ORDER MODIFYING RECOMMENDED DECISION
Before the Court is Defendant's Motion to Suppress (Docket #30). TheMagistrate Judge held an evidentiary hearing and oral argument onDefendant's Motion and recommended that the Motion be granted in part anddenied in part. (See Magistrate Judge's Recommended Decision onDefendant's Motion to Suppress (Docket #37).)
In accordance with its de novo review of the Magistrate Judge'srecommendations, the Court initially noted some apparent disagreementbetween the Recommended Decision and a subsequently released decision inUnited States v. Kruger, No. CR. 00-88-P-C, 2001 WL 720467 (D.Me. June26, 2001). While the Recommended Decision concluded that the fruit ofthe poisonous tree doctrine did not apply to a Miranda violation, inKruger Judge Carter concluded that the fruit of the poisonous treedoctrine could be applied to suppress physical evidence found as theresult of a Miranda violation. Hoping to reconcile these divergentopinions, the Court ordered supplemental briefing on July 5, 2001. (SeeDocket #45.) The Court has now had an opportunity to consider thesesupplemental briefs as well as all of the other objections raised byDefendant.
Having reviewed and considered the Magistrate Judge's RecommendedDecision and Defendant's objections thereto, together with the entirerecord, the Court has made a de novo determination of all mattersadjudicated by the Magistrate Judge's Recommended Decision. The Courtconcurs with the Magistrate's recommended factual findings as well as therecommended legal conclusions, with the exception of the "fruit of thepoisonous tree" issue upon which the Court ordered supplemental briefing.As a result of a clear Miranda violation, the Magistrate recommendedsuppression of statements made by Defendant before he was informed of hisMiranda rights. However, she also recommended that the Court not applythe fruit of the poisonous tree doctrine to this Miranda violationthereby denying Defendant's Motion to the extent it sought to suppressderivative evidence that included both physical evidence and third partytestimonial evidence. For the reasons stated below, the Court finds thisderivative evidence is tainted by the Miranda violation in this case andcannot be purged of that taint. Therefore, the Court hereby modifies theRecommended Decision and suppresses the physical and testimonial evidenceobtained as a result of Defendant's pre-Miranda statements.
I. FINDINGS OF FACT
Along with his co-defendants, Mark Power and Brennan Spofford,Defendant David Faulkingham is charged with one count of possession ofheroin with intent to distribute and one count of conspiracy todistribute heroin. An evidentiary hearing on Defendant Faulkingham'sMotion to Suppress was held before the Magistrate Judge on May 11, 2001.Having reviewed the transcript, the Court concurs completely with theMagistrate's recommended findings of fact. Thus, rather than reinventthe wheel, the Court below recites the relevant facts verbatim from theRecommended Decision (Docket #37):
Shortly before August 1, 2000, Agent Mark Leonard of the Maine Drug Enforcement Agency ("MDEA") received information from a known confidential informant that David Faulkingham was a drug user/dealer in the Hancock County, Maine area. Agent Leonard was also informed that Faulkingham lived in Tremont, Maine, and that he drove a tan Lincoln Town Car. Neither Agent Leonard nor the other agent involved in this case, Robert Hutchings, had heard of or met David Faulkingham prior to receiving this information. Nevertheless, they determined that it would be worthwhile to investigate the situation and on August 1 decided to travel from Bangor to Tremont to see what was what.
Prior to going to the Tremont area, they stopped at the Hancock County Jail in Ellsworth, Maine, and spoke with Deputy Sheriff Stephen MacFarland. The agents were provided with a jail photograph from approximately 1996 that showed Faulkingham's appearance at that time.
They learned that Faulkingham had lost considerable weight since the date of the photograph. Agent Leonard also did some background investigation and learned that Faulkingham's right to operate a motor vehicle was under suspension. He verified the continuing suspension with the Department of Motor Vehicles while on route to Tremont.
At approximately 3:00 p.m., the agents arrived in the vicinity of the Tremont residence that had been identified to them as Faulkingham's. They drove by the residence and saw a small black vehicle sitting in the driveway with a passenger in it. The driver was not immediately visible nor was the tan Lincoln. The agents drove on and turned around to make another pass by the house. As they did so, they observed two individuals approximately three to four hundred yards from the residence standing in a woods road. The agents parked their vehicle in another woods road closer to the residence where they were able to maintain visual contact with the residence but could not be seen by others. By this time, the Lincoln was in the driveway parked beside the black car.
