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UNITED STATES v. ZAHREY

April 1, 1997

UNITED STATES, Plaintiff, against ZAHER ZAHREY, LYNDELL INGRAM, ERIC SANDOVAL, and JAVIER MERCADO, Defendants.


The opinion of the court was delivered by: AZRACK

 AZRACK, United States Magistrate Judge:

 Defendants' pre-trial motions to suppress certain statements were referred to the undersigned for report and recommendation. I presided over hearings in this matter on December 13 and 18, 1996 and on February 5, 1997. Because the factual background of each defendant's disputed statements differs, this Report and Recommendation will address each defendant's motion separately.

 DISCUSSION

 1. Burden and Standard of Proof

 The Government bears the burden of establishing the voluntariness of defendants' statements by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 169, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986); U.S. v. Diaz, 891 F.2d 1057, 1060 (2d Cir. 1989) (citing Lego v. Twomey, 404 U.S. 477, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972)); U.S. v. Burger, 739 F.2d 805, 809 (2d Cir. 1984) (government bears burden of proving voluntariness of confession and waiver of right to remain silent); U.S. v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982) (government bears burden of proof of waiver by a preponderance); United States v. Hackley, 204 U.S. App. D.C. 221, 636 F.2d 493, 500 (D.C. Cir. 1980) (waiver of the right to remain silent must be established by preponderance of the evidence). Thus, with respect to each defendant, the Government bears the burden of proving that the statements should not be suppressed.

 2. Defendant Zaher Zahrey

 Thus, on August 10, 1995, acting under Captain Welsome's directive, Lieutenant Carley, Sergeant Vasquez and Captain Welsome observed defendant Zahrey waiting inside a bank. (Tr. 202.) Lieutenant Carley approached Zahrey in the bank and ordered him to accompany Carley outside to see the Internal Affairs Captain. (Tr. 202-03, 222.) Sergeant Vasquez testified that Lieutenant Carley was not physically holding or touching Zahrey as they entered the lobby. (Tr. 222.) In the lobby, Captain Welsome informed Zahrey that he was being placed on modified assignment. (Tr. 203.) According to Welsome, Zahrey asked, "Is this about the deli?" and Welsome responded that Zahrey was to be modified in the best interests of the Department. (Tr. 205-06.) Welsome testified that Zahrey expressed embarrassment at having a confrontation in public and asked to go across the street to the 81st Precinct. (Tr. 203.) After obtaining permission to use the Administrative Lieutenant's office in that Precinct house, Officers Carley, Vasquez, Welsome, and defendant Zahrey went into the office to begin the modification. (Tr. 203-204.) Welsome then left the office to speak with the commanding officer of the Precinct. (Tr. 209.) During his absence, the other officers informed Zahrey that they were required to take his guns. (Tr. 209-210, 224-25.) It is undisputed that Zahrey was required to turn in his weapons and that he would face suspension if he did not comply. (Tr. 65-67.) In the conversation that ensued, Zahrey advised the officers that one of his guns was not in his possession, and would have to be retrieved from his brother-in-law. (Tr. 209-210, 224-25.)

 Shortly after the modification began, Lieutenant Boyce arrived at the 81st Precinct and entered the Administrative Lieutenant's office. (Tr. 22, 210, 225.) According to Boyce, when Zahrey saw him enter the room, Zahrey said, "Oh, this is about Supreme, this is why you are here." (Tr. 23.) It was apparent to Boyce that Zahrey recognized him from two encounters that took place shortly after the murder of William "Supreme" Rivera. *fn2" (Tr. 22-23, 53-57.) Boyce testified that he may have said, "good morning" before Zahrey made the statement about Supreme, but that he had not asked Zahrey any questions prior to the statement. (Tr. 23.) Boyce stated that Zahrey was seated at the time that he made the statement and that he was not handcuffed or restrained in any way. (Tr. 24.) Boyce testified that he responded to Zahrey that he "would not tell him the nature of the investigation, only of its serious gravity and it was a criminal investigation and that he was being placed on modified assignment." (Tr. 24.) According to Boyce, Zahrey then became physically agitated and said "something to the effect that they are lying about me, they are all out to get me because I'm a cop." (Tr. 24.)

