an INS Form G-28 ("Notice of Entry of Appearance as Attorney or Representative"). Gallina was assigned in Rochester City Court to represent defendant in connection with the cocaine charges. The notice identified Gallina as a member in good standing of the New York Bar and it contained defendant's consent under the Privacy Act of 1974 for INS record disclosure to Gallina. Hoelter contacted Gallina on March 15, 1989, and spoke of his need to interview defendant, who was then detained in the Monroe County Jail on the cocaine charges. Hoelter told Gallina that defendant was in possession of a "suspect Virgin Islands birth certificate" at the time of his arrest, and that he wished to obtain a copy for his investigation of its authenticity.
The record contains conflicting evidence of the Gallina-Hoelter conversation. First, Hoelter maintained in his preliminary examination testimony, and the government maintains on this motion, that he called Gallina in advance to request permission for the Thompson interview. Hoelter does not state, however, and the government does not now maintain, that the requested permission was ever given. Instead, the government merely states: "Neither as part of this telephone conversation or at any time thereafter, did Fred S. Gallina tell Special Agent Hoelter that he could not interview Thompson." Government's Response, at 3. Hoelter's contemporaneous memorandum of the conversation did not even touch on the subject of permission; it states that "Gallina was advised that subject needed to be interviewed by INS . . . " and that "INS wanted a copy" of the suspect birth certificate. Gallina asserted in his affidavit that he did not give permission for the interview, and he speculated that defendant might have already been interviewed by Hoelter. The conflict is not material, however, as will be shown below.
The jailhouse interview occurred at 4:30 p.m. that day, November 15, 1989. Defendant was advised of his rights in writing and he signed a waiver form (INS Form I-214). Defendant declared again that he was a United Sates citizen by reason of his birth in the Virgin Islands. Defendant gave a written release to Hoelter which permitted the INS to obtain a copy of the suspect Virgin Islands birth certificate.
B. Jurisdiction to Hear Motion to Suppress
Jurisdiction to consider the suppression of physical evidence issue is based on Fed. R. Crim. P. 41(e). With respect to the motion to suppress defendant's statements, the parties have evidently predicated jurisdiction on In re Fried, 161 F.2d 453 (2d Cir. 1947), cert. denied, 331 U.S. 858, 67 S. Ct. 1751, 91 L. Ed. 1865 (1947). See also, Grant v. United States, 282 F.2d 165, 168 (2d Cir. 1960). In Fried, the majority of the panel expressed the view that a motion to suppress an illegally obtained confession may be made in the pre-indictment stage. In re Fried, 161 F.2d at 458-60 (Frank J.); Id. 161 F.2d at 465 (L. Hand, J., concurring on the ground that there should be symmetry in treatment between fourth and fifth amendment suppression issues in the pre-indictment stage).
Since United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974), which held that the Fourth Amendment exclusionary rule does not extend to grand jury proceedings, the district courts within this circuit have divided on the standard applicable to the decision whether Rule 41(e) jurisdiction should be exercised in the court's discretion in the pre-indictment stage. In re Sentinel Government Securities, 530 F. Supp. 793 (S.D.N.Y 1982), and In re Campola, 543 F. Supp. 115 (N.D.N.Y. 1982) (Miner J.), both held that Rule 41(e) jurisdiction should be exercised with care and restraint according to the customary restrictions applicable to lawsuits which request equitable relief. In Campola, for instance, the court held that a pre-indictment suppression motion should be considered only when the following factors are satisfied: "(1) whether there has been a clear showing of a search and seizure in callous disregard of the fourth amendment or some statutory provision; (2) whether the movants would suffer irreparable injury if relief is not granted; and (3) whether the movants are without an adequate remedy at law." In re Campola, 543 F. Supp. at 117. Although the Second Circuit has described a district court holding implementing these requirements, Standard Drywall, Inc., v. United States, 668 F.2d 156, 157 (2d Cir. 1982), cert. denied, 456 U.S. 927, 102 S. Ct. 1973, 72 L. Ed. 2d 442 (1982), the issue of Calandra's effect upon the Circuit's prior holding in In re Freid, supra, was not considered or resolved in Standard Drywall.
Another district court opinion diverges from the analysis in the above cited cases, and holds that Rule 41(e) requires consideration of a pre-indictment suppression motion without regard to the restrictions applicable to lawsuits requesting equitable relief. Roberts v. United States, 656 F. Supp. 929, 932-33 (S.D.N.Y. 1987), rev'd on other gr. 852 F.2d 671 (2d Cir. 1988), cert. denied, 488 U.S. 993, 109 S. Ct. 556 (1988). Roberts went further to hold that the exceptions to the exclusionary rule recognized by the Supreme Court would not apply to a pre-indictment suppression motion. Id. 656 F. Supp. at 933-37. On appeal to the Second Circuit, the holding with respect to application of the exclusionary rule exceptions was reversed, but there was no endorsement or criticism of the district court's preliminary holding that pre-indictment suppression motions should be entertained under Rule 41(e) without restriction. Id. 852 F.2d at 675.