The black car left the driveway shortly thereafter and the agents followed it for a short way down the road. As the car approached the second woods road where the two individuals had been standing, the black car stopped dead in the middle of the road. The two individuals ran into the road and jumped into the black car. The agents followed the car for a short way and then turned around and returned to their surveillance point. The Lincoln was still in the driveway. At this point in time, Agent Hutchings had a suspicion that illegal drug activity might have just occurred.
At about 3:15 p.m. the Lincoln left the driveway. The agents were able to ascertain that the driver appeared to be a male and that there were two passengers in the vehicle. They could make no further identification at that point. They followed the vehicle for approximately two miles until it started to travel onto the Flat Iron Road. The Flat Iron Road merges with the route they were traveling on, and as the Lincoln entered the intersection the driver slowed and made a type of u-turn so that his car was now facing back in the direction from which it had just come. As the agents' car was directly behind the Lincoln at that point, the vehicles passed driver's side window to driver's side window at an extremely slow speed. In fact, the defendant's vehicle was not moving. Agent Hutchings immediately recognized that the operator of the vehicle matched the photograph of Faulkingham that the agents had clipped onto their sun visor when they left the Hancock County Jail.
Hutchings immediately pulled his vehicle to the side of the road, jumped from his vehicle, and identified himself verbally and by showing his badge to the operator. Hutchings asked Faulkingham to identify himself and when he confirmed that he was David Faulkingham, Hutchings placed him under arrest for operating after suspension. During the patdown search Hutchings found heroin, hashish, and a syringe on Faulkingham's person. Hutchings placed Faulkingham in handcuffs and put him in the back seat of the agents' car.
In the meantime, Agent Leonard was dealing with the two passengers. He obtained identification from them and checked to see if either was wanted for any law enforcement purposes. Finding no reason to hold either of them, he fairly quickly told them they could leave the area, which they did on foot. Leonard then proceeded to search the motor vehicle as part of this traffic stop but did not find anything of further interest for purposes of this case.
While Leonard was dealing with the passengers and the motor vehicle, Hutchings put the evidence seized from Faulkingham's person into his trunk and then returned to the passenger compartment of the vehicle, ostensibly to "complete some paperwork." Included among that paperwork is a form which is used to advise suspects in custody of their rights under the Miranda rule. Hutchings understood that he had a suspect in custody that he intended to interrogate, but he never read the Miranda warning.
Once Hutchings took a seat in the vehicle and explained to Faulkingham that he was planning to review some paperwork with him, Faulkingham announced to him that he was a heroin addict and that within the next two hours he was going to go into withdrawal. At that point, however, Faulkingham appeared normal and spoke without difficulty. After learning of Faulkingham's concerns regarding his addiction, the agents informed him that he could either cooperate with them and provide information concerning his supplier or he would be taken to the Hancock County Jail for processing. Faulkingham then informed them that if he were going to cooperate, time was of the essence because one of the fellows who had just departed was a roommate of his supplier. Once the supplier learned that Faulkingham had been apprehended by the police, obtaining evidence against him would become more difficult.
Faulkingham suggested to the agents that his supplier was a major drug dealer and that his apartment currently contained a huge quantity of heroin that Faulkingham had seen the previous day. The agents were lead to believe that this operation could be a "huge bust." They maintain that in the excitement of the moment they simply didn't have time to comply with Miranda. Faulkingham asked them what sort of deal they could give him and the agents responded that they could not make any deals or promises, but they confirmed that his cooperation would make it easier for him.
At about this point in time Shannon Faulkingham, the defendant's wife, arrived at the scene in her pick up truck. On her way to the post office she observed her husband's vehicle pulled over to the side of the road. When she learned what was happening she became upset and started to cry, revealing to the agents that she had just gotten her husband through a drug rehabilitation program and that she thought he had overcome the problem. Faulkingham talked with his wife and asked her to call Kevin Barron, his attorney, and make arrangements for his bail. The agents agreed that Faulkingham asked his wife to call someone and that he was concerned about bail money because they had seized cash from his person. However, they deny that they specifically heard Faulkingham say that he wanted to call his attorney. In fact, they agree that he mentioned to them that he had retained an attorney, but did not express a desire to speak with the attorney. The agents also agree that in spite of this passing reference to a retained attorney, neither agent proceeded to provide the Miranda warning.
