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United States of America v. Bart M. Pitcher

January 18, 2011

UNITED STATES OF AMERICA PLAINTIFF,
v.
BART M. PITCHER, DEFENDANT.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

The Court has before it a motion to suppress filed by defendant Pitcher. The Court held an evidentiary hearing on the motion on January 18, 2010, and took the motion under advisement. For the reasons expressed below, the Court will deny the motion.

FACTUAL BACKGROUND

Defendant Pitcher is charged along with seven co-defendants with (1) conspiracy to possess with intent to distribute methamphetamine, and (2) conspiracy to launder the proceeds of that drug trafficking. Prior to being charged, Pitcher made statements to detectives with the Idaho State Police (ISP) that he now seeks to suppress.

On April 28, 2009, Pitcher's co-defendant, Douglas Dalton was arrested following a drug deal and car chase with the police. The car Dalton was driving belonged to Pitcher. The ISP took Pitcher's car to their facility where it was searched. The next day, April 29th, Pitcher called ISP Sergeant John Kempf to ask about his car. Sgt. Kempf told him that he needed to retrieve the car that same day or it would be impounded.

Pitcher and Jackie Pierce, arrived at the ISP offices at about 5:00 p.m. on April 29, 2009. He spoke with an administrative assistant who alerted Sgt. Kempf that Pitcher had arrived. Sgt. Kempf walked over to Detective Skinner -- the lead case agent investigating Pitcher for drug dealing -- and asked if they should speak with Pitcher now. Detective Skinner agreed, and the two officers entered the interview room. Sgt. Kempf opened a door leading from the interview room into a public hallway. Finding Pitcher there, Sgt. Kempf asked him if the officers could ask him a few questions. Pitcher agreed and entered the interview room with Sgt. Kempf and Detective Skinner. Pierce waited on a bench in the hallway outside the interview room.

The interview began with Sgt. Kempf explaining to Pitcher why the ISP had seized his car, that he knew Pitcher was involved with others who were recently arrested for dealing methamphetamine, and that he wanted to get Pitcher's side of the story. Pitcher responded that he had wanted to talk, and get it off his chest. However, Pitcher expressed concern that Pierce, waiting in the hallway, could overhear them, and he did not want her to overhear his statements. When the officers confirmed that the walls were thin, Pitcher said he needed to make arrangements for her to leave. Detective Skinner opened the door to the hallway, and pointed the way out of the building. Pitcher then left with Pierce and returned by himself to the interview room about fifteen minutes later.

The interview room was small, perhaps 12 feet long by 8 feet wide. While the doors were closed during the questioning, they were never locked. Pitcher was seated closest to the door leading to the public hallway. The other two officers were seated further away from the door and did not block it at any time.

Sgt. Kempf began by reminding the defendant that he was not under arrest, and was free to go at any time. Sgt. Kempf explained to Pitcher that although the detectives could not make any promises of leniency if he cooperated, his early cooperation would likely be taken into consideration. Sgt. Kempf also told Pitcher that, although he was under investigation, it was not their intention to arrest him that evening, regardless of whether he talked to them. They were simply allowing him the opportunity to cooperate early on in their investigation. Pitcher indicated that he wished to proceed.

The interview lasted about 90-105 minutes (from 5:15 or 5:30 p.m. to 7:00 p.m.). Pitcher was very forthcoming with information. The officers asked few questions, and spent most of their time in the interview listening to Pitcher's answers. At no time were the officers hostile, aggressive or confrontational.

After the questioning, as Pitcher was driving home, he called Detective Skinner from his cell phone, and told Detective Skinner that he had minimize the drug quantities he had referred to during the interview. A few days later, he called again to convey additional information.

A dramatically different account of the interview is given by Pitcher and Pierce. Both testified about the interrogation itself; Pierce testified that she was able to overhear everything said during the first 90 minutes of the interrogation from where she was seated in the hallway just outside the door. According to their testimony, Pitcher (1) was ordered, not invited, into the interview room; (2) never left the interview room for two-and-a-half hours; (3) was subjected to aggressive questioning that eventually exhausted him to the point of saying whatever the officers wanted; (4) was never advised that he was free to go or that he was not under arrest; and (5) was told by officers that they had a warrant, which he assumed was for his arrest.

The clear and direct conflict between the police officer's testimony and that of Pitcher and Pierce requires the Court to make a credibility determination. The Court finds the officers' version of the interview to be far more believable. Pitcher has a clear interest in the outcome of the hearing and, thus, had a motivation to slant his testimony so as to make it appear ...


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