STATE v. EARLE

2005 | Cited 0 times | D. Massachusetts | November 2, 2005

MEMORANDUM AND ORDER

I. SUMMARY

Defendant Clarence L. Earle is charged with illegallyreentering the United States after being deported in violation of8 U.S.C. § 1326. He has filed a motion to suppress the statementsthat he made to agents of United States Immigration and CustomsEnforcement ("ICE") after being arrested on November 6, 2003. Thegovernment opposes this motion. An evidentiary hearing was heldon October 7, 2005.

As described in detail in this Memorandum, the defendant'smotion to suppress is meritorious because the government has notproven by a preponderance of the evidence that he understood hisMiranda rights and, therefore, he could not, and did not, waivethem intelligently before making incriminating statements to theICE agents. Therefore, those statements, and any evidence derivedfrom them, will not be admitted as evidence at defendant's trial.

II. FACTS

The following facts are proven by a preponderance of thecredible evidence. On November 6, 2003, ICE agents and officers of the BostonPolice Department were investigating a drug smuggling operation.A confidential informant told them that the defendant, who wasusing the name Theodore Wilson, was involved in that operation.The officers wanted to obtain the defendant's cooperation intheir investigation.

The ICE agents learned that the Immigration and NaturalizationService ("INS") was seeking a warrant or detainer for thedefendant, who was believed to have illegally reentered theUnited States and to be using a false name. The investigatorsalso learned that a warrant had been issued for the defendant bythe Dorchester District Court. They decided to arrest thedefendant and try to persuade him to cooperate in the drugsmuggling investigation.

The confidential informant arranged a meeting with thedefendant. As the defendant was driving with a female passengerhe was surrounded and stopped by several police vehicles on abusy highway, Morrissey Boulevard in Dorchester. The defendantand his passenger were removed from his car, frisked, and takento the side of the road.

While standing by a guardrail, Boston Police Lieutenant DanielLinskey quickly read a Miranda warnings card simultaneously tothe defendant and his passenger. The card stated: Before asking you any questions, it is my duty to advise you of your rights: 1. You have the right to remain silent; 2. If you choose to speak, anything you say may be used against you in a court of law or other proceeding; 3. You have the right to consult with a lawyer before answering any questions and you may have him present with you during questioning; 4. If you cannot afford a lawyer and you want one, a lawyer will be provided for you by the Commonwealth without cost to you; 5. Do you understand what I have told you; 6. You may also waive the right to counsel and your right to remain silent and you may answer any question or make any statement you wish. If you decide to answer questions you may stop at any time to consult with a lawyer.See Ex. 1.

It is not proven that the defendant heard or understood thesewarnings. The defendant did not respond to the question aboutwhether he understood his rights or otherwise acknowledge that heunderstood them. Indeed, Linskey made no effort to ascertainwhether the defendant understood his rights. Rather, immediatelyafter reading from his card Linskey began "putting on a show" byyelling orders to other officers to try to give the informant,who evidently was observing the scene from a bridge, some cover.Oct. 7, 2005 T. at 51.1

The defendant was arrested on the Dorchester District Court warrant and in connection with the drug smuggling investigation.He was taken to a local police station and booked. He was notorally given Miranda warnings again at the police station.

However, at the police station Linskey gave the defendant aBoston Police Department Booking Form, Exhibit 2. It contained,in bold type, Miranda warnings, and the question, "Do youunderstand what I have told you." In fainter type was thestatement, "Yes, I understand" and a signature line. The form didnot contain a place for the prisoner to indicate whether or nothe wished to waive his Miranda rights. The form did contain adescription of the prisoner's property and a signature line forhim to acknowledge the property that was being held.

There is no direct evidence that the defendant read the form.The court finds that he did not. As he testified, Linskey: said [to the defendant] that these are the rights I informed you of earlier. You've got to sign here and you have to sign for your property. We have a belt, laces, and it listed the property. And he signed the form and I signed the form.Oct. 7, 2005 Tr. at 23. Thus, the court finds that Linskeyinstructed the defendant to sign the form and that he did sowithout reading it.

