United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO SUPPRESS STATEMENTS
Oki Mollway, United States District Judge.
Matthew Berckmann is charged with intentional assault with a
dangerous weapon and intentional assault by strangulation in
violation of 18 U.S.C. § 113(a)(3), (8). ECF 4. Alleging
that statements he made to law enforcement officers on
October 18 and October 19, 2017, were obtained in violation
of his Fifth Amendment rights, Berckmann asks this court to
suppress all of those statements. See ECF 31, PageID
# 114; Miranda v. Arizona, 348 U.S. 436 (1966). The
court grants in part and denies in part Berckmann's
Motion to Suppress. The court suppresses certain statements
Berckmann made while he was in custody and before he was
given Miranda warnings. The court does not suppress
statements Berckmann volunteered to law enforcement officers
or that were otherwise not the product of
“interrogation” under Miranda, and
statements Berckmann made after he was advised of his
FINDINGS OF FACT.
court received oral testimony from Park Rangers Josh Fulgium
and Christine Ells at the hearing on February 23, 2018. ECF
103. Both rangers testified credibly. The court heard oral
argument on March 1, 2018, has reviewed memoranda filed
before and after the hearings, and has considered all
exhibits in evidence, including bodycam footage and
transcripts of that footage. Based on the live testimony and
the documentary and video record, the court finds the
following facts by a preponderance of the evidence. The
findings are identified by letters of the alphabet for ease
of reference in future proceedings.
the morning of October 18, 2017, Berckmann and his wife,
J.F., were camping at the Hosmer Grove campground at
Haleakala National Park on Maui, Hawaii. According to a
nearby camper who called 911, Berckmann and J.F. got into
some kind of altercation.
Fulgium, a National Park Service ranger, drove his Park
Service vehicle to the campground to investigate. He was
wearing his park ranger uniform and had a firearm.
Fulgium saw Berckmann and J.F. at a picnic table about forty
yards from the campground entrance, next to three tents.
Shortly after Fulgium's arrival, Berckmann went into one
of the tents, while J.F. remained at the picnic table.
Fulgium spoke with some people near the campground entrance.
One person told Fulgium that she had heard yelling coming
from the picnic table area, but did not know more.
See Defense Exhibit B, ECF 46-1, at 3-4 (page
references are to the typed page numbers in the upper
right-hand corner).Another person had reportedly seen
Berckmann throw J.F. to the ground and get on top of her with
a knife. See Id. at 4.
Asked by Fulgium to come over to him, J.F. walked from the
picnic table to the area near the campground entrance.
Fulgium then questioned J.F. intermittently over a period of
about thirty minutes. See Id. at 5-47. Berckmann was
in the tent and out of earshot while this questioning
told Fulgium that she had not been physically assaulted. She
said that she and Berckmann had gotten into only a verbal
argument. She described Berckmann as having had multiple
shots of vodka that morning. She also said that there was a
filet knife at the campsite. See Id. at 7-10, 13-14,
While Fulgium was taking to J.F., two Maui Police Department
(“MPD”) officers arrived at the campground. They
were in uniform and had firearms.
Fulgium explained the situation to the MPD officers and
discussed with them the prospect of charging Berckmann with
disorderly conduct and public intoxication. One officer said,
“I think before we go down, let's make a decision -
arrest this guy or not. . . . If we're going to make a
decision, then let's just -- fuck, let's just go down
there and arrest him.” Id. at 46. Fulgium
responded, “Yeah, let's just do it.”
Id. The MPD officer asked for clarification:
“You  are going to do the arrest for the
discon?” Fulgium responded, “Yeah, yes.”
Id. at 46-47.
Fulgium testified to this court that, notwithstanding his
affirmative language, he had not, at this point, definitively
decided to arrest Berckmann; he had only decided that he
“was probably going to be arresting him.” ECF
103, PageID # 916. Whatever was actually in Fulgium's
mind, it appears that he was at least contemplating the
arrest of Berckmann in the absence of some new development.
