Opinion
03-CR-172E.
February 25, 2005
REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. John T. Elfvin, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions.
PRELIMINARY STATEMENT
The defendant, Dustin McCargo ("the defendant"), has been indicted in a one count indictment for knowingly possessing a firearm and a quantity of ammunition after having been convicted of a crime punishable by imprisonment for a term exceeding one year in violation of Title 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Docket #1).
The defendant, by way of motion, seeks "suppression of evidence," "suppression of statements" and "dismissal of the indictment for due process and speedy trial violations," each of which will be separately addressed herein. (Docket #9, ¶ 4). The government conceded that an evidentiary hearing was necessary for the resolution of the suppression issues raised by the defendant in his motion. (Docket #10, p. 2). As a result, this Court conducted an evidentiary hearing on June 18, 2004, and a transcript of that proceeding was thereafter prepared and filed with the Clerk of the Court. (Docket #13). At the hearing, the government called Officer Christopher Sterlace of the Buffalo Police Department and Officer Mark White of the Buffalo Police Department, and the defendant called William George Gethoefer, an investigator for the Federal Public Defender's Office. The defendant did not testify.
Reference to the transcript of this hearing will appear as "T" followed by the appropriate page number.
Government Exhibits 1, 2, 3, 4, 5 and 6 were received in evidence as were defendant's exhibits A, B and C.
After the filing of the aforesaid transcript of the evidentiary hearing of June 18, 2004, the parties were given until November 15, 2004 for the simultaneous filing of memoranda of law. Thereafter, the matter was taken under advisement by this Court.
FACTS
The pertinent facts, as they pertain to the resolution of the suppression issues herein, are taken from the testimony of Officers Sterlace and White given at the suppression hearing held on June 18, 2004 and the exhibits received in evidence at the hearing. The facts pertinent to defendant's motion to dismiss the indictment are taken from the government's memorandum in opposition to defendant's motion. (Docket #10).
References to this testimony, as contained in the transcript of the hearing, are designated by "T" with the appropriate page number following.
Uniformed Officers Sterlace and White were on patrol duty in a marked Buffalo Police car on July 28, 2003. (T. 4-5, 59). At 12:53 a.m. on July 28, 2003, a 911 call was received by the City of Buffalo Police Department wherein the caller stated that her "address is 501 Berkshire and someone was trying to break into my house." (Government Exhibits 1 and 2). The caller further stated that she could not tell if the individuals attempting to break into her house were men and/or women and that she had "no clue" as to whether there were "any weapons, anything like that." (Government Exhibits 1 and 2). This information was conveyed by the 911 technician to the Buffalo Police Radio Dispatcher who then transmitted a radio message to the patrol cars on duty for that area, including the patrol car of Officers Sterlace and White. This message was also sent through the police department computer communication system. (Government Exhibit 5).
Government Exhibit 1 is the tape recording of the 911 call which was played in open court as part of the suppression hearing. Government Exhibit 2 is a transcript of the 911 tape recording as well as a transcript of the Buffalo Police Radio Dispatch on July 28, 2003 regarding the break-in at 501 Berkshire.
Officers Sterlace and White received the message from the police dispatcher at 12:53:44 a.m. on July 28, 2003. (Government Exhibit 5). Officers Sterlace and White acknowledged receipt of this communication at 12:55:54 a.m. (T. pp. 18-19, 31, 60; Government Exhibit 5). At that time they were "less than two blocks" away from 501 Berkshire (T. pp. 5, 60) and they immediately proceeded "to the scene [at] 501 Berkshire" by driving easterly on Berkshire from Bailey towards Suffolk." (T. p. 8). Both officers described the area of Berkshire and Suffolk as a "high crime area." (T. pp. 11, 63).
Investigator Gethoefer testified for the defense that Berkshire was a one-way street running westerly and submitted photographs of the intersection of Berkshire and Suffolk in support of this claim which were received in evidence as Defendant's Exhibit A and B.
There was nothing in the information transmitted by the police dispatcher to Officers Sterlace and White "that the perpetrators of this burglary were African-American males" or any other race. There was no description given of size of the individuals, clothing worn, or even gender. The only thing that they knew was that there allegedly was more than one person involved. (T. pp. 24, 35).
