UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
December 17, 1979
UNITED STATES OF AMERICA, against HANNA GORAYSKA, DANUTA BEBNOWSKA, ZYGMUNT SARKOWICZ, GRAZYNA SOBOTA, and MARIA GOSZLER, Defendants.
The opinion of the court was delivered by: CANNELLA
MEMORANDUM AND ORDER
Motion by defendant Grazyna Sobota to suppress a social security card in the name of Stanislawa Sobota, seized from her apartment on May 30, 1979, is granted.
Defendant's motion, to suppress statements made by her on May 30, 1979, is denied.
This Court conducted a hearing on defendant's motions on November 28, 1979.
The Government stipulated that certain documents were seized from defendant Sobota on May 30, 1979, and further stipulated that on the same day a signed statement was taken from her while she was under administrative arrest at the offices of the United States Immigration and Naturalization Services ("INS"), located at 26 Federal Plaza, New York City. The burden of proof, therefore, shifted to the Government to justify the seizures and the taking of the statement at the INS offices.
Three INS criminal investigators, a special agent with the Department of Health, Education and Welfare ("HEW"), and an INS interpreter testified for the Government. What follows is their collective version of the seizure of evidence and the defendant's arrest on May 30, 1979.
On May 23, 1979, during an interview with three undocumented aliens,
INS Agent Kiernan and HEW Agent Lane learned that the defendant furnished social security cards to undocumented aliens from Poland, to facilitate their illegally obtaining employment in this country. Between May 23 and May 30, the agents made no attempt to secure either a search or an arrest warrant.
On May 30, 1979, at approximately 7:30 a.m., Agents Kiernan and Lane went to the defendant's apartment at 78 North 7th Street, Brooklyn, New York, in an attempt to locate and apprehend the defendant as an undocumented alien. The agents observed the defendant leaving the apartment, and stopped her on the street. The defendant acknowledged that she was Stella Sobota, and that she had entered this country with a tourist visa and was employed at the Richard Schmidt Company in Manhattan. When the agents asked to see her passport, she indicated that it was back in her apartment, to which they then proceeded. The agents testified that defendant let them into her apartment where they found the defendant's brother, Wieslaw Sobota, in the kitchen. Since Wieslaw did not speak English, the agents questioned him with the aid of the defendant, who acted as an interpreter.
After briefly questioning Wieslaw about his immigration status, Agent Kiernan again asked to see defendant's passport. Defendant led him to a small room off the kitchen and began looking into a dresser drawer. When Agent Kiernan moved closer to look into the drawer, the defendant slammed it shut. The agent then reopened the drawer to see what she was trying to conceal, and removed stacks of letters. The agent continued to open other drawers, which the defendant indicated she wished to open, and removed more documents, but he did not find the passport. Furthermore, Agent Kiernan looked under beds and in closets for other undocumented aliens. The search lasted approximately one-half hour. Defendant then advised him that her passport was at the Polish Consulate. Agent Kiernan then asked the defendant for any identification, and the defendant produced a social security card in the name of Grazyna Sobota.
Both Agents Kiernan and Lane testified that a second social security card in the name of Stanislawa Sobota, the defendant's mother, was seized on May 30, but neither could recall where or when it was found. Agent Kiernan speculated that the card was probably found among the letters that were seized, or in a later search of the defendant's pocketbook. After the search was concluded, both the defendant and her brother were placed under arrest and taken to the INS office at 26 Federal Plaza, where they were then separated.
Defendant's interrogation began at approximately 9:00 a.m. and ended by 1:00 p.m., at which time the defendant was free to leave. Initially, Agent Lane, an INS interpreter and INS Agents Simon and Henderson were present in the interview room. The interpreter read the defendant her rights in Polish, and the defendant read and signed a waiver of rights form which had been translated into Polish. When the questioning began, the defendant began answering in English. The defendant did not ask for an attorney or seek to stop the questioning at any time. After a few minutes, the interpreter went to the next room where the defendant's brother was being interrogated. Defendant never requested the aid of the interpreter although one was available in the adjoining room. Agent Lane left the room approximately an hour later.
