two personal history forms, including one utilized by the United States Marshal's Service in this District. (H. 18-22; GX 3500-A-2, GX 3500-A-3.) Raffa recorded the answers provided by Minkowitz to questions such as his date of birth. (H. 22.) Each form also contained a section for "aliases"; when Minkowitz stated that he had none, Raffa left the corresponding sections blank. (H. 22-23, 68-69.)
After Raffa had completed the two personal history forms, a fellow agent placed on the desk in front of Raffa Minkowitz's wallet and its contents, including several American Express cards. (H. 23, 53-56, 69.) When Agent Raffa picked up the credit cards he observed that they were in the name "David L. Marcus." (H. 23.) Raffa showed Minkowitz the cards and asked if they belonged to him. (H. 24, 26.) Minkowitz stated that they were his, and Raffa then inquired whether Minkowitz had utilized the name "David L. Marcus" as an alias. (H. 24, 26.) Minkowitz acknowledged that he done so "in the past." (H. 24, 26.) Agent Raffa then inserted "David L. Marcus" in the alias section of each of the forms he had previously completed. (H. 24; GX 3500-A-2, GX 3500-A-3.)
Recognizing that the use of an alias "is important . . . in law enforcement" (H. 27), Raffa promptly informed Agent Wash of Minkowitz's use of the Marcus alias (H. 26-27) and prepared a memorandum on that subject the following day. (H. 27-29; GX 3500-A-4.) On cross-examination, Agent Raffa testified that he had asked Minkowitz "no questions about this investigation except involving the two credit cards that were found on his person." (H. 45) (emphasis added). It is his answers to questions concerning the credit cards that Minkowitz now seeks to suppress.
The facts underlying this suppression motion are essentially undisputed: both sides agree that Minkowitz twice invoked his right to counsel before providing the post-arrest statements at issue here. The parties differ sharply, however, as to the legal consequences of defendant's assertion of that right.
Relying on United States v. Carmona, 873 F.2d 569 (2d Cir. 1989), the government contends that a defendant's invocation of his right to counsel or to remain silent is "wholly irrelevant" to the admissibility of statements made during a "pedigree interview." (Government's Proposed Findings of Fact and Conclusions of Law ["Gov. Br."] at 9.) In contrast, defendant contends that Carmona was wrongly decided (Defendant's Proposed Findings of Fact and Conclusions of Law ["Def. Br."] at 14-16), and that the Supreme Court's decisions in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), mandate that law enforcement officers "cease all questioning whenever a defendant requests an attorney." Def. Br. at 16 (emphasis in original). Contrary to the extreme positions staked out by the government and the defense, an examination of the relevant caselaw reveals that no per se rules have been announced by the courts. Rather, as detailed below, the admissibility of a post-invocation custodial admission turns on whether the statement was made in response to a routine "booking" inquiry, which in turn requires a careful examination of all the surrounding circumstances.
The law is well settled in this Circuit that solicitation of an arrestee's identity and background normally does not amount to custodial interrogation within the meaning of either Miranda (see United States v. Montana, 958 F.2d 516, 518 (2d Cir. 1992); United States v. Adegbite, 846 F.2d 834, 838 (2d Cir. 1988); United States v. Gotchis, 803 F.2d 74, 78-79 (2d Cir. 1986); United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112-13 (2d Cir. 1975), cert. denied, 423 U.S. 1090, 96 S. Ct. 884, 47 L. Ed. 2d 101 (1976)), or Edwards (see United States v. Carmona, supra, 873 F.2d at 573; United States v. Stewart, 770 F. Supp. 872, 879 (S.D.N.Y. 1991); United States v. Brown, 744 F. Supp. 558, 569 (S.D.N.Y. 1990)). Indeed, a majority of the Supreme Court justices recognize a "routine booking question" exception, which exempts from the protection of Miranda and its progeny questions designed to secure the "biographical data necessary to complete booking or pretrial services." Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S. Ct. 2638, 2650, 110 L. Ed. 2d 528 (1990) (plurality opinion of Brennan, J.), quoting Brief for the United States as Amicus Curiae 12, quoting United States v. Horton, 873 F.2d 180, 181 n.2 (8th Cir. 1989); see Pennsylvania v. Muniz, supra, 496 U.S. at 608, 110 S. Ct. at 2654 (opinion of Rehnquist, C.J., concurring in part, dissenting in part).
