Opinion
06 Cr. 46 (GEL).
August 3, 2006
Elie Honig, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York), for the Government.
Paul R. Nalven and Alexei Schacht, Nalven Schacht, New York, New York, for Defendant.
OPINION AND ORDER
In this narcotics conspiracy case, defendant Jose Hernandez moves to suppress statements made to federal agents following his arrest. The motion will be granted in part and denied in part.
FACTUAL FINDINGS
Except where otherwise specified, the findings below are based on the testimony of Special Agent Fernando Cruz of the United States Drug Enforcement Administration ("DEA"), whom the Court finds to have been a credible witness.
As of January 9, 2006, DEA agents had been observing a storage facility in Effort, Pennsylvania, for about nine months, suspecting that a tractor-trailer that occasionally visited the facility was transporting narcotics. At about 6:30 p.m. on that day, the truck arrived at the facility, and Hernandez and other individuals were observed unloading boxes from it. This process took about an hour. (Tr. 4-5.)
"Tr." refers to the transcript of the hearing held on May 26, 2006. "GX" refers to Government exhibits at that hearing.
Shortly after leaving the facility, at the direction or request of the federal agents, Pennsylvania state troopers stopped the truck for speeding. The troopers sought and obtained consent from Hernandez to search the truck. Because the truck contained too many boxes to be conveniently searched by the side of the road, Agent Cruz (who identified himself as a police officer without specifying that he was a federal narcotics agent) asked Hernandez if he would mind if the truck were moved to a location where the search could be handled more efficiently. Hernandez agreed. (Tr. 7-8.) During these events, there were approximately six state and federal officers at the scene. (Tr. 22.)
The truck was in fact speeding. (Tr. 5-6.) The agents' "Preferred alternative" was to stop the truck if they legally could (Tr. 21), and the state police had been instructed to make a stop "if there was a traffic violation" (Tr. 6). Had there been no violation, Agent Cruz testified that the truck would not have been stopped, and other investigative plans were in place to "deal with that situation and take it from there." (Tr. 19-21.)
Hernandez then drove the truck to a truck depot about 20-30 minutes away from the scene of the stop, accompanied by another suspect, Agent Cruz, and another agent. No interrogation was conducted during this ride; the parties engaged only in "small talk." (Tr.8-9.) After the group arrived at the depot, some time between 8:00 and 9:00 p.m., the truck was unpacked and searched — a lengthy process due to the volume of material in the truck, its disorganized packing, and the shortage of personnel to perform the search. (Tr. 12-13). While this process went on, Hernandez and the agents sat in the employee cafeteria. (Tr. 30-31.) During this period, so far as the agents were concerned, Hernandez was free to go if he choose. The conversation was general and friendly. Agent Cruz believed that Hernandez felt comfortable because Hernandez knew there were no drugs in the truck and did not know that he had been observed at the storage facility. (Tr. 25-33.) Eventually, Agent Cruz "asked Mr. Hernandez if he would mind taking a ride with us, that we wanted to talk with him," and Hernandez "said OK." (Tr. 9-10.) Still confining themselves to "[g]eneral conversation," a group of five agents conveyed Hernandez back to the storage facility in a minivan. (Tr. 10.)
At some point during this ride, a stop was made at a state troopers' barracks, where officers arranged for a berth at the truck depot. During this stop, Hernandez waited in the visitors' lounge. (Tr. 23, 28-29.)
Apparently, nothing incriminating was found in the truck.
As the van approached the facility, Agent Cruz said to Hernandez, "I'm going to show you something. We have been watching this place." (Tr. 11.) Pulling up to the locker to which the earlier delivery had been made, the agent asked Hernandez if he recognized the place. When Hernandez nodded, Agent Cruz informed him that the agents had been surveilling the facility, had seen the tractor-trailer arrive there, and had observed Hernandez and two other men unloading boxes into the storage locker. Hernandez acknowledged that he had been there. The agents then asked what was in the boxes, and Hernandez said he had put six boxes containing cocaine into the locker. At that point, Agent Cruz placed Hernandez under arrest and advised him of his rights, in both English and Spanish, from a standard DEA form. It was approximately 2:00 or 2:30 in the morning. (Tr. 11-13.)
There was no further interrogation at this point. Hernandez was taken to a state police barracks, and the agents returned to the truck depot. At 7:00 or 8:00 in the morning, three DEA agents visited Hernandez in a holding cell in the barracks. Agent Cruz again read the Miranda warnings to Hernandez from the standard card. In addition, the agents prepared a photocopy of the card, which Hernandez signed and dated, and on which Hernandez initialed each of the specific warnings in Spanish, as well as a sentence asking whether he understood the warnings. (Tr. 13-16; GX 3502F.)
