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July 25, 1991


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


Defendant Eric Stewart*fn1 has been charged in a two-count Indictment with bank robbery in violation of 18 U.S.C. §§ 2113(a), and with armed bank robbery in violation of 18 U.S.C. §§ 2113(d). Defendant has moved: (1) to suppress an out of court identification of him; and (2) to suppress post-arrest statements. On June 18, 1991, an evidentiary hearing was held to address defendant's motion to suppress statements. For the reasons stated below, defendant's motions are denied.

I. Findings of Fact

On the basis of evidence presented, the following are the findings of fact of this Court:

On January 5, 1990, two persons robbed the Chase Manhattan Bank at 60 East 42nd Street in Manhattan (the "Chase Robbery"). A surveillance camera captured the two robbers on film.

On February 26, 1990, Special Agent Thomas J. Finn, Jr., of the Federal Bureau of Investigation ("FBI") arrested an individual (the "accomplice") in connection with a series of armed bank robberies in the New York Metropolitan area. Upon the accomplice's arrest, and after waiving his right to remain silent, Agent Finn interviewed the accomplice for approximately one hour. During the interview, the accomplice admitted to robbing banks for two years with others, including the defendant.

After the accomplice made these statements, Agent Finn showed him an estimated 150-200 "still" photographs taken from surveillance cameras at approximately 40 victim banks. Agent Finn showed no other photographs to the accomplice during this period. From these, the accomplice identified approximately nine persons, including the defendant.

Five of the photographs were taken during the Chase Robbery on January 5, 1990, and one during a robbery of the Banco de Ponce, 15 Graham Avenue, Brooklyn, New York, on November 13, 1989. The accomplice identified himself and the defendant in the surveillance photographs of the Chase Robbery, and admitted that they committed the crime. He also identified the defendant in the photograph of the Banco de Ponce robbery. Finally, the accomplice acknowledged that, on or around August 30, 1989, he and the defendant robbed the Dollar Dry Dock Bank at 770 Third Avenue in Manhattan. No photographs of that robbery were available.

After the warrant was issued, Agent Finn distributed a "Wanted Poster" of the defendant to various locations, including Police Service Area 3 of the New York City Housing Authority ("NYCHA"), which includes the Brunswick Housing Project where defendant was known to frequent. Officer Andrew Gordon of NYCHA saw the "Wanted Poster" of defendant, and on March 14, 1991, between 4:30 p.m. and 5:00 p.m., saw defendant in front of the building at 392 Bushwick Avenue. Officer Gordon approached defendant with caution and had him sit down on a nearby bench.

When Officer Gordon took out handcuffs to arrest defendant, defendant attempted to flee by leaping over the back of the bench. After a two or three minute wrestling match, Officer Gordon and one or two other NYCHA officers subdued defendant. After defendant was subdued, he walked under his own power from the scene of the arrest to the police van.

Following defendant's arrest, he was transported by van to the Marcy Avenue Substation. During the ride to the substation, defendant did not complain about pain and did not request medical attention. Upon arrival at the substation, he walked under his own power and responded coherently to a series of pedigree questions posed by the desk sergeant. Defendant was placed in a holding cell and was treated by Emergency Medical Services personnel, who cleaned his wounds and applied a gauze wrap around his head. At approximately, 6:30 p.m., defendant was turned over to Special Agent Finn to be transported to FBI headquarters in Manhattan.

Defendant did not complain about pain, request medical treatment, or appear dazed or confused when Agent Finn arrived at the substation. Agent Finn read defendant his Miranda warnings. After each right read by him, defendant responded that he understood. Defendant walked under his own power from the holding cell to Agent Finn's car for the trip to Manhattan. Defendant told Agent Finn that he was alright.

At FBI headquarters, Agent Finn again read defendant his rights and gave him an "Interrogation: Advice of Rights Form," which defendant spent one or two minutes reading. Defendant signed the form after asking a question to clarify his rights. Defendant then told Agent Finn that before answering any questions, he wanted to speak to a lawyer.

Although defendant had already been asked some pedigree questions, Agent Finn asked defendant for further pedigree information, after which defendant asked Agent Finn what evidence he had against him. Agent Finn asked defendant if he wanted to see the evidence, and defendant responded that he would. The two engaged in dialogue, primarily concerning the identity of persons depicted in the bank surveillance photographs.

Defendant denied any involvement in robbing the banks and denied that he was the person in any of the photographs. He did, however, indicate that he knew persons in the photographs as "Moerock" and "Davey-Dave." He denied knowing the accomplice. Throughout the interview, defendant engaged in normal conversation with Agent Finn, did not ask for medical help, and was not sweating, vomiting, or breathing hard. Further, defendant did not request medical attention when Agent Finn told him that he could see a medical attendant at the Metropolitan Correctional Center ("MCC").

The interview occurred at approximately 7:00 p.m. and was conducted in a 12 by 15 foot room, furnished with a desk, chairs, and a rug. Two agents were present throughout the interview. Only Agent Finn questioned defendant and his gun was holstered at all times. The questioning was conversational in tone. Agent Finn made no threats or accusations. During the interview, defendant never asked for a break, refreshments, or complained of being tired or asked to go to the bathroom. Defendant never attempted to cut off questioning. At the conclusion of the interview, defendant asked for permission to talk to his mother for 15-20 minutes, and he was permitted to do so. Throughout the five hours that Stewart was in FBI custody, he never asked to see a doctor, complained of pain, or appeared to be in discomfort.

Defendant walked under his own power for processing and the taking of mug shots. Agent Finn removed the gauze bandage from defendant's head for his photographs. The bandage was not reapplied after the photographs were taken. At approximately 9:00 p.m., after processing was finished and the photographs were taken, defendant was transported to the MCC for lodging. The Corrections Officer on duty refused to accept defendant after visually examining a ...

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