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United States v. Berckmann

United States District Court, D. Hawaii

March 28, 2018



          Susan Oki Mollway, United States District Judge.


         Defendant 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 Miranda rights.


         The 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.

         A. On 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.

         B. Josh 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.

         C. 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.

         D. 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).[1]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.

         E. 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 occurred.

         F. J.F. 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, 18-22.

         G. While Fulgium was taking to J.F., two Maui Police Department (“MPD”) officers arrived at the campground. They were in uniform and had firearms.

         H. 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.

         I. 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.

         J. 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.

         K. J.F. 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.

         L. The 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.

         M. 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.

         N. One 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.

         O. It 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 away.

         P. 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.

         Q. 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.

         R. 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.

         S. As 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.

         T. This initial interaction with Berckmann took less than five minutes.

         U. 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.

         V. 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.

         W. After his phone conservation, Fulgium returned to Berckmann and said:

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.

         X. 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.

         Y. 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 id.

         Z. 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.

         AA. 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.

         BB. 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.

         CC. At 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 112.

         DD. 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:
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 disorderly conduct.
Berckmann: Okay.
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 conduct.
Berckmann: For something I didn't do.
Officer Kalama: All right.
Berckmann: No.
Officer Kalama: You can fight that in court.

See Id. at 118-20.

         FF. 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 ...

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