After his wife left the area, Faulkingham reiterated his concern that if he were going to cooperate it was imperative that they move quickly, indicating that he should place the call to Mark Power, his supplier, by 3:30 p.m. or it was likely that Power would take steps to destroy or conceal the drugs in his apartment because he would have learned of Faulkingham's arrest. When Faulkingham made this suggestion Hutchings looked at his watch and observed that it was 3:28 p.m.
Faulkingham also expressed to the agents his concern about being seen in the intersection by passing motorists and offered that the best place to make the call would be from his own residence due to Power's routine use of caller ID to screen his calls. The agents called their supervisor and obtained permission to proceed with Faulkingham, but they balked at going to his house as contrary to standard police procedures. Therefore Faulkingham suggested a secluded marina as a secondary location. Hutchings drove Faulkingham there in the police vehicle and Leonard followed driving the Lincoln. Faulkingham's handcuffs were removed and he was given access to a telephone.
During this time period the agents opined that Faulkingham was driving the investigation and that they had basically put him in charge. His plan was to convince his supplier, Mark Power, to come over to his residence and perhaps bring the drugs with him. Although Faulkingham made repeated attempts to call Power from the marina location, he was not able to make contact. Faulkingham insisted that they should return to his residence in order for him to be able to make the call from his own phone. Finally, at about 4:30 p.m., the three men returned to Faulkingham's residence.
Once inside the residence, Faulkingham was able to make two recorded phone calls to Power's apartment. On one occasion he spoke to a roommate named Dave who assured him that the "stuff" was safe. Eventually Faulkingham talked directly to Power and convinced him to come over to the house. When Power came over to the residence at approximately 5:00 p.m. he was confronted by the agents and he too agreed to cooperate, becoming the Government's primary witness in this case against Faulkingham, who Power contends was the actual supplier of the drugs. Once Hutchings and Leonard became involved with Power that evening they had little additional contact with Faulkingham. However, from the scant evidence they did present it is clear that Faulkingham became ill at his residence, apparently spending time in the bathroom vomiting. The supervisor, Arno, arrived at the scene and apparently tended to Faulkingham, eventually taking him to a local hospital for treatment for his withdrawal symptoms. Hutchings and Leonard both acknowledged that they knew that heroin addicts who go into withdrawal can become extremely ill and miserable. They also acknowledge that from the moment they placed Faulkingham in custody they never advised him of his rights and they made clear to him that if he did not cooperate with them he would go immediately to jail where the jail authorities would have to deal with his withdrawal symptoms in accordance with jail policy. The alternative they presented to him was that if he cooperated he would not be arrested that evening. Furthermore, immediately upon his indication that he might cooperate by making phone calls, the agents removed his handcuffs and allowed him to "call the shots." Ultimately, they neither arrested Faulkingham nor gave him a summons that night.
(Recommended Decision at 1-7 (Docket #37).)
On the facts presented, the Government conceded that Defendant wassubject to the functional equivalent of express questioning without beingadvised of his Miranda rights. See Rhode Island v. Innis, 446 U.S. 291,300-01 (1980). Thus, the Recommended Decision properly held that theGovernment could not introduce Defendant's unwarned statements during itscase in chief. However, in light of the manner in which the Government'scase against Faulkingham developed, the Government's strongest evidenceis not Faulkingham's unwarned statements but rather the evidence derivedfrom those statements, including the testimonial evidence of co-defendantMark Power. Thus, the difficult question presented by Defendant's Motionis: whether the Court should also suppress this derivative evidenceobtained as a result of the Miranda violation. Answering this question,requires the Court to embark on a survey of the legal landscape relatingto Miranda and the fruit of the poisonous tree doctrine.
A. Miranda and the Fifth Amendment Privilege AgainstSelf-Incrimination
1. The Current Legal Landscape
The Fifth Amendment privilege against self-incrimination "protectsagainst any disclosures which [a] witness reasonably believes could beused in a criminal prosecution or could lead to other evidence that mightbe so used." Kastigar v. United States, 406 U.S. 441, 445 (1972).According to the Supreme Court, the privilege "serves to protect personsin all settings in which their freedom of action is curtailed in anysignificant way from being compelled to incriminate themselves." Mirandav. Arizona, 384 U.S. 436, 467 (1966). Given the inherently coercivenature of custodial interrogation, the Miranda Court concluded that"[u]nless adequate protective devices are employed to dispel thecompulsion inherent in custodial surroundings, no statement obtained fromthe defendant can truly be the product of his free choice." Id. at 458.