 According to Boyce, after Zahrey made the statements, the conversation returned to the subject of retrieval of Zahrey's weapons. (Tr. 25.) Upon entering the office, Boyce learned that Zahrey had already surrendered at least one gun, (Tr. 67, 69), but that one of Zahrey's guns was not unaccounted for. (Tr. 68.) Defendant Zahrey then made a series of phone calls in an effort to locate the gun. (Tr. 69-72.) Then, after asking more questions about the nature of his modification, (Tr. 25), defendant Zahrey stated that he would not say more without an attorney present. (Tr. 27, 78.) Boyce credibly testified that the conversation stopped at that point, (Tr. 28), and Boyce informed Zahrey that he must accompany Boyce to Zahrey's brother-in-law's house, where the unaccounted for gun was presumed to be. (Tr. 81.) It is undisputed that Zahrey faced suspension if he refused to accompany Boyce to retrieve the gun. (Tr. 81, 82.) The two men agreed to go in Zahrey's car. (Tr. 82.) Boyce testified that the car ride took approximately one hour, (Tr. 29, 84), and that during that time they conversed about a variety of subjects, including Zahrey's "Arab descent," his arranged marriage, and his job history with the Police Department. (Tr. 85.) Zahrey told Boyce during the conversation that he had previously worked undercover on the Brooklyn North Narcotics Division and that he currently was working at the field operations desk where he was responsible for taking notifications about alleged criminal activity. (Tr. 86.) In addition, Zahrey asked Boyce, "What did that [or this] nigger Lenny say about me?" (Tr. 29, 88), *fn3" and "Did that prick Guggi say anything about me?" (Tr. 29, 90.) According to Boyce, "Lenny" referred to Zahrey's co-defendant Lyndell Ingram, (Tr. 31-32), and "Guggi" referred to Alex Vasquez, who also was known to the investigating officers and had been involved in the murder of William Rivera. (Tr. 119, 120.) Boyce testified that he did not ask Zahrey any questions during the car ride, but that Zahrey made statements upon his own initiative. (Tr. 29-30.) According to Boyce, each time Zahrey made a statement, Boyce reiterated that he could not comment on the investigation. (Tr. 30.)

 Lieutenant Boyce did not indicate in his written report of the events that took place on that day that Zahrey made the statements about Lenny and Guggi during the car ride, even though he did record Zahrey's statement about Supreme. (Tr. 60, 62-63, 218-220.) In fact, no police officer's notes concerning that day indicate that Zahrey made the statements about Lenny and Guggi. (Tr. 42.) Nevertheless, I found Boyce to be a credible witness, and I believe his testimony that Zahrey in fact made the statements.

 It is undisputed that Zahrey was not given his Miranda warnings at any time during the modification process at the 81st precinct. (Tr. 77.) Zahrey argues that this was a "forced" encounter, that he was therefore in custody and that given the absence of the Miranda warnings, the statements should be suppressed.

 a. Was Defendant Zahrey in custody when he made the statements?

 Miranda warnings are required only when law enforcement agents interrogate a person who is in custody. United States v. Kirsh, 54 F.3d 1063, 1067 (2d Cir. 1995). To determine custody, the court must employ an objective standard, Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293 (1994), and find that a reasonable person in the defendant's position would have understood himself to be subjected to restraints comparable to those associated with a formal arrest. U.S. v. Ali, 68 F.3d 1468, 1472 (2d Cir. 1995) (citing United States v. Mussaleen, 35 F.2d 692, 697 (2d Cir. 1994) (quoting United States v. Mitchell, 966 F.2d 92, 98 (2d Cir. 1992) (in turn quoting Berkemer v. McCarty, 468 U.S. 420, 441, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984)))); Campaneria v. Reid, 891 F.2d 1014, 1021 n.1 (2d Cir. 1989)). The law is clear that the court must examine the totality of the circumstances when making that inquiry. U.S. v. Ruggles, 70 F.3d 262, 264-65 (2d Cir. 1995). As such, the court may consider the person's background, experience, familiarity with police questioning and Miranda rights, age, maturity, education, and intelligence. Id.

