Metropolitan News-Enterprise


Friday, June 7, 2002


Page 4


Questioning of Store Owner While Serving Warrant Violated Miranda—Court


By a MetNews Staff Writer


Police violated the Fifth Amendment rights of a food store owner by questioning her about a possible drug law violation while executing a search warrant, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided panel affirmed a district judge’s ruling suppressing statements given by Insook Kim during the execution of a warrant two years ago at the Lil’ Brick Deli in the Portland, Ore. area.

Kim said she became concerned after she telephoned the family-owned business and her 18-year-old son, whom she had left in charge on Aug. 3, 2000, did not answer. She went to the store and found police executing a search warrant.

Kim and her husband had been previously made aware that the Drug Enforcement Agency and local authorities were concerned about large-scale sales of pseudophedrine, used to produce methamphetamine, from the store. Just before the warrant was issued, an undercover officer swore he had purchased a case of the precursor at the store from an employee who was not a family member but had stayed at Kim’s home.

She admitted under questioning that she had multiple suppliers of pseudophedrine, sold it by the case, and kept large sums of money from such sales in her safe. She was later indicted for possession and distribution of pseudophedrine with reasonable cause to believe that it would be used to manufacture methamphetamine, and the government sought forfeiture of all property derived from the proceeds of the sales.

Kim and her son testified at the suppression hearing that they were not allowed to speak to each other in Korean, that the door was locked by police, and that Kim was physically isolated from her spouse before being questioned. Kim said that while she was not restrained, at least two officers stood around her and she felt surrounded.

She said she was never told she was free to leave and did not feel free to do so. She was questioned, she testified, for about an hour in English and for another 30 minutes or so after a Korean interpreter arrived; the interrogating detective said the questioning was somewhat briefer.

The detective also said that Kim was not surrounded and was told she could leave at any time.

U.S. District Judge Ancer L. Haggerty, granting the motion to suppress, said that Kim was not reasonably likely to have believed she was free to go, especially given her limited ability to speak English.

Judge Marsha Berzon, writing for the Ninth Circuit, said the district judge’s conclusions were factually supported and legally sound. She distinguished cases holding that persons who voluntarily approached police officers or visited police stations,  knowing they would be questioned, could not reasonably have considered themselves to be in custody and were not entitled to Miranda warnings.

Kim had no intention of submitting to a police interview when she went to the store to check on her son, Berzon said. This is quite different from responding to a police request that one come to the station to answer questions, she declared, especially since Kim was subjected to “a full-fledged interrogation, not a brief inquiry.”

Senior Judge Betty B. Fletcher concurred, but Judge Diarmuid F. O’Scannlain dissented.

The fact that Kim went to the store of her own accord, rather than in response to a police request, is significant, the dissenting jurist insisted. “Furthermore, it seems somewhat disingenuous to say that when Kim approached her store with police cars parked in front, found the front door locked, and then had to knock and gain entrance from an officer, that she had no expectation that maybe, just maybe, she might be called upon to answer questions,” O’Scannlain wrote.

The case is United States v. Kim, 01-30166.


Copyright 2002, Metropolitan News Company