RULING ON PENDING MOTIONS
Pending are motions of defendants:
(1) Alba, joined by Vasquez, to suppress tangible evidence.
(2) Gonzalez to suppress tangible evidence and statements.After a hearing and consideration of the briefs filed, thiswill constitute the findings and determination of each motion.
Defendants are charged with attempted possession with intentto distribute and distribution of cocaine, Count Two, andconspiracy for the same purpose, Count One.
These charges arise from a reverse sting whereby aconfidential informant, after a series of discussions, arrangedto sell ten kilograms of cocaine to Alba, who lived in Lebanon.It came to be agreed that the two would meet at the SheratonHotel in Windsor Locks to complete the sale on September 21,1989. On that day, agents commenced a surveillance of Alba andfollowed him. He was observed to meet Gonzalez and in separatecars the two drove to the Sheraton. Gonzalez remained in hiscar in the parking garage while Alba met theinformant, who was accompanied by Sgt. Lavin of the ConnecticutState Police, in the hotel lobby. Alba took the informant andLavin to Gonzalez' car to show the money, which was in a cerealbox which was originally in a bag on the rear seat. Gonzalezjoined Alba in showing the money, represented as $60,000.Lavin, and the money, then remained with Gonzalez. The twomerely sat in the car while the informant and Alba returned tothe lobby. Gonzalez told Lavin to stay calm when Lavin assertednervousness over the conduct of the transaction. Gonzalez notedthe plan was that he would take the cocaine from the Sheratonto his home. Gonzalez was then under no actual or observablerestraint or suggestion thereof. There was nothing done or saidby Lavin, who continued his pose as associated with the seller,did not disclose his police office, and conducted himselfsolely as if the sale was to be accomplished, to suggest thatGonzalez was in any manner restrained or other than at completeliberty to go or come as he chose. Lavin expressed, and had noview that Gonzalez could not leave.
In the lobby, the informant called Agent Giandana, playingthe role of guardian of the cocaine. She brought a package,purportedly containing the cocaine to be given to Alba. As thethree exited the lobby, headed toward the garage, Alba wasarrested by another agent. In the meantime, Gonzalez wasarrested in the garage. He appeared to have spotted thesurveillance team and reached, within the car, as if for a gun.The vehicle was searched and the cereal box with the money, butno gun, was found.
Gonzalez was informed of his Miranda rights promptly afterhis arrest. See Exhibits B and C. He was not asked to, nor didhe, sign a form acknowledging and waiving his rights. He wastold he had the right to remain silent and that anything hesaid could be used against him. He was told he had the right tocounsel. He was not specifically told that he could stopanswering questions. He was asked if he understood his rightsas given. He said he understood. He made no request for anattorney. He never requested that the agents stop askingquestions. He was taken to Hartford and en route he was alsoinformed of his rights. Though he is Hispanic, Gonzalez speaksand understands English without difficulty. At the DEA office,when asked, he said he understood the rights of which he hadbeen properly advised.
When Alba was arrested, he was carrying a box. He was notimmediately advised of his Miranda rights. He spontaneouslysaid something when advised of his arrest, but not in responseto a question. He was put in a state police cruiser, thentransferred to an agency vehicle for transport to Hartford. Inthe vehicle he was advised of his rights. He said he understoodEnglish and his rights. He was not then questioned, but heasked why he was arrested as he had nothing on him. He was toldthe agents knew of his purpose of purchasing cocaine. He notedGonzalez was present to carry the money to protect against arip-off. At the DEA office he signed an FBI waiver form,Exhibit 1. He read it and said he understood it.
Alba testified that he spoke English. He claimed he was notinformed of his rights. He claimed not to be able to readEnglish and signed Exhibit 1 without understanding it. Histestimony in this respect is not credited. He never told hisattorney he could not read English. He also told a story of hisinvolvement in the deal in question that defies logic. Heasserted Gonzalez' lack of knowledge of the deal and thatGonzalez was to get nothing. This is contrary to Gonzalez'version.
Although at the hearing there was some assertion of anon-voluntary statement by Alba, he has now waived any suchclaim. He also questioned the validity of the search of hisresidence based on his claim that he received no copy of thewarrant and Fed.R.Crim.P. 41(d) was not complied with. He has,by letter of counsel filed in court, withdrawn that claim andasserts no involuntary consent to any procedure by the agents.
Alba's claim of a search of 79 South Ridge Avenue,Willimantic, without a warrant is not substantiated. Likewisehis claims as to the form of the warrant, its acquisition, andits execution have not been substantiated. To the extent it hasnot been waived and as a proper warrant has been demonstrated,the motion to suppress tangible evidence is denied.
Alba's claim as to any statements made is likewise unfounded.Anything he said before he was placed in a car for transport toHartford was spontaneous on his part and not the result ofcustodial interrogation. He was given the warnings required byMiranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), in that car and at the DEA office. See Exhibit 1.Accordingly, there is no legal basis shown to warrant exclusionof anything he said thereafter.