 When the circumstances under which defendant Zahrey made statements are viewed in their totality, the Government easily has met its burden of proving that a reasonable person in Zahrey's position would not have understood himself to be subject to the restraints associated with formal arrest. First, I take into account Zahrey's familiarity with police questioning and Miranda rights. Ruggles, 70 F.3d at 265. In Ruggles, the Second Circuit held that the defendant was not in custody when he conferred with law enforcement agents, noting that the defendant was familiar with police questioning and the Miranda rights, given his extensive criminal history. Id. at 265. In this case, defendant Zahrey undoubtedly was familiar with police questioning and was aware of the Miranda rights, having gained that knowledge from his eleven years of employment on the police force. See United States v. Charles, 768 F.2d 686, 694 (5th Cir. 1984) (fact that defendants were working as police officers when they made statements was a factor in finding that they were not in custody). Presumably, Zahrey also knew of the procedures associated with a modification of police duties and was cognizant of the difference between a modification and an arrest. (Tr. 112-13.) See Sorlucco v. New York City Police Dep't, 971 F.2d 864, 866 (2d Cir. 1992).

 The scenario described by the Government's witnesses also is stunningly free of other indicia of an arrest. For example, there is no evidence that the police officers who performed Zahrey's modification threatened that he would be arrested if he refused to cooperate. See United States v. Guarno, 819 F.2d 28, 32 (2d Cir. 1987) (threat of arrest for refusal to cooperate suggests custody). Rather, they testified, there merely would have been administrative, or job related, consequences such as suspension if he refused to cooperate. (Tr. 65-67, 81-82.) Presumably Zahrey was aware of those consequences given his tenure on the force. (Tr. 112-13.) See Sorlucco, 971 F.2d at 866 ("'Modified assignment' is commonly understood by rank and file police officers to be a stigmatizing disciplinary status.")

 Further, although the police officers did not inform Zahrey that he was free to leave, see Guarno, 819 F.2d at 32 (statements that person is free to leave are indicia of lack of custody), they also did not tell him that he was not allowed to leave. (Tr. 22-32, 208-209.) United States v. Moreno, 897 F.2d 26, 31 (2d Cir. 1990) (fact that agent did not tell suspect that he was not free to leave is a factor weighing against a finding of custody). The officers also did not specifically inform Zahrey that he was a suspect of a criminal investigation. (Tr. 24, 205-06.) Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293 (1994) ("Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue . . . ."). Instead, they refused to tell him of the details underlying the modification and informed him that it was "serious and criminal in nature." (Tr. 24.) That alone, is insufficient to indicate custody because the situation is not necessarily custodial because the officers' subjective beliefs about the person and whether he is a suspect are inconsequential in the custody inquiry, even where the person is a suspect or the focus of an investigation. Stansbury, 511 U.S. at 1529-30. The IAB officers' views or beliefs about defendant Zahrey's involvement with the robbery gang were not disclosed to Zahrey during the modification and therefore have no impact on whether the situation was custodial.

 Zahrey also was not handcuffed at any time during the modification. (Tr. 24.) United States v. Averell, 296 F. Supp. 1004, 1019 (E.D.N.Y. 1969) (use of handcuffs is indicative of custody). Furthermore, there also was no evidence that Zahrey was to be held for any longer than it took to retrieve his weapons. (Tr. 113-14.) In fact, if the last weapon had not been in possession of Zahrey's brother-in-law, the modification would have ended sooner than it did. (Tr. 113-14.) See Berkemer v. McCarty, 468 U.S. 420, 437-38, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984) (a presumptively temporary and brief holding by the police is likely not to be custodial, in contrast with a prolonged interrogation where the "detainee often is aware that questioning will continue until he provides his interrogators the answers they seek.")

 In addition, the fact that the modification took place at a police station is insufficient to render it custodial. United States v. Charles, 738 F.2d 686, 693 (2d Cir. 1984) (citing Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977) (per curiam)) ("the requirement of giving Miranda warnings is not to be imposed simply because police question a suspect in the police station"); see also People v. Berry, No. 73203, 1997 WL 1691, at *2 (N.Y. App. Div. Jan. 2, 1997) (interview was not custodial where defendant was questioned at her place of work which happened to be a correctional facility because "the fact that defendant happens to have worked in a correctional facility is completely fortuitous and does not transform the interview into something sinister . . . ."). Zahrey cites Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979), for the proposition that "bringing suspect to station house for questioning is tantamount to an arrest." (Def. Zahrey's Post-Hearing Memo at 9.) The issue in Dunaway, however, was whether the police had violated the Fourth and Fourteenth Amendments when, without probable cause to arrest, they took the defendant into custody, transported him to the police station, and detained him there for interrogation. The Supreme Court's ruling turned on its interpretation of the word "seizure" as used in the Fourth Amendment and its application to the arrest in that case. Dunaway, 442 U.S. at 206-07, 212-13; see also United States v. Ali, 68 F.3d 1468, 1473 (2d Cir.), on reh'g on other ground, 86 F.3d 275 (2d. Cir. 1995). In addition, the Court's decision that the arrest was a Fourth Amendment seizure was based on several factors, not only that the interrogation occurred at a police station. Dunaway, 442 U.S. at 212-13.