More specifically, the Miranda Court went on to outline a protectiveprocedure for warning individuals of their basic rights prior to custodialinterrogation. See id. at 467-471. At the same time, the Supreme Courtalso suggested that alternative protective devices might be developedthrough the legislative process. See id. at 467. However, in theabsence of any adequate legislative innovation, the Court endorsed whathas come to be known as "the Miranda warning." See id. at 468-73. TheMiranda Court also required the government to carry the burden ofdemonstrating "that the defendant knowingly and intelligently waived hisprivilege against self-incrimination and his right to retained orappointed counsel" if the government sought to introduce a statementobtained from a defendant during a custodial interrogation without anattorney present. Id. at 475. More recently, in Dickerson v. UnitedStates, 530 U.S. 428 (2000), the Supreme Court clarified that its Mirandadecision was, in fact, "a constitutional decision." Id. at 438. Seealso United States v. Melendez, 228 F.3d 19, 21-22 (discussing theDickerson decision). The Court explained that although its 1966 decisiondid not conclude that the Constitution "require[d] police to administerthe particular Miranda warnings," the Miranda decisiondid hold that theConstitution "require[d] a procedure that is effective in securing FifthAmendment rights." Dickerson, 530 U.S. at 440.
2. The Miranda Violation in this Case
In this case, the police did not attempt to utilize any procedure tosecure Faulkingham's Fifth Amendment rights. Rather, while he was in theback of the agents' car in handcuffs, Faulkingham voluntarily announcedto Agent Hutchings that he would begin suffering the symptoms of heroinwithdrawal within about two hours. With this information in hand andFaulkingham in handcuffs, the agents advised Faulkingham that he couldeither cooperate or be taken to Hancock County Jail for processing. Itwas made clear to Faulkingham that if he cooperated, he would not bearrested that evening. Additionally, the agents had assured Faulkinghamthat they would get him medical attention if and when he started toexhibit symptoms of heroin withdrawal. Faced with this choice in lightof his soon-to-be deteriorating physical condition, Faulkingham chose tocooperate. As a result, he spent the next two hours with the agentsmaking incriminating statements and leading the agents to discover whatwould turn out to be even more incriminating evidence. Essentially,Faulkingham was "put in charge" of the investigation without knowinglyand intelligently waiving his privilege against self-incrimination or hisright to his retained counsel.1
Although the agents testified that they did not have time to complywith Miranda, the Court is skeptical that over the course of more thantwo hours the agents had no time to advise Defendant of his fundamentalrights.2 In short, the agents' failure to give Faulkingham aMiranda warning was negligent, at best. Moreover, considering the natureof the interrogation, the complete lack of any protective device, alongwith Defendant's impending heroin withdrawal, it is difficult to concludethat Defendant's cooperation was truly the product of his free choice.See Miranda, 384 U.S. at 458 (explaining that "[u]nless adequateprotective devices are employed to dispel the compulsion inherent incustodial surroundings, no statement obtained from the defendant cantruly be the product of his free choice."). But see United States v.Byram, 145 F.3d 405, 407 (1st Cir. 1998) (explaining that "onlyconfessions procured by coercive official tactics [along with evidencederived from such confessions] should be excluded" and that "`[f]reechoice' is no longer a touchstone").
B. The Fruit of the Poisonous Tree Doctrine
In light of the Miranda violation discussed above, the question is:what is the extent of Defendant's exclusionary remedy? While theGovernment maintains thatonly Faulkingham's own unwarned statementsshould be excluded, Defendant argues that the taint of the Mirandaviolation extends to the "fruit" or derivative evidence obtained as aresult of his unwarned statements. Thus, Defendant invites the Court toapply the fruit of the poisonous tree doctrine to the facts presented.
In explaining the fruits doctrine in the context of the FourthAmendment, the Supreme Court explained that the relevant inquiry is"`whether, granting establishment of the primary illegality, the evidenceto which instant objection is made has been come at by exploitation ofthat illegality or instead by means sufficiently distinguishable to bepurged of the primary taint.'" Wong Sun v. United States, 371 U.S. 471,488 (1963) (quoting Maguire, Evidence of Guilt, 221 (1959).) In WongSun, the Court concluded that the arrest of one of the defendants, Toy,violated the Fourth Amendment. In accordance with the fruit of thepoisonous tree doctrine, the Court then excluded derivative evidence fromthe case against Toy, including statements made by Toy at the time of hisarrest, as well as narcotics obtained from a third party as a result ofToy's statements.3 See id. at 484-488. Although the fruit of thepoisonous tree doctrine has been crafted in the context of the FourthAmendment, the Supreme Court has acknowledged that the fruits doctrinecan be applied to violations of the Fifth and Sixth Amendments. See Nixv. Williams, 467 U.S. 431, 442 (1984).