Defendant's interrogation was conducted in English, primarily by Agents Simon and Henderson. After the defendant was advised of her rights, she was informed that she was subject to deportation proceedings since she had violated the conditions of her visa by obtaining employment. The agents also informed her that they were conducting a criminal investigation of a scheme to provide social security cards to undocumented aliens. The agents advised the defendant that they wanted her to cooperate, and that in the event she supplied certain information, she would be able to remain in the United States with authorization to work for the period of time required to complete the investigation. Transcript of Suppression Hearing at 124, United States v. Sobota, 79 Cr. 733 (Nov. 28, 1979) (hereinafter cited as "Tr.").
The agents told the defendant that they had three options. They said that if she refused to cooperate by supplying useful information, they could recommend that she be detained, in which case her deportation hearing would be held immediately. Alternatively, they could recommend that she be released on a bond, in which case her deportation hearing would be held in approximately two weeks, depending on the condition of the INS docket. The agents then posed a third option. They told the defendant that if she cooperated she would be released on her own recognizance, given an authorization to work, and that the INS would issue an order to show cause why she should not be deported returnable in 60 days, at which time that return date could be extended by the INS until the completion of the criminal investigation. The agents told the defendant that they would have no part in the determination of whether she would eventually be deported or given a voluntary departure, and that an immigration judge would have to make that decision.
Upon hearing these options, the defendant indicated that she wished to remain in the United States and would cooperate. She was then questioned concerning her immigration status and her knowledge of those involved in the alleged social security fraud. Agent Simon prepared an affidavit during the questioning which consisted of a summary of the defendant's answers. The questioning lasted approximately two hours. The period does not include two breaks,
the time it took to read the written statement to her, or the period when she was fingerprinted and photographed. The defendant indicated she understood the affidavit; she initialed corrections and signed the last page. Tr. at 91. The defendant also prepared a list of names of aliens with tourist visas who were working in this country.
At the conclusion of the interview, the agents gave the defendant an order to show cause returnable in 60 days, a new social security card with her name and old social security number, a written authorization to work, and an INS telephone number which she was to call each week to report any change in her employment or address, or any additional information she might have. The agents told her not to discuss the investigation, but said that she could use the order to show cause to explain why she had been at the INS office.
The defendant and her brother
described the encounter quite differently. The defendant testified that she was stopped outside her apartment by Agents Kiernan and Lane. Agent Kiernan identified himself as an INS agent. He asked her about her status in this country and whether she lived alone. She said she lived alone, and at that point Agent Kiernan began screaming "Don't lie to us," and forced the defendant to take them to her apartment. When the defendant's brother opened the door slightly, Kiernan pushed the door and her brother against the wall, and proceeded into the apartment. According to the defendant, it was not until they reached the apartment and the agents had questioned her brother that Agent Kiernan asked to see her passport and social security card. At that time, the defendant told him that her passport was at the Polish Consulate, but began to look through a dresser drawer to find her social security card. The defendant testified that Agent Kiernan was searching everywhere in her apartment for the social security card. Finally, the defendant found the social security card in the name of Stanislawa Sobota and gave it to Kiernan, who demanded to see her second social security card. About fifteen minutes later, the defendant found and gave the social security card in the name of Grazyna Sobota to Kiernan. Kiernan continued searching for some time after that and then placed the defendant and her brother under arrest. Defendant testified that she was very "afraid" of Agent Kiernan's threatening manner. Tr. at 163.
As to her interview at the INS office, the defendant testified that she was advised of her rights in Polish, and that she read the form and signed it. She did not ask for an attorney or request to halt the interview, but explained that her conduct was a result of her nervous state and the pressuring attitude
of the agents, who she contended did not give her enough time to assess the situation.
The defendant answered the agents' questions and Agent Simon prepared the affidavit. Defendant testified that the statement and its warning legend contained approximately 50 words which she did not understand at the time. Tr. at 172-78. After the statement was read to her, she said she did not understand some of the words, but the agents told her that she knew what the affidavit was about and should sign it if she wanted to help herself. The statement was not translated into Polish before she signed it. According to the defendant, the interview ran from 9:30 a.m. to 2:30 p.m., interrupted by the two breaks described by the agents.