Nevertheless, "the booking exception is not absolute." Thompson v. United States, 821 F. Supp. 110, 120 (W.D.N.Y. 1993). Rather, it is a "limited exception" that does not necessarily encompass all questions asked during the booking process. United States v. Downing, 665 F.2d 404, 406 (1st Cir. 1981); see Pennsylvania v. Muniz, supra, 496 U.S. at 602 n.14, 110 S. Ct. at 2650 n.14, quoting Brief for United States as Amicus Curiae 13. Thus, the government's characterization of the challenged inquiry as part of "standard processing procedures" or "essentially administrative" does not end the court's inquiry, see United States v. Hinckley, 217 U.S. App. D.C. 262, 672 F.2d 115, 122 (D.C. Cir. 1982), which requires consideration of the totality of the circumstances surrounding the questioning. See, e.g., United States v. Casiano, 862 F. Supp. 52, 54 (S.D.N.Y. 1994); see also United States v. Avery, 717 F.2d 1020, 1025 (6th Cir. 1983), cert. denied, 466 U.S. 905, 80 L. Ed. 2d 157, 104 S. Ct. 1683 (1984) ("courts should carefully scrutinize the factual setting of each encounter of this type"); United States v. Booth, 669 F.2d 1231, 1237-38 (9th Cir. 1982) ("this determination . . . must be made on a case-by-case basis"), quoted in United States v. Poole, 794 F.2d 462, 467 (9th Cir. 1986).
The first factor that a court should consider is the nature of the information being sought. Recognizing the "possibility of abuse by police," the Second Circuit has emphasized the need to limit the pedigree exception "to simple identification information of the most basic sort . . . ." United States ex rel. Hines v. LaVallee, supra, 521 F.2d at 1113 n.2. Cf. United States v. Burns, 684 F.2d 1066, 1076 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 74 L. Ed. 2d 1019, 103 S. Ct. 823 (1983) (assumes without deciding that questions concerning defendant's "criminal record, his past use of drugs, his lack of steady employment and his ownership of various automobiles" exceeded the scope of the pedigree exception).
In determining whether the challenged information "falls within the benign category of 'basic identifying data required for booking and arraignment,'" United States v. Gotchis, supra, 803 F.2d at 79, quoting Hines, 521 F.2d at 1113, the court should also consider whether the inquiry was "innocent of any investigative purpose . . . ." United States v. Carmona, 873 F.2d at 573, quoting United States v. Gotchis, supra, 803 F.2d at 79; see United States v. Glen-Archila, 677 F.2d 809, 816 n.18 (11th Cir.), cert. denied, 459 U.S. 874 (1982) ("we emphasize that police may not use routine biographical questioning as a guise for obtaining incriminating information"). However, while the officer's intent in asking the question is relevant, it is not conclusive. See, e.g., United States v. Doe, 878 F.2d 1546, 1551 (1st Cir. 1989) (Breyer, J.); United States v. Disla, 805 F.2d 1340, 1347 (9th Cir. 1986); United States v. Casiano, supra, 862 F. Supp. at 54. The applicable standard is an objective one (see, e.g., United States v. Doe, supra, 878 F.2d at 1551; United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983)), which turns on whether the challenged questions are those that the officer "should know are reasonably likely to elicit an incriminating response from the suspect." Pennsylvania v. Muniz, supra, 496 U.S. at 601, 110 S. Ct. at 2368, quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); United States v. Doe, supra, 878 F.2d at 1551; United States v. Casiano, supra, 862 F. Supp. at 54; Thompson v. United States, supra, 821 F. Supp. at 121.
Both the content and context of the inquiry inform the court's determination. See United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1047 (9th Cir. 1990); United States v. Disla, supra, 805 F.2d at 1347. In this connection, "the relationship of the question asked to the crime suspected is highly relevant." United States v. Mata-Abundez, supra, 717 F.2d at 1280 (alien arrested on gun charges was improperly interrogated by INS agent about his alien status); accord, United States v. Gonzalez-Sandoval, supra, 894 F.2d at 1046-47 (statements elicited by border patrol agents about detainee's immigration status and place of birth constituted improper interrogation); United States v. Casiano, supra, 862 F. Supp. at 54. The closer the connection between the crime in question and the information sought, the stronger the inference that the agent should have known that his inquiry was "reasonably likely to elicit an incriminating response from the suspect." See, e.g., United States v. Parra, 2 F.3d 1058, 1068 (10th Cir. 1993) (INS agent's questioning of defendant about his true name to link defendant to his "incriminating immigration file" constituted improper interrogation); United States v. Doe, supra, 878 F.2d at 1551-52 ("questions about citizenship, asked on the high seas, of a person present on a foreign vessel with drugs aboard," constituted improper interrogation, since U.S. citizenship was an element of the offense); United States v. Disla, supra, 805 F.2d at 1347 (defendant in drug case was subjected to improper interrogation "where the question as to where Disla lived was related to an element (possession) of the crime that [the officer] had reason to suspect Disla committed").
Having applied these standards, and scrutinized all the surrounding circumstances, this Court concludes that the challenged inquiry by Agent Raffa -- following Minkowitz's repeated requests for an attorney -- constituted impermissible interrogation.
