UNITED STATES v. NELSON (2023)

ORDER DENYING MOTIONS TO DISMISS INDICTMENT (ECF NO. 22), TO SUPPRESS EVIDENCE (ECF NO. 26), AND TO SUPPRESS STATEMENTS (ECF NO. 25)

Damon Nelson faces charges of possessing a firearm as a felon, 18 U.S.C. § 922(g)(1) [Count I], distributing controlled substances, 18 U.S.C. § 841(a)(1) [Count II], and possessing a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c) [Count III]. He has filed three motions: (1) a motion to dismiss the felon-in-possession charge as violating his Second Amendment rights (ECF No. 22); (2) a motion to suppress evidence—including drugs and guns—seized during the execution of a search warrant at his residence (ECF No. 26); and (3) a motion to suppress statements from a post-arrest interview (ECF No. 25).

The government has filed briefs in opposition (ECF Nos. 31, 34, and 36), and the Court held a hearing on the motions on May 8, 2023. Having considered the relevant case law, the positions advanced in the briefs, and the evidence and arguments presented at the hearing, the Court will DENY all three motions.

I. BACKGROUND

On August 17, 2021, Michigan State Police obtained a warrant from the 23rd District Court for the search of Nelson's residence. ECF No. 37-1. An eleven-page affidavit by MSP Detective Micah Keller containing the following attestations supported the warrant:

• In July 2021, Keller received information that an anonymous source identified “D” as a heroin dealer. Id. at PageID.267. The source provided a phone number and an approximate address. When detectives ran the phone number through a law enforcement database, the database returned Damon Nelson's name and a residential address.

• On July 13, detectives conducted a trash pull at the residence. Id. at PageID.268. They found three clear, plastic sandwich-style bags containing suspected narcotics residue—one of which was tested and revealed a positive result for the presence of cocaine. Detectives also found multiple cut-up lottery tickets, which they knew to be consistent with packaging for heroin and fentanyl, and a bottle of Promethazine (a prescription cough syrup often sold as a street drug), which was too big for personal use and of a size meant to be used to fill or refill patient prescriptions.

• The next day, on July 14, Keller observed three suspected drug sales at the residence. Id. at PageID.269. The first occurred when an individual walked twice from the residence to a car that had pulled up nearby and spoke to the driver through the passenger window. The second occurred when another individual approached the residence from across the street, entered, and left about a minute later. The final suspected sale occurred when a third individual exited the residence with a satchel, entered a truck, and returned to the residence without the satchel some twenty minutes later to meet with the drivers of two other vehicles. This individual then intently scanned the street, grabbed two heavy-looking white plastic bags from the truck, placed them in one of the cars that had just arrived, and left in that car.

• About a week later, on July 20, detectives conducted a second trash pull. Id. at PageID.270. They found twenty-one more plastic sandwich baggies with suspected narcotics residue (fifteen of which were tested and revealed positive results for the presence of cocaine), more cut-up lottery tickets, and another empty bulk-sized Promethazine bottle. On July 22, detectives confirmed that they had observed Nelson walking around the residence and getting in and out of multiple cars. Id. at PageID.271.

• Detectives conducted a third trash pull on July 27. Id. They recovered eight additional baggies, six of which were tested and revealed positive results for the presence of cocaine. Id. They also found a piece of mail addressed to Nelson's residence (although to an individual that was not Nelson). And on August 2, Detective Keller surveilled the residence and saw Nelson enter and exit several times, meet with several individuals, and getting in and out or several vehicles parked at a lot close to the residence. Id. at PageID.272.

• On August 17, detectives conducted a fourth and final trash pull. Id. at PageID.273. They recovered two more baggies that tested positive for the presence of cocaine and another Promethazine bottle. Id.

• A criminal history check revealed that Nelson was a previously convicted felon with two convictions for Felony Breaking and Entering with Intent from 1990, and additional convictions for Possession of a Firearm by a Felon, Felony Carrying Concealed Weapons, Felony Firearms, and Possession of Controlled Substances from 2001. Id. at Page.267.