Although the fruits doctrine may be applicable to the Fifth Amendment,derivative evidence obtained in violation of Miranda has generally notbeen excluded unless the defendant's unwarned statements were found to be"involuntary." See Byram, 145 F.3d at 407-08 (explaining thevoluntariness concept). As the Magistrate Judge explained in theRecommended Decision, coercive police activity is a prerequisite tofinding that a defendant's statements are involuntary. (See RecommendedDecision at 15-16.) Thus, only upon a finding of coercive policeactivity or "coercive official tactics" can a court proceed to considerthe totality of the circumstances to determine whether a defendant'sstatements were voluntary. Byram, 145 F.3d at 407-08 (discussing thenarrow definition of coercion endorsed by Colorado v. Connelly,479 U.S. 157 (1986).).
On the record, the preponderance of the evidence does not suggest theuse of "coercive official tactics." Rather, the Court believes thatFaulkingham's statements were coerced by the lack of a Miranda warning,rather than by any of the narrowly defined "official coercive tactics."In short, the Court does not disagree with the Magistrate's finding thatFaulkingham's statements were voluntary.4 (See Recommended Decisionat 15-16 (Docket #37).)
The Supreme Court's recent decision in Dickerson has raised newquestions regarding when and how the fruits doctrinecould be applied toMiranda violations. In this case, the Magistrate Judge, relying on twopre-Dickerson Supreme Court decisions, Michigan v. Tucker, 417 U.S. 433(1974) and Oregon v. Elstad, 470 U.S. 298 (1985), "recommend[ed] that theCourt not graft the `fruit of the poisonous tree' onto the Mirandaexclusionary rule." (Recommended Decision at 13 (Docket #37).)However, in accordance with its de novo review, the Court finds that bothTucker and Elstad are distinguishable from this case.
1. Michigan v. Tucker
In Tucker, the defendant sought to suppress the incriminatingtestimony of a man he had named as an alibi witness during a custodialinterrogation. Prior to the interrogation, the defendant was asked"whether he knew for what crime he had been arrested, whether he wantedan attorney, and whether he understood his constitutional rights." Id.at 436. The defendant was also advised that "any statements he mightmake could be used against him." Id. Thus, the "Miranda problem"present in Tucker was simply that police had failed to advise Tucker ofhis right to appointed counsel even if he could not afford to retain anattorney.
However, the interrogation in Tucker had actually taken place prior tothe Court's issuance of the Miranda opinion. Id. at 447. In light ofwhat the Court perceived as a good faith effort to advise Tucker of hisrights in the absence of Miranda's guidance, the Court found thatexcluding the evidence obtained as a result of the interrogation wouldnot serve the deterrent purpose that stood behind the exclusionary rule.See id. at 447-48. By comparison, the Supreme Court noted that thedeterrent purpose of the exclusionary rule is served when "police haveengaged in willful, or at the very least negligent, conduct." Id. at447. Ultimately, on the facts presented, the majority in Tuckerconcluded that "the police conduct at issue . . . did not abridge[Tucker]'s constitutional privilege against compulsoryself-incrimination, but departed only from the prophylactic standardslater laid down . . . in Miranda to safeguard the privilege." Id. at445-46.
The First Circuit has previously recognized the limited holding ofTucker in United States v. Downing, 665 F.2d 404 (1st Cir. 1981). InDowning, the defendant had been advised of his Miranda rights andinvoked his right to have counsel during his custodial interrogation.See id. at 405. Nonetheless, defendant was subject to interrogationwithout counsel present during which time he made incriminatingstatements. The First Circuit upheld the suppression of the defendant'sstatements as well as tangible evidence uncovered as a result of thestatements. See id. at 409. Although the Government attempted to invokeTucker as grounds for not applying the Fifth Amendment exclusionary ruleto derivative evidence obtained as a result of the defendant'sstatements, the First Circuit construed Tucker narrowly. As in Downing,the Court is satisfied that the facts presented in this case do not fitwithin Tucker.