First of all, questions concerning a defendant's possession of credit cards in a different name can hardly be characterized as "routine" or "basic" questioning. On their face, Raffa's questions concerning the "Marcus" cards would appear "reasonably likely to elicit an incriminating response from the suspect." Pennsylvania v. Muniz, supra, 496 U.S. at 601, 110 S. Ct. at 2368, quoting Rhode Island v. Innis, supra, 446 U.S. at 301, S. Ct. at . A reasonable inference to be drawn from a defendant's possession of such cards is that the cards had been stolen and/or utilized to conceal the defendant's true identity.
Indeed, the Second Circuit has repeatedly held (at the government's urging) that a defendant's use of false identification is relevant to show consciousness of guilt. See, e.g., United States v. Wilson, 11 F.3d 346, 353 (2d Cir. 1993), cert. denied, 128 L. Ed. 2d 870, 114 S. Ct. 2142 (1994).
The reasonable likelihood that Raffa's inquiry would elicit an incriminating response from Minkowitz was substantially increased by the close connection between the crime charged and the information being sought. As reflected in the complaint in support of a warrant for defendant's arrest, Minkowitz's co-conspirator had already implicated him in a stolen car ring that utilized false identification and credit cards. (Complaint at PP 5-6.) Although Agent Raffa claimed not to have read the complaint or been aware of these facts (H. 32, 74-75), the facts were well known to Anthony Wash, the agent and affiant on the complaint.
In any event, whatever Raffa's own knowledge of intent,
the test for determining reasonable likelihood of incrimination "focuses primarily upon the perceptions of the suspect, rather than the intent of the police." Pennsylvania v. Muniz, supra, 496 U.S. at 601, 110 S. Ct. at 2650, quoting Rhode Island v. Innis, supra, 446 U.S. at 301, 100 S. Ct. at .
This Court concludes that a reasonable person in Minkowitz's position would have construed Raffa's questions as a renewal of investigatory interrogation notwithstanding defendant's repeated requests for an attorney. Moreover, the agents' words and conduct conveyed the unmistakenable but misleading message that defendant had no choice but to answer Raffa's questions without first consulting an attorney. Although Minkowitz was advised of his right to remain silent and to consult with counsel before answering any question, when he in fact invoked his right to counsel on several occasions, he was told that he could speak with an attorney at the courthouse, "after the processing was finished . . . ." (H. 46, 17; see H. 65.) Only then did Minkowitz agree to answer questions "in regard to his personal history and background" (H. 65); however, Raffa never informed him that he could decline to answer "pedigree" questions (H. 48, 65), United States v. Montana, supra, 958 F.2d at 518,
and thus, as even Agent Raffa conceded, Minkowitz never effectively waived his rights. (H. 48-49.) See United States v. Downing, supra, 665 F.2d at 406 ("the resumption of questioning in the absence of an attorney after an accused has invoked his right to have counsel during police interrogation strongly suggests to an accused that he has not choice but to answer").
The Second Circuit's decision in United States v. Carmona, supra, does not compel a different conclusion. In Carmona, an arrestee who had invoked his right to counsel provided a fictitious name when asked during "booking" to identify himself. Rejecting the defendant's argument that the arresting officer should have assumed the defendant would provide an alias, the Second Circuit concluded that the information requested "-- merely a name -- was simply that identification of a suspect necessary for his booking and arraignment." 873 F.2d at 573.
Thus, Carmona involved "simple identification information of the most basic sort," which presents little "possibility of abuse by police." United States ex rel. Hines v. LaVallee, supra, 521 F.2d at 1113 n.2. This case, in contrast, involved questioning that cannot be characterized as routine or innocuous and that poses a far greater potential for abuse, particularly given the way in which one agent prompted Raffa to ask the questions. Once Minkowitz asserted his right to counsel, he should not have been subjected to interrogation concerning his connection to potentially incriminating evidence, even if tangentially related to the setting of bail. See, e.g., United States v. Henley, 984 F.2d at 1043 ("An officer investigating a bank robbery who has the getaway car but isn't sure who owns it should sell know that asking a suspect if he's the owner of the vehicle is reasonably likely to elicit an incriminating answer"); United States v. Disla, supra, 805 F.2d at 1347 (inquiry as to defendant's residence did not fall within pedigree exception where drugs had recently been seized from that location); United States v. Downing, supra, 665 F.2d at 405-06 (defendant, who had asked to speak with a lawyer, was directed to empty his pockets and surrender his personal effects; agent's inquiry as to what certain keys belonged to constituted impermissible interrogation).
For the foregoing reasons, it is the recommendation of this Court that defendant's motion to suppress his statements concerning the Marcus credit cards be granted.
Any objections to the recommendations contained herein must be filed with the Honorable Sterling Johnson, Jr., on or before April 1995. Failure to file objections in a timely manner may waive a right to appeal the District Court order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72; Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
The Clerk is directed to mail a copy of this Order to counsel for all parties appearing in this case.
DATED: Brooklyn, New York
March 30, 1995
ROANNE L. MANN
UNITED STATES MAGISTRATE JUDGE