The opinion of the court was delivered by: PLATT
Defendant has moved to suppress a statement made by him on April 5, 1976, to agents of the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department. On October 26 and 27 a hearing was held on such motion and, since such date, counsel for both parties have submitted briefs in support thereof and in opposition thereto.
In the early morning of April 5, 1976, Special Agents MacDonald, Cocher and Gonziosa apparently established a surveillance on the residence of Mr. and Mrs. (Peter and Valerie) Jakakas and when Mrs. Jakakas left the residence Agents MacDonald and Cocher apparently followed her in a government vehicle.
At the same time other agents were in the process of obtaining warrants for the arrest of Mr. and Mrs. Jakakas from a Magistrate in this Court and upon obtaining the same at approximately 11:20 in the morning, they verbally notified Agents MacDonald and Cocher that an arrest warrant was outstanding for them. Immediately thereafter the agents stopped Mrs. Jakakas, advised her that they had a warrant for her arrest, searched and handcuffed her and placed her under arrest.
Thereafter they "got a message" (Tr. p. 124), went to Avenue N and saw Mr. Jakakas crossing the street. They stopped him, advised him they had a warrant for his arrest, searched him, handcuffed him and read him his rights.
Mr. Jakakas saw his wife being held in custody in Agent MacDonald's car and made what later appears to have been the first of several attempts to get to her but was denied this opportunity. Instead he was kicked face down onto the floor of the back seat of another car and transported in that posture to the offices of the agents located in the Cadman Plaza General Post Office Building in Brooklyn. Although Agent MacDonald made the arrest, searched Mr. Jakakas, handcuffed him, took him to another car and allegedly read him his rights "before placing him in the car" (Tr. 125), he claimed not to "remember if I physically put him in * * * the car" (Tr. 126), from which the Court can only infer that the Federal agent may have been ashamed to admit that the aforesaid treatment of a suspect (i.e., kicking him face down onto the floor) was used in a case such as this where an arrest was made of a person not currently in the process of committing any offense.
The second of the two arrests, namely that of Mr. Jakakas, concededly took place about 11:30 AM. Thereafter, both of the arrestees were transported, as indicated, in separate cars to the Downtown Brooklyn Federal Post Office where they arrived at about 12:30 (Tr. 129). They were allegedly taken there, rather than to the U.S. Magistrates in this Court one block away, for "processing".
Notwithstanding the fact that the United States Attorney called "about the time that we all arrived" (Tr. 162) and directed that the agents "get him over here for arraignment" (Tr. 162) and that it took at most 40 minutes to an hour to "process" an arrestee, Mr. and Mrs. Jakakas were not taken to nor arraigned before a Magistrate until after 5:00 o'clock.
When Mr. and Mrs. Jakakas arrived at the agents' offices, they were put in separate rooms. Special Agent MacDonald admitted that when Mrs. Jakakas was first advised of her rights "she said she didn't want to talk" (Tr. 174) and in her case the Special Agents, at least for a time, obeyed the Miranda Rules and did not attempt to question her further.
Mrs. Jakakas (as the agents undoubtedly learned during their so-called "processing" if they did not already know) was a high school graduate who had completed two years of college and was employed as a bank teller by the Central State Bank on Court Street. Mr. Jakakas on the other hand as the agents learned when they attempted to advise him of his rights when he was first brought into their offices, was an illiterate (Tr. 131). Mr. Jakakas testified that he repeatedly asked for the assistance of his wife during the questioning and Agent Pribal confirmed this stating that throughout the whole time that (Agent Pribal) was with [Mr. Jakakas] (Tr. 242) during the course of the processing, Mr. Jakakas "was still asking for his wife" (Tr. 242). Notwithstanding such repeated requests which concededly were made, the illiterate Mr. Jakakas was given his wife's counsel on only three occasions during the four and a half hour period of "processing".
Just prior to one of these occasions, Agent MacDonald testified that he read for a second time Mr. Jakakas rights to him and that Mr. Jakakas then "signed the waiver of rights" (Tr. 130). When the Court asked for the production of such signed waiver Mr. MacDonald stated "it's on its way over" but the fact is that the waiver never was produced. (Tr. 130)
Mr. Jakakas was then shown the arrest warrant and the affidavit upon which it was based and when he advised Agent MacDonald he couldn't read he was told that it would be read to him. Mr. Jakakas said, however, that he wouldn't trust anybody to read it to him except for his wife at which point his wife was produced and allegedly read the two documents to him and the statute which was alleged to have been violated.
According to Agent MacDonald at this point he asked Mr. Jakakas a few questions and Mr. Jakakas declined to answer any of them. Specifically Mr. MacDonald testified that he asked him if he wanted to go into the details of the case and Mr. Jakakas said "no" and then Mr. MacDonald said "fine" and they talked about something else. And then he ...