2. Oregon v. Elstad
Approximately five years after the First Circuit had applied the fruitof the poisonous tree doctrine to a Fifth Amendment violation inDowning, the Supreme Court handed down its decision in Oregon v.Elstad, 470 U.S. 298 (1985). Elstad, unlike Tucker, involved aninterrogation that took place after the Miranda decision was issued. Morespecifically, Elstad made anincriminating oral statement in response to apolice question prior to being advised of his Miranda rights. He wassubsequently advised of his rights at the police station and thenproceeded to give a signed written confession. Elstad argued that thiswritten confession should be suppressed as the fruit of his pre-Mirandaoral statement. Ultimately, the majority in Elstad held that "a suspectwho has once responded to unwarned yet uncoercive questioning is notthereby disabled from waiving his rights and confessing after he has beengiven the requisite Miranda warnings." Elstad, 470 U.S. at 318.
To the extent that Elstad suggested that Miranda was a prophylacticdecision, rather than a constitutional one, Elstad has clearly beenreplaced by the Court's recent clarification in Dickerson. SeeElstad, 470 U.S. at 309 ("If errors are made by law enforcement officersin administering the prophylactic Miranda procedures, they should notbreed the same irremediable consequences as police infringement of theFifth Amendment itself.") However, Elstad, which the Dickerson majorityopinion characterizes as "refusing to apply the traditional `fruits'doctrine developed in Fourth Amendment cases," otherwise remains a pieceof the Fifth Amendment exclusionary rule puzzle. Dickerson, 530 U.S. at441 (explaining that the decision in Elstad "recognizes the fact thatunreasonable searches under the Fourth Amendment are different fromunwarned interrogation under the Fifth Amendment").5 The Governmentmaintains that Elstad controls this case and cites cases showing thatcourts have construed Elstad as a "sweeping rejection of the fruit ofthe poisonous tree doctrine as applied to Miranda violations." W.LaFave et al., 3 Criminal Procedure § 9.5(a) at 386 (1999). See,e.g., United States v. Bin Laden, 126 F. Supp.2d 264, 268 & n. 4(S.D.N.Y. 2001).
Despite this generally broad reading of Elstad, the First Circuit hassaid "that Elstad does not wholly bar the door to excluding evidencederived from a Miranda violation." Byram, 145 F.3d at 409-10.However, the First Circuit has also acknowledged "that Elstaddiscourages any promiscuous use of the fruits doctrine in ordinaryMiranda cases." Id. at 410. More specifically, the Byram decision liststhree criteria to be met prior to the application of the fruits doctrinefor a Miranda violation. See id. First, the Miranda violation should be"not merely technical." Id. Second, there should be "a substantial nexusbetween the violation and the second statement." Id. Third, it isimportant that "the second statement is not itself preceded by anadequate Miranda warning." Id.
The fact of the Byram case were admittedly "unusual" and, thus, arenot easily summarized. Id. The First Circuit found that the defendanthad not been advised of his Miranda rights prior to a custodialinterrogation on a state murder case. See id. at 409. During theinterrogation, Byram admitted to handling a firearm. As a result of thisinterrogation, Byram was called as a witness in the state murder case.At the state trial, he again made unwarned incriminating statements abouthandling a firearm. See id. at 406-07. The Government sought tointroduce this state trial testimony in its federal case against Byramfor being a felon in possession of a firearm. Applying the threecriteria listed above, the First Circuit excluded the state trialtestimony as derivative "fruits" of a substantial Miranda violation. Seeid.
3. United States v. Kruger
Bryam is not the only decision within the First Circuit to find thatthe fruits doctrine could be appropriately applied to suppress evidenceobtained in violation of Miranda. Very recently, another court withinthis District found that a Fifth Amendment violation warranted theapplication of the fruits doctrine in United States v. Kruger, No. CR.00-88-P-C, 2001 WL 720467 (D.Me. June 26, 2001). Finding that Dickerson"changed the landscape," the court in Kruger found that a Mirandaviolation was, in fact, a constitutional violation. Id. at *12. Thus,the court reasoned that the fruits doctrine applied and tangible evidenceobtained as a direct result of Kruger's unwarned statement should besuppressed. See id. Alternatively, the Court noted that the deterrencerationale of the fruits doctrine required suppression in the Kruger caseand that the factors laid out in Byram also supported suppression of thederivative evidence in Kruger's case. See id. at *13.
