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.
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
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
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
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
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 ...