This court has followed the former approach in two cases, requiring satisfaction by the movant of the three conditions set forth in Campola, quoted above. Ryers Creek Corporation v. MacMartin, unpublished Civ. 89-157T, at 4-5 (W.D.N.Y. April 20, 1989) (Telesca C.J.), and United States v. Joseph Padilla and Alfredo Rivera, et al, (claimants), unreported Report and Recommendation, Misc. Civ. 91-200T, at 3-6, 9-10 (W.D.N.Y. November 14, 1991), which was adopted in an unpublished order, Misc. Civ. 91-200T (W.D.N.Y. February 5, 1992) (Telesca, C.J.). The Padilla matter involves property which was the subject of a separate civil forfeiture proceeding. The case is now on appeal to the Second Circuit.
Significantly, none of the modern cases within this circuit involve motions to suppress a confession. Guidance may be gleaned from decisions of the Supreme Court. Just as the Court has held that the fourth amendment exclusionary rule does not apply to grand jury proceedings, United States v. Calandra, 414 U.S. at 349-352, 94 S. Ct. at 620-22, the Court has also at least "suggested that an indictment obtained through the use of evidence previously obtained in violation of the privilege against self-incrimination 'is nevertheless valid.'" United States v. Williams, 112 S. Ct. 1735, 1743, 118 L. Ed. 2d 352 (1992) (quoting United States v. Calandra, 414 U.S. at 346, 94 S. Ct. at 619). Furthermore, the Supreme Court has held quite clearly that, "although conduct by law enforcement officials prior to trial may ultimately impair that right [i.e. the fifth amendment self-incrimination privilege], a constitutional violation occurs only at trial." United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S. Ct. 1056, 1060, 108 L. Ed. 2d 222 (1990). See United States v. Rivieccio, 919 F.2d 812, 816 (2d Cir. 1990) ("a violation of either the privilege against self-incrimination or 18 U.S.C. § 6002 requires only the suppression at trial of a defendant's compelled testimony"). Compare United States v. North, 287 U.S. App. D.C. 146, 920 F.2d 940, 947-48 (D.C. Cir. 1990), cert. denied, 114 L. Ed. 2d 477, 111 S. Ct. 2235 (1991) (drawing "the fundamental distinction between the presentation to the grand jury of evidence that has previously been unconstitutionally obtained and that of constitutionally obtained evidence whose exposure to the grand jury amounts to a constitutional violation in and of itself," which was described as categories of evidence which "fall on different sides of this fence"). Accordingly, the same prudential considerations which have led some courts to limit the availability of Rule 41(e) relief in the pre-indictment stage under familiar principles of equitable relief serve to militate against freewheeling pre-indictment consideration of fifth and sixth amendment suppression issues involving statements of the accused. The Second Circuit's decision in In re Fried, supra, thus does not appear to provide an adequate basis to upon which to consider pre-indictment motions to suppress confessions in every case.
Although I would hold in accordance with the prior precedent within this district that motions to suppress should not be entertained in the court's discretion in the ordinary case unless the movant can show that he or she lacks an adequate remedy at law and that he or she will suffer irreparable injury, it is unnecessary to decide whether and to what extent such motions should be entertainable in the pre-indictment stage. The effect of the government's concession is that, whatever prudential considerations might preclude consideration of such motions in the pre-indictment stage, particularly those that relate to the potential interference and delay of the grand jury process and the speedy resolution of criminal cases, are not present here. The government acknowledges that it cannot proceed against the defendant if both statements to INS officials are suppressed, and it evidently wishes a determination of the legal issue before it takes up valuable grand jury time. Accordingly, I proceed to consider the merits of defendant's motion.
C. Suppression of the Statements to McLaughlin on Fifth Amendment Grounds Only
Contrary to defendant's abstract view of the events on November 18th, there was no evidence adduced at the hearing to suggest that McLaughlin's questions of defendant, whenever they might have occurred, were causally related to the discovery of defendant's wallet and birth certificate. McLaughlin was there with the RPD officers for the very purpose of questioning suspects concerning their birth place and citizenship. Nothing in the evidence suggests that he would have done so only when confronted with suspect birth certificates. Defendant obviously would have been questioned on his citizenship even if the documents had not been discovered. Furthermore, there is no evidence, or indication even, that defendant's answers to McLaughlin's questions would have been different, depending on whether defendant knew of the existence of the illegal search or was confronted with the documents. Indeed, defendant did not testify that McLaughlin's questions or his answers were in any way linked to the discovery of the wallet and birth certificate. The wallet and birth certificate were not shown to have been in any way connected with defendant's decision to answer the few questions McLaughlin asked him, or with the content of defendant's answers.