4. Application of the Existing Precedent to Faulkingham
Although the court in Kruger found that Dickerson had "changed thelandscape," it is perhaps more appropriate to say that Dickerson liftedthe dense fog that had settled into the landscape in the thirty yearsfollowing the Supreme Court's watershed decision in Miranda. Id. at*12. However, with the fog lifted, it is still difficult to find thetrail created by the existing precedent.
To the extent that the Kruger decision cuts a clear trail through theuse of a logical "direct analytic construct," the Court believes that thefacts of Faulkingham fall squarely within this construct therebyjustifying exclusion of the derivative evidence obtained in violation ofMiranda. Id. at *12. However, the Court is reluctant to take thisKruger trail, because it appears to invite widespread application of thefruits doctrine in cases of Miranda violations. To the extent thatElstad remains good law after Dickerson, Elstad does not appear totolerate widespread use of the fruits doctrine in the context ofMiranda. See Dickerson, 530 U.S. at 441; Elstad, 470 U.S. at 307-10;Byram, 145 F.3d at 410.
Moreover, under the facts presented, the Court need not adopt a per seapplication of the fruits doctrine to Miranda violation to justifyexcluding the derivative evidence in this case. Rather, the facts ofthis case present a substantial Miranda violation under uniquecircumstances. Although this case does not fit squarely within theconfines of the three factors laid out by the First Circuit in Byram, theCourt attempts to apply the Byram factors below.
a. Type of Miranda Violation
In Byram, the First Circuit distinguished both Elstad and Tuckerfrom the case presented because in Byram "the original Miranda violationwas not technical." Byram, 145 F.3d at 410. Rather, during the initialinterrogation, Byram was never provided with his Miranda rights in anyform. See id. at 406. Quite similarly, Faulkingham was never read hisMiranda rights at any point, although he spent more than two hourstalking with the agents. Under the facts presented,this Mirandaviolation was substantial and resulted in Faulkingham failing toknowingly and intelligently understand that he was waiving his privilegeagainst self-incrimination.
b. Substantial Nexus
The First Circuit in Byram also found "a substantial nexus" between theinitial Miranda violation and the derivative evidence obtained, which inthe case of Byram was his second incriminating statement in open court.See Byram, 145 F.3d at 410. In this case, the derivative evidence is ofa different nature-testimony by a third party and drugs received from thesame third party. However, the Government has conceded that all of thederivative evidence it seeks to use against Faulkingham was obtainedthrough Faulkingham's unwarned statements. (See Tr. p. 101, ll. 5-23.)Under these circumstances, it is hard to say that there is anything but asubstantial nexus between the Miranda violation and the derivativeevidence. Faulkingham's failure to be notified that his statements andevidence obtained as a result of those statements could and would be usedagainst him substantially facilitated the Government's collection ofevidence.
The Court notes that in terms of the nature of the derivative evidenceobtained from Faulkingham's unwarned statements, the present case is mostanalogous to Wong Sun, where the defendant Toy, upon being subjected toan unlawful arrest, implicated a third party, Yee, who surrendered anounce of heroin he allegedly received from Toy. See Wong Sun, 371 U.S. at487-88. The Wong Sun Court excluded the drugs in the Government's caseagainst Toy finding they were obtained by exploiting a Fourth Amendmentviolation. In this case, Faulkingham's unwarned statements implicatedPower, who, in turn, led authorities to a substantial amount of herointhat allegedly belonged to Faulkingham. Under the circumstancespresented, this derivative evidence, which consists of the heroin andPower's testimony linking the heroin and its distribution toFaulkingham, was obtained in exploitation of a substantial Mirandaviolation.
c. No Subsequent Attempts to Purge the Taint of the InitialMiranda Violation
In Byram, the First Circuit also distinguished its case from Elstad bynoting that unlike the written confession in Elstad, Byram's secondstatement was not preceded by an adequate Miranda warning. See Byram,145 F.3d at 410. With respect to this factor, it is hard to analogizeFaulkingham to Byram. Certainly, at various points, Faulkingham'scomments, both about trusting the agents and about having a retainedattorney, should have prompted the agents to advise Faulkingham of hisrights but the agents never attempted to mitigate the situation with theuse of an intervening warning. Turning once again to the more factuallyanalogous case of Wong Sun, it does not appear that the connectionbetween the original Miranda violation and the derivative evidence is soattenuated that the derivative evidence can be purged of the taint. SeeWong Sun, 371 U.S. at 488.
