The opinion of the court was delivered by: PIERCE
are charged with two counts of possession with intent to distribute and distribution of cocaine, a Schedule I narcotic drug, violations of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. Defendant Martin moves to suppress statements he made to police officers on the night of his arrest. He claims that his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) were violated. He also moves to suppress the cocaine taken from his apartment on the grounds that such material was obtained as a direct result of police exploitation of their primary illegal conduct. Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
The testimony in this case is as follows. Defendant was arrested at approximately 9 p.m. on June 21, 1971 (Tr. 56, 74). He was driven directly to law enforcement offices at 201 Varick Street and arrived at 9:20 or 9:30 p.m. (Tr. 76; GX 4). There is no evidence that he was apprised of his rights during this drive (Tr. 83).
Defendant testified that shortly after arrival he was fingerprinted and photographed (Tr. 76). At this time he asked to see his attorney (Tr. 77, 82-83). The police did not comply with this request. He testified that the police began to question him between 9:30 and 10:00 p.m. (Tr. 80), but that he persisted in asking to see his lawyer, expressing this desire eight to ten times (Tr. 77). He refused to make a statement throughout the evening until 11:00 p.m. (Tr. 78, 80).
At this time he remembers being told he could refuse to sign the statement, but he nevertheless orally confessed to setting up a cocaine sale (Tr. 79). He testified that he made the statement because he was told an attorney would only take his money, and that he would be deported anyway (Tr. 78). He was also informed that if he made a statement he would be out of jail faster (Tr. 78, 79). He recalls being advised of his right to an attorney after he confessed, but prior to signing GX 5 (Tr. 83, 84, 88). When he asked to call his lawyer,
however, he was told he could not do so (Tr. 84, 85). He signed the statement anyway because he had "already told." (Tr. 84). Later that evening he executed a waiver of rights form and a consent to search his apartment (Tr. 79). At his interview the following morning with Assistant United States Attorney David Keegan he again indicated his desire to confer with his attorney (DX A), but he did not recall apprising Mr. Keegan of his such requests the previous evening (Tr. 86, 87, 91).
Sergeant Arthur Houlihan testified that he began to question defendant at 10:45 p.m., along with Detective Frank Jackson (Tr. 64). He said that he read defendant his rights from a card (GX 6) (Tr. 60) and inquired of defendant whether he desired to make a statement (Tr. 67). Houlihan recalled that defendant never requested to see his attorney before being questioned (Tr. 65), and further, that there was no discussion of deportation or the futility of calling a lawyer or the relationship of a low bail status to willingness to confess. (Tr. 66-67). Houlihan testified that at 11:00 p.m. defendant began to make a statement (Tr. 65); after the oral confession was completed, Detective Frank Jackson wrote it out in longhand (GX 5) (Tr. 64-65). Defendant signed the document at 11:45 p.m. as did Sergeant Houlihan and Detective Jackson. (Tr. 61). The record does not reflect that any waiver of rights form had been executed up until this time.
Detective James Nauwens testified that he first spoke with defendant around the time that Houlihan was completing his interrogation (Tr. 47). Nauwens stated that he advised defendant of his rights prior to questioning him (Tr. 45). He said that at 11:45 p.m. defendant volunteered to surrender a quantity of cocaine in his apartment (Tr. 54). Apparently, at this time the consent to search (GX 4) was typed. (Tr. 54). Subsequently defendant executed both the consent to search and the waiver of rights sections of GX 4. (Tr. 52). Then he accompanied several police officers to his apartment where he removed some cocaine from a shirt pocket in a closet and turned it over to them. (Tr. 56-57).
In Miranda, 384 U.S. at page 474, 86 S. Ct. at page 1628, the Court said:
"If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to the police, they must respect his decision to remain silent."
In applying this aspect of Miranda to the instant case, the Court finds that defendant asked to see or call his attorney eight to ten times between 9:30 and 11:00 p.m. There is no explicit contradiction of this testimony in the record. Defendant's requests were not granted despite these repeated demands and ultimately he was asked to make a statement without benefit of counsel. The government contends that defendant never made such requests. It relies on the inference to be drawn from the fact that defendant did not ask for his lawyer when Sergeant Houlihan advised him of his rights prior to questioning him. The defendant Martin, however, testified that he was told he could confer with counsel only after he had confessed, after he had "already told," but prior to his attestation of the longhand transcription. Sergeant Houlihan's testimony is wholly uncorroborated. The record does not contain a waiver of rights form executed before the confession was given. Moreover, Detective Jackson, the other police interrogator, was not called to substantiate Houlihan's statements.
The Court finds there is credible evidence that defendant sought to exercise his constitutional right to confer with his attorney prior to giving his oral confession.
The Court's inquiry does not terminate at this point, however. The Miranda Court said, at page 475, 86 S. Ct. at page 1628:
"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. State of Illinois, 378 U.S. 478, 490, n. 14 [84 S. Ct. 1758, 1764, 12 L. Ed. 2d 977]. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458 [,58 S. Ct. 1019, 82 L. Ed. 1461] (1938), and we reassert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.
An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained."
There is no evidence in the record suggesting a waiver. The defendant asserted his right to counsel eight to ten times within the hour and a quarter preceding his oral confession which was given without the presence of counsel. Such an abrupt change of attitude immediately casts doubt over the notion of a voluntary waiver. But more importantly, there is insufficient credible evidence here to determine that defendant was fully advised of his rights prior to the oral confession. See above. It is impossible to say that defendant "voluntarily and intentionally" relinquished a known right, Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), since he had not been informed he possessed such a right. Cf. United States v. Collins, 462 F.2d 792 (2d Cir. 1972), where the defendant was fully warned of ...