Linskey brought the defendant upstairs for questioning by ICEagents Eric LaForte, Peter Pasciucco, and Peter Darling aboutthirty minutes after the arrest. The government has presentedsomewhat inconsistent versions of what transpired next. According to LaForte's report, which was appended to defendant's motion tosuppress: "Agent's initiated the interview by asking Wilson if hehad been advised of his rights and if he understood them. Wilsonstated that he did." LaForte Report at 2. The agents then askedif Theodore M. Wilson was an alias. Id. The defendant,according to the report, responded that: he was Eric Allen; hehad been born in Jamaica; he had been deported from the UnitedStates in 1990 or 1991 after serving a sentence for illegallypossessing a firearm; he illegally reentered the United Statesfive years later; he was deported again in 2001 or 2002 afteranother firearms conviction; and he illegally reentered theUnited States again. It is these statements that defendant seeksto suppress.

Pasciucco testified at the suppression hearing and gave a moreaccurate and complete rendition of the relevant events. Accordingto Pasciucco, the ICE agents asked the defendant: "had he beenread his rights downstairs? Did he understand them. He said`yes.'" Oct. 7, 2005 Tr. at 59.

The ICE agents then "did a pitch that [they] would like [thedefendant] to help [them] with some cases" and said "maybe [they]could help him with whatever problems he may have." Id.

The ICE agents knew that INS believed the defendant hadillegally reentered the United States and that his real name wasnot Theodore Wilson. The ICE agents told the defendant that "tobe helpful to [them] he would have to be honest and tell [them]the truth. . . ." Id. at 76. They then asked the defendant's truename and further questions that elicited the responses that thedefendant seeks to suppress.

The defendant did not at any time invoke or refer to his rightsto remain silent or to counsel. The ICE agents did not ask if hewanted to waive these or his other Miranda rights.

The defendant was subsequently indicted in the instant case forillegally reentering the United States after being deported.Discovery disclosed the confession to committing this crime thatthe defendant provided the ICE agents. Understanding thatdiscovery was complete, the defendant filed a motion to suppressand supporting affidavit in which he stated that, "I was notgiven my Miranda warnings prior to questioning" on November 6,2003. Aug. 3, 2005 Aff., ¶ 2. The government subsequently foundand disclosed to defendant the Miranda warning card and BostonPolice Department Booking Form that were admitted as Exhibits 1and 2 at the October 7, 2005 suppression hearing over thedefendant's objection.

The government did not at the suppression hearing introduce anyevidence concerning the defendant's background and experience. Ithas subsequently argued that the court should considerinformation on these issues from defendant's detention hearingand arraignment. The defendant objects to the consideration ofthis information on the ground that he did not know that thegovernment was relying on it and, therefore, did not have anopportunity to challenge or supplement it at the suppression hearing. Moreover,it may be impermissible to rely on information generated in theprior proceedings if it derives from statements the defendantmade on November 6, 2003, which must otherwise be suppressed.However, assuming, without finding, that the information at issuemay properly be considered, the court concludes that it is notmaterial.

At his May 23, 2005 arraignment the defendant stated that hewas then 37 years old, and was a high school graduate who had nodifficulty speaking or understanding English. In deciding todetain the defendant pending trial, the Magistrate Judge wrote: BICE records indicate that the defendant Clarence Earle was born on October 29, 1967 in Jamaica. He has used numerous alias identities. The defendant has an extensive criminal record beginning in 1992, including convictions for possession of a firearm, assault and battery with a dangerous weapon, operating to endanger, and possession and distribution of a Class D controlled substance. He has been incarcerated on various occasions. There are various drug-related charges presently pending against the defendant in the Dorchester District Court. His record is replete with defaults.March 17, 2004 Memorandum and Order on Government's Motion forDetention at 5.

As explained in Section IV below, the court finds that thegovernment has not proven that, on November 6, 2003, thedefendant understood that he had a right to counsel and to remainsilent, or that his statements to the ICE agents could be usedagainst him. Therefore, he could not, and did not, intelligentlywaive those rights before making incriminating statements to the ICE agents.

