were then arrested and the package was retrieved from the car.
Defendant nevertheless argues that there was plenty of time to obtain a warrant because, like LaSanta, the occupants of the car had all been placed under arrest, and there were no exigent circumstances requiring a search prior to obtaining a warrant. According to Defendant, Acevedo does not apply to justify the search because there was no danger that the car would be driven away with the contraband inside.
It is true that exigent circumstances did not exist at the time the search was conducted. All of the Defendants were in custody, including the driver of the vehicle, and there was no risk that the vehicle would be driven away with the contraband inside. However, the exigency requirement was refined by the Supreme Court in Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970). In Chambers, the Court found that if the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct the search either immediately or some time after the driver had been arrested, so long as both probable cause and exigent circumstances existed at the time the vehicle was first stopped.
The same reasoning applies in this case. At the time that Brooks placed the package on the front seat of the car, Johnson would have been entitled to seize the package: having just examined it, he had probable cause to believe it contained cocaine, and at that time exigent circumstances were present. Instead, Deputy Johnson reasonably decided to delay seizure of the package of cocaine until after the Defendants were placed under arrest in order to make sure the undercover operation succeeded. See, e.g., U.S. v. Mackey, 626 F.2d 684 (9th Cir. 1980).
This case is distinguishable from LaSanta because there the drugs were discovered incidentally during an inventory search of the car after the defendant had been arrested, and the presence of the drugs was not the basis for the arrest. Or, stated another way, in LaSanta exigent circumstances never existed prior to the Defendant's arrest because the agents were unaware of the presence of drugs in the car. These factual differences are significant and provide a basis for distinguishing these two cases.
Accordingly, the seizure of the drugs was permissible under Chambers, Acevedo and Mackey.
3. Statements to Law Enforcement Agents.
Defendant contends that immediately after he was given his Miranda rights, the agents at the substation in Hanover told him that he could be "facing a lot of jail time" and in a "lot of trouble," but that he could only help himself by cooperating immediately with the investigation. Defendant contends that the agents thereby coerced him into revealing details which implicated him more directly in the crime, and that his incriminating statements should be suppressed as involuntarily made.
Defendant relies on United States v. Anderson, 929 F.2d 96 (2d Cir. 1991), which held that statements by law enforcement officers advising the defendant that he must choose between having an attorney present or forego any favorable treatment for cooperating in the investigation rendered the defendant's confession involuntary. According to the Second Circuit, such statements by the officers are false and misleading since it is commonplace for defendants represented by counsel to cooperate with authorities, and since individuals routinely provide cooperation on matters completely unrelated to the crimes with which they are charged. Thus, according to the Court, such statements "may have created in [the defendant's] mind a false sense that he must confess at that moment or forfeit forever any future benefit that he might derive from cooperating with the police agents." 929 F.2 at 200.
As Anderson recognizes, in assessing the voluntariness of a defendant's waiver of his right to remain silent, the reviewing court must determine whether the statements were "obtained under circumstances that overbear the defendant's will" at the time they were given. Anderson, supra, 929 F.2d at 99. "Whether a confession is a product of coercion may only be determined after a careful evaluation of all the surrounding circumstances, including the accused's characteristics, the conditions of interrogation, and the conduct of law enforcement officials." Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973)).
The record in this case does not reveal any particularly overbearing circumstances pertaining to the conditions of interrogation, other than the inherently coercive custodial setting in which the statements were obtained. Nor does it reveal any particular characteristics of the accused, such as his familiarity or lack of familiarity with the criminal process or his knowledge of the rules regarding the benefits of cooperating with the government, which assist the court in determining whether the statements were freely given. Thus, the crucial factor to consider, as in Anderson, is the conduct of the law enforcement officials during their interviews of Defendant.
The record reveals that Defendant was advised of and understood his Miranda rights (T1 at 19-21). Agent Nichols then asked Defendant if he knew "he was in a lot of trouble" (T2 at 5) and "if he knew what kind of trouble he was in" (T2 at 12). Defendant responded that he believed he was in trouble but that he was only driving the car (T2 at 12-13). Nichols then asked Defendant "if he wanted to cooperate" (T2 at 14) and "told him he probably could help himself out if he cooperated" (T2 at 15). Defendant indicated that he might be interested in cooperating but that he did not want anyone "on the street" to find out (T2 at 6 at 13).
At that point Agent Peterson was brought in to interview Defendant because of his familiarity with the investigation (T2 at 6). Agent Peterson asked Defendant "if there were anything he could do on that particular evening to assist us in furthering our investigation with regard to obtaining additional quantities of cocaine from the source of supply" (T3 at 6). Defendant responded that it would be difficult to obtain additional cocaine since it would involve an "intermediary" and would require payment of the balance owed for the kilogram seized (T3 at 6). He identified the intermediary and the source (T3 at 7).
On cross-examination, defense counsel elicited Peterson's testimony that the "tone" of the conversation between Peterson and Defendant was that "if something couldn't be done that evening, [Defendant] wasn't going to get the benefit of this cooperation that [Peterson was] specifically looking for" (T3 at 20). However, Peterson testified that he did not verbally express that to [Defendant]. He may have inferred that from our conversation."
As the government points out, the conduct of the agents here is similar to the conduct of law enforcement officials found not to be unduly coercive in United States v. Bye, 919 F.2d 6 (2d Cir. 1990). In that case, the agent discussed the sentencing guidelines with the defendant and informed him that if he cooperated, the sentencing judge could impose a lesser sentence than otherwise required under the guidelines, and that "it would be more beneficial to him if he cooperates early in the investigation." Id. at 7. The Court found that the mere mention of the possible sentence and the benefits to be derived from early cooperation did not convert an otherwise improper encounter into a coercive or overbearing one. Id. at 8.
Upon review of the record, I agree with the government that this case is closer to Bye than it is to Anderson. The Anderson case was primarily concerned with the false and misleading nature of the agent's repetitive positing of a "now or never" choice to the defendant -- i.e., that the defendant could choose either to cooperate with the government or to contact an attorney and forego cooperation forever. Here, no such choice was presented to Defendant. Despite defense counsel's efforts on cross-examination, this court cannot infer that Agent Peterson ever gave Defendant this type of "now or never" option. Peterson may, by the "tone" or tenor of the conversation, have encouraged Defendant to cooperate "that evening" in order to benefit, but the record does not support a finding that Defendant was directly misled into believing that he had no choice but to cooperate then and there or forfeit any chance of ever obtaining such benefits.
Accordingly, I find that the prosecution has sustained its burden of demonstrating by a preponderance of the evidence that Defendant waived his Miranda rights, and that the waiver was not the product of coercion on the part of the officers conducting the interviews.
Based on the foregoing, it is recommended that Defendant Askew's suppression motion be denied.
CAROL E. HECKMAN
United States Magistrate Judge
DATED: Buffalo, New York
February 23, 1993
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 30(a)(3).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 30(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 30(a)(3) or with the similar provisions of Rule 30(a)(2) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.
Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Government and the Defendants.
United States Magistrate Judge
DATED: Buffalo, New York
February 23, 1993