When the officers arrived at the corner of Berkshire and Suffolk, they observed another Buffalo Police patrol car at 501 Berkshire which was located "roughly five houses, about 200 feet" from the intersection of Berkshire and Suffolk. (T. pp. 9-10, 31, 32, 48). They also "saw the defendant crossing Berkshire northbound on Suffolk focused on the police car that was at 501 [Berkshire]. (T. pp. 9-11, 32, 48, 61-4 62, 75, 76). The fact that the defendant was looking at the other police car parked in front of 501 Berkshire "aroused [Sterlace's and White's] suspicion that maybe [the defendant] knew what was going on there. He was staring at it pretty hard; hard enough that he didn't see [the other patrol car] pulling up." (T. pp. 48, 64). This observation by Officers Sterlace and White was made approximately "a minute after [they] got the [radio] call." (T. pp. 11, 34). It was "roughly five to one in the morning" and there was no one else on either Berkshire or Suffolk at the time. (T. pp. 11, 62, 79-80).
Officer Sterlace testified that when he saw the defendant "crossing the street, [he] said to [his] partner, `let's talk to this guy, see if he'll come back for a show up, see if the witness can identify who was trying to get into her house, and so forth.' So [they] pulled over and [Sterlace] asked [the defendant] to come over to the police car." (T. p. 12). In response to this Court's question, Officer Sterlace admitted that his request to the defendant to step over to the police car was "more of a command" and that the defendant "came over very compliant." (T. p. 58). Officer Sterlace further testified that it was his original intention "to explain to [the defendant] what was going on," i.e., "that there was a burglary in progress at 501 Berkshire" and to determine if the defendant "would come back to the scene for a show up identification." (T. pp. 13-14, 15-16, 35-36). If the defendant "had gone back to the scene and not been identified," he would have been released. (T. p. 14).
Both Sterlace and White exited the patrol car but did not draw their weapons. White "proceeded to the rear of the vehicle to inform radio that [they] might have a suspect that [they] were going to bring back." (T. pp. 12, 65). Sterlace asked the defendant "to come over to the police car and put his hands on the car so [Sterlace] could do a pat down search." (T. pp. 12, 37).
Officer White testified that it is departmental policy that a policeman frisk and pat down an individual before placing the individual in the rear seat of a patrol car. This is done for the officer's safety. (T. pp. 67-68). Officer Sterlace testified that he wanted to conduct the pat down search "because [he] was going to put [the defendant] in [the] police car and bring him back to 501 Berkshire if (sic) the witness could ID him." (T. pp. 12-13, 37). The pat down search would be done for "officer safety." (T. p. 13).
When he began frisking the defendant, Officer Sterlace asked him "where he was coming from" and the defendant stated that he "was coming from [his] boy's house." (T. p. 13). As part of the pat down, Officer Sterlace searched the defendant's "waistband" and "put [his] hand directly on the butt of a gun." (T. pp. 14, 37-38, 48). The defendant jumped back and "the gun came out of his pants and kind of got lodged up in his sweatshirt." (T. pp. 14-15, 39). "Roughly a minute" elapsed between the time he first saw the defendant and when he patted him down and felt the gun. (T. p. 16). Sterlace "yelled gun and [his] partner came" from around the back of the patrol car at which time "the gun hit the ground" and the officers handcuffed the defendant after a "very brief struggle" and placed him under arrest. (T. pp. 15, 65-66). The arrest of the defendant and recovery of the gun occurred at 12:58 a.m. on July 28, 2003 and the police dispatcher was advised of this at that time. (T. pp. 19, 70; Government Exhibit 5). A total of two minutes and thirty-eight seconds elapsed from the time the officers advised the police dispatcher that they were proceeding to the scene and when they arrested the defendant. (T. pp. 20, 70; Government Exhibit 5). Officers Sterlace and White explained that after they placed the defendant under arrest and put him in the back seat of their patrol car, Lt. Mark Taggert of the Buffalo Police Department gave "Miranda warnings" to the defendant. (T. pp. 25-26, 40, 70-71, 77).
The defendant acknowledged receiving his Miranda warnings but did not do so by signing a form since he was not asked to do so. (T. pp. 42, 78). He also acknowledged that he understood his rights. (T. pp. 46, 71). The defendant remained silent after receiving the Miranda warnings and continued his silence while being transported to police headquarters for booking by Officers Sterlace and White. (T. pp. 42-43).