III. THE APPLICABLE LAW

The Fifth Amendment provides that "[n]o person . . . shall becompelled in any criminal case to be a witness against himself."To make this right meaningful, the Supreme Court has held that inthe inherently coercive circumstances of interrogation of aperson who is in custody, law enforcement officials must informthe individual that: (1) he has the right to remain silent; (2)his statements may be used against him at trial; (3) he has aright to an attorney during questioning; and (4) if he cannotafford an attorney, one will be appointed to represent him.Miranda v. Arizona, 384 U.S. 436, 479 (1966); Dickinson v.United States, 530 U.S. 428, 438-40 (2000). An individual mayknowingly, intelligently, and voluntarily waive these rights andanswer questions without an attorney. Miranda, 384 U.S. at 479.However, unless the government demonstrates that the requiredwarnings have been given and have been knowingly, intelligently,and voluntarily waived, it may not introduce at the trial of theinterrogated individual any evidence obtained from itsquestioning. Id.; Moran v. Burbine, 475 U.S. 412, 421 (1986);United States v. Christian, 571 F.2d 64, 67-69 (1st Cir. 1978);Hart v. Attorney General of Florida, 323 F.3d 884, 891-92 (11thCir. 2003).

"The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and notsimply a preliminary ritual to existing methods ofinterrogation." Miranda, 384 U.S. at 476. Therefore, it is notsufficient for a law enforcement officer merely to read a personhis Miranda rights. Christian, 571 F.2d at 67-68. Rather, thegovernment has an obligation to assure that the personunderstands those rights and voluntarily and intelligentlyrelinquishes them. Moran, 475 U.S. at 421.

As the Supreme Court has explained, the inquiry concerningwhether Miranda rights have been waived "voluntarily,knowingly, and intelligently . . . has two distinct dimensions."Id.

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that Miranda rights have been waived.Id. (emphasis added); see also Hart, 323 F.3d at 892.

The government bears the burden of proof concerning a motion tosuppress statements that a defendant asserts were obtained inviolation of his Miranda rights. Miranda, 384 U.S. at 475;Colorado v. Connelly, 479 U.S. 157, 168 (1986). The knowing,intelligent, and voluntary waiver of those rights must be provenby a preponderance of the evidence. Connelly, 479 U.S. at 168. The Supreme Court has characterized this as a "heavy burden."Miranda, 384 U.S. at 475; see also North Carolina v.Butler, 441 U.S. 369, 373 (1979) ("the prosecution's burden isgreat"). The First Circuit has explained that, "[w]hat isrequired is a clear showing of the intention, intelligentlyexercised, to relinquish a known and understood right." UnitedStates v. Garcia, 983 F.2d 1160, 1169 (1st Cir. 1993) (citingPatterson v. Illinois, 487 U.S. 285, 292 (1988) and UnitedStates v. Porter, 764 F.2d 1, 7 (1st Cir. 1985), cert.denied, 481 U.S. 1048 (1987)). In Porter, the First Circuitwrote: Merely asking the accused whether he understood his rights does not satisfy the duties of an interrogating officer or make any statement the accused might then make admissible. Miranda requires the interrogating officer to go further and make sure that the accused, knowing his rights, voluntarily relinquishes them.United States v. Porter, 764 F.2d at 7 (citing Christian,571 F.2d at 68).

"`[A] valid waiver will not be presumed simply from the silenceof the accused after warnings are given or simply from the factthat a confession was in fact eventually obtained." NorthCarolina v. Butler, 441 U.S. 369, 373 (1979) (quoting Miranda,384 U.S. at 475); see also Christian, 571 F.2d at 68.However:

defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may [] support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated. Butler, 441 U.S. at 373; see also Bui v. DiPaolo,170 F.3d 232, 240 (1st Cir. 1999); United States v. Andrade,135 F.3d 104, 107 (1st Cir. 1998); Garcia, 983 at 1169.

The question of whether Miranda rights have been knowinglyand voluntarily waived "must be determined on `the particularfacts and circumstances surrounding [the] case, including thebackground, experience, and conduct of the accused.'" Butler,441 U.S. at 374-75 (quoting Johnson v. Zerbst, 304 U.S. 458,464 (1938)); see also Andrade, 135 F.3d at 107 ("The waiverissue, it appears, must be decided on the facts."). As explainedearlier, however, the Supreme Court has held that, "[o]nly if thetotality of the circumstances surrounding the interrogationreveal both an uncoerced choice and the requisite level ofcomprehension may a court properly conclude that Miranda rightshave been waived." Moran, 475 U.S. at 421 (internal quotationand citation omitted).

