United States District Court, D. Minnesota
Michelle E. Jones, United States Attorney's Office,
counsel for the government
M. Lopez, Office of the Federal Defender, counsel for Mr.
REPORT AND RECOMMENDATION
Katherine Menendez, United States Magistrate Judge.
matter is before the Court on two pretrial motions filed by
defendant Ellis Alance Banks. In his Motion to Suppress
Statements, Admissions and Answers, Mr. Banks challenges the
statements taken during an April 1, 2015 interview. ECF No.
25. Specifically, he argues that he was functionally in
custody during an interrogation, but was unlawfully
questioned without proper Miranda warnings. In his
Motion to Suppress Fruits of Unlawful Arrest and Search and
Seizure, Mr. Banks challenges the search of his home and
vehicles, on the grounds that law enforcement lacked probable
cause. ECF No. 26. For the following reasons, the Court
recommends denying both of Mr. Banks's motions.
April 1, 2015, around 9:00 a.m., IRS Special Agent Marissa
Pitzen and approximately nine other IRS agents, an IRS staff
member, and two Hennepin County Sheriff's Deputies
executed a search warrant related to Mr. Banks. Mot. Hrg. Tr.
(“Tr.”) at 11-14. The address searched, on Xerxes
Avenue in Minneapolis, was a residence belonging in part to
Mr. Banks. Id. at 13. The search was part of an
investigation into the filing of fraudulent tax returns.
Id.; see generally Gov't Ex. 1 at 3.
the agents arrived at the house, they knocked and announced
their presence and their possession of a search warrant. Tr.
at 14. Two people were in the home at the time, including Mr.
Banks's son Isaiah, and they admitted the agents into the
home. Id. The sheriff's deputies then left the
scene. Id. at 18.
Banks was not home, so Agent Pitzen called him around 9:30
a.m. Id. at 15. Agent Pitzen informed him that she
“was at his residence executing a search warrant, and
 asked if he would be able to come to the residence to
talk.” Id. at 18. Mr. Banks said he would call
her back, but did not. Id. A little while later, one
of Mr. Banks's other sons, Rafael, came to the home at
Mr. Banks's request. Id. at 20. Rafael called
Mr. Banks after speaking with Agent Pitzen, and Mr. Banks
conveyed concern that he would be arrested if he came to the
home. Id. at 20-21. Agent Pitzen told Mr. Banks
through Rafael that agents did not have an arrest warrant and
did not intend to arrest him that day. Id. at 21.
11:00 a.m., Mr. Banks arrived. Id. “He was
very angry and he was shouting, ” and he “wanted
to know who turned him in.” Id. at 22. Agent
Pitzen “explained to him that [agents] were conducting
a search warrant, that he was not under arrest, that he was
free to leave, but that [she] would like to talk to
him.” Id. Mr. Banks “calmed down shortly
after that, ” and Agent Pitzen read him a
“noncustody statement of rights” regarding his
right to counsel and his right against self-incrimination.
Id. at 23-24; see also Gov't Ex. 3. Mr.
Banks indicated that he understood the rights as they were
read and continued to speak with Agent Pitzen. Tr. at 25.
Pitzen and her colleague Special Agent Bona sat next to each
other on the couch in Mr. Banks's living room while Mr.
Banks sat on the end of the couch closest to the door.
Id. at 25-28. Mr. Banks was tearful while he
explained his recent struggles and attempts at
self-improvement. Id.at 28-29. He also
“mentioned filing false tax returns” and
expressed remorse. Id. During the conversation,
other agents continued to search the home. Id. at
31. Because the room in which Mr. Banks, Agent Pitzen, and
Agent Bona were talking led to the front door, agents came in
and out of the room during the conversation. Id. at
Pitzen did not make any commitments or promises or use any
tricks or deception “[b]ecause Mr. Banks was fairly
forthcoming and [the] conversation was fairly cordial and
[she] didn't feel like [she] needed to do that.”
Id. at 32. Other than Mr. Banks's yelling on his
initial arrival at the home, the conversation involved no
raised voices. Id. at 33. Agent Pitzen's gun was
likely visible on her hip belt. Id. at 48.
Pitzen did not recall Mr. Banks ever asking to leave the room
or the home, and he never asked for an attorney. Id.
at 33. The front door was unlocked, and Agent Pitzen
testified that Mr. Banks would have been permitted to leave
had he so desired. Id. Agent Pitzen told Mr. Banks
that he was free to leave “on multiple
occasions.” Id. at 34. Mr. Banks was never
placed in handcuffs, nor was he arrested at the end of the
encounter. Id. at 34-35.
defendant's statements to law enforcement in the context
of a custodial interrogation are inadmissible unless law
enforcement officials inform the defendant of his right to
remain silent and to counsel. Miranda v. Arizona,
384 U.S. 436, 467-70 (1966). The parties here disagree as to
whether Mr. Banks was in custody for Miranda
purposes. To answer this question, the Court examines the
totality of the circumstances and considers whether a
reasonable person in the defendant's position would feel