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May 10, 1985


The opinion of the court was delivered by: LEVAL



This is a motion by defendant Ernest Baez to suppress statements made by him to an Assistant United States Attorney after his arrest and before his arraignment. The motion is based on two grounds. The first seeks to suppress a portion of the interview on the contention that the Assistant continued questioning after the defendant expressed the wish to consult counsel. The second attacks the entire interview on the contention that such questioning by the prosecutor before arraignment violates the Constitution and Rule 5(a), Fed.R.Crim.P.

 The motion is denied on the second ground, but granted on the first.

 Baez was arrested by the New York City Police at 107 E. 110 Street on January 2, 1985 shortly after 2:30 p.m. after selling a packet of cocaine to an undercover New York City police officer. By arrangement between the federal and local authorities, defendants arrested that day by the New York City Police for drug sales in Manhattan were to be prosecuted by the United States Attorney in federal court. The defendant was taken by the arresting officers to the 26th Precinct for processing. (Ordinarily booking and processing would have been done at the 23rd Precinct. That day all such narcotics arrestees were taken to the 26th where an Assistant U.S. Attorney was posted.) After completion of processing at the precinct, the defendant was taken downtown by the arresting officers to the U.S. courthouse, where he arrived at 5:50 p.m. He was taken directly to the office of an Assistant U.S. Attorney. The evidence showed that the U.S. Magistrates had issued a policy to the United States Attorney to the effect that magistrates would remain available each evening for the arraignment of defendants who arrived in the building before 5:00 p.m. but would put over to the next day those who arrived after 5:00 p.m. Accordingly, as of the defendant's arrival, it was clear he would not be arraigned that evening.

 The office policy of the United States Attorney since United States v. Perez, 733 F.2d 1026 (2d Cir. 1984), has been to interview arrested defendants before their arraignment if such interview would be within six hours of the arrest. The Assistant accordingly proceeded to interview the defendant. He first gave the Miranda advice, elicited Baez' agreement to answer questions (telling him he could choose the questions he wished to answer and could "stop at any time"), and went ahead with questioning. Following the office form, the Assistant began with questions about the defendant's occupation, address, family, schooling, prior employment, roots, criminal record, financial condition, etc., all being pertinent to the issue of the Government's bail recommendation to be made to the magistrate.

 The Assistant then asked whether Baez had any complaint as to how he was treated by the arresting officers. His answer, according to the notes and testimony of the Assistant, was that he would "talk to Legal Aid about that." (Baez testified at the suppression hearing that his answer had been that he wanted a lawyer before he answered any more questions. I accept the Assistant's and not the defendant's version of this interchange.)

 The Assistant then moved on to the part of the form that calls fro questioning about the offense. The form calls for the question, "Would you like to tell me what happened?" The Assistant testified that he may have deviated from the prescribed form and simply asked, "Okay, what happened?" Baez made a number if incriminating statements. He admitted awareness of about 20 or 30 packets of cocaine, two capsules of cocaine, a bag of marijuana, and 29 hypodermic needles in his apartment. When asked whether he was going to sell the cocaine, he said, "I'm not going to answer that." The interview continued and the defendant made further damaging admissions.

 The arraignment would normally have occurred first thing the next day. Because of the large number of City police narcotics arrests diverted into federal court, the Magistrates court and its system for appointing counsel were overtaxed. Baez did not obtain counsel until afternoon and was not arraigned until late in the day.



 I find that the Assistant, who was new to the job at the time of the interview, *fn1" made certain errors of judgment that require suppression of the incriminating statements.

 When the defendant said, in response to the inquiry whether he had complaints about his treatment by the police, that he would "talk to Legal Aid about that," this should have raised two warning flags. First, the answer tended to suggest mistreatment by the police. Claims of misconduct should, if possible, be evaluated to determine whether prompt investigation is called for. Also, if the complaint was a fabrication, the answer warned of a possible attack on whatever statement might be given to the Assistant based on a claim of coercion by the police.

 I do not offer suggestions as to what would have been the best course for the Assistant to follow under the circumstances. No do I dwell on that aspect of the problem as no claim of police misconduct later materialized. I suggest only that the ...

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