The defendant also testified that she was employed at the Richard Schmidt Company where she supervised other employees and acted as an interpreter for her employer. Her duties included helping Polish job applicants to complete applications in English.
Suppression of the Social Security Card
The Government has indicated that the only item seized from the defendant's apartment on May 30, 1979, which will be offered in evidence against her in the Government's case is the social security card in the name of Stanislawa Sobota.
The Government, however, has totally failed to meet its burden of proof to justify the seizure of this social security card.
The search of the defendant's apartment without a search warrant was improper. Even were the Court to conclude that the agents were lawfully in the apartment, there is no evidence whatsoever that the defendant consented to a limited search, must less the extensive search which the agents described in their testimony. On the contrary, the defendant slammed the drawer shut in order to prevent further inspection of its contents by Agent Kiernan. Such circumstances do not indicate that "consent was "freely and voluntarily given.' " United States v. Candella, 469 F.2d 173, 175 (2d Cir. 1972) (quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968)) (citation omitted).
Furthermore, the Government presented no evidence that the social security card was seized while it was in the "plain view" of the agents, Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); United States v. Berenguer, 562 F.2d 206, 210 (2d Cir. 1977), or during a search incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). Similarly, the Government presented no evidence that the agents were conducting a protective search. United States v. Christophe, 470 F.2d 865, 869 (2d Cir.), Cert. denied, 411 U.S. 964, 93 S. Ct. 2140, 36 L. Ed. 2d 684 (1972). The agents were totally incapable of substantiating such claims since they could not remember where or when the seizure of the card took place, aside from the conjecture that it might have been found in the defendant's apartment among her letters or in her pocketbook. Thus, the social security card in the name of Stanislawa Sobota was not properly seized, and the Court grants the defendant's motion to suppress it.
Suppression of Defendant's Statement
The defendant contends that the written statement she signed at the INS office on May 30, 1979, was not voluntarily given, and that she did not fully understand it because of her poor English. The Court is unswayed by the latter point. At the very outset of the interview, the defendant was orally informed of her constitutional rights in Polish and signed a waiver of rights form which had been translated into Polish. An interpreter was present at this stage of the interview to aid her in comprehending the form, but she did not indicate that she needed any assistance or desired the presence of an attorney.
The agents testified that defendant said she understood the statement when it was read to her and thereafter read it herself. The defendant's testimony that the statement contained approximately fifty words which she did not understand is not credible.
The Court concludes, therefore, that the defendant understood her rights at the time she gave her statement to the agents and that she understood the contents of the statement before she signed it.
See United States v. Dizdar, 581 F.2d 1031, 1038 (2d Cir. 1978).
A more difficult question is whether the defendant's admissions were voluntarily made after she had been informed of the three options available to the INS agents.
In effect, the agents had promised her an adjournment of her deportation hearing and an authorization to work in return for her cooperation with their investigation.
The Supreme Court has indicated that the test of voluntariness is whether "the confession was "extracted by any sort of threats or violence, (or) obtained by any direct or implied promises, however slight, (or) by the exertion of any improper influence.' " Hutto v. Ross, 429 U.S. 28, 30, 97 S. Ct. 202, 203, 50 L. Ed. 2d 194 (1976) (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 42 L. Ed. 568 (1897)). However, the above language
has never been applied with . . . wooden literalness . . . . The Supreme Court has consistently made clear that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of "law enforcement officials was such as to overbear (the defendant's) will to resist and bring about confessions not freely self-determined . . . ."
United States v. Ferrara, 377 F.2d 16, 17 (2d Cir.), Cert. denied, 389 U.S. 908, 88 S. Ct. 225, 19 L. Ed. 2d 225 (1967) (quoting Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961)); Accord, United States v. Reed, 572 F.2d 412, 426 (2d Cir.), Cert. denied, 439 U.S. 913, 99 S. Ct. 283, 58 L. Ed. 2d 259 (1978); United States v. Pomares, 499 F.2d 1220, 1222 (2d Cir.), Cert. denied, 419 U.S. 1032, 95 S. Ct. 514, 42 L. Ed. 2d 307 (1974).
