many respects by Investigator Tynan's own investigation. The identity of the defendant and the address, location, and description of his residence were confirmed. The defendant and a person identified by the caller as defendant's partner were found to have been previously charged with drug crimes. The vehicle of one of these alleged partners was observed at defendant's residence. As noted by the Supreme Court in Gates, corroboration of some details of an informant's story makes it more likely that the informant was correct about uncorroborated facts. See Illinois v. Gates, 462 U.S. at 244. Thus the verification of the information provided to law enforcement officers, even though innocent in itself, made the informer's claim that defendant was growing marijuana in his home more credible. See id. at 244 n. 13.
Likewise, details of the information provided by the confidential source were corroborated by independent investigation. CS identified defendant and correctly related his address. CS informed authorities that he had lived with defendant for a period of time, and that defendant always had marijuana in his home. He correctly related that Rick Bruno, whom the source identified as having been supplied marijuana by defendant, had been arrested for possessing several pounds of marijuana, and he went on to describe the circumstances of the arrest in detail.
The reliability of the confidential source was shown by the source's controlled purchase of cocaine for the State Police and previous instances of supplying reliable information. The first-hand basis of his knowledge was apparent in his assertion that he had lived with defendant and dealt personally with Bruno.
The information supplied by these informants, combined with the records of power usage that were deemed unusual by Investigator Tynan, were sufficient to create probable cause for a search even without the ITD readings and corresponding conclusions which defendant challenges. Reviewing the affidavits in a "common-sense" fashion, it is apparent that there was a substantial basis for Magistrate Judge DiBianco to determine that a search would uncover evidence of wrongdoing. The "totality of the circumstances" here, as reflected in the submitted affidavits, would justify the issuance of a warrant with or without the information provided by use of the ITD. Thus, even if the court were to disregard the statements and conclusions regarding the ITD readings, the court still finds that probable cause existed to issue the warrant. In view of this finding, the court need not reach defendant's argument that the pre-warrant use of the ITD to detect the pattern of radiation emanating from his residence constituted an unreasonable search in violation of the Fourth Amendment. See United States v. Kerr, 876 F.2d 1440, 1443 (9th Cir. 1989).
Defendant's motion to suppress evidence derived from the April 21, 1993 search of his home is denied in its entirety.
II. DEFENDANT'S STATEMENTS
Defendant also seeks to suppress statements he made as the search warrant was being executed on April 21, 1993, arguing that his Fifth Amendment rights were violated. The government claims that during the execution of the search warrant, defendant volunteered that all the seized marijuana was for his personal use, opined that marijuana has no adverse effect on anyone, and admitted that he had burned marijuana stalks in his fireplace. Affidavit of AUSA Jaquith, Doc. 25, at P 15; Testimony of Investigator Tynan, Doc. 29, at 62-63. In his motion papers, defendant does not contest these claims, but argues that he was in custody at the time the statements were made, and that the statements were made prior to the administration of Miranda warnings. Affidavit of Attorney Policelli, attached to Doc. 21, at P 15. Because the government did not supply the court with any information about whether and when defendant was Mirandized, the court included this limited issue in the suppression hearing, along with issues relating to the AN/TAS-5.
After hearing the testimony of the arresting officers at the October 6, 1993 hearing, the court must reject defendant's Fifth Amendment argument. The Fifth Amendment provides that no "person . . . shall be compelled in any criminal case to be a witness against himself." In Miranda v. Arizona, the Supreme Court concluded that "without proper safeguards the process of in-custody interrogation of persons suspected . . . of crime contains inherently compelling pressures which work to . . . compel [the suspect] to speak where he would not otherwise do so freely." 384 U.S. 436 at 467 (1966). Accordingly, the Court formulated the now-familiar procedural safeguards meant to ensure the privilege against self-incrimination. See Colorado v. Spring, 479 U.S. 564, 572, 93 L. Ed. 2d 954, 107 S. Ct. 851 (1987). While a suspect may waive the rights elucidated in the Miranda warnings, such a waiver must be made "voluntarily, knowingly, and intelligently." Miranda, 384 U.S. at 475.