IV. ANALYSIS

The facts and the applicable law compel the conclusion that thegovernment has not proven by a preponderance of the evidence thatthe defendant understood his Miranda rights. Therefore, hecould not, and did not, knowingly and intelligently waive them.

Some of the circumstances established by the evidence tend toprove defendant understood and properly waived his Mirandarights. On November 6, 2003, the defendant was about 35 yearsold. He spoke and understood English. He had been arrested and prosecuted onprevious occasions. The defendant was read his Miranda rightsby Linskey at the scene of his arrest. He later signed a formthat reiterated those rights and included a statement that heunderstood them. Shortly thereafter the defendant said "yes" whenthe interrogating officers asked if he had been read his rightsdownstairs and understood them. In many, if not most, cases thesefacts would provide a proper basis for finding that a defendantunderstood his Miranda rights, and knowingly and intelligentlywaived them. However, in the unique circumstances of this casethe foregoing facts do not suffice.

More specifically, it is not proven that the defendant heardhis Miranda rights being read on the highway or that heunderstood what was read there. As described earlier, Linskeyread simultaneously to the defendant and the woman traveling withhim the rights written on his Miranda card. He did this at theside of a busy highway and in the midst of a chaotic vehicle stopand arrest. The card includes the question "Do you understandwhat I have told you." However, there was no testimony that thedefendant responded to this question or otherwise acknowledged atthe scene of the arrest that he had heard what had been read andunderstood his Miranda rights. Indeed, Linskey testified thatimmediately after he read the defendant and his passenger theirMiranda rights he began "putting on a show" by yelling ordersto other officers in an effort to provide some cover for the confidential informant.Oct. 7, 2005 Tr. at 51. In essence, the evidence indicates onlythat Linskey recited the required Miranda warnings. It does notprove that the defendant heard them or, if he did, that heunderstood them.

Although the defendant had been arrested many times previously,there is no direct evidence concerning whether he was read hisMiranda rights or understood them on those occasions. AsMiranda warnings are routinely given to arrested individuals,the court assumes that the defendant received them previously.There is, however, no evidence that Miranda warnings werecarefully given or that the defendant demonstrated anunderstanding of his Miranda rights on previous occasions.Moreover, as explained earlier, the government has an obligationto provide an arrested individual complete Miranda warnings andto assure that he understands them. Moran, 425 U.S. at 421.While prior experience with being arrested is relevant, it is notsufficient to prove that a defendant received adequate warningsand understood them on some prior occasion. See United Statesv. Patane, 124 S. Ct. 2620, 2625 n. 1 (2004) (governmentconcedes that answers to questioning were inadmissible becauseMiranda warnings were not completely given after defendantasserted he knew his rights).

Neither Linskey nor anyone else read the defendant hisMiranda rights again at the police station. As describedearlier, there is no direct evidence that at the police station the defendant readthe form containing his Miranda rights or saw the statementthat he understood them, which was in fainter type than thewarnings. Rather, the evidence indicates that he did not read theform. Linskey testified that he: said that these are the rights I informed you of earlier. You've got to sign here and you have to sign for your property. We have a belt, laces, and it listed the property. And he signed the form and I signed the form.Oct. 7, 2005 Tr. at 23. Thus, the court finds that Linskeyinstructed the defendant to sign the form and that he did sowithout reading it. Accordingly, defendant's signature is notreliable evidence that he understood his Mirandarights.2

In any event, the form did not include a statement that thedefendant wished to waive his Miranda rights. CompareChristian, 571 F.2d at 67 (the standard FBI form has two partsfor signatures, one setting out the Miranda rights and theother setting out the waiver of them); Hart, 323 F.3d at 893(defendant signed "form to indicate that he understood each rightand that he was willing to answer questions without a lawyer.").

The ICE agents to whom Linskey brought the defendant did notread him his Miranda rights before questioning him. This is notdispositive, however, because a change in questioners does notalways require a reiteration of Miranda warnings. UnitedStates v. Weekley, 130 F.3d 747, 751 (6th Cir. 1997).