MSP officers executed the warrant on August 19 and seized seven firearms during a search of the residence, five of which were found in Nelson's bedroom. ECF No. 1, PageID.4. Officers also seized 265 grams of cocaine, 43 grams of heroin and fentanyl, 1 gram of methamphetamine, 8 grams of psilocybin mushrooms, numerous suspected analog pills, and $8,990.00 in cash. Id. at PageID.4-5.

Keller interviewed Nelson after the search. An audio recording from his cellphone, approximately nine minutes long, captures the interview. At the beginning of the recording, Keller advises Nelson that he is recording and reads him his Miranda rights. When Keller asks whether Nelson understands those rights, Nelson can be heard to mumble what sounds like an assent. Keller then asks, “Having these rights in mind, do you wish to talk to me at this point?” Nelson twice replies, “I'm fine with whatever.” In the ensuing conversation, Keller asks Nelson about the guns and drugs found in the house, and Nelson eventually makes several admissions. Towards the end of the interview, Keller states that he understands law enforcement “made a little bit of a scene” but that he hopes Nelson feels they treated him and his family respectfully. Nelson indicates that he has been raided before and says, “This is about the best one I ever been in. I appreciate you guys. They broke my ribs last time.”

At the evidentiary hearing, Keller and Nelson described the circumstances of the police raid and the subsequent interview. According to Keller, a SWAT team used flashbang grenades outside Nelson's house before entering. They secured Nelson with zip ties and departed after securing the property, leaving search teams to do their work. Because he was not part of the initial entry team, Keller did not know whether the SWAT team had tried knocking before entering. He testified that there were some individuals present at the property in addition to Nelson, including a young child, who were taken to a front-porch area while the teams searched the house for somewhere between one to three hours.

Keller further testified that, after the search was complete, he separated Nelson from the others to interview him and led him away to a discreet area at the side of the house. He said that he took this measure for Nelson's privacy because it was daylight and he did not want neighbors observing Nelson talking with the police and labeling him a snitch. Keller further explained that he chose to record the interview on his cellphone because it occurred on scene and not at a police station. Nelson did not appear to have any mental disability or to be under the influence of any intoxicants. Keller said that, in the minute or so while the two walked together to the side of the house before he began recording, he asked Nelson some basic conversational questions, like whether Nelson wanted to sit or his restraints were too tight. He denied threatening Nelson or making any promises about what a prosecutor, a court, or Child Protective Services would do. He said he asked Nelson a few additional questions after he stopped recording.

Nelson's account of the raid largely tracked Keller's—except that he testified that the SWAT team used flashbang grenades directly in his living room. According to Nelson, he was sleeping in his bedroom with his girlfriend when without warning a SWAT team battered down the front door. He ran out into the living room in his underwear to check on his girlfriend's young daughter and was immediately ordered to get down on the ground and restrained. He expressed concern that officers did not call emergency services to evaluate the child after the raid.

But Nelson's account of the interview differs from Keller's and, according to Nelson, the recording of the interview is incomplete. Nelson testified that, after he was separated from his family, the two spoke for around an hour. Keller started questioning him immediately after separating him from his family, without administering Miranda warnings or telling him that he was being recorded. Nelson further testified that Keller made several promises to him, including that Child Protective Services would not become involved and the case would “go away” if he talked. He said that he was uncomfortable during the interview because Keller had a gun in his lap and he could see that a hostile neighbor was watching from inside a neighboring house, and he told Keller as much. According to Nelson, the interview was different from any prior police interviews he had experienced; those had occurred down at a police station, and he had been asked to sign advice-of-rights documents and to initial his statements after making them.