Upon questioning, Hernandez in substance reiterated that he had put boxes of cocaine into the storage unit, along with the man who had been with him in the truck and another individual who met them at the facility. (Tr. 16.)
These facts, to the extent they reflect the physical actions of the parties, are essentially undisputed. Hernandez's perspective on these events differs primarily with respect to his subjective impressions regarding the events, and particularly regarding the authorities' various requests for cooperation. Thus, Hernandez testified that he "didn't think [he] was speeding" (Tr. 43); that at the time he was asked permission to search the truck, he did not "feel that [he was] free to leave" (id.); that he believed he was being "instructed to stay with" the officers (Tr. 47); that rather than asking if it was all right to take the truck to another location, the officers "told" him that they "had to" take the truck to a storage facility (Tr. 48); and that he was generally surrounded by agents or officers when stopped by the roadside (Tr. 47), when in the truck driving to the storage facility (Tr. 48-49), when stopping briefly at the police barracks (Tr. 50), and in the cafeteria of the truck depot (Tr. 54).
There are two specific points of direct contradiction between the agent's testimony and the defendant's. First, Hernandez denied admitting that he knew the boxes contained cocaine, and testified that he consistently maintained that he did not know what was in the boxes. (Tr. 64.) Second, while Hernandez acknowledged that he was given Miranda warnings, he insisted that this occurred neither at the storage facility nor the following morning before being questioned, but rather at the state police barracks immediately after the visit to the storage facility. (Tr. 66-67, 72.) On these points, I find Agent Cruz more credible. Whether or not Hernandez intentionally testified falsely, he has every motivation to minimize, to himself as well as to the Court, the extent to which he made incriminating statements, and unlike a professional law enforcement agent who is consciously tracking his actions to conform to law, and who knows he will need to recall details of his actions at a later time, a person arrested and presumably anxious and upset is more likely to confuse details of events that occurred in the early morning hours of a stressful day. Whether or not Agent Cruz's actions at all points conformed to constitutional requirements, the Court believes from his demeanor and responses that he believed at all times that they did, and that he was taking steps at all times to conform his conduct to his understanding of what the law required. Finally, Hernandez appears to have acknowledged in an affidavit submitted in support of his motion that he was given Miranda warnings at the storage facility after answering questions (Hernandez Aff., Def. Mot. Ex. B, ¶ 6), a version consistent with Agent Cruz's testimony. While Hernandez argues that this affidavit is not literally inconsistent with his testimony, and was carelessly drafted by his former lawyer, at a minimum it indicates a willingness to adopt his lawyer's formulations of positions that appear advantageous. Thus, on these points of contradiction, I accept the agent's testimony as truthful.
Moreover, Hernandez testified to various specific occasions on which the officers issued particular directives to him or exerted some control of his actions. For example, he and his passenger were told during the roadside stop when they could and when they could not cross the road to get coffee (Tr. 44-46) and when they could go to the bathroom (Tr. 55); their cell phones were taken away from them by the officers (Tr. 48); when they suggested that the vehicle could be searched at their ultimate destination in New Jersey, the officers rejected that suggestion (Tr. 51); and he was essentially told, rather than asked, to go for a ride with the agents to what turned out to be the storage facility (Tr. 55, 61). The Court finds Hernandez's testimony on these particular matters, which was not contradicted by Agent Cruz, and his report of his subjective feeling of not being free to leave, credible.
DISCUSSION
Hernandez moves to suppress all of his statements made during the night of January 9 and the morning of January 10, contending that he was in custody from the time of the traffic stop, and that all interrogation after that point, specifically including the questioning at the storage facility, constituted inherently coercive custodial interrogation that should have been preceded by Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966).
It is a close question whether Hernandez was in custody beyond the period necessary for the initial, and lawful, traffic stop. Agent Cruz credibly testified that he believed that Hernandez was legally free to go at that point, that he and his fellow agents carefully phrased their requests politely so as to seek Hernandez's consent whenever they wanted Hernandez to do anything or go anywhere, and that he would have allowed Hernandez to leave if Hernandez had specifically refused to cooperate with the agents. Hernandez, however, plausibly contends that a reasonable person in his position would not have considered himself free to leave. However careful the agents may have been to make polite requests rather than to give orders when large scale movements were afoot, Hernandez credibly points to a number of subtler actions, not denied by the Government, by which the agents may have, intentionally or not, conveyed the impression to a reasonable person that he was not free to do as he pleased. When a person surrounded by police officers asks permission to get a cup of coffee or go to the bathroom, and is told either "no" or "not now" or "let me check that out," a reasonable person would be hard pressed to conclude that he was free to leave.