The ICE agents did ask the defendant whether he had been readhis Miranda rights downstairs in the police station andunderstood them, to which the defendant answered "yes." Thedefendant had not, however, been read his Miranda rightsdownstairs in the police station. Thus, his affirmative responsereflected a lack of comprehension of the questions or a lack ofattention in responding to them. Therefore, his response is notpersuasive evidence that defendant actually understood hisMiranda rights. In any event, as explained earlier, merelyasking the accused whether he understood his rights does notsatisfy the duties of an interrogating officer or make anystatement the accused might then make admissible. Porter,764 F.2d at 7; Christian, 517 F.2d at 68.

In many cases in which a waiver has been found the defendantmanifested an understanding of his Miranda rights beforeengaging in conduct that was deemed to be a knowing, intelligent,and voluntary waiver of them. In contrast, the defendant in thiscase did not say or do anything that reflected a knowledge of hisrights to counsel and to remain silent before making thestatements he seeks to suppress.

For example, in Butler, 441 U.S. at 371, the defendantrefused to sign the waiver portion of the FBI's advice of rightsform before making incriminating statements. In Bui,170 F.3d at 240-41, after a second round of Miranda warnings "thepetitioner proclaimed that he knew his rights and that theConstitution would protect him" before spontaneously making,without any police provocation, incriminating remarks and thenengaging in conversation with the police. In Andrade,135 F.3d at 106-08, after being advised of his Miranda rights thedefendant refused to answer questions, asked the officers toleave, and spoke to the officers hours later only after hissister implored him to do so. In Conley, 156 F.3d 78, 83 (1stCir. 1998), the defendant requested a lawyer and then expressedan "insatiable desire" to speak with the police officer despitebeing reminded of his right to an attorney. In United States v.Hsu, 852 F.2d 407, 409, 411-12 (9th Cir. 1988), the defendantinvoked his right to remain silent, was later given a second setof Miranda warnings, and then answered questions.

In the foregoing circumstances, the defendant or petitioner didnot simply say he understood his Miranda rights. Rather, heclearly demonstrated an understanding of them by refusing toanswer questions before evidently changing his mind. In theinstant case, however, the defendant did not engage in comparableconduct and there is no basis to infer from his actions that hetruly understood his right to counsel or his right to remain silent.

Indeed, the conflicting evidence indicates that theinterrogating officers either ignored their duty to determinewhether the defendant wished to waive his Miranda rights orlulled him into believing that it was not important whether heunderstood them because the officers would help him if he helpedthem. More specifically, LaForte's report, at 2, states thatimmediately after asking if the defendant had been read andunderstood his Miranda rights, the agents asked him if TheodoreWilson was an alias and, if so, what his true name and birth datewere. According to LaForte, this inquiry prompted theincriminating answers the government seeks to use at trial inthis case. Id.

As described earlier, Pasciucco's testimony, which the courtfinds more credible on this point than LaForte's report,indicates that the report is materially incomplete andmisleading. The agents knew that the defendant had evidentlyreentered the United States illegally and believed that he wasnot actually Theodore Wilson. After the defendant answered "yes"to whether he had been read his rights downstairs and understoodthem, the ICE agents "did a pitch that [they] would like him tohelp [them] with some cases kind of thing and maybe [they] couldhelp him with whatever problems he may have." Oct. 7, 2005 Tr. at59. They told him that "if he was going to be helpful [to theagents] he would have to tell [them] the truth." Id. at 76.These statements would have reasonably encouraged the defendant to believe that it was not importantthat he actually understand his rights or intelligently decidewhether to waive them, because if he answered the agents'questions his cooperation would help rather than hurt him.

The instant case is, therefore, similar to Hart. In that casethe officers "carefully explained each Miranda warning to Hart,including that anything he said could be used against him incourt." Hart, 323 F.3d at 893. Hart then signed a form statingthat he understood and waived his Miranda rights. Id.Nevertheless, Hart asked whether he should answer questionswithout a lawyer, and made inquiries that indicated that he didnot fully understand his right to counsel. Id. at 894. Theofficers told Hart that "`honesty wouldn't hurt him.'" Id. TheEleventh Circuit granted Hart's motion to suppress his subsequentstatements, writing: Telling him that "honesty wouldn't hurt him" contradicted the Miranda warning that anything he said could be used against him in court. The phrase "honesty will not hurt you" is simply not compatible with the phrase "anything you say can be used against you in court." The former suggested to Hart that an incriminating statement would not have detrimental consequences while the latter suggested (correctly) that an incriminating statement would be presented at his trial as evidence of his guilt. * * * His decision to waive his rights and confess was a product of [the officer's] deception and, as a result of her contradictory statements, he did not truly understand the nature of his right against self-incrimination or the consequences that would result from waiving it. Therefore, his waiver was not voluntary, knowing, and intelligent as required by Miranda. Id. at 894-95.

