The opinion of the court was delivered by: Korman, District Judge.
CORRECTED MEMORANDUM AND ORDER
The United States Attorney seeks reconsideration of a
decision rendered from the bench on November 19, 1990,
suppressing post-arrest statements. The facts upon which motion
to suppress was granted are set out at pp. 2-5 of the
transcript of November 19, 1990. Briefly summarized, the
testimony at the suppression hearing established that, on June
15, 1989, Agent Valentine, a supervising special agent of the
Drug Enforcement Administration arrested Terrance Anderson
shortly after Anderson left the Guy Food Market in Brooklyn.
While seated in his vehicle, Valentine advised Anderson and
another individual, who was subsequently released, of their
constitutional rights and asked them whether they understood
each right, with Anderson answering as to each right that he
After giving Anderson the Miranda warnings, Special Agent
Valentine told him that "[i]t would be in the best interests to
talk" to him at that point, that "this was the time to talk to
us, because once you tell us you want an attorney, we're not
able to talk to you," and as far as he, Valentine,
was concerned, if Anderson asked for an attorney, "we probably
would not go to the United States Attorney or anyone else to
tell them how much they cooperated with us." Tr. 21-22,
November 6, 1989.
Valentine reiterated this point at least three times telling
Anderson: "Once he wanted a lawyer, he would not be able to
cooperate." Tr. 22. Because of the possibility that this effort
to induce Anderson to speak followed an assertion by Anderson
of his right not to speak, I asked Valentine why he made these
statements to Anderson. Valentine responded that:
"[M]y policy is to be direct with people and up
front. It was just after the warnings that I went
into that little speech as you will, and I then
Subsequently, Agent Valentine acknowledged that although
Anderson had made some incriminating statements, he generally
"danced around everything and would not specifically answer my
questions." Valentine then became frustrated and told Anderson:
"[L]isten, this is your chance to help yourself, if you want to
help yourself do it now[.]" Tr. 26-27. According to Valentine,
he then concluded the conversation. Id. at 27.
Valentine then took Anderson to the Guy Food Market where
other agents had by then arrested Anderson's co-conspirators.
Anderson and the other persons arrested were thereafter
transported to 26 Federal Plaza. While DEA Agent J. Michael
Smith was searching Anderson, he asked Anderson if he wanted to
cooperate or make any statements. Anderson again allegedly
stated that he wanted to do so and Smith called Agent Moorin
into the room.
Agent Moorin in words or substance told Anderson that it was
in his best interest to speak and that he could only help
himself by cooperating. Immediately thereafter, Agent Smith
read the waiver of rights form to Anderson who told Smith he
understood. After reading it to himself, Anderson signed the
waiver of rights form. Anderson then made a statement which was
written down by Smith and witnessed by DEA Agent Kerrigan and
in which Anderson identified the members of the Jonas crack
organization and described himself as an enforcer for that
In response to a question whether Agent Moorin really
believed that it would be in Anderson's best interest to
cooperate without an attorney being present to make some
arrangements that would get him concrete benefits in return for
his cooperation or statements that he made, Agent Moorin
"Well, your Honor, what I was trying to get from
Anderson really wasn't a statement. What I was
trying to get at this particular time, is there
ten [kilograms] in the house or is there some
stash place, and if that was happening. If he told
me that, then I would immediately call the U.S.
Attorney and say, listen, this is what he gave us.
What do you want to do[?] Do you want to do it[?]"
Tr. 58-59, October 25, 1989.
In granting the motion to suppress Anderson's post-arrest
statements, I concluded that the statements made by Agents
Valentine and Moorin so undermined the effect of the
Miranda warnings that it could not be said that they were
sufficient to overcome the presumption of coercion that the
Supreme Court found was present in custodial interrogation.
While the Supreme Court held that the presumption of coercion
could be overcome by ensuring that "adequate protective devices
are employed to dispel the compulsion inherent in custodial
surroundings," Miranda v. Arizona, 384 U.S. 436, 458, 86 S.Ct.
1602, 1619, 16 L.Ed.2d 694 (1966), advising the defendant that
it was in his best interest to cooperate and that he would
forfeit opportunity to reap the benefits of such cooperation if
he asked ...