2004 | Cited 0 times | D. Maine | May 12, 2004


Robert Brown, charged with knowingly and intentionally distributingcocaine in violation of 21 U.S.C. § 841(a)(1), seeks to suppress anystatements made to law enforcement officers on January 21, 2004.Indictment (Docket No. 11); Motion to Suppress, etc. ("Motion") (DocketNo. 24) at[1], [3]. An evidentiary hearing was held before me on May11, 2004 at which the defendant appeared with counsel. The governmentcalled three witnesses and introduced one exhibit, which was admittedwithout objection. The defendant called one witness, himself, and offeredno exhibits. Counsel for the defendant argued orally, and briefly, at theclose of the hearing. Based on the evidence adduced at the hearing, Irecommend that the following findings of fact be adopted and that themotion to suppress be denied.

I. Proposed Findings of Fact

On January 20, 2004 special agent Daniel Rousseau of the DrugEnforcement Agency, in the course of an investigation of drug traffickingat Pharos House, a halfway house in Portland, Maine used for thetransition of federal prisoners back into the community, made acontrolled purchase from the defendant through a confidential informant.On January 21, 2004 he went with a team of agents to Pharos House, where the defendant resided, to execute two arrest warrants and asearch warrant for the defendant's room. They arrived around 6:30 p.m.Included in the team were Karen Moody, supervising United Statesprobation officer, and deputy United States Marshal John Barrone.

Rousseau waited in the lobby while Barrone, Moody and deputy UnitedStates Marshal Michael Galvin went to the defendant's room to arrest him.When the officers arrived, the defendant was asleep. The defendant waswearing a sweat suit. While effecting the arrest, the defendant's handswere placed in handcuffs behind his back. He was then brought to his feetand escorted down the stairs. The defendant asked the arresting officerswhat was going on, but they did not tell him. He knew that he was underarrest. Between five and ten minutes elapsed from the time the officerswent to the defendant's room and the time they brought him downstairs.

Rousseau, Barrone and Moody went into an office at Pharos House withthe defendant. Rousseau began talking with the defendant around 7:00p.m., within 10 minutes of the time at which the defendant had beenawakened. He identified himself and told the defendant the nature of thecharge against him. The defendant said repeatedly that he did not want togo back to jail and that he had only a few days left at Pharos House. Healso said repeatedly that he had "screwed up." Rousseau told thedefendant that he was willing to talk with the defendant if the defendantwas willing to help himself out. He told the defendant that the defendantwas going back to jail but that Rousseau would report any cooperation thedefendant provided to the government. He said that cooperation would bein the defendant's best interest. Rousseau also obtained generalbiographical information from the defendant. After 10 to 20 minutes ofthis kind of conversation, Rousseau pulled a card from his credentialscase from which he read the defendant his Miranda rights. A copyof the card is Government Exhibit 1. The defendant said that heunderstood his rights and waived them. The defendant said that he had not been selling drugs out of PharosHouse. He said that he did not distribute drugs but that he knew peopleat the Eastland Hotel who could provide drugs and on a couple ofoccasions had brought individuals to those people to get drugs. Whenasked about the events of the previous day, the defendant said that hehad only brought drugs to the confidential informant as directed by theactual seller, one Cram. The defendant never said that he did not want totalk with Rousseau or indicated in any other manner that he wanted toterminate the interview. He was allowed to call his girlfriend, whom hetold that he was trying to help himself out. He also made a telephonecall at Rousseau's request in an attempt to set up another controlleddrug buy. The interview lasted between 30 minutes and one hour. At notime during the interview did the defendant appear confused, disorientedor sleepy. He was alert and attentive.

