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June 5, 1990


The opinion of the court was delivered by: Munson, District Judge.


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.


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.

DeMarc claims that when the agents entered the room he had finished smoking a marijuana cigarette within the hour and had recently taken two "hits" off of another. The room had several individuals in it. DeMarc testified at the hearing that when the agents entered they announced, "FBI." They told him that he was "under arrest for armed robbery." One of the arresting agents, Special Agent James Myers, testified that defendant DeMarc identified himself as DeMarc. Agent Myers recollected that DeMarc volunteered, "You guys are good." Agent Myers further testified that, while yet in room 602, DeMarc volunteered that "anything you are looking for is in the black limo."

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 ...

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