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UNITED STATES v. NASH

November 4, 1985

UNITED STATES OF AMERICA,
v.
MICHAEL NASH, Defendant. UNITED STATES OF AMERICA, vs. ELLIOT NEGRON, Defendant.



The opinion of the court was delivered by: GOETTEL

GERARD L. GOETTEL, U.S.D.J.

Defendants Michael Nash and Elliot Negron move pursuant to Fed. R. Crim. P. 41 to suppress as evidence post-arrest statements made by them to government agents prior to their presentment before a United States Magistrate. For the following reasons, their motions are granted.

 I. BACKGROUND

 Defendants Nash and Negron are juveniles. On July 8, 1985, they were arrested in the Bronx for attempted armed bank robbery. Nash was arrested at approximately 10:15 a.m. on that date, orally advised of his rights, and driven to F.B.I. headquarters at 26 Federal Plaza. Upon his arrival, Nash was taken to an interview room and again advised of his rights. He signed a waiver of his rights and the agents took his pedigree, *fn1" at which time they learned of his age. They contacted his mother and advised her of her son's arrest and the charges filed against him. She indicated that she was unwilling to come down to court. It is unclear whether this notification took place before or after Nash made the statement at issue in this motion, or whether Mrs. Nash was advised of her son's constitutional rights. Nash was subsequently processed and taken to the magistrate at approximately 5:30 p.m., and presented around 7 p.m.

 Negron was arrested at a different location, approximately one hour after the other defendants. The arresting officers determined that he was a juvenile and read him his rights. They then drove to his mother's home to search for weapons and to inform her of her son's arrest and the nature of the offense. His mother was not at home, but the officers informed Negron's juvenile brother and sister, the sister's adult husband, and Negron's aunt (who did not speak English) that Negron had been arrested for attempted armed bank robbery. It does not appear that these family members were advised of his constitutional rights, but they were told they could come to the arraignment. The officers then drove Negron to 26 Federal Plaza, where he waived his rights and made a statement. He was processed by the Marshal's office and Pre-Trial Services and taken to the magistrate around 5:30 p.m. He was presented with the other defendants around 7 p.m.

 Both defendants were in custody for approximately 2-3 hours before making statements of confession. Nash was in custody for 8-9 hours, and Negron 7-8, before being arraigned before a magistrate. Several hours of the delay before presentment may be attributed to interviews of the defendants by Pre-Trial Services (in Negron's case, by his probation officer), assignment of counsel and counsel's interviews of the defendants, and congestion in the magistrate's courtroom.

 II. DISCUSSION

 Section 5033 of the Federal Juvenile Delinquency Act provides:

 
Whenever a juvenile is taken into custoday for an alleged act of juvenile delinquency, the arresting officer shall immediately advise such juvenile of his legal rights, in language comprehensive to a juvenile, and shall immediately notify the Attorney General and the juvenile's parents, guardian, or custodian of such custody. The arrestingofficer shall also notify the parents, guardian, or custodian of the rights of the juvenile and of the nature of the alleged offense.
 
The juvenile shall be taken before a magistrate forthwith. In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate.

 18 U.S.C. § 5033 (1982). The defendants contend that their rights as juveniles under this statute have been violated. More specifically, they assert that because the government failed to notify their parents and because there was an unreasonable delay in bringing them before a magistrate, their confessions must be suppressed. The Government contends, first, that numerous efforts were made to reach the parents, and second, that the time period between the defendants' arrest and their presentment before a magistrate was reasonable under the circumstances. The requirements of the statute having been complied with, the Government submits, this Court should not suppress the statements.

 There are but three Second Circuit decisions addressing the acceptable length of time a juvenile may be detained prior to arraignment before a magistrate. Two of those cases, United States v. Glover, 372 F.2d 43 (2d Cir. 1967) ("Glover "), and United States v. Binet, 442 F.2d 296 (2d Cir. 1971), on remand, 335 F. Supp. 1000 (S. D.N.Y. 1971) ("Binet "), were decided under the predecessor version of 18 U.S.C. § 5033, 18 U.S.C. § 5035. *fn2" In Glover, a 17-year-old defendant was detained overnight in a prison facility before being arraigned the following morning. During that time he was questioned, and he confessed. The court suppressed the statement, finding that the statute allowed detention only for the purpose of "prompt arraignment, before a judicial officer, so that the magistrate may explain and protect the juvenile's rights -- among others, the right against compulsory self-incrimination and the right to the assistance of counsel." Glover, supra, 372 F.2d at 46. The court went on to state the following:

 
Treatment of an accused juvenile after arrest as a chattel in the possession of the officers, deliverable at will to the inspectors' offices for interrogation is a plain departure from the command of the statute for forthwith production of the juvenile before a magistrate. Statements taken ...

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