The defendant testified that he was confused when the officers enteredhis room and woke him. He testified that Rousseau told him at this timethat he was under arrest for trafficking in drugs; that he was taken fromhis room to a van outside Pharos House, where he was questioned byRousseau in Barrone's presence for 15 minutes; that he did not understandsome of what Rousseau was saying because he was "shocked and confused;"that Rousseau said that the defendant was involved in the sale of drugsout of Pharos House, which the defendant denied; that he knew some of thenames mentioned by Rousseau; and that, after Rousseau asked the defendantto make a call to room 600 in the Eastland Hotel, the defendant wasbrought into an office in Pharos House. Once in the office, the defendanttestified, Rousseau pulled a card from his wallet and began to read thedefendant his rights, but was interrupted by a knock on the door and leftthe room. When Rousseau returned, the defendant testified, he directedthe defendant to make the call. The defendant testified that Rousseaunever completed reading the defendant his rights and that the defendantnever waived his rights. He said that he made the call at Rousseau'srequest because Rousseau said that they were going to break down the door to the room anywayand the defendant feared that whatever was found in the room would be"put on" him.

The defendant also testified that he had been convicted of two feloniesbut had never been advised of his Miranda rights, although heacknowledged that he knew of and understood those rights. He deniedtelling Rousseau that he had transferred drugs for others and stated thatRousseau was "yelling and carrying on" during the interview and hadmisinterpreted everything that the defendant had said.

To the extent that the defendant's testimony conflicts with thetestimony of Rousseau, Barrone and Moody, I find the agents' testimonycredible and the defendant's not credible.

II. Discussion

The defendant contends that his statements on January 21, 2004 wereinvoluntary because he was "unable to resist the police pressure," Motionat [3], and because he was questioned immediately after being awakenedfrom sleep and could not give a valid waiver shortly after beingawakened. He also contends that he was not given the requiredMiranda warnings before he made the statements at issue. Motionat [3]. I will address the latter argument first.

I find credible the testimony of Rousseau and Moody that Rousseauinformed the defendant of his rights as required by Miranda v.Arizona, 384 U.S. 436, 467-73 (1966). I find credible the testimonyof Rousseau, Barrone and Moody that the defendant indicated at the timethat he understood those rights and waived them. I do not find crediblethe defendant's testimony that Rousseau did not inform him of all of hisrights under Miranda and that he did not waive those rights.

With respect to the defendant's other arguments, he offers no citationto authority to support his contention that some unspecified yet criticalperiod must pass after an individual is awakened from sleep before hiswaiver of Miranda rights and inculpatory statements may beconsidered voluntary as a matter of law. According to the testimony of Rousseau, Barrone and Moody, atleast 10 minutes and perhaps as many as 30 minutes passed between thetime when the defendant was awakened and the time when he was given theMiranda warnings.

In order for a defendant's inculpatory statements to be admissible, theUnited States must establish by a preponderance of the evidence that he"voluntarily, knowingly and intelligently" waived his right to remainsilent and to speak with counsel. Lego v. Twomey, 404 U.S. 477,484-86 (1972) (establishing preponderance standard); Miranda,384 U.S. at 444. The voluntariness of a waiver depends on the totality ofthe circumstances. Arizona v. Fulminante, 499 U.S. 279, 286(1991). The United States must demonstrate that the defendant's will wasnot overborne and that his decision to speak was freely and voluntarilymade. Bryant v. Vose, 785 F.2d 364, 367-68 (1st Cir. 1986).Relevant considerations include "both the characteristics of the accusedand the details of the interrogation." Schneckloth v.Bustamonte, 412 U.S. 218, 226 (1973) (discussing voluntarinessstandard in context of consent to search).

