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United States v. Banks

United States District Court, D. Minnesota

April 24, 2018

United States of America, Plaintiff,
v.
Ellis Alance Banks, Defendant.

          Michelle E. Jones, United States Attorney's Office, counsel for the government

          Lisa M. Lopez, Office of the Federal Defender, counsel for Mr. Banks

          REPORT AND RECOMMENDATION

          Katherine Menendez, United States Magistrate Judge.

         This 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.

         I. The Statements

         On 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.

         When 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.

         Mr. 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.

         Around 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.

         Agent 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 31-32.

         Agent 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.

         Agent 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.

         Analysis

         A 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 free ...


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