d. Deterrence Rationale
Additionally, the Court's decision in this case is guided by a keypurpose of both the Miranda warning and the fruit of the poisonous treedoctrine — deterrence of police misconduct and/or negligence. "Thecore rationale consistently advanced by this Court for extending theexclusionary rule to evidence that is the fruit of unlawful policeconduct has been that this admittedlydrastic and socially costly courseis needed to deter police from violations of constitutional and statutoryprotections." Nix, 467 U.S. at 442-43. In this case, exclusion of thederivative evidence would serve to deter the type of substantial Mirandaviolation presented. See Kruger, 2001 WL at *13 (explaining that theexclusion of derivative evidence "is necessary to deter law enforcementofficers from foregoing the administration of Miranda warnings in futurecases in which they believe they may successfully gain access to tangibleevidence that will be useable at trial despite violation of Mirandastrictures.")
Here, agents failed to give Miranda warnings to Faulkingham during thecourse of two hours of interaction in which Faulkingham unknowingly ledan investigation against himself. The two reasons given for the lack ofMiranda warning were lack of time and "the excitement of the moment."(Recommended Decision at 4.) Under the circumstances of this case, thesereasons simply do not justify an officer's failure to inform a suspect ofhis constitutional rights. Cf. New York v. Quarles, 467 U.S. 649, 657(1984) (creating a public safety exception to the requirements ofMiranda). The Court believes that suppression of the derivative evidenceobtained as a result of Faulkingham's unwarned statements will serve toremind law enforcement that even in "the excitement of the moment" lawenforcement retains an important duty to inform an individual taken intocustody of his constitutional rights.
In short, the Court believes that the derivative evidence that theGovernment seeks to use against Faulkingham is tainted by the agents'complete failure to utilize any protective device to advise Faulkinghamof his Fifth Amendment rights. This negligence on the part of theagents, combined with the other unique circumstances present in thiscase, mandate suppression of Power's testimony and the evidence obtainedas a result of Power's statements to authorities on August 1, 2001.
After conducting a de novo review, the Court finds that Defendant'sobjections are without merit except for the modification discussedabove. In accordance with this modification, the Court suppresses notonly Defendant's statements made prior to any Miranda warnings, but alsosuppresses all derivative evidence obtained by authorities as a result ofDefendant's unwarned statements. But for this modification, the Courtconcurs with the Magistrate's recommended factual findings and otherlegal conclusions. Thus, the Recommended Decision is AFFIRMED asMODIFIED.
1. At the suppression hearing, Agent Leonard testified that in thecontext of discussing with Faulkingham whether he would be able to cut adeal, Faulkingham said something "to the effect of — that he wouldtrust that we weren't going to fuck him over, and he would — hewanted to cooperate and provide us with his source of supply." (Tr. p.84, ll. 14-22 (Docket #41).) This statement by Faulkingham stronglysuggests that he did not understand that anything he said could and wouldbe used against him in a court of law. Yet at no time prior to or afterthis statement by Faulkingham did the agents give him a Mirandawarning.
2. At the suppression hearing, Agent Hutchings testified oncross-examination that reading the Miranda warning takes ten seconds.(Tr. p. 69, ll. 13-18.) Agent Leonard estimated that reading the Mirandaform takes between one to four minutes. (Tr. p. 94, ll. 8-12.)
3. In Wong Sun, the Supreme Court noted that although the FourthAmendment exclusionary rule traditionally sought to protect "tangiblefruits" (i.e. physical evidence), it saw no reason to distinguishtestimonial or verbal evidence that was obtained through similar means.See Wong Sun, 371 U.S. at 485-86.
4. However, the Court notes that the voluntariness issue would be aclose call if the agent's negligent failure to provide Faulkingham with aMiranda warning could overcome the "coercive official tactics"prerequisite.
5. Because the Supreme Court did not further elaborate on the relevantdifference between the Fourth and Fifth Amendment violations, it isdifficult to determine if these differences are relevant to this case.To the extent that both the Miranda warning and the fruits doctrine seekto deter constitutional violations by law enforcement, the Court assumesthat despite the differences in the Fourth and Fifth Amendments,violations of an individual's rights under either the Fourth or FifthAmendment are equally repugnant and should be similarly deterred.