Similarly, in this case the defendant, whose conduct manifestedno actual understanding of his Miranda rights, would have beenled to believe by Pasciucco's comments that his answers to theICE agents' questions would help him and not hurt him. As inHart, this contributes to the court's finding that thegovernment has not proven that the defendant understood hisMiranda rights and waived them intelligently.3

This case does not fit any of the paradigms in which an impliedwaiver of Miranda rights are most often found. As the FirstCircuit has written: [T]here are certain types of cases in which courts routinely conclude that a defendant who has professed an understanding of his right to remain silent has waived that right. For example, a defendant will be held to have effected a waiver when, after receiving warnings and asserting (equivocally or unequivocally) a right to remain silent, he spontaneously recommences the dialogue with his interviewers. See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); United States v. Conley, 156 F.3d 78, 83 (1st Cir. 1998). So, too, if a defendant's incriminating statements were made either as part of a "steady stream" of speech, Bradley v. Meachum, 918 F.2d 338, 342 (2d Cir. 1990), or as part of a back-and-forth conversation with the police, Baskin v. Clark, 956 F.2d 142, 146 (7th Cir. 1992), courts regularly have found waivers. A waiver of Miranda rights also may be implied when, after having received Miranda warnings, a criminal defendant responds selectively to questions posed to him. See United States v. Soliz, 129 F.3d 499, 503 (9th Cir. 1997); United States v. Eaton, 890 F.2d 511, 513-14 (1st Cir. 1989) (Breyer, J.); United States v. Chong, 829 F.2d 1572, 1574 (11th Cir. 1987).Bui, 170 F.3d at 240.

As explained earlier, in this case the defendant did not asserthis Miranda rights and spontaneously recommence the dialoguewith his interrogators. Nor were his incriminating statementspart of an uninterrupted stream of speech in which a statement ofintent to remain silent is followed by an incriminatingstatement. Cf. Bradley, 918 F.2d at 342. In addition, thedefendant did not respond selectively to questions.

The government argues that this case should be deemed analogousto Baskin, 956 F.2d at 146, in which incriminating statementswere not suppressed in part because they were made during a "backand forth conversation." However, this case is distinguishablefrom Baskin in material respects. Immediately after he was readhis Miranda rights Baskin was asked if he understood them andhe responded that he did. Id. In contrast, there is no evidencehere that the defendant acknowledged understanding his rightswhen they were read to him on the highway and the court findsthat he did not read them on the form he signed. In Baskinthere was evidence that the statement at issue was madespontaneously rather than as a result of questioning by thepolice. Id. This is not true in the instant case. Finally, incontrast to Baskin, the agents "pitch" would have reasonably led thedefendant here to believe that his statements would help ratherthan hurt him.

As described earlier, "the court[] must presume that adefendant did not waive his rights; the prosecution's burden isgreat; but in at least some cases waiver can be clearly inferredfrom the actions and words of the person interrogated." Butler,441 U.S. at 373. Among other things, the government must provethat any waiver was "made with a full awareness of both thenature of the right being abandoned and the consequences of thedecision to abandon it." Moran, 475 U.S. at 421. "What isrequired is clear showing of the intention, intelligentlyexercised, to relinquish a known and understood right." Garcia,983 F.2d at 1169. The government has not proven by apreponderance of the evidence that the defendant understood hisMiranda rights and, therefore, the court finds that he did notwaive them intelligently. Accordingly, his motion to suppress isbeing allowed.

V. ORDER

For the foregoing reasons, it is hereby ORDERED that: 1. Defendant's Motion to Suppress is ALLOWED.

2. Defendant's statements to the ICE agents on November 6,2003, and any information derived from them, shall not beadmitted at defendant's trial.

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