After the booking process had been completed at Central Booking in police headquarters, Officers Sterlace and White escorted the defendant to the cell block in police headquarters. Upon arrival in the cell block, the defendant was recognized by Cell Block Attendant Roger Sanna who asked the defendant "what he [got] arrested for this time" or "what he got locked up for this time" and the defendant replied to Sanna "that he had a little gun on him." Sanna then asked the defendant "how little" and the defendant replied, "just a .357." (T. pp. 26-27, 72-73). As a result of this colloquy between the defendant and Cell Block Attendant Sanna, Officer White caused a CPL 710.30 form (Notice To Defendant Of Intention To Offer Evidence At Trial) to be filled out setting forth this aforesaid colloquy. This CPL 710.30 was received in evidence at the June 18, 2004 suppression hearing as Government Exhibit 6.
The defendant now seeks suppression of the gun and his alleged statement about the gun to Roger Sanna as reflected in Government Exhibit 6.
DISCUSSION AND ANALYSIS
The facts of this case, as set forth above, create two separate legal issues that need to be resolved in deciding the defendant's motion to suppress, to wit:
1. In reviewing the "totality of the circumstances" herein, did the police officers have:
(a) "reasonable suspicion to believe that criminal activity `may be afoot'" so as to justify the "investigatory stop" of the defendant?
(b) a reasonable basis for believing that the defendant was armed thereby justifying the frisking of the defendant and the ultimate seizure of the gun found on his person?
2. Are the statements attributed to the defendant as set forth in Government Exhibit 6 "poisoned fruit" as the result of an illegal arrest of the defendant?
A. The Terry Stop Issues:
The government argues that the police officers were justified in briefly detaining the defendant and conducting a frisk or pat down of his person for safety reasons as part of an investigatory stop as allowed under the principles enunciated in Terry v. Ohio, 392 U.S. 1 (1968) (" Terry"). The defendant asserts that there was not a reasonable basis for suspecting that the defendant was engaged in or about to engage in criminal activity and therefore, the detention of the defendant and subsequent search of his person were illegal thereby resulting in an illegal arrest. Since the defendant had been illegally arrested, the defendant submits that the subsequent statements made by him at police headquarters constitute "poison fruit" emanating from such illegal arrest and therefore the gun seized and statements made by the defendant must be suppressed.
In addressing issues arising under a Terry stop, the United States Supreme Court has provided the following guidance:
The Fourth Amendment prohibits "unreasonable searches and seizures" by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Terry v. Ohio, 392 US 1, 9, 20 L Ed 2d 889, 88 S Ct 1868 (1968); United States v. Cortez, 449 US 411, 417, 66 L Ed 2d 621, 101 S Ct 690 (1981). Because the "balance between the public interest and the individual's right to personal security," United States v. Brignoni-Ponce, 422 US 873, 878, 45 L Ed 2d 607, 95 S Ct 2574 (1975), tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity "`may be afoot,'" United States v. Sokolow, 490 US 1, 7, 104 L Ed 2d 1, 109 S Ct 1581 (1989) (quoting Terry, supra, at 30, 20 L Ed 2d 889, 88 S Ct 1868). See also Cortez, 449 U.S, at 417, 66 L Ed 2d 621, 101 S Ct 690 ("An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity").
When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. See, e.g., id., at 417-418, 66 L Ed 2d 621, 101 S Ct 690. This process allows officers to draw on their own experience and specialized training to make inferences from the deductions about the cumulative information available to them that "might well elude an untrained person." Id., at 418, 66 L Ed 2d 621, 101 S Ct 690. See also Ornelas v. United States, 517 US 690, 699, 134 L Ed 2d 911, 116 S Ct 1657 (1996) (reviewing court must give "due weight" to factual inferences drawn by resident judges and local law enforcement officers). Although an officer's reliance on a mere "`hunch'" is insufficient to justify a stop, Terry, supra, at 27, 20 L Ed 2d 889, 88 S Ct 1868, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, Sokolow, supra, at 7, 104 L Ed 2d 1, 109 S Ct 1581.
