of the interrogation;
- whether the officers used coercive tactics such as hostile tones of voice, the display of weapons, or physical restraint of the suspect‘s movement; and
- whether the suspect voluntarily submitted to questioning.
The other component for Miranda purposes is interrogation. The term interrogation refers to express questioning as well as its functional equivalent, i.e., ‘any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ Martinez, 460 Fed. Appx. at 193, quoting, Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682 (1980). Our Court of Appeals instructs courts to consider whether officers ‘intentionally created circumstances likely to elicit a statement’ from a defendant..., whether the defendant appeared emotionally distressed or overwrought, ... and whether he ‘would have felt compelled to respond to the arresting officer‘s statement...’ United States v. Rodriguez-Colon, 827 Fed Appx. 188, 191 (3d Cir. 2020) (citations omitted). If the individual indicates his wish to remain silent, he is invoking his right to exercise his Fifth
Applying these considerations to the facts at hand, I find that the Defendant was in custody at 11:04 a.m., when he began crawling into the hallway outside of Room TT with his arms outstretched and visible to the SWAT officers.12 In so holding, I do not mean to suggest that all potential threats had been removed. In fact, the situation posed significant ongoing threats to both the responding officers and members of the public. Nevertheless, the determination of custody is an objective inquiry and focuses upon what a reasonable person would believe. When Bowers emerged into the hallway, numerous SWAT team members were both above and below him on the stairwell. Weapons were displayed, hostile tones of voice had been used, and Bowers’ movement was being dictated by the SWAT team. He had been warned that a failure to follow the
Statements made by a defendant during a custodial interrogation are generally inadmissible at trial and are presumed to have been compelled if the defendant had not been advised of his Miranda rights. United States v. Duncan, 308 Fed. Appx. 601, 605 (3d Cir. 2009). As set forth above, Bowers has satisfied his burden to show that evidence should be suppressed because he was subjected to custodial questioning without the benefit of Miranda warnings. The burden thus shifts to the Government to prove by a preponderance of the evidence that there was some exception to the Miranda rule, or that he otherwise waived his rights. See United States v. Valenta, Crim. No. 15-161, 2017 WL 2131375, at *4 (W.D. Pa. May 17, 2017) (citations omitted). As the Government contends, questions reasonably prompted by a concern for public safety constitute an exception to Miranda requirements as do routine booking questions. Finally, “volunteered” statements are not subject to Miranda.
At times, “‘the need for answers to questions in a situation posing a threat to public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment‘s privilege against self-incrimination,’ and ‘spontaneity rather than adherence to a police manual is necessarily the order of the day.‘” United States v. Greaves, 831 Fed. Appx. 52, 53 (3d Cir. 2020) (quoting, New York v. Quarles, 467 U.S. 656-57, 104 S. Ct. 2626 (1984)13). In such instances, “‘pressing public safety concerns’ Oregon v. Elstad, 470 U.S. 298, 317, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), allow ‘questions necessary to secure [the officers‘] own safety or the safety of the public,’ Quarles, 467 U.S. at 659.” Greaves, 831 Fed. Appx. at 53. The public safety exception applies “when it would have been objectively reasonable for the officer to believe that asking the question was necessary to protect the public or police from immediate danger.” United States v. Duncan, 308 Fed. Appx. 601, 605 (3d Cir. 2009) (citing and quoting Quarles, 467 U.S. at 656, 659 n. 8). Application of the public safety
Here, law enforcement officers faced an imminent threat to public safety beginning the moment the dispatcher announced the first 911 calls at 9:55 a.m. through the time Detective Shaw and Agent Patcher left Bowers at the hospital. They responded to an unprecedented large scale attack on the Tree of Life synagogue. Law enforcement officers confronted open fire, high powered weapons, numerous victims, a confusing floorplan, a barricaded gunman, conflicting reports regarding the number of assailants, the potential use of explosives, and a chaotic and volatile scene. The responding officers were at significant risk as were those congregants still hiding in the synagogue. Indeed, at least three officers were wounded during their response to Tree of Life. To ensure the safety of the officers at the scene and the surrounding community, they needed information about the quantity and location of firearms, whether any explosive devices had been placed at the synagogue or elsewhere, and whether Bowers acted alone or with collaborators or accomplices as part of a larger attack.