New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990) teaches in Fourth Amendment "taint" cases that a district court must determine whether the procurement of the confession "bear[s] a sufficiently close relationship to the underlying illegality" that a "court [may] determine that 'the challenged evidence is in some sense the product of illegal governmental activity.'" Id. 110 S. Ct. at 1643 (quoting United States v. Crews, 445 U.S. 463, 471, 100 S. Ct. 1244, 1250, 63 L. Ed. 2d 537 (1980)). There is no question of "attenuation" until the connection between the primary illegality and the evidence obtained is established. Id. 110 S. Ct. at 1643-44 (adopting the reasoning of People v. Harris, 72 N.Y.2d 614, 625-26, 536 N.Y.S.2d 1, 532 N.E.2d 1229 (1988) (Titone, J., concurring)). The preliminary question in cases like this is whether "the evidence was not 'come at by exploitation of' . . . the illegal entry into . . . [defendant's] home." Id. 110 S. Ct. at 1644 (quoting United States v. Crews, 445 U.S. at 471, 100 S. Ct. at 1250). As stated above, that factual showing has not been made in this case. United States v. Lewis, 760 F. Supp. 997, 1003 (E.D.N.Y. 1990) ("a search is not usually undertaken to obtain evidence that would be used to induce a defendant to confess a crime").
Without a connection shown between the documents discovered and defendant's answers to McLaughlin, indeed without a showing that McLaughlin exploited the documents to procure defendant's statements, the issue devolves to whether the illegal search itself prompted defendant's statements or whether the statements may be said to have been the product of the failure of the government to obtain a warrant prior to their entry into defendant's apartment. Cf. United States v. Beltran, 917 F.2d 641, 645 (1st Cir. 1990) (important factors in the Harris analysis are "when the police seized the items in question or what motivated [the] statements"). The answer to that question depends upon which version of the facts presented at the hearing the court accepts and finds is true. Ironically, the version of the facts proffered by the government, through McLaughlin's testimony that defendant spoke with him while McLaughlin and the other officers were illegally there searching the apartment, leads inescapably to a finding of taint. And the version of the facts proffered by the defendant, through his testimony that McLaughlin did not question him until his detention at the stationhouse downtown, leads just as firmly to the conclusion that there was no taint.
Beginning with the defendant's version first, the suppression issue was squarely decided in New York v. Harris, supra by illustration. In the course of explaining why the Payton violation did not taint the stationhouse confession of Harris, the court observed:
For Fourth Amendment purposes, the legal issue is the same as it would be had the police arrested Harris on his door step, illegally entered his home to search for evidence, and later interrogated Harris at the stationhouse.
Id. 110 S. Ct. at 1643. Similarly, in this case, Thompson was arrested on his doorstep, the police illegally entered his apartment to search for evidence, and, according to Thompson, he was questioned at the stationhouse. As in Harris, Thompson was legally detained, having just sold cocaine to an undercover officer. There is less a connection between the officers' illegal entry to search in this case than in Harris, where the officers' illegal entry was for the purpose of effectuating an arrest and detention. Thompson's arrest and detention had been effected by the time of the search, and his statements to McLaughlin were at least as divorced from the illegal search of the apartment as were Harris' statements divorced from the illegal entry precipitating Harris' arrest and detention. By defendant's own testimony, which did not seek to link the answers to McLaughlin at the stationhouse to the discovered birth certificate, "the government did not use an advantage gained by its illegal activity to obtain . . . [defendant]'s statements." United States v. Duchi, 944 F.2d 391, 395 (8th Cir. 1991). Therefore, under defendant's version of the facts, and in the absence of any showing that the evidence seized was connected to defendant's statements to McLaughlin, the Harris Court's illustration quoted above is on all fours, and it must be concluded that there is no Fourth Amendment taint reaching those statements made on November 18th.