Our cases have recognized that the concept of reasonable suspicion is somewhat abstract. Ornelas, supra, at 696, 134 L Ed 2d 911, 116 S Ct 1657 (principle of reasonable suspicion is not a "finely-tuned standar[d]'"); Cortez, supra, at 417, 66 L Ed 2d 621, 101 S Ct 690 (the cause "sufficient to authorize police to stop a person" is an "elusive concept"). But we have deliberately avoided reducing it to "`a neat set of legal rules,'" Ornelas, supra, at 695-696, 134 L Ed 2d 911, 116 S Ct 1657 (quoting Illinois v. Gates, 462 US 213, 232, 76 L Ed 2d 527, 103 S Ct 2317 (1983)). In Sokolow, for example, we rejected a holding by the Court of Appeals that distinguished between evidence of ongoing criminal behavior and probabilistic evidence because it "create[d] unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment." 490 US, at 7-8, 104 L Ed 2d 1, 109 S Ct 1581.United States v. Arvizu, 534 U.S. 266 (2002).
In addressing the legal standard established in Terry v. Ohio, the Court of Appeals for the Second Circuit has stated:
The governing legal standard — Terry v. Ohio, 392 U.S. 1, 8, S.Ct. 1868, 20 L.Ed.2d 889 (1968), first delineated the contours of a limited investigative stop, now frequently called a Terry stop. Terry held that a police officer can stop and briefly detain a person if the officer has a reasonable suspicion "that criminal activity may be afoot." Id. at 30, 88 S.Ct. 1868. In deciding whether a Terry stop is reasonable under the Fourth Amendment, a reviewing court must determine, first, "whether the officer's action was justified at its inception, and [second], whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. at 20, 88 S.Ct. 1868. It is the first prong of the Terry test that is at issue here.
This circuit has characterized the quantum of suspicion necessary under the first prong of Terry as "reasonable suspicion, based on specific and articulable facts, of unlawful conduct." United States v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994) (quoting United States v. Hassan El, 5 F.3d 726, 729 (4th Cir. 1993)) (internal quotation marks omitted). Because a Terry stop impinges to a lesser extent on Fourth Amendment concerns than does an arrest or search, the stricter standard of probable cause does not apply. See, e.g., United States v. Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984))), and that "inchoate suspicion or mere hunch" will not suffice, id. at 1010. Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant. See id.
When evaluating the reasonableness of a Terry stop, the reviewing court must consider "the totality of the circumstances" surrounding the stop. Sokolow, 490 U.S. at 8, 109 S.Ct. 1581 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). And the court must evaluate those circumstances "through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training." United States v. Oates, 560 F.2d 45, 61 (2d Cir. 1977). In the case of a suspected drug transaction, this circuit has held that the reasonable suspicion inquiry must ask if "the conduct would appear suspect to one familiar with the practices of narcotics couriers, albeit the pattern of behavior is innocuous to the untrained observer." Glover, 957 F.2d at 1010 (quoting United States v. Villegas, 928 F.2d 512, 516 (2d Cir. 1991)). But a district court must not merely defer to the police officer's judgment. "The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances." Terry, 392 U.S. at 21, 88 S.Ct. 1868.United States v. Bayless, 201 F.3d 116, 132-133 (2d Cir. 2000).
There is no doubt on the part of this Court that the first prong under Terry existed, i.e., that it was reasonable for the police officers to believe that "criminal activity was afoot" in the area of Berkshire and Suffolk in the City of Buffalo on July 28, 2003 at approximately 12:53 a.m. The 911 call by the occupant of 501 Berkshire, coupled with the information conveyed by the Buffalo Police dispatcher to the officers of an attempted burglary and the immediate proximity in time and location of Officers Sterlace and White to the area of Berkshire and Suffolk, provided a sufficient basis for the officers' belief that a crime was in progress at 501 Berkshire. In addition, as part of the "totality of the circumstances" to be considered, the area in question was known by the police officers to be a high crime area, and the alleged criminal activity was occurring at a time of night when such crimes are perpetrated. These were the circumstances known to Officers Sterlace and White when they arrived at the scene and first saw the defendant as being the only person the officers saw in the area. In evaluating these circumstances "through the eyes of a reasonable and cautious police officer on the scene" such as Officers Sterlace and White, and being guided by their "experience and training," I find that it was reasonable for the officers to briefly detain the defendant for purposes of making an investigatory inquiry of him under the principles of Terry. As a result, the first prong under Terry, as put forth herein, is answered in the affirmative.
