Opinion
No. 99-CR-150E.
October 10, 2000
ATTORNEYS FOR THE PLAINTIFF: Joel L. Violanti, Esq., Asst. United States Attorney, Buffalo, NY.
ATTORNEYS FOR THE DEFENDANT: Joseph B. Mistrett, Esq., First Asst. Federal Public Defender, Buffalo, NY.
MEMORANDUM and ORDER
McGee was indicted for bank robbery October 20, 1999. motion to suppress certain statements January 11, 2000 and She filed a a motion to suppress identification testimony February 2, 2000. Pursuant to 28 U.S.C. § 636(b)(1)(B) both motions were transferred to Magistrate Judge Leslie G. Foschio for a report and recommendation ("the RR"). Judge Foschio filed his RR May 26, 2000 recommending that both motions be denied. McGee timely filed her objections to such on the basis that (1) her statement "I suppose I need an attorney" was a sufficient assertion of her right to counsel requiring the suppression of statements made thereafter without the presence of an attorney and (2) that the pretrial identification must be suppressed because the photographic array was unduly suggestive of her identity and, consequently, a Wade hearing must be conducted to determine if there is an independent basis of reliability for the anticipated in-court identification. Pursuant to FRCvP 72(b) the undersigned has made a de novo review of those parts of the RR to which McGee has objected. For the reasons below the motion to suppress certain statements will be granted and the motion to suppress identification testimony will be denied.
Familiarity with the RR is presumed. McGee was arrested for bank robbery September 23, 1999 and taken to the Buffalo office of the FBI. After being informed of her rights by Agents of the FBI in an interview room, McGee stated "I suppose I need a lawyer." Agent Marburger responded that he "was not in a position to advise her legally, or give her legal advice," and asked if she wished to continue speaking with them. McGee said that she did and signed the Advice of Rights form indicating that she was waiving her rights. She was then questioned without the presence of an attorney and made several incriminating statements. McGee has moved to suppress such statements on the ground that she had asserted her right to counsel and therefore the Agents could not question her until she allowed access to an attorney. The Magistrate Judge recommended that the motion to suppress certain statements be denied on the ground that McGee's statement "I suppose I need a lawyer" was insufficient to invoke her right to counsel and require the Agents to cease questioning her, because the use of the term "I suppose" made her statement ambiguous and equivocal. RR at 17-18.
Prior to interrogating a suspect, a law enforcement official must advise the accused that she has the right to consult with an attorney; if she requests an attorney in response to such, the interrogation must cease until an attorney is provided. Miranda v. Arizona, 384 U.S. 436, 471, 474 (1966). After an accused has invoked her right to counsel, law enforcement officials must cease their interrogation until counsel has been provided, unless the accused personally initiates further communication with law enforcement. Edwards v.Arizona, 451 U.S. 477, 484-485 (1981). Invocation of the right to counsel must be unambiguous and unequivocal to require law enforcement officials to cease their interrogation — Diaz v. Senkowski, 76 F.3d 61, 64 (2d Cir. 1996) — although the accused need not be eloquent in her request for counsel, so long as the request is clear enough that "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis v. United States, 512 U.S. 452, 459 (1994). Even if the accused's request for counsel could be considered as ambiguous by an ordinary person, such request must be given a broad interpretation when determining whether the accused was in fact requesting an attorney. Connecticut v. Barrett, 479 U.S. 523, 529 (1987). An objective test is used to determine whether an accused has requested the assistance of counsel; the underlying, unexpressed intent of the accused is not relevant. Diaz at 64. In determining whether the accused's statement is a request for counsel, the Supreme Court has held that "a statement is either such an assertion of the right to counsel or it is not." Smith v. Illinois, 469 U.S. 91, 97-98 (1984).
Internal citations and quotation marks omitted.
The undersigned finds McGee's statement to have been a sufficiently unambiguous and unequivocal assertion of her right to and need for an attorney, requiring the Agents to cease their questioning — at least until they had fully advised McGee that she was entitled to reach out to an attorney and had thereafter received express word from her that questioning could proceed without an attorney. McGee's statement — although it could have been clearer — was sufficient to put the FBI Agents on alert that she was in fact requesting an attorney and therefore required them to refrain from questioning her. Further, merely prefacing her request for counsel with the term "I suppose," renders it neither ambiguous nor equivocal; it is still a request for counsel. Because McGee's statement was objectively sufficient to put the FBI Agents on notice that she was requesting an attorney, they were required to cease questioning her until she had had an opportunity to consult counsel or definitively chose to reinitiate communication of her own accord. Because the Agents failed to do so and continued to question her, all of her subsequent statements must be suppressed. The objections to that part of the RR recommending that her motion to suppress certain statements be denied will therefore be sustained, such part of the RR will not be adopted, the motion to suppress certain statements will be granted and the statements made by McGee after her assertion of her right to counsel will be suppressed.
