Opinion
19-CR-417 (GRB)
2022-04-29
UNITED STATES of America, Plaintiff, v. Taheem SMITH, also known as "Ta," Defendant.
Christopher Charles Caffarone, Government Attorney, Mark E. Misorek, United States Attorney's Office, Central Islip, NY, Anthony Bagnuola, U.S. Attorney's Office, Brooklyn, NY, for Plaintiff. Christopher Joseph Cassar, The Cassar Law Firm, P.C., Huntington, NY, for Defendant.
Christopher Charles Caffarone, Government Attorney, Mark E. Misorek, United States Attorney's Office, Central Islip, NY, Anthony Bagnuola, U.S. Attorney's Office, Brooklyn, NY, for Plaintiff.
Christopher Joseph Cassar, The Cassar Law Firm, P.C., Huntington, NY, for Defendant.
MEMORANDUM AND ORDER
GARY R. BROWN, United States District Judge:
Pending before the Court is a motion by the defendant, Taheem Smith, seeking suppression of post-arrest statements. Familiarity with this matter, as well as this Court's earlier opinions, is assumed. DE 55; United States v. Smith , 489 F. Supp. 3d 167 (E.D.N.Y. 2020). An evidentiary hearing was held on January 28, 2022, followed by submission of post-hearing briefs and a video and transcript of defendant's post-arrest interview by law enforcement agents.
FACTS
Defendant Taheem Smith submitted a sworn declaration in conjunction with the motion which states as follows:
On September 12, 2019, FBI SA Derek Wonderland, Suffolk County Police Homicide Detective Jeff Bottari and Suffolk County Police Homicide Detective Ronnie Taveras transported me to the Suffolk County Police Headquarters. I was never read my rights under Miranda and I never waived my rights under Miranda. During the transportation to the Suffolk County Police Headquarters, I never waived my rights to be interrogated by law enforcement without any attorney being present.
On September 12, 2019, at the Suffolk County Police Headquarters, I was never
read my rights under Miranda and I never waived my rights under Miranda. At the Suffolk County Police Headquarters, I never waived my rights to be interrogated by law enforcement without any attorney being present.
DE 50-2 at 1-2. At the hearing, Smith confirmed that he signed the declaration, and it was done under oath. Tr. 4.
Detective Jeffrey Bottari of the Suffolk County Homicide Squad testified that he is a 29-year veteran of the Suffolk County Police Department. Tr. 7, 34. In that capacity, on September 12, 2019, he was lead detective on this case and participated in the apprehension of Smith in connection with a warrant issued by this Court. Tr. 8. At about 3:40 p.m., Smith was arrested in the driveway of his residence, without incident and without the need to draw weapons. Tr. 9-10. According to Bottari, while in the backseat of a car on the way to police headquarters, he advised Smith of his Miranda rights by reading them, verbatim, from a card, entered as Exhibit 1. Tr. 12, 15, 18. The card is distinctive, bearing the date, a case number, as well as Bottari's initials and shield number and the initials of an FBI agent. Tr. 15. He also reports reading two questions that appear on the card, to wit: whether Smith understood his rights and whether he would speak to the detectives without a lawyer present; Bottari testified that Smith answered both questions in the affirmative. Tr. 13, 18.
Smith, who was handcuffed behind his back at that time, did not sign the card. Id. The detective recorded in his notes that he "read rights" to Smith. Tr. 44. Bottari also testified, on cross-examination, that his general practice is that he adds a "plus sign" in his notes if a defendant understood and waived his rights, but no plus sign appears in his notes from that day. Tr. 52.
Initially, while they were in the car, Smith denied knowing about the homicides charged in this matter. Tr. 14. When they arrived at police headquarters, Bottari brought Smith to an interview room, where he was searched, place in a single handcuff, seated and offered use of the bathroom and a drink. Tr. 20-21. The interview room has audio and video equipment which permitted recording of the interview; a video recording of the discussions between Smith and the agents was received as Exhibit 2. Tr. 20, 23-24.
While the Court has reviewed the videotape, the Government has submitted a transcript, which appears to be reasonably accurate. DE 60-1. For convenience, the references that follow – with one exception – refer to transcript pages.
At the outset of the interview, Bottari displayed a card which appears consistent with the size, shape and color of the Miranda warnings card. The following exchange took place:
Bottari: We went over the card with ya in the car. Right?
Smith: [affirmative response]
Bottari: Read your rights and everything like that? You understand them?
Smith: Yeah, I understand.
Smith contends that his response to this question is inaudible. However, review of the video reveals that, while the word spoken may not be "okay" (indeed, it may well be "yeah"), based on the context, intonation and body language, I find that the response is clearly affirmative.
Defense counsel suggests that the response here consists solely of "Yeah," DE 59 at 5, but review of the video reveals that Smith responded "Yeah, I understand."
DE 60-1 at 4.
During the discussion that followed, according to Bottari, Smith provided details about the case which the investigators were previously unaware of. Tr. 28. Also, notably, Smith pushed back on several issues, particularly the investigators’ assertions that Smith was involved in narcotics dealing, that drugs had been recovered from his residence, and that Smith was a member of the Bloods. Tr. 29, 83, DE 60-1 at 10. At the same time, Smith made significant admissions concerning the homicides charged in this case. See, e.g. , DE 60-1 at 39-47.
While Smith was ultimately indicted for narcotics violations, it seems that, at that time, the investigators may not have had specific evidence that Smith had sold drugs to an undercover agent. Tr. 74-6. Even assuming, arguendo , that the officers incorrectly represented evidence of matters collateral to the homicides, such misstatements did not, given the totality of the circumstances in this case, render Smith's admissions involuntary. Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) ("The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible.").