When a criminal defendant challenges the admissibility of an inculpatory statement, the government bears the burden of proving by a preponderance of the evidence that the statement was made voluntarily. United States v. Diaz, 891 F.2d 1057, 1060 (2d Cir. 1989). This same burden applies where the government asserts the position that the defendant waived his right to consult an attorney and his right to remain silent. Colorado v. Connelly, 479 U.S. 157, 167-68, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986). The inquiry has two dimensions. Edwards v. Arizona, 451 U.S. 477, 482, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981); Brewer v. Williams, 430 U.S. 387, 404, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977). First, "the relinquishment of the right must have been voluntary in the sense that it was the Product of a free and deliberate choice rather than intimidation, coercion or deception." Moran v. Burbine, 475 U.S. 412, 421, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986). Second, a waiver must have been made with a full awareness of the nature of the right being abandoned. Id.
In the case at bar, defendant does not claim that he was victimized by police coercion. Rather he asserts that his Miranda rights were not clearly and concisely administered to him prior to his making the statements sought to be suppressed. The evidence, however, does not support defendant's position. After hearing the testimony of Investigator Tynan and Senior Investigator Robert L. Boek of the New York State Police, the court concludes that the statements made by defendant were made after defendant was properly and repeatedly Mirandized, and therefore that the statements were made spontaneously and voluntarily.
Senior Investigator Boek testified that he advised defendant of his constitutional rights, as required by Miranda, upon execution of the warrant. Testimony of Senior Investigator Boek, Doc. 29, at 55. Boek further asserts that he Mirandized defendant a second time by reading from his Miranda Card while transporting defendant to the state police station in Lee Center, New York. Id. at 55-56. At the Lee Center Barracks, defendant was processed and fingerprinted, and was then returned to his residence where he awaited transportation to his arraignment.
Investigator Tynan testified at the October 6, 1993 hearing that defendant made the inculpatory statements after returning to his home from the Lee Center Barracks. Tynan averred that as he was carrying large marijuana plants through the kitchen where defendant was sitting, defendant stated "that's all for personal use." Testimony of Investigator Tynan, Doc. 29, at 62. Tynan denied having said anything to defendant to provoke the statement, and noted that although Investigator Boek was in the kitchen at the time the statement was made, defendant's statement was completely spontaneous. Id. at 63, 64-66.
Because defendant offers no evidence supporting his contention that he was not Mirandized prior to making this inculpatory statement, and because the court finds the testimony of Investigators Tynan and Boek credible and convincing, the court finds that defendant was Mirandized twice. Thus his choice to speak was made with a full awareness of the nature of the right he was thereby foregoing. Further, the court finds that defendant's statement was spontaneous, and that it was the product of a free and deliberate choice, with no police coercion or intimidation. For these reasons defendant's motion for suppression of the oral statement he made on April 21, 1993 as to the marijuana being for his personal use is denied.
Unlike defendant's "personal use" statement, his admission that he had burned marijuana stalks in his fireplace was a response to a question put to defendant by Investigator Tynan. See Testimony of Investigator Tynan, Doc. 29, at 62-63. Tynan testified at the October 6, 1993 hearing that after observing stalks of marijuana in defendant's living room fireplace, he asked defendant if he had burned marijuana stalks. Id. Defendant indicated that he had. Id. at 63. Because defendant was advised of his rights twice before responding to Tynan's question, and because no evidence is presented that indicates any intimidation or coercion on the part of the arresting officers, defendant's motion is denied with respect to his oral statement regarding burning marijuana stalks in his fireplace.
No testimony was heard regarding the circumstances surrounding the other statement defendant allegedly made, that marijuana has no adverse effect on anyone. Indeed, no testimony was heard that such a statement was made at all. Nevertheless, given the court's finding that defendant was properly Mirandized, the court denies defendant's motion to suppress this statement as well. The denial is without prejudice, subject to renewal in a motion in limine before trial if circumstances warrant.
In sum, defendant's motions for suppression of evidence derived from the April 21, 1993 raid of his home, and of statements made subsequent to his arrest, are denied.
It is So Ordered.
Dated: November 1, 1993
Syracuse, New York
HOWARD G. MUNSON
SENIOR UNITED STATES DISTRICT JUDGE