Under the government's version, because defendant's statements were made to McLaughlin in his apartment during McLaughlin's illegal presence there they would be suppressible as a fruit of the illegal entry. Whether it was McLaughlin's illegal presence in the apartment which provided the impetus for, or was necessary to, his questioning of defendant, and which caused defendant's answers, or whether instead it might be held that McLaughlin would have questioned him anywhere, are questions requiring some degree of metaphysical reasoning to arrive at an adequate answer. It is enough that the trial court in Harris suppressed the first confession made during the period of illegal entry and that this ruling has been commonly accepted as correct. New York v. Harris, 110 S. Ct. at 1642. See also, under pre-Harris analysis, United States v. Patino, 830 F.2d 1413, 1418 (7th Cir. 1987) (first confession proximate to unconstitutional search suppressed), after remand, 862 F.2d 128, 131-33 (7th Cir. 1988) (second confession six days after illegal search not connected to the search). I assume, then, for purposes here, that suppression should result on Fourth Amendment grounds if the government's version of the facts is accepted.
But McLaughlin's testimony that defendant was taken back to his apartment after being secured outside the building does not make sense. Mann's testimony that he secured defendant in a squad car immediately after a scuffle describes good police practice and naturally would be expected. No good reason existed to remove defendant from the car and return him to his apartment, and such a course of action would have, in view of defendant's initial resistance to arrest, been properly regarded as dangerous. McLaughlin did not attend defendant after his arrest. Mann did, and his testimony is quite satisfactory on this point.
Finding that defendant was not returned to the apartment does not mean that the court must accept in full defendant's version. The custody log does not reveal a McLaughlin visit with defendant at the stationhouse. If McLaughlin met with defendant alone there, his personal "custody" of the defendant would have been entered on the log. It is probable, therefore, that he spoke with defendant some time between his arrest and subsequent detention at the stationhouse -- perhaps in the squad car while the search was on-going. It really doesn't make any difference because, if the conversation occurred anywhere outside the apartment, Harris compels denial of the motion to suppress insofar as it is based on Fourth Amendment grounds. If "the exclusionary rule does not bar the state's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton," New York v. Payton, 110 S. Ct. at 1644-45 (emphasis supplied), the exclusionary rule similarly does not bar the government from using statements made outside defendant's apartment even though the statement is made while an illegal warrantless entry for purposes of a search is underway. The Payton violation in Harris is functionally similar to the warrantless entry to search in this case. As in United States v. Lewis, supra, "much of the reasoning in New York v. Harris,. . ., is applicable here." Id. 760 F. Supp. at 1003 n.12.
For the same reason I find that McLaughlin would have questioned defendant regarding his citizenship regardless of when Rochester Police officers discovered the suspect Virgin Islands birth certificate, I reject the government's contention that McLaughlin did not interrogate defendant within the meaning of Miranda. The government concedes the custody element of Miranda, but the government contends that McLaughlin could not have interrogated defendant within the meaning of Miranda unless he "had a suspicion that the defendant has committed a crime within his jurisdiction." Government's Response, at 6. The government reasons, as defendant does when the latter is presenting the Fourth Amendment claim, that no such suspicion could arise until discovery of the suspect certificate. As I have stated, and for the additional reasons stated below, McLaughlin was not there simply for the ride.
Interrogation within the meaning of Miranda is defined as "express questioning or its functional equivalent," that is "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). The government's argument that McLaughlin's role that night as part of the Jamaican interdiction team was merely administrative in nature and otherwise "innocent of any investigative purpose," United States v. Gotchis, 803 F.2d 74, 79 (2d Cir. 1986), is not supported by the evidence adduced at the hearing. McLaughlin conceded on cross-examination that the team he joined on the evening of February 18, 1989, was searching for Jamaican citizens illegally present in the United States. McLaughlin also conceded that he knew the answers to questions he asked might have criminal consequences, depending upon their content, and he conceded further that he had an obligation to refer all relevant matters he discovered to the United States Attorney for prosecution. McLaughlin was not along for the ride that night. His duty station was Buffalo, yet he travelled here in the obvious anticipation that the drug investigations he assisted would turn up evidence of illegal aliens. See McLaughlin Affidavit Supporting the Criminal Complaint, at P 2.
It is true that a majority of the Supreme Court recognizes a "routine booking question exception" to Miranda, although its precise contours have not been sharply defined. Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 2650, 110 L. Ed. 2d 528 (1990) (plurality opinion); id. 110 S. Ct. at 2653 (Rehnquist, Ch. J., concurring in part and dissenting in part). The Second Circuit has also addressed the booking exception applicable to pedigree information:
The solicitation of information concerning a person's identity and background does not amount to custodial interrogation prohibited by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), whether the solicitation occurs before, United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112-1113 (2d Cir. 1975), cert. denied, 423 U.S. 1090 (1976), or after, United States v. Gotchis, 803 F.2d 74, 78-79 (2d Cir. 1986), Miranda warnings are given. (footnote omitted).