However, as to the second prong under Terry, i.e., the search issue, it is this Court's opinion that the government has failed to establish that Officer Sterlace had a reasonable basis for believing that the defendant was armed so as to justify the frisking of the defendant and the seizure of the gun from his person.
Neither Officer Sterlace nor Officer White testified that the defendant was acting in a threatening manner or in the process of flight. Their suspicion about the defendant was based on the fact that the defendant was looking at the police car parked in front of 501 Berkshire — that "he was staring at it pretty hard; hard enough that he didn't see [them] pulling up [in their patrol car]." (T. 48). I find this articulated basis for supporting a claim of reasonable suspicion that the defendant was armed to be totally without merit and reject it as such. People often stare at police cars, ambulances and other such type emergency vehicles during the course of an event in which such vehicles are involved. "Rubbernecking" is a common human trait in the exercise of human curiosity during such type events. No evidence was presented indicating that Officer Sterlace saw a bulge in the waistband area of the defendant's clothing or that his hand was positioned in such a way that he may be reaching for a weapon or that there was some other indicia that would provide a "reasonable belief" for Officer Sterlace believing that the defendant was "armed and dangerous." United States v. Colon, 250 F.3d 130, 134 (2d Cir. 2001).
The 911 caller, when asked if there were weapons involved, responded that she had "no clue" as to whether there were "any weapons, anything like that." (Government Exhibits 1 and 2).
In fact, the basis provided by both Officers Sterlace and White for the frisking or pat down of the defendant was "department policy" as part of "officer safety." (T. pp. 68, 13). Such basis alone does not satisfy the requirements of the Fourth Amendment or comport with the principles enunciated in Terry.
The Court of appeals for the Second Circuit has expressly stated that an "investigating officer may frisk an individual for weapons if the officer reasonably believes that person to be armed and dangerous" citing Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 21 L.Ed.2d 612 (1972) and McCardle v. Haddad, 131 F.3d 43, 49 (2d Cir. 1997). United States v. Colon, supra at 134 (emphasis added). Such requirement of "reasonable suspicion" to justify a search of the person during a Terry stop was pronounced by the United States Supreme Court in Florida v. J.L., 529 U.S. 266 (2000) wherein the Court stated:
Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry's rule, which permits protective police searches on the basis of reasonable suspicion rather than demand that officers meet the higher standards of probable cause, responds to this very concern. See 392 US, at 30, 20 L Ed 2d 889, 88 S Ct 1868. But an automatic firearm exception to our established reliability analysis would rove too far.Id. at 272 (emphasis added).
This requirement of "reasonable suspicion" before searching was clearly iterated by the Supreme Court in Maryland v. Buie, 494 U.S. 325 (1990) wherein it stated:
But despite the danger that inheres in on-the-street encounters and the need for police to act quickly for their own safety, the Court in Terry did not adopt a bright-line rule authorizing frisks for weapons in all confrontational encounters. Even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted.Id. at 334, n. 2; see also Ybarra v. Illinois, 444 U.S. 85, 93 (1979) (emphasis added).
I find that the evidence presented by the government fails to establish a "reasonable suspicion" by Officer Sterlace to justify the frisk or pat down of the defendant on July 28, 2003 and, therefore, RECOMMEND that defendant's motion to suppress the gun and ammunition seized from the defendant be granted.
B. The "Poisoned Fruit" Issue:
As Officers Sterlace and White testified, the defendant was placed under arrest as a result of finding the weapon on his person. (T. pp. 15, 65-66). Because Officer Sterlace did not have a legal basis for conducting a frisk or pat down of the defendant for the reasons set forth above, the search of the defendant's waistband and ultimate seizure of the weapon were in violation of his Fourth Amendment rights under the United States Constitution. As a result, the subsequent arrest of the defendant based on the illegal search and seizure of the weapon was also illegal. As the Court of Appeals for the Second Circuit has ruled:
[I]t is "axiomatic that an incident search may not precede an arrest and serve as part of its justification") (quoting Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968)); see generally Smith v. Ohio, 494 U.S. at 543, 110 S.Ct. at 1290 (an attempt to justify "the arrest by the search and at the same time . . . the search by the arrest, just will not do") (quoting Johnson v. United States, 333 U.S. 10, 16-17, 68 S.Ct. 367, 370, 92 L.Ed. 436 (1948)).United States v. Perea, 986 F.2d 633, 645 (2d Cir. 1993).
