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December 11, 1990


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


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 understood.

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
  started questioning."

Tr. 23.

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 organization.

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 replied:

  "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 ...

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