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United States v. Cook

April 5, 2010



The opinion of the court was delivered by: Briscoe, Circuit Judge.


Before BRISCOE, McWILLIAMS, and MURPHY, Circuit Judges.

In this interlocutory appeal, the United States challenges the district court's suppression of statements Defendant Glenn Dell Cook made to a jail-house informant. Also before this court is Cook's motion to dismiss the United States' appeal as untimely filed.

We have jurisdiction over the matter pursuant to 18 U.S.C. § 3731 ("An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence . . . ."). We deny Cook's motion to dismiss the United States' appeal, reverse the district court's order to suppress Cook's statements, and remand for further proceedings.


The essential facts of this case are not disputed. On December 30, 2004, cooperating witness Phillip Gantz was found dead in the early morning hours in a medical unit cell at Doña Ana County Detention Center ("DACDC") in Las Cruces, New Mexico. At the time, Cook and two other inmates were housed in the same cell with Gantz. Cook was incarcerated at the DACDC as a federal pre-trial detainee in connection with a federal drug case.

Investigators with the local sheriff's office responded to the scene, and although the cause of Gantz's death was not apparent, his death was thought to be from natural causes because Gantz was asthmatic. The sheriff's office investigators spoke briefly with Cook and the two other inmates who had also been housed in Gantz's cell. All three stated that they had slept through the night and did not see or hear anything. The next day, after learning from an autopsy that Gantz died from strangulation, the sheriff's office investigators began investigating the case as a homicide and spoke to Cook again and in more detail at the DACDC.*fn1

Two months later, in March 2005, sheriff's office investigators returned to DACDC to follow up on information that one of Cook's cellmates had recently admitted to killing Gantz. While at the DACDC conducting interviews, the sheriff's office investigators had Cook brought from his housing area to an interview room for questioning. Almost immediately after being brought to the interview room, Cook stated that he did not want to speak to the investigators and that he had a right to an attorney. Cook went to the door and asked to be returned to his cell. The interview was terminated and Cook was taken back to his cell.

The next month, in April 2005, the sheriff's office and the FBI received information from a cooperating informant who also was incarcerated at the DACDC on federal charges. The cooperating informant stated that Cook told him about Cook's role in the Gantz murder, as well as the involvement of Cook's two cellmates. The cooperating informant was never a suspect in Gantz's murder, and he was never implicated in the events surrounding Gantz's death. However, the cooperating informant was himself facing a lengthy federal sentence. The United States promised to recommend leniency for the cooperating informant should he agree to approach Cook and question him about Gantz's murder.

The FBI then became involved in the Gantz murder investigation, and the sheriff's office withdrew shortly thereafter. The FBI was not informed of Cook's March 2005 encounter with the sheriff's office investigators, or that he invoked his Miranda rights during that encounter.

In June 2005, through the efforts of the FBI, the cooperating informant was wired with two recording devices and placed in a cell at the DACDC with Cook. The placement of the cooperating informant and Cook in the same cell was the result of an orchestrated mock "reclassification day" in the DACDC. The cooperating informant asked Cook about the Gantz murder and Cook described the roles that each of the three inmates played in killing Gantz. This recorded statement was suppressed by the district court and is now the subject of this appeal.

Cook and his two cellmates were eventually charged in a five-count indictment with offenses related to the murder of Gantz. Cook subsequently filed a motion to suppress all statements made to the cooperating informant, and the district court held a hearing on the motion. Cook argued that after he invoked his Miranda rights in March 2005, the United States improperly reinitiated contact with him in June 2005 when the FBI arranged for the cooperating informant to talk to Cook about the Gantz murder, arguing that the United States' conduct violated Michigan v. Mosley, 423 U.S. 96 (1975), Edwards v. Arizona, 451 U.S. 477 (1981), and United States v. Alexander, 447 F.3d 1290 (10th Cir. 2006). Cook also argued that the challenged statement was involuntary because Cook believed the cooperating informant's motivation in asking about the Gantz murder was to determine if Cook was cooperating with the government, which the cooperating informant could then expose within the DACDC.

The United States argued that at the time of the challenged statement, Cook viewed the cooperating informant as a fellow inmate and was therefore not in a police-dominated atmosphere so as to implicate the concerns underlying Miranda. The United States also argued that Cook was not in Miranda custody at the ...

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