II. MOTION TO DISMISS COUNT I (ECF No. 22)

Nelson first asserts that his felon-in-possession charge must be dismissed because the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), is facially unconstitutional under the Second Amendment. A defendant may seek dismissal of a defective indictment in a pre-trial motion under Federal Rule of Criminal Procedure 12(b)(3)(B). A facial challenge seeks a declaration that a statute is “utterly inoperative.” United States v. Frost, 125 F.3d 346, 370 (6th Cir. 1997); see also Phelps-Roper v. Strickland, 539 F.3d 356, 361 (6th Cir. 2008) (noting that facial challenges are disfavored because “they raise the risk of premature interpretation of statutes on the basis of factually barebones records” (internal quotations omitted)).

The Second Amendment provides that “[a] well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” In District of Columbia v. Heller, the Supreme Court reviewed history to interpret the Amendment and declared that D.C.’s complete prohibition on handguns in the home was unconstitutional because it violated the “inherent right of self-defense” enshrined in the Amendment. 554 U.S. 570, 616, 628-29 (2008). Nonetheless, Justice Scalia's majority opinion recognized that, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. at 626. The opinion also expressly noted that “nothing in [the] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons”—which were “presumptively lawful.” Id. at 626-27 & n.26. Two years after Heller, while invalidating gun ordinances in Chicago in McDonald v. City of Chicago, the Court “repeat[ed] assurances” that laws prohibiting felons from possessing firearms were presumptively valid. 561 U.S. 787, 786 (2010).

Nelson argues that, under the Supreme Court's recent decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), the burden is on the government to show that the felon-in-possession statute is consistent with the Nation's historical tradition of firearm regulation. ECF No. 22, PageID.67. Citing three decisions in which out-of-circuit district courts found other subsections of § 922 unconstitutional, he asserts that the government cannot meet this burden. See United States v. Quiroz, ––– F. Supp. 3d ––––, 2022 WL 4352482 (W.D. Tex. Sept. 19, 2022) (concluding that history did not support constitutionality of § 922(n), which prohibits shipping, transport, and receipt of firearms by someone under felony indictment); United States v. Holden, ––– F. Supp. 3d ––––, 2022 WL 17103509 (N.D. Ind. Oct. 31, 2022) (allowing defendant to withdraw plea to § 922(a)(6), which criminalizes making false statements to acquire a firearm, after concluding the same); United States v. Perez-Gallan, ––– F. Supp. 3d ––––, 2022 WL 16858516 (W.D. Tex. Nov. 10, 2022) (concluding that history does not support constitutionality of § 922(g)(8), which criminalizes possession of firearms by individuals subject to domestic-violence restraining orders).

In Bruen, the Supreme Court declared that a New York gun-licensing scheme, which gave licensing officials discretion to deny licenses to applicants based on a perceived lack of need or suitability, was unconstitutional in light of Heller’s holding. In so doing, the Court observed that many circuits had adopted a “two-step” test after Heller to assess the constitutionality of gun regulations: at step one, the government would argue that a challenged law regulated firearm activity falling outside the scope of the gun-possession right; at step two, the courts would evaluate how close the challenged law came to the core of the Second Amendment right and the severity of the burden on that right. Bruen, 142 S. Ct. at 2125-26.

Justice Thomas's majority opinion declared that this two-step test was “one step too many” and announced a single-step analysis:

[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation.

Id. at 2126-27.

Despite altering the analytical framework used to test the constitutionality of regulations under the Second Amendment, nothing in Bruen suggests that the Supreme Court repudiated Heller’s pronouncement that the “longstanding prohibitions on the possession of firearms by felons” are “presumptively lawful.” Indeed, Justice Thomas's majority opinion noted that it is “in keeping with Heller.” 142 S. Ct. at 2126. In a concurrence joined by Chief Justice Roberts, Justice Kavanaugh wrote that he does not understand Bruen to disturb the “longstanding prohibitions on the possession of firearms by felons.” Id. at 2162 (Kavanaugh, J., concurring) (internal quotations omitted). Justice Alito also agreed that the majority opinion did not “disturb[ ] anything that we said in Heller.” Id. at 2157 (Alito, J., concurring). And Justice Breyer's dissent, joined by Justice Kagan and Justice Sotomayor, stated that it understood the majority's opinion in Bruen “to cast no doubt” on Heller’s treatment of laws prohibiting the possession of firearms by felons. Id. at 2189 (Breyer, J., dissenting).