It is unnecessary to resolve this issue, however, since the Government does not seek to offer any statements made by Hernandez at the storage facility in the midnight hours, and resists the motion only with respect to the statements made by Hernandez during his interrogation in the cell on the morning of January 10. Indeed, the Government agrees that for the purposes of deciding the admissibility of the later statements, the Court may assume arguendo that the earlier statements were obtained in violation of Miranda. Even on that assumption, the Government argues, the later statements are admissible on the authority ofOregon v. Elstad, 470 U.S. 298 (1985), because Hernandez was fully advised of his Miranda rights before he made those statements. Hernandez responds that the case is distinguishable from Elstad, and more similar toMissouri v. Seibert, 542 U.S. 600 (2004), in which the Supreme Court suppressed the defendant's statements. Though the matter is not free from doubt, the Government has the better of the argument.
In Elstad, officers arrested the defendant at his home pursuant to an arrest warrant, and briefly questioned him without advising him of his rights, obtaining the defendant's admission that he was present at the burglary with which he was charged. The defendant was taken to the sheriff's office, where, approximately an hour later, he was advised of his rights, agreed to speak to the officers, and made a full confession. 470 U.S. at 300-01. Noting that "the task of defining `custody' is a slippery one," and that consequently `"policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever,'" the Court ruled that "a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will" does not "so taint the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period." Id. at 309,quoting Michigan v. Tucker, 417 U.S. 433, 446 (1974) (first alteration in original).
The Court acknowledged that once a suspect has made an incriminating statement, his fear that he has "let the cat out of the bag" will affect his subsequent decision whether to assert or waive his right to silence. Id. at 310. But the Court rejected the view that this psychological effect could be equated with police coercion: "In these circumstances, a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statements inadmissible. The warning conveys the relevant information and thereafter the suspect's choice whether to exercise his privilege to remain silent should ordinarily be viewed as `an act of free will.'" Id. at 310-11, quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963).
Cautioning against a rigid rule of taint, or one that would require a substantial break in time between the initial unwarned inculpatory statement and a second statement following the administration of Miranda warnings, the Court ruled that where the initial statement is voluntary (though inadmissible due to the absence of Miranda warnings), "[t]he relevant inquiry is whether, in fact, the second statement was also voluntarily made." Id. at 318. This assessment is based on the totality of the circumstances and "the entire course of police conduct with respect to the suspect"; however, "[t]he fact that a suspect chooses to speak after being informed of his right is, of course, highly probative." Id.
In Seibert, the Court revisited the issue of delayedMiranda warnings in a different context. As Justice Brennan had predicted in his Elstad dissent, 470 U.S. at 329-30, unscrupulous police interrogators seized on Elstad as license to evade Miranda, adopting a practice of "two-stage" interrogation, in which an arrested suspect would first be interrogated without the required warnings, and then, after a confession was extracted, provided with warnings in a deliberate effort to launder a subsequent repeated confession. Seibert, 542 U.S. at 609-10. By a narrow majority, and without an opinion for the Court, the Court rejected this practice.
In Seibert, police officers arrested a murder suspect at 3:00 a.m., deliberately refrained from providing Miranda warnings, and interrogated the suspect in a police station for 30 to 40 minutes, until she confessed. After a 20 minute coffee and cigarette break, the interrogation resumed with an administration of Miranda warnings. When the suspect did not give the expected inculpatory answers, the interrogating detective confronted her with her prior admission and got her to repeat it. Id. at 604-05. The officer acknowledged that "he made a `conscious decision' to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question `until I get the answer that she's already provided once.'" Id. at 605-06 (quoting officer's testimony).
In suppressing the second statement, the plurality made clear that it was dealing with the phenomenon of deliberate "`two-stage interrogation.'" Id. at 609, quoting Police Law Institute, Illinois Police Law Manual 83 (Jan. 2001 — Dec. 2003). Such a technique was condemned because the object and likely effect of the procedure was "to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed." Id. at 611. The point of the warnings is to defuse the coercive effect of custodial interrogation, and the touchstone for evaluating whether warnings given before a second interrogation will save a statement made during such questioning is "whether in the circumstances theMiranda warnings given could reasonably be found effective."Id. at 612 n. 4. Such effectiveness is unlikely when "the earlier and later statements are realistically seen as parts of a single, unwarned sequence of questioning." Id.