McGee has also objected to that part of the RR recommending that her motion to suppress identification testimony be denied. McGee moved to suppress the pre-trial identification testimony of the bank tellers on the ground that the photographic array which was presented to them was unduly suggestive of her identity and further moved to require a Wade hearing to determine if there is an independent basis of reliability for the anticipated in-court identification testimony by the bank tellers. The Magistrate Judge recommended that the motion to suppress identification testimony be denied because the photographic array was not impermissibly suggestive. RR at 24.
United States v. Wade, 388 U.s. 218 (1967) (pretrial hearing to consider the admissibility of identification testimony).
A criminal defendant's "due process right not to be the object of suggestive police identification procedures that create a very substantial likelihood of irreparable misidentification" extends to photographic arrays. United States Thai, 29 F.3d 785, 807 (2d Cir. 1994) The danger a suggestive photographic array presents to a defendant is that a witness, who may have only briefly observed the defendant, may base a later in-court identification of the defendant on the photograph of the defendant in the array, as opposed to the observance of the defendant at the crime scene. Simmons v. United States, 390 U.S. 377, 383-384 (1968). In determining whether a photographic array is unduly suggestive, a court considers the quantity of photographs in the array, the way in which the array was presented to the witnesses and the characteristics of the photographs in the array. Thai at 808. A photographic array used to identify a is suggestive if "the picture of the accused, matching descriptions given by the witness, so stood out from all of the other photographs as to suggest to an identifying witness that that person was more likely to be the culprit." Ibid. If the photographic array is not suggestive, any other questions regarding the reliability of the witnesses go to "the weight of the identification and not to its admissibility, and the identification therefore is generally admissible without any further reliability inquiry." Ibid. Any remaining questions of misidentification from the photographic array may be inquired into during cross examination of the witnesses by the defense. Simmons, at 384. The court need not address the independent reliability of an anticipated in court identification of the pretrial identification procedures were not unduly suggestive. United States v. Greer, No. 2:95-CR-72, 1997 WL 82799, at *2 (D. Vt. Feb. 19, 1997).
Internal citations and quotation marks omitted.
Internal citations and quotation marks omitted.
McGee has not objected to the manner in which the photographic array was presented to the witnesses or the number of photographs contained therein, although the Court does note that an array is not impermissibly suggestive just because it contains only six photographs — a not abnormal circumstance. Ibid.; Thai at 808. McGee's sole objection is to the characteristics of the photographs in the array — specifically that only one of the photographs — i.e., hers — depicts a woman with a light complexion and freckles and that none of the other photographs "even remotely matches the descriptions set forth by the witnesses. Objections to the RR at 19. The various descriptions of the robber given by the three bank tellers are as follows: (1) a "Black or `mulatto' female, 5'3"-5'5, brown eyes, heavy build, 250 pounds, 20-30 years of age, light skin w/ dark freckles," (2) a "black female, 5'4 in height, medium build, light complexion w/ freckles" and (3) a "Hispanic female 51411 in height, late 20's, 175 pounds, heavy build, medium complexion w/ freckles." The undersigned has reviewed the photographic array and concurs with the Magistrate Judge that the photographic array was not underly suggestive of McGee's identity. All were color photographs women in the same pose, wearing jewelry and casual clothing. Each was black or Hispanic, had brown eyes, light or medium complexions and were of approximately the same age and build. Although McGee's photograph is the only one with clearly discernable freckles, that in and of itself does not make the array suggestive of her identity. United States v. Taveras, No. 94 Cr. 766 (LAP), 1995 WL 600860 at *4, 7 (S.D.N.Y. Oct. 11, 1995) (array of eight photographs where suspect was described as balding and defendant was the only balding man in the array was not impermissibly suggestive). McGee states that her photograph is also the only one of a woman with a light complexion; however, one of the witnesses described the robber as having a medium complexion and further McGee is not the only woman with a light complexion in the photographic array. It cannot be said that McGee's photograph so stood out from the others as to suggest to the witnesses that she was the bank robber based on the descriptions given, and thus the array was not impermissibly suggestive of her identity. Consequently, a Wade hearing is not required to determine if there is an independent basis of reliability for the anticipated in-court identification testimony. McGee's objections to that part of the RR recommending that the motion to suppress identification testimony be denied will therefore be overruled, such part of the RR will be adopted and the motion to suppress identification testimony will be denied. No other objections having been made to the RR and the undersigned not finding such to be clearly erroneous, those parts of the RR not objected to will also be adopted.
Accordingly it is hereby ORDERED that McGee's objections to the recommendation in the RR that the motion to suppress certain statements be denied are sustained and such portion of the RR is not adopted, that the statements made by McGee after her request for counsel are suppressed, that McGee's objections to the recommendation in the RR that the motion to suppress identification testimony be denied are overruled, that the remainder of the RR is adopted and that the motion to suppress identification testimony is denied.
DATED: Buffalo, N.Y. October 6, 2000.