This defendant has made no showing beyond that of herco-defendant, Alba, whose motions she has adopted and joined.Absent a showing of violation of any rights personal to her andfor the reasons for denying Alba's motions, all motions she maybe deemed to have made are denied.
To the extent he has challenged the availability of evidenceseized pursuant to the search, as he has made no claim norshowing beyond that of Alba, his motion to suppress the fruitsof a search of his home, authorized by a warrant, which is notshown to be infirm, is denied. He claims in his brief thatprobable cause was not shown on the application for thewarrant. It is true that Alba was the principal target of theinvestigation and the information developed prior to issuanceof the warrant focused on him. Nonetheless, Gonzalez wasdescribed as driving separately, but with Alba, to a pointwhere the drug transaction was to be consummated by Alba. Themoney was in Gonzalez' car. Alba got the money from the car.The transaction and the money were discussed in Gonzalez'presence without protest or disavowal by him. He sat with themoney and Sgt. Lavin while Alba went to see and receive thecocaine with a reasonably inferable, if not clear,understanding that the money, kept in his car, under hiscognizance, if not custody and control, would be turned overwhen the cocaine delivery was complete. His conversation withSgt. Lavin confirmed his knowledge of the deal in process andhis further role with the cocaine after it was delivered inbringing it to 79 South Ridge Drive, Willimantic. Gonzalez wasnot merely the driver of a car. As a player in the distributionof drugs, thus established, probable cause for the search ofhis residence, seeking evidence confirming that role, wasestablished. The proposed sale of nine to ten kilograms ofcocaine on September 21 established a substantial drugdistribution propensity and capability in Alba and anyoneassociated with him. Gonzalez was shortly to be so involved andlikely to be thereafter involved. One involved in such amagnitude of drug dealing is likely to have been previously soengaged giving rise to the reasonable prospect of findingevidence confirming same at his home. That Gonzalez was knownto be involved with Alba only from what happened on September21 is not preclusive of his having a role in the substantialdrug distribution with which Alba was involved and with whichhe had associated himself. In short, he was shown to have knowna large amount of money, with which he was entrusted, wasbrought to the Sheraton to buy a large amount of cocaine, whichthereafter would involve substantial activity to distribute, anundertaking which he joined by word and deed. The recitation inthe affidavit was sufficient to permit the magistrate to find,as he did, that there was a substantial basis to conclude thatGonzalez' home would contain items confirming and likely to bepresent for use in the distribution in which he embarked, if hehad not long prior been involved. Further, there is nothing tosuggest that the officers' submission to the magistrate was inany way deficient as to bar their objectively reasonablereliance on the magistrate's finding of probable cause andissuance of the warrant. The motion to suppress the fruits ofthat search is denied.
Gonzalez further moves to suppress statements made after hisarrest on September 21 for incompleteness of the warnings givenand a non-waiver, presumably of the rights of which the warningwas inadequate. Specifically, Gonzalez claims that he was notinformed of his right to cut off questioning. As to anystatements made by Gonzalez in his car to Sgt. Lavin, they werenot the result of a custodial interrogation. As noted above, hewas not then in custody. There was no basis for any reasonablebelief that he was in any way under any restraint while he satin his car with Lavin. Further, there was no questioning, onlygeneral conversation. Lavin's assumed role. Any such statementswill not be suppressed. Minnesota v. Murphy, 465 U.S. 420,429-34, 104 S.Ct. 1136, 1143-46, 79 L.Ed.2d 409 (1984).
Thereafter, he was arrested and warned, more than once. Thatis not disputed. What is also not disputed is that he was toldthat he had the right to remain silent and that anything hesaid could be used against him. Thus, the claim pertains towhat he was not told. The agent did not tell him that he hadthe right to stop answering questions at any time. The genesisof the defendant's right is the fifth amendment right againstself-incrimination. An accused cannot be forced to givetestimony against himself. To ensure that right, which ofcourse can be waived, the right to know and understand thescope of the fifth amendment protection was proclaimed inMiranda, which set a threshold of conduct required of lawenforcement officers, the purpose of which was to ensure thatone in custody, if questioned, would understand his rights.