The Court is mindful that, since arguments in this case, one circuit court has enjoined enforcement of § 922(g)(1) in addressing an as-applied challenge. Specifically, in Range v. Attorney General United States of America, 69 F.4th 96, 106 (3d Cir. 2023), a majority of the Third Circuit sitting en banc concluded that the government failed to show that the Nation's historical tradition of firearms regulation supported depriving the petitioner, an individual with a prior felony conviction for making a false statement in violation of Pennsylvania law, of his right to possess a firearm. The majority was unswayed by the government's reliance on early federal firearms statutes and its efforts to argue that founding-era felons often faced far more severe consequences than disarmament, noting that “[t]he Government has not cited a single statute or case that precludes a convict who has served his sentence from purchasing the same type of object that he used to commit the crime.” Id. at 105.

But as an out-of-circuit case, Range is only binding insofar as it is persuasive. And this Court finds more persuasive the reasoning of its dissenters, who agreed that the majority “downplay[ed] the Supreme Court's consistent admonishment that felon bans are ‘longstanding’ and ‘presumptively lawful.’ ” Id. at 114 (Schwartz, J., dissenting); see also id. at 119-20 (Krause, J., dissenting) (“[T]ime and again, the Supreme Court has acknowledged that the deep roots of felon-possession bans in American history impart a presumption of lawfulness to 18 U.S.C. § 922(g)(1) ․Bruen observed that historical analogies must be more flexible when a contemporary regulation implicates ‘unprecedented social concerns or dramatic technological changes.’ Section 922(g)(1) is such a regulation, as the lethality of today's weaponry, the ubiquity of gun violence, the size and anonymity of the population, and the extent of interstate travel were unknown at the Founding.” (internal quotations and alterations omitted)); id. at 141 (Roth, J., dissenting) (“The Court did not, in Bruen, overrule its decisions upholding Congress's power to regulate the possession of firearms in interstate commerce. These decisions remain good law.”)

The weight of authority remains against Nelson. Only days before Range issued, an Eighth Circuit panel upheld the constitutionality of § 922(g)(1) in United States v. Jackson, 69 F.4th 495, 502 (8th Cir. 2023), concluding that in light of the Supreme Court's assurances in Heller and McDonald that felon-in-possession bans are presumptively lawful, “there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).” District courts across the country appear to be unanimous in upholding § 922(g)(1)’s constitutionality. This district has already encountered its fair share of such challenges, none successful. See, e.g., United States v. Haywood, No. 22-20417, 2023 WL 3669333 (E.D. Mich. May 25, 2023) (Parker, J.); United States v. Neely, No. 22-20513, 2023 WL 3669346 (E.D. Mich. May 25, 2023) (Parker, J.); United States v. Carter, No. 22-20477, 2023 WL 3319913 (E.D. Mich. May 9, 2023) (Roberts, J.); United States v. Bluer, No. 22-20557, 2023 WL 3309844 (E.D. Mich. May 8, 2023) (Michelson, J.); United States v. Hazley, No. 22-20612, WL 3261585 (E.D. Mich. May 4, 2023) (Parker, J.); United States v. Taylor, No. 22-cr-20315, 2023 WL 3098653 (E.D. Mich. Apr. 26, 2023) (Cleland, J.); United States v. Smith, No. 22-cr-20351, 2023 WL 2215779 (E.D. Mich. Feb. 24, 2023) (Goldsmith, J.); United States v. Burrell, No. 21-20395, 2022 WL 4096865 (E.D. Mich. Sept. 7, 2023) (Cleland, J.).