After these admissions, at the defendant's request, Smith was permitted to make a phone call to his girlfriend, which was captured, in part, on the video recording. Tr. 30. During that call, he told his girlfriend that he would need a lawyer. DE 60-1 at 84, 88. After the call to his girlfriend, at approximately 6:27 p.m., Smith asked to speak to a lawyer, effectively terminating the interview. Tr. 30.
Bottari was the sole government witness; defendant opted not to testify. Tr. 91. The Court made an inquiry with Smith as to whether he wanted to testify. Id. Smith declined, having considered the matter with his attorney. Id.
DISCUSSION
"[T]he prosecution may not use statements made by a suspect under custodial interrogation unless the suspect (1) has been apprised of his Fifth Amendment rights, and (2) knowingly, intelligently, and voluntarily waives those rights." United States v. Oehne , 698 F.3d 119, 122 (2d Cir. 2012) (citing Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ). The second prong of this formulation generally involves examination of "(1) the characteristics of the accused, (2) the conditions of interrogation, and (3) the conduct of law enforcement officials." United States v. Haak , 884 F.3d 400, 409 (2d Cir. 2018) (quoting Green v. Scully , 850 F.2d 894, 901–02 (2d Cir. 1988) ). These latter elements are not seriously contested here, and a review of the interview video reveals why: the discussion between Smith and the two investigators were reasoned, generally polite and lacked any indicia of coercion. Thus, the sole question on this motion is whether the agents did, in fact, read Smith his rights and whether he understood and voluntarily waived those rights. The government has the burden of establishing said waiver by a preponderance of the evidence. Berghuis v. Thompkins , 560 U.S. 370, 384, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010).
Counsel for defendant asserts that state law requires the use of video and audio to capture advice of rights and waiver in a murder investigation. DE 59 at 3, citing N.Y. Crim. P. Law § 60.45(3)(a). Notably, under that statute, failure to comply with this provision, standing alone, cannot be the basis of a suppression motion, but simply represents a factor to be considered by a court. N.Y. Crim. Proc. Law § 60.45(3)(b). Defendant acknowledges, in any event, that "this statute does not require suppression of the statements in this federal prosecution," but instead asks the Court to draw a negative inference against the detective based upon the purported failure to comply with this provision. DE 59 at 7. While the parties submitted no authority regarding the parameters of the statute, which is relatively new, it could well be the case that the discussion surrounding Smith's rights, captured on video, might satisfy the requisites of the statute. Either way, the Court declines to draw any inference based upon this purported failure, but will independently assess the evidence.
Notably, this first portion of the test – to wit: whether the officers read the defendant his Miranda rights (a factor rooted in the Fifth Amendment) is independent of the "totality of the circumstances" that governs the voluntariness of the waiver (emanating from Due Process concerns). This distinction was brought to the fore by the post- Miranda enactment by Congress of 18 U.S.C. § 3501, which provided that "a confession ... shall be admissible in evidence if it is voluntarily given," and directing that the advice of rights to the defendant by the arresting officers represented only a factor to be considered in making this determination. In Dickerson v. United States , 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), the Supreme Court ruled that the statute's "omission of any warning requirement" demonstrated that "Congress intended by its enactment to overrule Miranda ." 530 U.S. at 436, 120 S.Ct. 2326. Holding that "unwarned statements may not be used as evidence in the prosecution's case in chief," the Court held the statute unconstitutional, noting "[t]he requirement that Miranda warnings be given does not, of course, dispense with the voluntariness inquiry." Id. at 443–44, 120 S.Ct. 2326.
Defense counsel argues several factors weighing against finding that Bottari had, in fact, read Smith his rights and that Smith had understood and waived them. These include: the absence of Smith's signature on the Miranda card, the detective's failure to mark a plus sign in his notes reflecting an understanding and waiver of rights by the defendant, and Smith's declaration that his rights were not read to him. In terms of the defendant's signature on the card, Bottari provided a credible, practical reason for not having Smith sign the card (to wit: Smith was in handcuffs in the vehicle when his rights were read), and the law "does not impose a formalistic waiver procedure that a suspect must follow to relinquish those rights." Berghuis , 560 U.S. at 385, 130 S.Ct. 2250. The absence of the detective's singular practice of denoting understanding and waiver with a plus sign in his notes does weigh somewhat in defendant's favor.
The Court has considered defendant's declaration, which can be weighed even in the absence of further supporting testimony by defendant. United States v. Matlock, 415 U.S. 164, 175, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ("where the judge himself is considering the admissibility of evidence, the exclusionary rules, aside from rules of privilege, should not be applicable; and the judge should receive the evidence and give it such weight as his judgment and experience counsel"). At the same time, "weight will be influenced by whether the affidavit is contradicted by more cogent evidence, especially that which withstands the scrutiny of cross-examination." United States v. Miller , 382 F. Supp. 2d 350, 363 (N.D.N.Y. 2005). And that is particularly true where, as here, the declaration is conclusory in nature and lacks supporting details.
Such is the case here. While counsel raises some interesting questions, the testimony of Detective Bottari is powerfully buttressed by the video recording in which the defendant reaffirms that his rights had been read to him, and were understood and waived by him. DE 60-1 at 4. Comparing the detective's sworn testimony to this recorded statement leads to the inescapable conclusion that the reading of the Miranda rights card occurred at the time of the arrest as described by Bottari. Indeed, given the defendant's state at the time of the arrest (and depicted in the video), which included evidence that he was nervous as result of the charges, his inability to recall the reading of the rights card seems highly predictable. And, of course, the question of bias further weakens any inferences that could be drawn from defendant's sworn statement, which was not subjected to cross-examination.
CONCLUSION
Based on the foregoing, Smith's motion to suppress his admissions is DENIED and the videotaped statements, to the extent they are otherwise relevant, are admissible on the Government's case.