The opinion of the court was delivered by: David C. Norton Chief United States District Judge
This matter is before the court on defendant's first motion in limine to exclude incriminating statements made by defendant after being given Miranda*fn1 warnings and second motion in limine seeking to prohibit Detective Matthew Hughes from testifying as an expert regarding the connection between firearms and drug trafficking. For the reasons set forth below, the court denies defendant's first motion and grants defendant's second motion to the extent that these issues were not previously addressed in this court's hearing on the motions.
On May 12, 2010, a federal grand jury indicted defendant Jacquinn W. Arline for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); possessing with intent to distribute a quantity of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and possessing a weapon in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). On September 22, 2010, defendant filed a motion to suppress 62.7 grams of cocaine, a Fusion digital scale, a Bersa Thunder .380 caliber handgun, and the accompanying magazine and ammunition seized as a result of a March 12, 2010, traffic stop. This court denied defendant's motion to suppress on January 6, 2011.
On February 10, 2011, this court held a hearing pursuant to defendant's Batson v. Kentucky, 476 U.S. 79 (1986) objection to the government's preemptory challenges of three African American females and one African American male. Because the government demonstrated a neutral explanation and defendant failed to establish that the explanation was pretextual, this court overruled the objection.
On February 2, 2011, defendant filed his first motion in limine, requesting that the court exclude statements made by defendant, and the government responded on February 11, 2011. On February 16, 2011, defendant filed his second motion in limine, requesting that the government's proposed expert witness, Detective Matthew Hughes, be prohibited from testifying. The court held a hearing on defendant's motions on February 18, 2011, and ruled that defendant's incriminating statements made prior to Miranda warnings were inadmissible. The government also asserted that it would not use any audio from the video recording in its case in chief. Additionally, the court held that Detective Hughes would be permitted to testify regarding the quantity and pricing of illegal drugs. The government filed an additional brief concerning its request to permit Detective Hughes to testify to the connection between firearms and drug trafficking, which is the only outstanding issue in defendant's second motion in limine. The remaining issue on defendant's first motion in limine concerns defendant's statements after an officer issued Miranda warnings.
On March 12, 2010, North Charleston Police Department Officers Scott Thomes and Jaime Greenwalt stopped defendant for failure to use a turn signal. The patrol car video camera recorded the stop. Defendant pulled into a gas station parking lot, and the officers asked him to step out of the car. In response to questions by the officers, defendant said that he did not have a license. Officer Thomes decided to arrest Arline for driving without a license. Officer Thomes searched defendant's pockets and then handcuffed him. Officer Greenwalt then examined the car. Pursuant to this court's January 6, 2011 Order, the government and defense agree that for the purposes of Miranda, defendant was in custody at the time of the search. Officer Thomes failed to immediately Mirandize defendant. Officer Greenwalt began an inventory search of the car driven by defendant while Officer Thomes questioned defendant concerning criminal activity. Arline made several incriminating statements. Officer Thomes asked defendant if he wanted to go to jail or "go down that road," remarked that there is "someone upstairs" and that he didn't need these charges in his life, and asked about defendant's children.
Approximately nine minutes after custody began, Officer Greenwalt returned to the patrol car after searching the vehicle and gave Arline Miranda warnings. Officer Greenwalt had not questioned defendant prior to this time. After the end of the video-recording, Officer Greenwalt questioned Arline. The statements made to Officer Greenwalt after the close of the video are the subject of this order.
A. Incriminating Statements
The Fifth Amendment ensures that "[n]o person . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. According to Miranda, when police officers place a defendant in custody, they must inform defendant of his constitutional rights in order to counteract the "'inherently compelling pressures' of custodial interrogations and to 'permit a full opportunity to exercise the privilege against self incrimination.'" Arizona v. Robertson, 486 U.S. 675, 681 (1988) (quoting Miranda, 384 U.S. at 467). Statements made in violation of Miranda are irrefutably presumed involuntary for the purposes of the prosecution's case in chief. See United States v. Mashburn, 406 F.3d 303, 307 (4th Cir. 2005).
Because Arline's initial statements preceded the administration and voluntary waiver of Miranda rights, the parties agree that his initial statements are inadmissible. Id. The issue presented here is whether those initial, unwarned statements rendered involuntary the statements Arline made after receiving and waiving Miranda rights. Defendant argues that the Supreme Court's ruling in Missouri v. Seibert, 542 U.S. 600 (2004), precludes the admission of defendant's post-Miranda incriminating statements.
According to the Fourth Circuit in United States v. Mashburn, Justice Kennedy's concurring opinion states the authoritative holding in Seibert because it states the "narrowest grounds" of a plurality opinion. 406 F.3d at 306. Thus, Seibert holds: "The admissibility of postwarning statements is governed by Elstad unless the deliberate 'question-first' strategy is employed." Id. at 309. The "deliberate 'question-first' strategy" refers to a police officer's planned method of withholding Miranda warnings in the first stage of an interrogation, then, after defendant confesses, issuing Miranda warnings and re-questioning the defendant to garner the same answers. See Seibert, 542 U.S. at 620-21 (Kennedy, J. ...