Fulgium asked J.F. to stay at the campground entrance,
telling her, “[N]o matter what, you stay here,
okay?” Defense Exhibit B, ECF 46-1, at 46. He did not
tell her that Berckmann might or would be arrested. See
Id. at 45-46.
remained behind as instructed while Fulgium and the MPD
officers walked to the tent Berckmann was in. The tent flap
was partially open, and the officers could see Berckmann
inside. He appeared to be sleeping. No. weapon was visible
inside the tent. Fulgium saw at least one knife in the
camping area outside the tent. The officers decided to leave
the knife where it was, but planned to avoid questioning
Berckmann near it.
officers shouted Berckmann's name, told him to
“wake up, ” and instructed him to “crawl on
out” of the tent. Id. at 48-49. When Berckmann
began stirring, Fulgium also told Berckmann: “I need
you to come out and talk to me. It's all good, man. Keep
your hands where I can see them. Take a step out here and
talk to me, okay. Just crawl on out. I know you've had a
lot to drink.” Id. at 49.
While Berckmann, appearing disoriented, crawled out of the
tent, Fulgium asked, “You got any guns or knives on
you?” Berckmann touched his pockets and replied,
“I have nothing.” Id. at 50.
of the MPD officers instructed Berckmann to “sit down
on your butt for us.” Id. at 50. Fulgium
repeated: “Just sit down on your butt, okay.”
Id. Berckmann complied and sat on the ground with
his legs crossed.
then started to rain. Berckmann was in blue jeans with no
shirt on. The MPD officers and Fulgium stood in a triangle
around Berckmann, surrounding him, with firearms holstered.
Nobody else was in the immediate vicinity; the other
campground visitors, including J.F., were roughly forty yards
Fulgium testified that the reason the officers surrounded
Berckmann was to “prevent Mr. Berckmann from getting
back into a tent or getting to a weapon.” ECF 103,
PageID #s 916-17. No. one said anything to Berckmann about
arresting him or about whether he was free to leave. Instead,
one of the MPD officers asked Berckmann, “You know why
we're here, right?” Berckmann replied,
“No.” Fulgium told Berckmann, “The reason
we're here is because I got called down here that you and
your wife got involved in a -- in a little verbal argument
this morning. Is that right? You guys were arguing. Do you
remember that?” Defense Exhibit B, ECF 46-1, at 50-51.
Berckmann denied that any argument had taken place that
morning. See id.
Fulgium continued, “I got called over here that you,
you know, might have grabbed [J.F.] and pulled her down. Do
you remember putting your hands on her at any point in
time?” Berckmann denied having put his hands on J.F.
See Id. at 52. Fulgium again asked Berckmann,
“Never put your hands on your wife?” Berckmann
again responded, “No.” Id.
Fulgium then told Berckmann, “I also was told that you
were on top of [J.F.] with a knife. Do you remember that at
all?” Berckmann replied that he and J.F. had only been
“cooking with knives.” See Id. at 52.
shown on the bodycam video, Fulgium proceeded to ask
Berckmann a few biographical questions, including whether
Berckmann had ever been arrested. Berckmann responded to
these questions. See Id. at 53-54. Fulgium then
asked Berckmann a final time, “You understand why
we're here, though, right? You don't have any memory
of getting involved in that argument with your wife?”
Berckmann replied that there had not been “any kind of
argument like that.” Id. at 54.
initial interaction with Berckmann took less than five
Fulgium asked the MPD officers to stay “with
[Berckmann] for just a second” while Fulgium made a
call. Fulgium stepped away and called his supervisor to
explain that he wanted to arrest Berckmann for disorderly
conduct and public intoxication. He asked for approval, which
he received. See Id. at 54-55.
While Fulgium was on the phone, Berckmann, still shirtless,
asked the MPD officers if they could get him a shirt from the
tent. The officers asked Berckmann for permission to enter
the tent, which Berckmann allowed. An officer then retrieved
a long-sleeved shirt, which Berckmann put on. See
id. at 55-56.
After his phone conservation, Fulgium returned to Berckmann
This is the deal. You can't be here in the campground
arguing loud with your wife, putting your hands on your wife,
threatening your wife, okay. You also can't be here in
this campground drinking to the excess that you drink, okay.