The questions officers posed, including those relating to why Bowers surrendered and why he engaged in the attack, served those purposes. As Officer Thimons credibly testified, understanding why Bowers attacked the Tree of Life would shed light on the scale of the attack (domestic violence, workplace, or terrorist) and permit officers to respond accordingly. Similarly, Bowers’ answer to questions regarding the decision to surrender could reveal whether he was planning an ambush. At that point in time Bowers remained armed and officers were unsure as to the presence of accomplices or any explosive devices. The questions posed were not investigatory in
I recognize that the questions posed while Bowers was at the hospital happened when he personally no longer posed a threat, but his apprehension did not remove the potential threat existing elsewhere. Officers needed to know whether his car or home presented any danger. Additionally, to the extent that Detective Shaw or Agent Patcher inquired about threats still existing at the Tree of Life, I find credible their uncontradicted testimony that they were unaware at the time that the synagogue had been “cleared” and declared secure and safe (“Code 4“) at 12:25 p.m. Allen v. Roe, 305 F.3d 1046, 1051 (9th Cir. 2002) (“the ‘objectively reasonable need’ for protection is based on what the officers knew at the time of the questioning.“).
The public safety exception is applicable in situations, like that in Quarles, where officers were attempting to locate a gun. See United States v. Powell, 444 Fed. Appx. 517 (3d Cir. 2011); United States v. Duncan, 308 Fed. Appx. 601 (3d Cir. 2009); and United States v. Johnson, 95 Fed. Appx. 448 (3d Cir. 2004). The officers’ need to locate Bowers’ weapons, alone, would justify application of the exception in this case.
However, “[t]his was no single gun in a grocery store.” United States v. Rogers, 13-cr-130, 2013 WL 6388459, at *9 (D. Minn. Aug. 29, 2013), objections sustained in part and overruled in part by United States v. Rogers, 2013 WL 6388457 (D. Minn. Dec. 6, 2013). In the face of a terrorist attack,14 the public safety exception must be broadly
place officers ... in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.
Quarles, 467 U.S. at 657-658. Consequently, all statements at issue are admissible under the public safety exception to Miranda.
(C) Routine Booking Questions
The Government offers another exception to the suppression of statements under Miranda. Certain statements responsive to “routine booking” questions are admissible as an exception to Miranda. According to the Supreme Court, statements regarding “biographical data necessary to complete booking or pretrial services” fall outside the protection offered by Miranda. Pennsylvania v. Muniz, 496 U.S. 582, 601-02, 110 S.Ct. 2638 (1990). Thus, “[q]uestions regarding a suspect‘s name, address, height, weight, eye color, date of birth, current age, or matters reasonably related to the police‘s administrative concerns that are not designed to elicit incriminatory admissions” are exempt from Miranda protections. U.S. v. Algarraobo, Crim. No. 00-318, 2000 WL 1886595 at *2 (E.D. Pa. Dec. 14, 2000), citing, Muniz, 496 U.S. at 601-602. See also, United States v. Paxton, 848 F.3d 803, 813 (7th Cir. 2017) (no Fifth Amendment violations occurred when defendants were asked the sorts of biographical questions
Based upon this well-established exception to Miranda, I find that any statements made in response to routine booking questions are admissible under Muniz. In so holding, I note that Bowers did not respond to the Government‘s argument in this regard nor has he otherwise suggested that any “biographical” questions were otherwise designed to elicit incriminatory answers.
(D) Voluntary Statements
The Government also contends that “certain of Bower‘s statements during the course of his interaction with law enforcement were not in response to any questioning.” (ECF 361, p. 10) As such, the Government argues, these statements were unsolicited, spontaneous, and otherwise “volunteered” and are not subject to the dictates of Miranda. In establishing the Miranda rule, the Supreme Court explained that “[a]ny statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” Miranda, 384 U.S. at 478. Additionally, “‘unforeseeable’ responses to police questions or actions do not invoke Miranda.” Gomez v. Pitkins,
Given that I have already determined that any statements made in response to questions by law enforcement officials fall within the public safety exception, and some also qualify under the routine booking questions exception, I need not parse out whether some also qualify as voluntary statements. However, out of an abundance of caution, I find, in addition, that Bowers “volunteered” several statements and that such statements do not fall within the purview of Miranda. Those consist of: statements made prior to being in custody that he had been shot, that he could not crawl and needed SWAT officers to come to him, and that he feared that law enforcement wanted to kill him (ECF No. 630 p. 55-57, 172-173, 177; ECF No. 631 p. 82-84); statements, in response to a comment that he would be treated humanely, that “[t]hese people are committing genocide on my people, and I just want to kill Jews” (ECF No. 630 p. 235); complaints of pain (or lack thereof) at the synagogue, during the ambulance ride, and while at the hospital (ECF No. 630 p. 234, 268-269, ECF No. 631 p. 23-24); and the identification of Detective Shaw at the hospital (ECF No. 631 p. 56-57). Consequently, those statements are also admissible under the “voluntary statement” exception to Miranda.
