The opinion of the court was delivered by: DUFFY
Defendant Jerry Taylor, also known as Robert Brown, has moved to suppress certain statements made by him as well as all evidence derived from the use of such statements. A hearing was held before me on October 6 and 20, 1978 and counsel were granted leave to submit post-hearing memoranda. The following opinion constitutes my findings of fact and conclusions of law.
On the evening of June 16, 1978, Police Officers Frank Rogers and John Taglioni were on duty in the vicinity of 139th Street between Lenox and Fifth Avenues. There they spotted defendant with his girlfriend Michelle Williams, both of whom were known to the officers from previous arrests and other encounters. Defendant was removing two tires of a vehicle known by the officers to be stolen, while Ms. Williams was sitting on the hood of an adjacent auto apparently serving as lookout. After removing the tires and carrying them into a nearby abandoned building, defendant attempted to break the chain lock that secured the hood of the vehicle. The officers then moved in to arrest both Ms. Williams and defendant. Defendant, fleeing into an abandoned building, successfully escaped the officers. Ms. Williams, however, was arrested and taken to the stationhouse.
Approximately twenty minutes after Ms. Williams' arrest, defendant appeared at the stationhouse to inquire after his friend. He was immediately arrested and given Miranda warnings. Defendant also signed his arrest sheet acknowledging in writing that he had received and understood his rights. Defendant neither asked for a lawyer nor evidenced an unwillingness to speak with any of those who questioned him.
Shortly thereafter, defendant volunteered that he had information concerning a shotgun stolen from a vehicle. The police were able to confirm that such a weapon had, in fact, been stolen from a Secret Service vehicle. Defendant denied any participation in the crime but began to provide the police with details of the theft while they all awaited the Secret Service Agents who had been notified of defendant's statements. Defendant was a registered informant with the Bronx District Attorney and had previously provided reliable information to the authorities.
Upon the arrival of Agents Steven Scott and Thomas Tully, they were escorted into the precinct's anticrime office. There they were briefed on what had transpired that evening and advised that defendant had received Miranda warnings. At approximately 12:30 a.m. they met with defendant. The agents did not re-administer the warnings but did ask defendant to recount what he had already told the police. He then revealed that a man known as "Tippin T" had sold a shotgun to a man known as "Jew Baby." According to defendant, Tippin T also had binoculars, a Polaroid camera and gas grenades. All these items matched the description of items stolen from the Secret Service vehicle. Defendant said he also knew of a box containing bits and pieces of other equipment.
At this point Scott asked if defendant was part of the burglary ring. Defendant denied participation in the crime; he said that Tippin T was a business associate of his and that he knew of the stolen items because of this association.
The agents were apparently convinced that defendant was not a party to the crime. They then left the precinct and found the box of stolen property where defendant had said it would be. Upon their return, they asked defendant to come with them and point out the car with the grenades in it. Defendant was reluctant to do so for fear of being seen, but the agents assured him he would be safe if he kept low in the car. Taylor went with them and identified the car. They then returned to the precinct at approximately 3:00 a.m.
The Secret Service agents, having procured a search warrant based upon the information provided by defendant, executed the warrant and arrested Jew Baby. On June 20, 1978, they returned to the stationhouse where defendant identified Tippin T out of a photo spread. Scott then gave defendant $ 50 and thanked him for his cooperation. According to Scott, without defendant's aid the government agents could not have made a case.
Subsequently, on June 22, 1978, Tippin T was arrested. After receiving his rights, Tippin T accused defendant of being his accomplice in the theft and sale. Scott thereupon secured a warrant for defendant's arrest and on August 2, 1978, defendant was apprehended by the Newark, New Jersey Police. The Secret Service were notified and took defendant into custody on August 3rd. He was escorted to a Secret Service office in Newark where he was photographed and fingerprinted. Defendant was advised of his rights and taken before a United States Magistrate. The Magistrate also gave defendant his rights and defendant waived his right to an attorney. However, defendant did not waive his right to a preliminary hearing on the question of probable cause for the charges against him and a hearing was set down for August 14, 1978. Defendant also executed a waiver of counsel form, indicating he was aware of his rights. He was then removed to the Metropolitan Correction Center (MCC).
Four days later, on August 7, Agents Scott and Tully visited him at the MCC. They once again advised defendant of his rights but he chose to speak to Scott without benefit of counsel. The inculpatory statements he made on August 7 are among the statements defendant seeks to suppress.
Defendant has moved to suppress three statements made by him. The first was the statement made to Officers Taglioni and Rogers on the evening of his first arrest, June 16, 1978. Defendant claims that there was no probable cause to arrest him and that, accordingly, any statement made by him should be suppressed. Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975).
In this connection, defendant concedes that if I find the testimony of Officers Taglioni and Rogers credible, then probable cause has been established. He suggests, however, that his own version of the events of the evening is entitled to greater weight. According to defendant, at the time Ms. Williams was arrested, he was not near the car and did not run into an abandoned building. Rather, defendant testified, he was in a bar on Lenox Avenue from where he saw Ms. Williams apprehended. Thereafter, he went to the precinct to learn why she had been taken into custody.
Defendant suggests that his version should be credited for two reasons. First, he concludes that Officer Taglioni's assessment of Ms. Williams' activity as merely "looking" was an insufficient basis upon which to predicate an arrest. Defendant would have me believe that Ms. Williams' arrest was merely a sham, effected to get her known boyfriend into the precinct. Secondly, he argues that if Taglioni's version is credited, then it would be very unlikely for defendant to present ...