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United States v. Ellington

November 18, 2008

UNITED STATES OF AMERICA
v.
MONIQUE ELLINGTON



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Defendant Monique Ellington ("Ellington") moves this Court to suppress statements she made at the Federal Bureau of Investigation ("FBI") building on December 14, 2007. This Court held a suppression hearing on August 25 and permitted the Government to supplement that hearing on October 24, 2008 to determine whether the FBI subjected Ellington to custodial interrogation and whether Ellington requested the presence of an attorney. For the reasons stated, Ellington's Motion to Suppress is denied.

BACKGROUND

On the morning of December 14, 2007, FBI Special Agent Nikkole Robertson ("Robertson") responded to reports of a bank robbery at Diamond Bank ("Diamond") located at 100 West North Avenue in Chicago, Illinois. (8/25/08 Tr. 13.)*fn1 When she arrived Robertson learned that the bank robber entered the bank and handed Ellington, a teller at Diamond, a note demanding the money in her teller drawer. (Hrg. Tr. 14.) As a result of the robbery, Diamond lost approximately $17,000, an unusually high amount because normally Diamond's tellers close their drawers at the end of each day with approximately $8,500 in cash and Robertson learned that no customers had come to Ellington's window before the robbery. (Id.)

As part of her investigation, Robertson interviewed Ellington inside an office at Diamond at 9:30 a.m. (Hrg. Tr. 15; Gov't Ex. F) When Robertson informed Ellington that the robbers used her car to commit the robbery, Ellington said that her boyfriend, Willie Perkins ("Perkins"), drops her off at Diamond in the morning and uses her car during the day. (Hrg. Tr. 16.) Ellington suggested that Perkins could have loaned the vehicle to someone after he dropped her off at the bank that day. (Id.) After the interview, Robertson asked Ellington if she would come to the FBI office to take a polygraph exam and make some recorded phone calls in an attempt to contact Perkins and figure out where her car was. (Id.) Ellington agreed. (Id.)

Chicago Police Department Detective Michael Frasier drove Sergeant Ken Ables, Robertson and Ellington to the FBI office. (Hrg. Tr. 16-17.) Before Ellington entered Frasier's car, Robertson did not handcuff or pat down Ellington. (Hrg. Tr. 16.) At 11:40 a.m., Frasier drove the car through the security check-point into the FBI building's garage. (Hrg. Tr. 19-20.) Frasier, Ables, Robertson and Ellington used the main elevator bank and went to the Violent Crimes Task Force workspace on the building's fourth floor. (Id.) At 11:45 a.m., Robertson offered Ellington a drink and use of the restroom facilities. (Hrg. Tr. 20-21; Gov't Ex. F.) After she declined a drink and used the restroom facilities, Ellington entered Ables' office and signed Form FD472 which gave the FBI consent to record her conversations with Perkins on December 14, 2007. (Hrg. Tr. 21; Gov't Ex. F.) At 12:04 a.m., using her personal cell phone, Ellington attempted to call Perkins from Ables' office, but the call went to an answering machine. (Hrg. Tr. 22-23; Gov't Ex. F.)

After the phone call to Perkins, at 12:10 p.m., Ellington agreed to take a polygraph examination regarding her knowledge of the bank robbery. (Hrg. Tr. 24; Gov't Ex. F.) To schedule the polygraph exam for that afternoon, Robertson contacted FBI Special Agent Bruce Rather, a polygrapher. (Hrg. Tr. 24.) Robertson escorted Ellington to Rather's office on the first floor of the building. (Id.) Ellington was not handcuffed at the time and brought her personal belongings with her, including her purse and cell phone. (Hrg. Tr. 25, 97-98.) When they reached Rather's office, Robertson left Ellington unattended in the waiting area adjacent to the polygraph examination rooms for a few minutes so that Robertson could inform Rather of the situation. (Hrg. Tr. 24-25, 97-98.) Rather testified that if Ellington had been a suspect at that point, she would have been handcuffed and the FBI would have an escort at her side while he spoke with Robertson. (Hrg. Tr. 98-99.)