Nelson identifies no compelling or persuasive reason to deviate from the reasoning of these decisions. Heller would appear to place the burden on him to rebut the presumption that felon-in-possession statutes are constitutional. And the Court is bound by the Sixth Circuit's decision in Carey, which unambiguously upholds felon-in-possession statutes. United States v. Carey, 602 F.3d 738, 741 (6th Cir. 2010).

The motion to dismiss is DENIED.

III. MOTION TO SUPPRESS EVIDENCE FROM SEARCH OF RESIDENCE (ECF NO. 26)

Nelson next moves to suppress evidence seized during the execution of the search warrant at his residence. He argues that Keller's affidavit was insufficient to establish probable cause for three reasons: first, MSP's anonymous source provided the police with false information; second, evidence gathered during the trash pulls supported at most an inference of personal use, rather than distribution, of controlled substances; and third, Keller's observations of activity in and around his residence was wholly consistent with lawful activity. ECF No. 26, PageID.105.

The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. To establish probable cause, officers must establish “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).

In assessing the sufficiency of an affidavit supporting a warrant, the Court looks only to its four corners; information known to an officer but not conveyed to the court is irrelevant. United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010). The weight to be given to an informant's report depends on the informant's reliability and basis of knowledge; a tip that has substantial independent corroboration or comes from a known source carries more weight than an uncorroborated anonymous tip. Gates, 462 U.S. at 230; United States v. Dyer, 580 F.3d 386, 690 (6th Cir. 2009). Drug paraphernalia recovered from a trash pull, when combined with other evidence of involvement in drug crimes, may be used to establish probable cause to search a home. United States v. Abernathy, 843 F.3d 243, 251-52 (6th Cir. 2016).

In attacking the sufficiency of Keller's affidavit, Nelson notes that it contains no details about the anonymous source's reliability or the basis for his knowledge. ECF No. 26, PageID.109. From there, Nelson asserts that he has reason to believe that the source is actually a neighbor who bears a long-standing grudge against him and has a history of making false complaints. Id.

As an initial matter, the affidavit identifies the source of the information about “D” being a heroin dealer as anonymous, so if it was truly an anonymous tip, Keller and his fellow officers had no additional information to convey. In any event, officers conducted an independent investigation to corroborate the tip. See United States v. Tuttle, 200 F.3d 892, 894 (6th Cir. 2000) (“[I]nformation received from an informant whose reliability is not established may be sufficient to create probable cause when there is some independent corroboration by the police of the informant's information.”) Detectives went to the address associated with the phone number provided by the anonymous source, observed activity which they believed was consistent with the sale of narcotics, and conducted four trash pulls—from which they seized a substantial amount of drug refuse, including approximately thirty baggies with suspected narcotics residue (several of which were tested and revealed positive results for the presence of cocaine), multiple cut-up lottery tickets (which they knew from training and experience to be consistent with packaging for heroin and fentanyl), and bulk-sized bottles of Promethazine (intended for use by pharmacies to fill prescriptions, not for personal use).

Nelson's remaining challenges to the sufficiency of the affidavit attack law enforcement's observations in isolation. First, he argues that the trash pulls, standing alone, are insufficient to establish probable cause. He asserts that the results of the pulls, which turned up baggies with cocaine residue, contradict the anonymous tip that he was dealing heroin and are consistent with personal use. ECF No. 26, PageID.110. But the Court does not see any contradiction between the results of the trash pull and the anonymous tip; as noted above, in addition to the baggies with cocaine residue, officers found cut-up lottery tickets, which they knew to be consistent with packaging for heroin and fentanyl. And given the testimony that the Promethazine bottles were too large for personal use, the Court also is not persuaded that the quantity of drug refuse is more consistent with personal use than a drug-distribution enterprise. As the Sixth Circuit has observed, “[a] large quantity of drug refuse in a residence's garbage suggests repeated and ongoing drug activity in the residence, and therefore creates a fair probability that more drugs remain in the home.” Abernathy, 843 F.3d at 255.

