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UNITED STATES v. JONES

January 22, 1993

UNITED STATES OF AMERICA,
v.
DERRICK JONES, Defendant.



The opinion of the court was delivered by: DENIS R. HURLEY

 HURLEY, District Judge

 On November 13, 1992, this Court held a hearing in the above-referenced prosecution on defendant Jones' motion to suppress his post-arrest statements on the ground that they were obtained in violation of his Miranda rights. At the hearing, the government offered the testimony of Postal Inspector Bernard Morrison, whom the Court found to be a credible witness. Jones did not present any witnesses or other evidence.

 The Court reserved decision on the motion and ordered the parties to brief two issues: first, whether Jones invoked his right to have counsel present at his interrogation; and second, the impact, if any, of the cooperation between the state and federal authorities in the investigation of defendant. Having received the parties' submissions, the Court is prepared to rule on the motion to suppress. The Court denies the motion for the reasons stated below.

 FINDINGS OF FACT

 In cooperation with the New York City Police, the Postal Inspection Service participated in an investigation into the robbery of certain United States Post Offices, including those robberies charged in the instant indictment. Pursuant to his involvement in this investigation, Postal Inspector Morrison interviewed Stefon Brown, *fn1" who admitted both his own and Derrick Jones' involvement in the Spring Creek Post Office robbery. As a result, Morrison arranged to go speak with Jones, who was being held on Rikers Island on a gun charge. Inspector Greg Tutelian accompanied Morrison.

 When Jones met the inspectors, they gave him a rights and waiver form and read it to him aloud. Jones did not sign the waiver at first. Instead, he expressed concerns about the safety of his family and asked for a further explanation of the waiver, which Morrison provided. Inspector Morrison then told Jones that he was aware that Jones had counsel in connection with unrelated state charges that were pending against him. In response to this comment, Jones provided Morrison with the business cards of two attorneys who were representing him in two state cases against him.

 One half hour elapsed between this exchange and Jones' written waiver. *fn2" During this half hour, the inspectors questioned Jones regarding the post office robberies. Jones admitted to some knowledge of a post office robbery but declined to testify or give a written statement about it. At no time did Jones ask to speak to an attorney.

 DISCUSSION

 It is well settled that before a custodial interrogation, suspects must be informed of their rights to remain silent and to the presence of an attorney. Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Although these rights may be knowingly, intelligently and voluntarily waived, if a suspect requests counsel, all interrogation must cease until an attorney is present. Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). Moreover, questioning may not continue without the attorney unless the defendant initiates further discussions with the police and knowingly and intelligently waives the right he had invoked. Smith v. Illinois, 469 U.S. 91, 95, 83 L. Ed. 2d 488, 105 S. Ct. 490 (1984).

 When a criminal defendant challenges the admissibility of his post-arrest statements, the government bears the burden of proving the voluntariness of the confession by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 482-89, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972). If the government asserts that a defendant has waived his Fifth Amendment rights, it also carries the burden of proving waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 167-69, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986). Against this back-drop, the Court turns to the instant case.

 A. Equivocal Nature of Statements

 To trigger the protections of Edwards, the right to counsel must be "specifically invoked". 451 U.S. at 482. However, sometimes the request of an accused is equivocal. In such instances, the Second Circuit has held that "interrogation must cease except for narrow questions designed to clarify the earlier statement and the suspect's desire for counsel." United States v. Gotay, 844 F.2d 971, 975 (2d Cir. 1988) (citations omitted). Questions aimed at clarifying a request "must be strictly limited to that purpose and may not be used to elicit incriminating information; the police may not use a statement made after an equivocal request but before the request is clarified." Id. (citing United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir. 1985) (citations omitted)).

 The question in this case is whether defendant's display of the business cards of his attorneys on unrelated state charges, in response to Morrison's comments regarding Jones' representation in those proceedings, constitutes an equivocal invocation of Jones' right to counsel in the federal investigation. This Court has not found any cases in this Circuit or others in which the rule of Gotay is followed where a defendant merely confirms that he has attorneys on unrelated charges. However, courts have consistently warned against finding an equivocal invocation any time there is a mere reference to an attorney. See United States v. Scarpa, 701 F. Supp. 379, 381 (E.D.N.Y. 1988), aff'd, 897 F.2d 63 (2d Cir.) cert. denied, 498 U.S. 816, 112 L. Ed. 2d 32, 111 S. Ct. 57 (1990) (court warns against endowing the word "lawyer" with "talismanic qualities"); Nash v. Estelle, 597 F.2d 513, 519 (5th Cir. 1979). For example, in Norman v. Ducharme, 871 F.2d 1483 (9th Cir. 1989), cert. denied, 494 U.S. 1031, 108 L. Ed. 2d 619, 100 S. Ct. 1483 (1990), the Ninth Circuit, applying the same rule as Gotay, held that a defendant who asked the arresting agent if he should get an attorney did not "equivocally" invoke his right to counsel. Id. at 1486. In United States v. Jardina, 747 F.2d 945 (5th Cir. 1984), cert. denied, 470 U.S. 1058, 84 L. Ed. 2d ...


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