In applying the above test to the facts of each case, courts have recognized that the standards it establishes are less than clear.
Concepts such as voluntariness, overbearing of will and compulsion have been used by courts as catchwords which indicate that the admission of certain statements would injure other judicial interests.
One such interest protected by the courts is that of ensuring that evidence is truthful and reliable. The stronger the inducement brought to bear on an individual, the greater the likelihood that he will retreat from his natural tendency to tell the truth when it is otherwise in his interest to do so.
But while the interest in truthfulness may be a factor, it is not always dispositive of the admissibility of a statement, since courts will exclude statements, which, although truthful, were obtained by improper means.
A second related interest is the prevention of police misconduct or overreaching. Thus, courts will exclude statements where the police have engaged in illegal
conduct or where they have failed to live up to their original bargain.
However, police are permitted to offer some promises or inducements when questioning an accused.
Examining the circumstances of the instant case with these interests in mind, the Court concludes that the Government has sustained its burden of proving that the inducements employed by the INS agents were not improper and did not overbear the defendant's will. Her statement was the result of a careful, calculated determination that cooperation with the INS would be in her best interests.
The Court reaches this conclusion after evaluating all the evidence and the demeanor of the witnesses who testified. The defendant is an intelligent woman in her mid-twenties whose employment responsibilities included the supervision of subordinates. She was not upset or distraught. While the defendant may have had to make a difficult decision, See United States v. Mullens, 536 F.2d 997, 1000 (2d Cir. 1976), it is unlikely that she was intimidated by the choices presented. On the contrary, when the defendant entered the INS offices, she was informed that she was subject to a deportation hearing. This was not a mere threat, but a statement of fact.
When she was informed that her deportation hearing could be held immediately or within two weeks, the officers were accurately representing the possibilities that confronted her as alternatives to the benefits of cooperation. United States v. Pomares, supra, 499 F.2d at 1222. The defendant no doubt perceived the benefit,
but it is highly unlikely that the benefit offered to her was of such a magnitude that it would have induced her to lie or have otherwise overborne her will.
The agents did not engage in any illegal or coercive conduct in order to extract a statement from the defendant.
Furthermore, after the defendant cooperated by supplying the requested information, the agents honored their agreement by issuing to the defendant an order to show cause returnable in 60 days, her social security card, and a written authorization to work. The agents promised her no more. She was not told that she could stay in this country indefinitely or that no prosecutions would be brought against her. There was no ambiguity in the agents' offer of cooperation, and no unfairness or overreaching.
Moreover, the agents' conduct was not unreasonable, and therefore should not be prohibited. As Judge Lumbard so aptly stated in United States v. Pomares, supra :
Surely, it is the duty of law enforcement officers to assemble all available evidence relating to the commission of a crime and this includes such information as a participant may be willing to give. Having fairly and fully advised Pomares of his constitutional rights, as required by Miranda, the agents were free to discuss with Pomares the reasons why he should cooperate. It was quite proper in the course of such discussion to mention the situation which Pomares faced and the advantages to him if he assisted the government. The agents stated facts; they made no misrepresentations. Nothing the agents were shown to have said or done was unfair or overreaching. There was every reason for the agents to act as they did; their conduct did not violate the letter or the spirit of the holding of the Supreme Court in Miranda.
499 F.2d at 1222-23; Accord, United States v. Cone, 354 F.2d 119, 127 (2d Cir. 1965), Cert. denied, 384 U.S. 1023, 86 S. Ct. 1958, 16 L. Ed. 2d 1026 (1966).
For the above reasons, the Court grants the defendant's motion to suppress the social security card in the name of Stanislawa Sobota, and denies her motion to suppress the statement taken from her at the INS office on May 30, 1979. Fed.R.Crim.P. 12(b)(3), 41.
These are the Court's findings of facts and conclusions of law. Fed.R.Crim.P. 12(e).