Second, Nelson argues that the activity around his home described by Keller in his affidavit—i.e., the brief visits from other individuals—is wholly consistent with lawful activity. ECF No. 26, PageID.110-11. At oral argument, he suggested that unless law enforcement had conducted controlled buys or Terry stops that actually yielded narcotics, any inference that there was drug-trafficking at the property was baseless. To be sure, the Sixth Circuit has acknowledged that “having frequent visitors, who stay a short while and then leave, is not necessarily indicative of criminal activity.” United States v. Ronnie Buffer, 529 F. App'x 482, 485 (6th Cir. 2013) (internal quotations and alterations omitted). Here, however, Keller observed satchels and baggies which came from inside the house being exchanged during some of the visits—and of course, there was also the evidence recovered from the trash pulls.

Probable cause is evaluated based on the totality of the circumstances, not individual circumstances in isolation. United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004). Here, the totality of the circumstances described in Keller's affidavit—the informant's tip, the drug trash recovered from four separate trash pulls, and Keller's observations of suspected narcotics transactions—combined to establish probable cause for the issuance of the search warrant. And assuming for the sake of argument that they did not, the good-faith exception would save the results of the search because the multi-page affidavit is not so obviously deficient that a reasonable officer would know any resulting warrant was invalid. United States v. Leon, 468 U.S. 897, 922 (1984).

Accordingly, Nelson's motion to suppress the evidence from the search is DENIED.

IV. MOTION TO SUPPRESS POST-ARREST STATEMENTS (ECF NO. 25)

Finally, Nelson asks for the Court to issue an order suppressing his post-arrest statements.

“Statements made by a defendant in response to interrogation while in police custody are not admissible unless the defendant has first been apprised of the constitutional right against self-incrimination and has validly waived this right.” United States v. Cole, 315 F.3d 633, 636 (6th Cir. 2003) (citing Miranda v. Arizona, 384 U.S. 436, 478-79 (1966)). In determining whether a suspect has validly waived his Miranda rights, the Court employs the same test as it would to evaluate whether a confession was voluntary, considering whether: “(i) the police activity was objectively coercive; (ii) the coercion in question was sufficient to overbear the defendant's will; (iii) and the alleged police misconduct was the crucial motivating factor in the defendant's decision to offer the statements.” United States v. Binford, 818 F.3d 261, 271 (6th Cir. 2016) (quoting United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999)). The government bears the burden of proving by a preponderance of the evidence the voluntariness of an accused's Miranda waiver and confession. Colorado v. Connelly, 479 U.S. 157, 168-69 (1986).

In his brief, Nelson offered essentially nothing to support his contention that his Miranda waiver was invalid. But at oral argument, he asserted that he was still under stress from the SWAT team's forcible entry into his home when Keller interviewed him. Additionally, he emphasized his testimony that Keller promised him that he would not call Child Protective Services and could make the case “go away,” that he told Keller he was uncomfortable because a hostile neighbor was watching and because he saw Keller's service weapon in his lap, and that he never executed an advice of rights form—like he had been required to do in his past experience with the police.

The Court is not persuaded by Nelson's challenges. The audio recording of the interview clearly captures Nelson's express consent to being interviewed after he was advised of his rights. When Keller asks, “Having these rights in mind, do you wish to talk to me at this point?” Nelson does not express a desire for counsel or state that he wishes to remain silent but instead twice replies, “I'm fine with whatever.” As Nelson's counsel acknowledged during argument, the passage of time between the SWAT team's entry into the home and Nelson's eventual interview cuts against a finding that he was operating under such a degree of stress from the raid that he was unable to understand his circumstances. See United States v. Collado-Rivera, 759 F. App'x 455, 461-62 (6th Cir. 2019) (passage of hour and half between raid and defendant's statements mitigated coercive effects of raid). Moreover, while written advice-of-rights forms have become routine, a written document is not required to establish a valid waiver of Miranda. See North Carolina v. Butler, 441 U.S. 369, 373 (1979) (“An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably necessary or sufficient to establish waiver.”).