The government must show that, based on the totality of thecircumstances, the investigating agents neither "broke" nor overbore thedefendant's will, Chambers v. Florida, 309 U.S. 227, 240 (1940),and that his statements were "the product of a rational intellect and afree will," Blackburn v. Alabama, 361 U.S. 199, 208 (1960). Asthis language suggests, "coercive police activity is a necessarypredicate to the finding that a confession is not `voluntary.'"Colorado v. Connelly, 479 U.S. 157, 167 (1986). Coercive policeactivity may include either the creation of a susceptible psychologicalstate in the person interrogated, Townsend v. Sain,372 U.S. 293, 307-08 (1963), or the exploitation of an existing psychologicalcondition, Blackburn, 361 U.S. at 207-08. "In the context of thevoluntariness of a confession, a defendant's mental state by itself andapart from its relation to official coercion never disposes of theinquiry into constitutional voluntariness." United States v.Palmer, 203 F.3d 55, 61-62 (1st Cir. 2000). In this case, the only evidence on this point is the defendant's testimonythat Rousseau was "yelling and carrying on" while questioning him andthat the defendant was "shocked and confused" following his awakening andarrest. This testimony is contradicted by that of Rousseau, Barrone andMoody, all of whom testified that the defendant was alert and attentivewhile being questioned and did not appear confused or sleepy. Inaddition, Barrone and Moody testified that the defendant was calmthroughout the interview. I credit the testimony of the governmentwitnesses on this point.

Even if the defendant's testimony were credited, however, it does notprovide evidence of conduct by Rousseau or any other law enforcementprofessional present at the relevant time that could reasonably beconstrued as coercive.1 See, e.g., Connelly, 479 U.S. at 165(citing cases in which defendant was insane at time of confession andofficers conducted 8-to 9-hour sustained interrogation in tiny roomfilled with police officers, with confession composed by officer ratherthan defendant; and in which police gave defendant a drug withtruth-serum properties). Nor could the fact that the plaintiff hadawakened from sleep as little as ten minutes before the interview,without more, suffice to establish that he was in a "susceptiblepsychological state" at the time of the interview. United States v.Turner, 926 F.2d 883, 888 (9th Cir. 1991) ("Merely awakening asuspect to arrest him is not coercive conduct;" statements are notinvoluntary solely because made when defendant had just been awakened).The defendant's testimony in this case is easily distinguishable from thefacts in Mincey v. Arizona, 437 U.S. 385 (1978), on which herelies. In that case, the defendant "had been seriously wounded just afew hours earlier," had "arrived at the hospital `depressed almost to thepoint of coma,'" was in the intensive care unit, was suffering"unbearable" pain, was "evidently confused and unable to think clearly" asevidenced by his incoherent written answers to questions, and was "lyingon his back on a hospital bed, encumbered by tubes, needles, andbreathing apparatus." Id. at 398-99. This is a far cry frombeing "confused and shocked" when arrested upon awakening.

The testimony that Rousseau was "yelling and carrying on," withoutmore, does not establish coercion. McCall v. Button,863 F.2d 454, 459-60 (6th Cir. 1988). There is no evidence that Rousseauthreatened the defendant in any way. The only specific statementattributed to Rousseau by the defendant that might have any bearing onthis issue is a statement to the effect that the officers were going tokick in the door of the hotel room "with or without" the defendant, butsince that room was not the defendant's room and the intended action wasto kick in the door whatever the defendant did, no threat to thedefendant is inherent in the reported statement.

In addition, the defendant's own testimony established that he had thecapacity to understand the warnings given to him, the nature of his FifthAmendment rights and the consequences of waiving those rights. Farev. Michael C., 442 U.S. 707, 725 (1979). The totality of thecircumstances in this case requires denial of the defendant's motion tosuppress.

III. Conclusion

For the foregoing reasons, I recommend that the defendant's motion tosuppress be DENIED.


A party may file objections to those specified portions of amagistrate judge's report or proposed findings or recommended decisionsentered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo reviewby the district court is sought, together with a supporting memorandum,within ten (10) days after being served with a copy thereof. A responsivememorandum shall be filed within ten (10) days after the filing of theobjection.

Failure to file a timely objection shall constitute a waiver ofthe right to de novo review by the district court and to appeal thedistrict court's order.

1. Whether the interview took place only in an office, as all of thegovernment witnesses testified, or first in a van and then in an office,as the defendant testified, has no bearing on this issue. Once thedefendant was arrested and handcuffed, which all agree happened before hespoke with Rousseau, a van would present an atmosphere no more inherentlycoercive than an office for purposes of interviewing the defendant.

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