During their conversation, Robertson told Rather that a bank robbery had occurred at Diamond and that Ellington had been the victim teller at the bank. (Hrg. Tr. 97-98.) At approximately 12:15 p.m., FBI Special Agent Nikki Ruddy arrived at the polygraph area to accompany Ellington because FBI policy prohibits unescorted guests inside the building. (Supp. Hrg. Tr. 9.) At that time, Ruddy offered Ellington a drink and use of the restrooms, but Ellington declined. (Id.; Gov't Ex. F.) Ruddy then showed Ellington a locker inside the polygraph where she could secure her purse and cell phone because the FBI prohibits cell phone use during polygraph examinations. (Supp. Hrg. Tr. 10; Hrg. Tr. 115.) At approximately 1:00 p.m., Robertson finished briefing Rather and returned to her squad area, leaving Ellington with Ruddy while Rather set up the equipment for the polygraph exam. (Hrg. Tr. 25, 100.)

Rather brought Ellington into his office to begin the polygraph exam at 1:45 p.m. (Hrg. Tr. 100.) Ruddy returned to her squad area on the fourth floor at that time, leaving the polygraph area unguarded. (Supp. Hrg. Tr. 11; Hrg. Tr. 101.) Rather explained to Ellington how he conducts polygraph examinations, giving her an overview of what to expect. (Hrg. Tr. 102.) He then asked her questions about her background, including her address, work history, salary, drug use, alcohol use and marital status. (Id.) After those questions, he moved his chair beside hers so he could read and explain the "Consent to Interview with Polygraph" form to her. (Id.) Using the form, he explained to her that the polygraph exam was voluntary, that she had the right to refuse the test, stop the test at any time or refuse to answer any individual question. (Hrg. Tr. 105.) In response, Ellington said that she understood that the polygraph exam was voluntary and she signed the "Consent to Interview with Polygraph" form. (Hrg. Tr. 106.)

After Ellington signed the form, but before Rather hooked her up to the polygraph machine, as part of his background interview, Rather explained what he knew about the circumstances of the robbery, allowing her to make corrections. (Id.) He then asked her if she had participated in the robbery or had any knowledge that it was going to occur. (Hrg. Tr. 107.) Ellington responded that she did not. (Id.) When Rather concluded his background interview he once again sat next to Ellington to advise her of her rights using form FD 395, an Advice of Rights form. (Hrg. Tr. 108-09.) When he finished reading the FD 395 form to her, Rather asked Ellington if she wished to have an attorney present and if she wanted to continue the polygraph exam. (Hrg. Tr. 110.) Ellington responded that she did not wish to have an attorney present, and that she would like to continue the examination, but she would like to call her mother, Patricia Ellington-Hill ("Ellington-Hill") before she continued. (Id.) Ellington did not sign the FD 395 form. (Hrg. Tr. 168.) Rather took Ellington to a vacant workspace within the polygraph examination area, dialed the phone number Ellington provided, handed her the phone and left the room to return to his office. (Hrg. Tr. 111-12.)

At 2:01 p.m., Ellington spoke to Ellington-Hill for approximately a minute and a half. (Gov't Ex. L at 8.) According to Ellington, Ellington told her mother that the FBI asked her to take a polygraph test and her mother told her she thought that Ellington should have an attorney present before taking the exam. (Hrg. Tr. 170.) Ellington testified that after the phone call to her mother, she told Rather that she "shouldn't be doing anything without having an attorney" and that she "need[s] to have one in order to continue with this exam." (Hrg. Tr. 170-71.) Rather later testified that she never mentioned anything about an attorney. (Hrg. Tr. 118.) Ellington then told Rather that she would be willing to come back and take the polygraph exam either over the weekend or the following Monday. (Hrg. Tr. 171.) According to Ellington, she only made one phone call to her mother from the polygraph area and that once she asked for an attorney, Rather contacted Robertson to inform her that Ellington refused to take the test. (Hrg. Tr. 171, 192-93.) Robertson then came downstairs to escort Ellington out of the polygraph exam area. (Hrg. Tr. 171.) According to Ellington, when Robertson arrived at the polygraph exam area, Ellington told her "I just feel like I need to have an attorney present in order to do anything at this point." (Hrg. Tr. 171-72.) Ellington and Robertson then left to take elimination fingerprints. (Hrg. Tr. 172.)