Since the arrest of the defendant was illegal, the question to be resolved is whether the statements subsequently attributed to him with respect to possession of the gun in question were legally obtained and therefore admissible as evidence against the defendant.
The government argues that since "neither of these admissions were elicited by police interrogation of the defendant and both occurred after the defendant had been advised of his rights and acknowledged his understanding of them, there is no basis for the defendant to now move to suppress these statements." (Docket #15, p. 15). For the reasons hereinafter stated, this Court disagrees with the government's assertions.
The United States Supreme Court has expressly stated that:
The Wong Sun doctrine applies as well when the fruit of the Fourth Amendment violation is a confession. It is settled law that "a confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is `sufficiently an act of free will to purge the primary taint.'" Taylor v. Alabama, 457 US 687, 690, 73 L Ed 2d 314, 102 S Ct 2664 (1982) (quoting Brown v. Illinois, 422 US 590, 602, 45 L Ed 2d 416, 95 S Ct 2254 (1975)).Oregon v. Elstad, 470 U.S. 298, 306 (1985).
The mere giving of Miranda warnings does not constitute "an intervening event " so as to "break the causal connection between the illegal arrest [of the defendant]" and the making of his statements to Roger Sanna in the cell block area. As the Supreme Court stated in Brown v. Illinois, 422 U.S. 590 (1975):
If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. See Davis v. Mississippi, 394 US 721, 726-727, 22 L Ed 2d 676, 89 S Ct 1394 (1969). Arrests made without warrant or without probable cause, for questioning or "investigation," would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings. Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a "cure-all," and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to "a form of words." See Mapp v. Ohio, 367 US, at 648, 6 L Ed 2d 1081, 81 S Ct 1684, 84 ALR2d 933.Id. at 602-603; see also Dunaway v. New York, 442 U.S. 200, 217 (1979).
The question that needs to be answered is "whether, granting establishment of the primary illegality, the evidence [the defendant's statements] to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488 (1963). Guidance in answering this question is found in the Supreme Court's following admonition:
The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, see Johnson v. Louisiana, 406 US 356, 365, 21 L Ed 2d 152, 92 S Ct 1620 (1972), and, particularly, the purpose and flagrancy of the official misconduct are all relevant. See Wong Sun v. United States, 371 US, at 491, 9 L Ed 2d 441, 83 S Ct 407. The voluntariness of the statement is a threshold requirement. Cf. 18 USC § 3501 [ 18 USCS § 3501]. And the burden of showing admissibility rests, of course, on the prosecution.Brown v. Illinois, supra at 603-604.
There is no question that at the time the defendant made his responses to Roger Sanna's questions, he was in custody. Whether Sanna's questions to the defendant constituted "custodial interrogation" presents a very close legal question under the facts of this case.
Custodial interrogation means "questioning initiated by law enforcement officers after a person has been taken into custody. . . ." Id., at 444, 16 L. Ed 2d 694, 86 C Ct 1602, 10 ALR3d 974. The warning mandated by Miranda was meant to preserve the privilege during "incommunicado interrogation of individuals in a police-dominated atmosphere." Id., at 445, 16 L Ed 2d 694, 86 S Ct 1602, 10 ALR3d 974. That atmosphere is said to generate "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id., at 467, 16 L Ed 2d 694, 86 S Ct 1602, 10 ALR3d 974. "Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated." Berkemer v. McCarty, 468 US 420, 437, 82 L Ed 2d 317, 104 S Ct 3138 (1984).Illinois v. Perkins, 496 U.S. 292, 296 (1990).
In further defining the term "interrogation," the United States Supreme Court has instructed that:
the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.Rhode Island v. Innis, 446 U.S. 291, 301-302 (1990); United States v. Montana, 958 F.2d 516, 518-519 (2d Cir. 1992).