The Court acknowledges that the parties presented differing accounts of the duration and circumstances of the interview. And it is not clear whether, by attempting to cast doubt on the completeness of Keller's recording, Nelson also means to argue that Keller employed the “question first” and “warn later” technique condemned in Missouri v. Seibert, 542 U.S. 600 (2004). Nelson testified that Keller made some promises to him, then interviewed him with a gun in his lap while a hostile neighbor looked on. Keller disputed Nelson's version, saying that his recording was essentially complete, and the interview was conducted professionally. There is insufficient evidence to show that Keller did not describe the circumstances accurately, and Nelson does not meet the high bar of establishing police overreach. United States v. Rutherford, 555 F.3d 190, 198 (6th Cir. 2009). Even if the Court were to credit Nelson's testimony about pre-Miranda questioning, the hour-long session he described did not feature any of the hallmarks of police overreach. See United States v. Meredith-Hill, No. 20-3083, 2021 WL 3079695, *5 (6th Cir. July 21, 2021) (listing examples of overreach). And Nelson did not suggest that he made any pre-Miranda admissions or that there was any overlap between Keller's pre- and post-Miranda questioning. Consequently, Seibert’s “midstream Miranda” problem is not present in this case. United States v. Ray, 803 F.3d 244, 272-73 (6th Cir. 2015).

The Court must additionally consider whether any coercion was sufficient to overbear Nelson's will and motivate him to talk. And on these questions, the answer is “no.” The recording establishes that Nelson's waivers and statements were knowing, voluntary, and intelligent. Nelson did not suggest that he actually believed the promises or that he feared reprisals if he remained silent. Cf. United States v. Siler, 526 F. App'x 573, 575 (6th Cir. 2013) (noting that a “promise is problematic if a police officer leads a defendant to believe that he will receive lenient treatment when this is quite unlikely” (internal citations omitted)). And nothing in his tone suggests an individual who is distressed, overwhelmed, or confused. To the contrary, Nelson's responses are lucid and alert; he initially denies several of Keller's accusations and attempts to draw lines that carry consequences for his criminal liability—he states the firearms are not his, for example, but later admits he has them for protection. Finally, his prior experience with the court system weighs against a finding that he did not know his rights or how to assert them. See United States v. Jacobs, 63 F.4th 1055, 1059 n.3 (6th Cir. 2023) (“prior experience with the criminal-justice system counsels against a finding of coercion”).

Nelson's motion to suppress his oral statements is DENIED.

V. CONCLUSION

For the reasons explained above, Nelson's motions to dismiss Count I of the indictment (ECF No. 22), to suppress evidence discovered at his residence (ECF No. 26), and to suppress his oral statements (ECF No. 25) are DENIED. The Court sets this matter for trial to commence on September 12, 2023.¹

IT IS SO ORDERED this 29th day of June, 2023.

FOOTNOTES

1.   More than 30 days have elapsed between when this matter was argued, on May 8, 2023, and today's decision. Although neither party has raised any concerns regarding the Speedy Trial Act, that statute provides pursuant to 18 U.S.C. § 3161(h)(1)(D), that 30 days are excludable for the Court's consideration of a motion after a hearing. After that, for the period between June 7, 2023 until the new trial date set out in this Order, the Court finds that the ends of justice outweigh Nelson and the public's interest in a speedy trial due to the complexity of the legal issues raised in the motions. 18 U.S.C. § 3161(h)(7)(A). The necessity of spending sufficient time thoroughly evaluating these issues and reaching a correct legal conclusion clearly served the interests of justice. 18 U.S.C. § 3161(h)(7)(B)(i)-(iv). Accordingly, the time period between June 7, 2023 and the new trial date constitutes excludable delay.

TERRENCE G. BERG, United States District Judge