In contrast, Rather testified that after Ellington spoke on the phone with her mother, she exited the vacant workspace and told Rather that her mother was going to attempt to reach a family friend who worked in "law enforcement" and would call Ellington back in ten to fifteen minutes. (Hrg. Tr. 112.) After ten minutes had passed, Rather suggested that Ellington call her mother once again. (Id.) Rather stated that he led her back to the vacant workspace within the polygraph exam area, dialed the number for her mother, handed the receiver to Ellington and stepped out of the area to give her some privacy. (Hrg. Tr. 113.) Rather said that this second phone call to Ellington's mother lasted a few minutes. (Id.) After the call concluded, at 2:46 p.m., Ellington told Rather that she did not want to take the test at that time because her family friend in law enforcement advised "that if she did not take the test, she might still be considered a suspect, in the future, but that she could take it at another time." (Hrg. Tr. 113-14.) Rather testified that Ellington did not tell him that she wanted to have a lawyer present at the exam or that she would not take the exam because she wanted to talk to her lawyer. (Hrg. Tr. 114.) Rather stated that when Ellington refused to take the exam, he called Robertson to inform her of the situation. (Id.) While waiting for Robertson to arrive in the polygraph area, Rather spoke with Ellington about taking the exam another time. (Hrg. Tr. 117.) During that conversation, Ellington said that she wanted to confer with Perkins before she took the test because she wanted to know if he had anything to do with the bank robbery. (Id.) Again, Rather testified that Ellington never mentioned her attorney during his time with her in the polygraph area. (Hrg. Tr. 118.) During the evening of December 14, 2007, Rather prepared a report of his encounter with Ellington. (Hrg. Tr. 116-17.) In the report, Rather documented that Ellington declined to take the polygraph exam at that time because she wanted to speak with Perkins to determine his involvement before taking the exam. (Gov't Ex. G.) Rather also wrote "[a]t no time during the conversation between [Rather] and [Ellington] did [Ellington] ever invoke her right to silence, ask for an attorney, or state that she no longer wished to take the polygraph examination." (Id.)

Robertson and Ruddy arrived in the polygraph area shortly after they learned that Ellington had refused to take the polygraph exam. (Hrg. Tr. 28; Supp. Hrg. Tr. 28-29.) Robertson entered Rather's office to have a brief conversation with him while Ruddy remained in the polygraph waiting area with Ellington. (Hrg. Tr. 26; Supp. Hrg. Tr. 28-29.) Rather informed Robertson that Ellington changed her mind about taking the polygraph exam after speaking with her mother. (Hrg. Tr. 26.) Robertson asked Rather if Ellington asked for a lawyer, and Rather responded that she did not. (Id.) Ruddy testified that when she sat next to Ellington in the polygraph waiting area, Ellington had her purse and cell phone with her and she did not have handcuffs on. (Supp. Hrg. Tr. 28.) While Ruddy and Ellington waited for Robertson to return from Rather's office, Ruddy testified that Ellington began thinking out loud. (Supp. Hrg. Tr. 31.) Ruddy stated that there was no conversation or dialog between her and Ellington during this time; instead, Ellington made a "continuous stream of verbalizations that in no way was directed at [Ruddy] but more . . . at the wall and the ceiling or maybe the situation. And [Ruddy] simply sat with her and did not respond to anything she said." (Supp. Hrg. Tr. 32.) During this time, Ellington rocked back and forth on her chair while looking at the wall and ceiling, making comments such as, "I can't believe he would do this," "he can't have any part of this," "I need to take that polygraph--I'm going to take it," and "I don't know if I'm going to need to get a lawyer." (Supp. Hrg. Tr. 31-32.) Ruddy never responded to her. (Id.) Ruddy testified that Ellington only used the word "lawyer" once while they sat in the polygraph area. (Supp. Hrg. Tr. 32.)

When Robertson returned from Rather's office, she accompanied Ellington and Ruddy to another area within the FBI building to have Ellington's fingerprints taken. (Hrg. Tr. 27.) Robertson testified that she wanted to obtain elimination fingerprints because it appeared that only two people had handled the note at the bank--Ellington and the robber. (Hrg. Tr. 28.) Using the process of elimination, if the FBI knew Ellington's fingerprint pattern, it could isolate the robber's fingerprints on the note. (Id.). Ellington testified that as they walked from the polygraph area to the fingerprinting area, she told Robertson that she expected her mother to call her back with her attorney's information and that she needed to have an attorney present before she could do anything. (Hrg. Tr. 172-74.) Robertson testified that Ellington did not say anything about a lawyer to her while they went to get the fingerprints taken. (Hrg. Tr. 29.) Ellington had her fingerprints taken at 2:50 p.m. and Robertson asked her if she would be willing to make any more phone calls to Perkins. (Gov't Ex. F.; Hrg. Tr. 30.) Ellington indicated that she would attempt to contact Perkins again. (Hrg. Tr. 30.) Robertson testified that if Ellington did not want to make more phone calls, she ...


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