Although it might be argued, as does the government, that the colloquy between Sanna and the defendant was nothing more than a social conversation and not "police interrogation," this Court is of the opinion that the questions put to the defendant by Sanna, as reflected in Government Exhibit 6, constituted the "functional equivalent" of police interrogation. Officers Sterlace and white were present when the questions were asked by Sanna, and it is reasonable to conclude that they should have known that those questions were "reasonably likely to elicit an incriminating response from the" defendant. Rhode Island v. Innis, supra at 300-301. Roger Sanna is identified in Government Exhibit 6 as a "cellblock attend[ant]," and it was during the process that the defendant was being placed in the cellblock that the colloquy between him and Sanna took place. Therefore, it appears to this Court that Sanna was officially functioning as a Buffalo Police Department representative at the time of the questioning and it was reasonable for the defendant to perceive Sanna in the role of a police officer when the questions were put to him.
In considering the confrontation between Sanna and the defendant under the circumstances as they existed, from the "perception" of the defendant "rather than the intent of the police," it is reasonable to conclude that Sanna's questioning of the defendant, while in custody and about to be placed in a cellblock, constituted "interrogation" and equated to "subtle compulsion."
However, even if it were assumed arguendo that the statements made by the defendant were not the product of "coercion," or that they were not obtained in violation of the defendant's rights under the Fifth Amendment to the United States Constitution, they are nevertheless inadmissible as evidence since they were obtained as a result of the violation of the defendant's rights under the Fourth Amendment to the United States Constitution. As the United States Supreme Court stated in Dunaway v. New York, 442 U.S. 200 (1979):
But Brown v. Illinois, supra, settled that "[t]he exclusionary rule. . . . when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth," 422 US, at 601, [ 45 L Ed 2d 416, 95 S Ct 2254], and held therefore that "Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation." Ibid.
"If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. . . . Arrests made without warrant or without probable cause, for questioning or `investigation,' would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings." Id., at 602, 45 L Ed 2d 416, 95 S Ct 2254.
Consequently, although a confession after proper Miranda warnings may be found "voluntary" for purposes of the Fifth Amendment, this type of "voluntariness" is merely a "threshold requirement" for Fourth Amendment analysis, 422 US, at 604, 45 L Ed 2d 416, 95 S Ct 2254. Indeed, if the Fifth Amendment has been violated, the Fourth Amendment issue would not have to be reached.
Beyond this threshold requirement, Brown articulated a test designed to vindicate the "distinct policies and interests of the Fourth Amendment." Id., at 602, 45 L Ed 2d 416, 95 S Ct 2254. Following Wong Sun, the Court eschewed any per se or "but for" rule, and identified the relevant inquiry as "whether Brown's statements were obtained by exploitation of the illegality of his arrest," 422 US at 600, 45 L Ed 2d 416, 95 S Ct 2254; see Wong Sun v. United States, supra, at 488, 9 L Ed 2d 441, 83 S Ct 407. Brown's focus on "the causal connection between the illegality and the confession," 422 US, at 603, 45 L Ed 2d 416, 95 S Ct 2254, reflected the two policies behind the use of the exclusionary rule to effectuate the Fourth Amendment. When there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts.Id. at 216-216 (footnotes omitted).
The temporal proximity between the time the defendant was arrested, taken to booking headquarters, booked and confronted by Sanna was, for all intents and purposes, of a relatively short duration. There were no substantive intervening circumstances so as to cause the defendant's statements to be sufficiently attenuated so as to allow for their admission into evidence. The close "causal connection" between the illegal seizure of the gun and the statements made by the defendant mandate a finding that the statements should be suppressed as "fruits of the poisoned tree" resulting from the illegal search and arrest of the defendant in order to effectuate the rights and protections afforded by the Fourth Amendment.
Defendant's Motion To Dismiss The Indictment:
The defendant asserts that "the government's delay in prosecuting this case violated Mr. McCargo's rights under the Speedy Trial clause of the Sixth Amendment to the United States Constitution" because there was a "lapse of 187 days between indictment and arraignment" of the defendant thereby exceeding the "70 days between indictment and trial required by 18 U.S.C. § 3161(c)(1)." The defendant also claims that this delay caused him to be "greatly prejudiced . . . as he is unable to locate important witnesses in this case, including the woman who called reporting a burglary in progress at 501 Berkshire." (Docket #9, pp. 10-11).