(E) Statements Made During the Course of Medical Treatment
Bowers also seeks the suppression of statements made during the course of medical treatment. He offers several arguments in support of suppression. First, he contends that certain statements were made before being Mirandized and that, upon being Mirandized, he invoked his right to silence and the aid of an attorney. As such, he
As to his first argument, as set forth above, I agree that Bowers was in custody for purposes of Miranda at the time he was transported to the hospital and while at the hospital. It is also clear that he had invoked his right to remain silent and his right to counsel. The question, then, is whether the statements are otherwise admissible. As stated above, I find that the public safety exception applies in this case. This finding extends to those questions posed during transportation to the hospital and while receiving medical care asking about the presence of explosives at the synagogue and about the presence of explosives or “anything that could hurt people” at his residence. Similarly, as stated above, responses to questions seeking biographical information such as his place of birth and family members are admissible. Finally, as detailed
As to his second argument, Bowers concedes that officers had the authority to stay by his side during the course of medical treatment but insists that they did not have lawful authority to listen to and / or record his communications with medical providers. Specifically, he urges that he had a “reasonable expectation of privacy” under the Fourth Amendment in any protected health information, both oral and behavioral statements. He argues that the police officers represented an “uninvited ear.” I disagree. Certainly, “[t]he Fourth Amendment protects against unreasonable searches and seizures, including the monitoring of oral statements.” Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507 (1967). An individual in a phone booth may have a reasonable expectation of privacy because he has sought to exclude listeners from what he intends to be a private conversation. Katz, 389 U.S. at 511-12. (“One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.“). Yet Bowers has not identified any case law suggesting that an individual has a reasonable expectation of privacy when communicating with medical providers while in the presence of police officers. Although he may have had an actual or subjective expectation of privacy, I am not prepared to find that such an expectation is one that society recognizes as “reasonable.” Katz, 389 U.S. at 361 (Harlan, J., concurring). As Justice Harlan contemplated, “conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.” Id. The fact that Congress passed HIPPA does
Finally, Bowers argues that all communications, oral and behavioral, made in the course of receiving medical treatment should be suppressed because private medical information falls within the “zone of privacy” and is entitled to constitutional protection. “It is indeed clear beyond peradventure that ‘the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government‘” and that this right to privacy includes medical records. In re Search Warrant (Sealed), 810 F.2d 67, 71 (3d Cir. 1987), quoting, Thornburgh v. American College of Obstetricians, 476 U.S. 747, 106 S. Ct. 2169 (1986) and Whalen v. Roe, 429 U.S. 589, 599, 97 S. Ct. 869, 876 (1977). In Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869 (1977), the Supreme Court found that a statute requiring the maintenance of records for the identity of people for whom doctors prescribed dangerous medications was lawful and did not invade any constitutional right to privacy. Nevertheless, the Court implied that the disclosure of a person‘s medical records by or under the compulsion of government, “might” invade a constitutional right to privacy. Whalen, 429 U.S. at 598-600, 605-06. In United States v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3d Cir. 1980) the Third Circuit Court observed that “[t]here can be no question that an employee‘s medical records, which may contain intimate facts of a personal nature, are well within the ambit of materials entitled to privacy protection.” The right to privacy is not absolute, however, and must be balanced against societal interest in disclosure. Westinghouse, 638 F.2d at 577.16 See also, In re Search Warrant, 810 F.2d 67, 71-72
Accordingly, the Motion is denied. An Order will follow.
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
| UNITED STATES OF AMERICA, | ) | |
| ) | ||
| Plaintiff, | ) | 2:18-CR-00292-DWA |
| vs. | ) | |
| ) | ||
| ROBERT BOWERS, | ) | |
| ) | ||
| Defendant. | ) |
AMBROSE, United States Senior District Judge
ORDER OF COURT
RE: MOTIONS TO SUPPRESS NO. 9
AND now, this 20th day of January, 2022, upon consideration of the Defendant‘s Motion to Suppress (Motion to Suppress No. 9 at ECF No. 296/319) and the related submissions, said Motion to Suppress is denied.
BY THE COURT:
Donetta W. Ambrose
United States Senior District Judge