Because I've got reason to believe the fact that you
crawled out of the tent the way that you did and just the way
your eyes look, that you're a danger to yourself or
someone else, okay.
Id. at 56-57. Berckmann interrupted Fulgium at
various points to deny that there had been an argument and
that he had put his hands on J.F. See id.
Fulgium then told Berckmann that he was under arrest.
“You're going to go to jail today, okay. You're
going to go to jail.” Id. at 57. At this
point, Fulgium stopped asking Berckmann questions about the
alleged incident and began handcuffing Berckmann, who
objected, repeatedly insisting that he “didn't do
anything” and that J.F. would confirm that. See
Id. at 57-61, 63-71, 73-79, 83, 103-04.
Berckmann challenged Fulgium to tell him what he had done.
See Id. Fulgium initially responded that Berckmann
was “going to go to jail for disorderly conduct,
” but soon stopped responding to Berckmann's
repeated challenges to the arrest except to say
“okay” or “I understand.” See
Fulgium put Berckmann in the back seat of the National Park
Service vehicle. The two of them drove from Hosmer Grover
campground to the Maui Community Correctional Center. The MPD
officers followed behind in a separate vehicle.
During the drive, Berckmann kept saying that he was innocent
and asking Fulgium why he was being arrested. He also
insulted Fulgium, threatened to sue him for wrongful arrest,
and implored Fulgium to take him back to the campground.
See Id. at 106-27. Berckmann made statements to this
effect during much of the drive, but there were occasional
periods--some longer than a minute--during which neither
Berckmann nor Fulgium said anything.
Fulgium generally avoided responding to Berckmann's
repeated statements and questions. Occasionally, Fulgium
would say “okay, ” “I understand, ”
or “you will have your day in court.” See
generally Id. A few times during the drive, Fulgium
asked Berckmann if he was doing okay, if it was too hot in
the back of the car, or if Berckmann needed some air. Fulgium
appeared to be asking these questions for the purpose of
transporting Berckmann in relative comfort. Berckmann
generally responded by continuing to argue against his
arrest. See Id. at 106-27.
one point Berckmann told Fulgium that was he going to
“make sure I fucking hang your ass in court.”
Fulgium asked, “Did you say you're going to hang
me?” Berckmann replied, “In court. In court. In
court. Did you hear that? In court.” Id. at
About halfway down Haleakala, a volcanic mountain, Berckmann
managed to partly roll down his window and to unbuckle his
seatbelt. He began talking about “rolling out” of
the vehicle. See Id. at 114. Fulgium stopped the
car, and the MPD officers stopped behind him. Berckmann stuck
his head out of the window. He was agitated and told the
officers, “You're arresting me for something I
didn't do. I was arrested for something I did not
do.” Id. The officers tried to calm Berckmann
down and get him to put his head back in the car. Berckmann
insisted that, before complying, he wanted to talk with MPD
Officer Kalama. See Id. at 114-18.
EE. Officer Kalama then had the following conversation with
Berckmann: I'm talking to you right now.
Officer Kalama: Okay.
Berckmann: Listen. Let me explain two things.
Officer Kalama: Let me explain it to you, okay. Based on the
evidence that we have, okay, you're being arrested for
Officer Kalama: So we have witnesses. . . . We don't need
a statement from your wife, okay. We just need a witness
saying that you're being loud and you're fighting.
That's all. Your wife is not saying nothing, okay.
Whatever. That's all good. But you still get arrested
from these guys, okay, for disorderly conduct. . . .
Berckmann: But you know what? I shouldn't be in this
fucking car, period.
Officer Kalama: Well, you're in the car because we're
going from witness statements, okay.
Berckmann: Okay. . . . I don't understand what the hell
this bullshit is over.
Officer Kalama: You're being arrested for disorderly
Berckmann: For something I didn't do.
Officer Kalama: All right.
Officer Kalama: You can fight that in court.
See Id. at 118-20.
Eventually, Berckmann put his head back in the car and
allowed the officers to roll the window up and buckle his
seatbelt. Fulgium resumed driving Berckmann down Haleakala. A
few minutes later, Berckmann once again demanded that Fulgium