Instead of blithely assuming such understanding andautomatically finding a waiver when questions were asked, theSupreme Court required that an accused be informed in a mannerthat would essentially ensure his awareness of his rights. Thiswas to be accomplished by certain specific advice, required tobe given to an accused before any custodial questioning, absentwhich any answers were barred from trial use. The advice hascome to be colloquialized as the Miranda warnings. If he hasbeen warned in compliance with Miranda, then a defendant'sanswers to questions would be admissible at first blush andabsent other facts suggesting lack of understanding or aninvoluntary waiver. The warnings specifically mandated includedthe right to remain silent and that anything said could be usedagainst him. Miranda, 384 U.S. at 468-69, 86 S.Ct. at 1624-25.These and the warnings concerning counsel are "an absoluteprerequisite to interrogation." Id. at 471. The court went onto explain and amplify how the right to these warnings would beenforced. Thus, "[o]nce warnings have been given . . . [i]f theindividual indicates in any manner, at any time prior to orduring questioning, that he wishes to remain silent, theinterrogation must cease." Id. at 473-74, 86 S.Ct. at 1627.This scenario is described as an "exercise [of] his FifthAmendment privilege." Id. It is thus not described as aseparate right, explicit warning of which is required. Rather,it is noted as a circumstance, conduct on the part of anaccused, i.e., a declaration of a wish not to be interrogatedfurther, which constitutes the exercise of the fifth amendmentright whereupon interrogation must cease. If an accused sostates, further questioning would only extract furtherinformation involuntarily in contravention of his right againstself-incrimination. There is nothing in Miranda which requiresa statement that one who answers questions has the right tostop doing so. An assertion of the right after some questionshave been answered, it bars further questioning as would anyrefusal to answer questions. It is not a separate right. It isdescribed in Miranda as an invocation of the right. It is notdescribed as a distinct right requiring a distinct articulationof it as part of the required warnings. Here, the agents toldAlba that he had the right to remain silent and that anythinghe said could be used against him. That warning encompassed theright to commence remaining silent even in the course ofanswering questions. Had he expressed a wish to exercise hisright to remain silent in the course of questioning, and thequestioning nonethelesscontinued, then as the court indicates in Miranda his right tosilence would have been violated, no waiver of that right couldbe found and the answers would have been inadmissible. He didnot state such a wish in the course of his interrogation here.Thus, his rights under Miranda were not violated. He is notentitled to a separate specific warning of the right to invokesilence at any time even after he has answered some questions.There are numerous circumstances and ways in which the right tosilence may be invoked and officers could not possibly warn ofall of them. Having advised of the essential rights, theofficers are not obliged to warn of any or all of thecircumstances or manners in which the right may be invoked.Contrary to Gonzalez' claim, the right to cut off questioningis not "one of the essential Fifth Amendment rights," Brief at4, but is a way in which he might have manifested his wish toinvoke his right to remain silent. Thus, only if he had done soand his right not been honored would he have a valid claimunder Miranda. As that is not the case here, the failure tospecifically so advise him does not constitute a violation ofhis fifth amendment right. Michigan v. Mosley, 423 U.S. 96, 96S.Ct. 321, 46 L.Ed.2d 313 (1975), is not to the contrary, as itmerely reiterated the holding that the failure to cut offquestioning when the wish to that effect is articulatedviolates the right to remain silent. Nothing in Mosleyarticulates a right to a specific warning of the right to stopanswering questions. Indeed, Miranda is characterized asrequiring officers to "give certain specified warnings," id. at99, 96 S.Ct. at 324, which do not include the warnings claimedhere. Id. at 100 n. 6, 96 S.Ct. at 324 n. 6; see Doyle v. Ohio,426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976).All of the cases emphasize the importance of the right and theneed for scrupulous adherence tnor the right. None but ascattering of state court decisions have broadened Miranda asdefendant would do. No federal courts have sustaineddefendant's argument. With all due respect to the state courtscited by defendant, it is found that they have read Mirandamore broadly than its language warrants.
Defendant makes a separate argument that he did not knowinglywaive his fifth amendment right. His claim is based on the factthat the only showing of a waiver is that defendant answeredquestions. It is of course true that the government's "burden[of proof of a waiver] is great." North Carolina v. Butler,441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). That is inkeeping with the importance of the right being waived. However,an express waiver is not required. United States v. Hall,724 F.2d 1055 (2d Cir. 1983). What is required is a clear showingof the intention, intelligently exercised, to relinquish aknown and understood right. Patterson v. Illinois,487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), citing Adams v.United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236,241-42, 87 L.Ed. 268 (1942). See Tague v. Louisiana,444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980). True, as defendantclaims, silence alone would not constitute a waiver. Whatdefendant did was to hear the recitation of his rights. He saidhe understood them. He made one or more statements. He canobtain no solace from the absence of a signed waiver for thatis not the only effective manner of waiving the right. He didmore than merely remain silent. By doing so, by making thestatements with no suggestion he was forced to do so, with noindication of his doing so other than of his own free will,against the background of the warnings and his understanding ofthem immediately before he made, on two occasions, theincriminating statements, he is found to have waived his rightto silence. He knew he did not have to speak and that what hesaid could be used against him. His choice not to remain silentbut to speak was a conscious choice, freely made, to give up aknown right. He is bound by the waiver.
Gonzalez' motion to suppress his statements made after hisarrest is denied.
(3) Motion for Disclosure.
The defendants' motions for disclosure of Giglio and Bradymaterial is granted, subjectto the government's obligation to make such disclosure notlater than one (1) week prior to jury selection. To thatextent, the government's motion for a protective order isgranted as well founded, based on the in camera review of thegovernment's submission. The government's submission in supportof its motion will remain under seal.