The opinion of the court was delivered by: Munson, District Judge.
MEMORANDUM-DECISION AND ORDER
The indictment returned in this case charged defendants Gary
LaTray and Timothy DeMarc with robbing an armored truck
facility in East Syracuse, New York on May 25, 1989.
Specifically, they are alleged to have conspired to commit
robbery by force and violence or intimidation; they are charged
with the substantive crime of bank robbery by force and
violence or intimidation; and, finally, both defendants are
charged with assault in a crime of violence through the use of
a handgun. The armored truck facility which was robbed was
operated by AMSA Courier Service ("AMSA"). The conspiracy count
of the indictment alleges that the defendants were assisted by
an AMSA employee, Thomas Lester.
Both defendants were apprehended by agents of the Federal
Bureau of Investigation ("FBI") in Virginia Beach, Virginia on
the night of May 30, 1989, five days after the heist. The
defendants, without any counsel, made an initial appearance
before then-Magistrate Rebecca Beach Smith on May 31, 1989.
They later appeared with counsel before Magistrate Smith on
June 5, 1989, at which time they both waived detention and
preliminary hearings. The defendants were then ordered removed
and transported to the custody of this court.
On May 2, 1990, this court held a hearing to resolve one
motion presented by defendant DeMarc and two brought by
defendant LaTray. In his motion, DeMarc seeks to suppress any
statements he made between the time of his arrest and when he
was read his rights from an "Advice of Rights" form which he
signed. Exhibit ("Exh.") 1. LaTray contests the propriety of
his arrest, claiming that the arresting agents lacked probable
cause when arresting him. He asserts that, if the arrest was
improper, the court should suppress "all statements obtained
from him and property seized from him." LaTray Memorandum,
Docket Number ("Doc.") 23, at 8. LaTray also moves to dismiss
the indictment insofar as it charges him with armed robbery. He
contends that, as part of a bargain to obtain information from
him regarding the location of some currency, the government
agreed not to press any charges with respect to guns.
Therefore, LaTray argues that he should be charged with
larceny, as opposed to armed robbery.
I. DeMARC'S MIRANDA RIGHTS.
DeMarc was arrested at approximately 10:45 p.m. on May 30,
1989 at the Holiday Inn Oceanfront, Virginia Beach, Virginia.
See Exh. 11 (Arrest Log for DeMarc). Prior to the arrest of
DeMarc, LaTray was arrested outside the Holiday Inn. After the
arrest of LaTray, FBI agents formulated a quick plan to arrest
DeMarc, whom they believed to be in his room. Several
approached DeMarc's room, number 602. One agent, Special Agent
James Cross, knocked on the door and claimed to be the manager.
The door was opened from the inside and the agents entered.
Agent Myers, and Special Agent Bowers escorted DeMarc to an
FBI vehicle in the parking lot. Once inside the vehicle Agent
Myers advised DeMarc of his right to remain silent and his
right to an attorney. The agents drove DeMarc to the second
precinct house of the Virginia Beach Police Department. Because
there was not sufficient room at the second precinct, the
agents transported DeMarc to the Virginia Beach Police
Department Headquarters. In route to the headquarters, Agent
Myers testified that DeMarc volunteered, "All I have to say is
Petey did it all." DeMarc denied this when he took the stand.
At the headquarters, DeMarc read and was read an advice of
rights form. DeMarc signed the form at around 12:50 a.m. on May
5, 1989. Exh. 1. Agents Bowers and Myers witnessed DeMarc's
signature. The first section of the advice of rights form is
entitled, "Your Rights." That section of the form advised
DeMarc of his right to remain silent, that anything he said
could be used against him in court, that he had a right to an
attorney before any questioning, that if he could not afford an
attorney one would be appointed, and that he had the right to
stop answering at any time until he spoke with an attorney. The
form next contained a section labelled, "Waiver of Rights."
This portion of the form explained that the defendant had read
and understood his rights, that he was willing to make a
statement and answer questions, that he understood what he was
presently doing, and that he had not been subjected to
promises, threats, pressure or coercion. The signature line
which defendant signed is located directly below the "Waiver of
Rights" portion of the form.
Agent Myers testified that, after DeMarc signed the form, he
answered a few background questions posed by the agents. Then,
however, the defendant asked to speak with an attorney. The
interview was halted.
Defendant DeMarc's testimony differs only slightly from that
of Agent Myers. Some of DeMarc's testimony has already been set
forth regarding the FBI's entry into his hotel room. Under
cross-examination of Assistant U.S. Attorney Andrew Baxter,
DeMarc agreed that he had told agents, "Whatever you're looking
for is in the black limo." He also agreed that he told them, "I
hadn't expected it so soon." Furthermore, he admitted under
cross-examination that the federal agents had not asked him any
questions to elicit those two statements.*fn1 Moreover, on
cross-examination Baxter extracted from DeMarc that he (DeMarc)
understood his rights when they were informally given to him in
the FBI vehicle and when they were formally read to him in the
Virginia Beach Police Department Headquarters. The one major
departure from Agent Myers' testimony has already been
mentioned. DeMarc denied commenting that "Petey did it."
As noted earlier, defendant DeMarc asserts that any
statements he made up until the time he signed the advice of
rights form should be suppressed. He argues that they should be
suppressed because he was not properly advised of his
Miranda rights until that time. The court does not agree with
the defendant's argument.
The Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966), set forth procedures to be
utilized by the police "before commencing custodial
interrogation." Duckworth v. Eagan, ___ U.S. ___, 109 S.Ct.
2875, 2879, 106 L.Ed.2d 166 (1989). Statements made during
custodial interrogation "are inadmissible unless the suspect is
specifically warned of his Miranda rights and
freely decides to forgo those rights." New York v. Quarles,
467 U.S. 649, 654, 104 S.Ct. 2626, 2630, 81 L.Ed.2d 550 (1984).
In the case at bar, there was no evidence placed before the
court that the statements which defendant seeks to suppress
were made during custodial interrogation. They may have been
made while Demarc was in custody of the FBI. See Duckworth, 109
S.Ct. at 2879 ("Miranda has not been limited to stationhouse
questioning."). However, the only evidence before the court is
that the statements attributed to DeMarc were volunteered. The
Court in Miranda addressed the question of volunteered
statements. It held that "[v]olunteered statements of any kind
are not barred by the Fifth Amendment and their admissibility
is not affected by our holding today." 384 U.S. at ...