Concurring in the result, and providing the controlling fifth vote, Justice Kennedy emphasized the subjective intention of the officers, noting that the police in Seibert "used a two-step questioning technique based on a deliberate violation ofMiranda," in that the warning "was withheld to obscure both the practical and legal significance of the admonition when finally given," effecting "an intentional misrepresentation of the protection that Miranda offers." Id. at 620-21 (Kennedy, J., concurring). In contrast, he pointed out that Elstad reflected a concern for good-faith mistakes by police officers — a subsequent, fully-warned, voluntary confession should not be vitiated because of an understandable mistake in connection with earlier questioning, as when "[a]n officer may not realize that a suspect is in custody and warnings are required." Id. at 620 (Kennedy, J., concurring).
Justice Breyer, though joining the plurality opinion, similarly emphasized the question of the officers' good faith or lack of it in a separate concurring opinion. Seibert, 542 U.S. at 617-18 (Breyer, J., concurring).
This case is closer to Elstad than to Seibert. Hernandez does not argue that the initial statement was involuntary, nor could he. Even if he was in custody when he made his initial admission, and should have been given warnings to dispel the inherent potential for coercion in that situation, there is no basis for suggesting that his statement was not the product of free will. Hernandez did not dispute Agent Cruz's testimony that throughout his detention, the agents treated him civilly, and engaged primarily in "small talk" rather than in interrogation. The agents' decision to take him to the storage facility and reveal that they had surveilled him there (and therefore knew, at a minimum, that he had given the state troopers a false account of his movements) no doubt confronted him with the unpleasant and disturbing news that he was likely in deep trouble, and thus provoked his admission. But such a confrontation is hardly coercive, and does not render his statements, made within minutes of the institution of questioning, involuntary.
Unlike in Seibert, but as in Elstad, the second statement was made not as part of a virtually continuous sequence of questioning in the same location, but in a different location, after a considerable lapse of time. Indeed, the separation between the two statements here was significantly greater than that which existed in Elstad. Elstad was formally arrested before the initial questioning, and the second interrogation commenced only an hour later, albeit after transportation to a different location. Here, Hernandez's initial statement was followed by his being formally placed under arrest and givenMiranda warnings. Notwithstanding Hernandez's belief that he had not been free to leave even before this event, it would be difficult for any suspect in Hernandez's place to miss the significant change in circumstance that results from being placed under arrest, advised of his rights, and presumably handcuffed. The second interrogation occurred not merely at a different location, but after a break of five or six hours (essentially the following morning), and was preceded not merely by another set of oral warnings, but by the ceremony of requiring Hernandez to read a written statement of the warnings, and initial and sign the advice of rights form to acknowledge his understanding.
The record does not contain any testimony as to whether Hernandez was handcuffed at any time. The virtually certain inference is that he was not in handcuffs at any time before his formal arrest, since such a restraint, had it occurred, would surely have been mentioned by Hernandez or elicited by his attorney from Agent Cruz. Standard DEA procedure would require a suspect to be transported in handcuffs after an arrest.
Moreover, and critical in view of the emphasis on the officers' good faith in both the plurality and concurring opinions inSeibert, the officers here did not deliberately floutMiranda. Agent Cruz's testimony, which the Court credits, makes clear that the agents' strategy here was premised on the good-faith belief that Hernandez was not in custody and that warnings were therefore not required. Unlike Seibert — in which the officers deliberately and knowingly violated Miranda in the hope of exploiting Elstad to permit the admission of a confession despite their deliberate violation of law — the agents here made elaborate efforts to avoid taking custody of Hernandez. In their view, he remained at all times free to leave, and they took the precaution of asking him for his consent at every stage — to search his vehicle, to permit the vehicle to be moved to a separate location to effectuate the search, to stay at the truck depot while the search was conducted, and to travel to the storage facility.
Perhaps these efforts were ineffectual; perhaps a reasonable person, given the circumstances, would not have believed that he was free to leave, and would have taken the officers' "requests" as merely polite formulations of commands. On the assumption, invited by the Government, that Hernandez was in fact in custody, the unwarned statement at the storage facility must be suppressed as the product of de facto custodial interrogation. As inElstad, however, the statement that resulted from the second, clearly custodial interrogation, is admissible. That interrogation was preceded by a formal arrest and confinement, for the first time, in a cell; an overnight break; and then a formal presentation of Miranda warnings both orally and in writing accompanied by a written acknowledgment of their receipt. There is no reason to believe that these warnings did not fully convey to Hernandez that a new phase of the case had begun, that he was under no compulsion to speak on this occasion, and that he had a free choice whether to respond to questioning at that time. He chose to speak with the officers, and what he said may be admitted into evidence.
CONCLUSION
Defendant Hernandez's motion to suppress statements made on January 10, 2006, is granted on the Government's consent with respect to statements made at or about 2:00 a.m. at the Effort, Pennsylvania, storage facility. The motion is denied with respect to statements made at or about 8:00 a.m. in the holding cell of the state police barracks.
SO ORDERED.