In response the government argues that although the present indictment was returned on August 27, 2003, the defendant's "whereabouts was (sic) unknown to law enforcement authorities" between that date and March 3, 2004, that being the date of defendant's arrest and arraignment on this indictment, and therefore that "period of time is excludable from the time within which the government must bring this indictment and defendant to trial." (Docket #10, p. 4). The government further asserts that the fact that the defendant was originally arrested and charged by the City of Buffalo Police did not cause the "speedy trial clock" to commence running and, therefore, the arrest and placing of state charges against the defendant on July 28, 2003 is of no legal consequence for purposes of enforcement of the Speedy Trial Act ( 18 U.S.C. § 3161) provisions in this case. (Docket #10, p. 4).
Section 3161(c) of Title 18, United States Code expressly states:
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.
(Emphasis added).
The defendant was arraigned on this indictment before this Court on March 3, 2004, and a plea of not guilty was entered on his behalf. (Docket #2). Therefore, the 70 day period for the commencement of the trial did not begin to run until March 3, 2004 as provided in 18 U.S.C. § 3161(c)(1). The fact that this indictment "is based on the same evidence and the same offense upon which an earlier state arrest was made" does not cause the Speedy Trial Act time limitations to be "triggered by the prior state arrest." United States v. Leonard, 639 F.2d 101, 104-105 (2d Cir. 1981). As the Second Circuit Court of Appeals expressly held:
The Speedy Trial Act of 1974 on its face provides that its application is limited to those charged with "any Federal criminal offense which is in violation of any Act of Congress . . . 18 U.S.C. § 3161(a), 1372(2) (sic).Id. at 103.
Section 3172(2) of 18 U.S.C. states:
the term "offense" means any Federal criminal offense which is in violation of any Act of Congress and is triable by any court established by Act of Congress (other than a Class B or C misdemeanor or an infraction, or an offense triable by court-martial, military commission, provost court, or other military tribunal).
The defendant's mere allegation that he has been prejudiced by the delay in this case is not sufficient to warrant the dismissal of the indictment.
In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court enumerated four factors which a court should assess in determining whether a defendant has been deprived of his Sixth Amendment right to a speedy trial: (1) length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Id., 407 U.S. at 530. "No one of these factors, however, is `either a necessary or sufficient condition to the finding of a deprivation of the right,' and courts must still engage in a sensitive balancing process whereby the conduct of both the prosecution and the defendant are weighed." Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988) (quoting Barker, 407 U.S. at 530). However, "the length of the delay `is to some extent a triggering mechanism'; only if the delay is substantial are the other factors brought into play." Id. quoting Barker, 407 U.S. at 530, and finding a delay of seven years between arrest and conviction to be presumptively prejudicial).United States v. Kevin, No. 97 CR 763, 1999 WL194749, at *6 (S.D.N.Y. April 7, 1999). "[T]hese factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." Barker, 407 U.S. at 533; see also United States v. Companion, 545 F.2d 308, 311 (2d Cir. 1976) ("the factors are interrelated and must be considered together").
In considering all of the factors enunciated in Baker v. Wingo, supra, I find that the defendant has failed to establish that he has been deprived of his Sixth Amendment right to a speedy trial or that his rights under the Speedy Trial Act, 18 U.S.C. § 3161, have been violated. Therefore, it is RECOMMENDED that his motion to dismiss the indictment be DENIED.
CONCLUSION
Based on the foregoing, it is RECOMMENDED that the defendant's motion to suppress the evidence consisting of the gun and ammunition seized from his person and the statements made in the police cellblock be in all respects GRANTED; that the defendant's motion to dismiss the indictment be DENIED; and it is herebyORDERED pursuant to 28 U.S.C. § 636(b)(1) that:
This Report, Recommendation and Order be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Fed.R.Crim.P. 58(g)(2) and Local Rule 58.2.
The district judge will ordinarily refuse to consider de novo, arguments, case law and/or evidentiary material which could have been, but were not presented to the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Judge's Order. Thomas v. Arn, 474 U.S. 140 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 58.2 of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 58.2, or with the similar provisions of Rule 58.2 (concerning objections to a Magistrate Judge's Report, Recommendation and Order), may result in the District Judge's refusal to consider the objection.