 And even if a police station is not the least restrictive environment in which a modification can take place, the officers also testified that the modification began in public, at the bank, rather than within the confines of a police station. (Tr. 202-03.) McCarty, 468 U.S. at 438-39 ("Exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the subject's fear that, if he does not cooperate, he will be subjected to abuse" and thereby is substantially less "police dominated" than detentions where has Miranda, has been required.) It was Zahrey who suggested that the officers go into the 81st Precinct, rather than perform the modification on the street. (Tr. 203.) The officers deferred to Zahrey's wishes and obtained a room in the precinct house where the modification was held. Thus, although Zahrey's superiors directed that the modification process take place at that time, they were not restricting his freedom of movement or action such that he should reasonably have believed himself to be in custody. See California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983).

 Moreover, it would be error to place too much significance on the fact that the modification took place within a police station; after all, a modification is an administrative police matter related to employment. It is, therefore, likely that modifications take place at police stations on a regular basis. To characterize all such modifications as custodial encounters surely would overreach the parameters of Miranda, particularly since officers may be modified for reasons other than an underlying criminal investigation. See Sorlucco, 971 F.2d at 866 (officer may be placed on modified assignment for various criminal infractions, violations of departmental regulations, and whenever the circumstances indicate that such action would be in the best interest of the department).

 In sum, the Government has established by a preponderance of the evidence that defendant Zahrey's encounter with the police at the 81st Precinct as they performed the modification procedure was not custodial. Accordingly, the Miranda warnings were not required.

 Certain of Zahrey's statements were made during the car ride with Lieutenant Boyce immediately following the encounter at the 81st Precinct. (Tr. 29, 88, 90.) It is undisputed that the only reason that car ride was necessary was that Zahrey was not in possession of all the guns that he was required to turn in to his supervisors. (Tr. 113-14.) Without the need to retrieve the last gun from Zahrey's brother-in-law, the modification presumably would have concluded at the 81st Precinct. (Tr. 113.) Thus, the car ride must be considered part of the modification procedure.

 Boyce testified that during the ride to retrieve the gun, the conversation between the two men was superficial. (Tr. 85.) It ranged in topics from Zahrey's history with the Police Department to his marriage. (Tr. 85-86.) Throughout the conversation, Zahrey asked several times why his status as an officer had been modified. (Tr. 29, 88, 90.) Boyce responded, as he had in the 81st Precinct, that he could not talk about the underlying nature of the modification and that it was criminal in nature. (Tr. 88.) Such comments were not evocative or threatening. Rhode Island v. Innis, 446 U.S. 291, 303, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). Also, the ride was not of significant duration. (Tr. 79, 84.) McCarty, 468 U.S. at 437-38. Although Zahrey was required to accompany Boyce to retrieve the gun as part of the modification, he was permitted to exercise his preference to travel in his own car with Boyce. (Tr. 82, 113, 122, 203.) In fact, Boyce permitted Zahrey to drive the car. (Tr. 40.) Cf. United States v. Ceballos, 812 F.2d 42, 45 (2d Cir. 1987) (setting was custodial where law enforcement agents refused to allow defendants to follow them in his company car). *fn5" In addition, Boyce did not threaten that Zahrey would be arrested if he failed to cooperate. (Tr. 22-32.) Guarno, 819 F.2d at 32 (threat of arrest indicates custody).

 In sum, the car ride was part of the modification procedure that began at the bank and continued at the police precinct and no intervening event during the car ride changed the character of the episode to render it custodial. The Government, therefore, has met its burden by a preponderance of the evidence to show that the car ride was not custodial and that Miranda warnings were not required.

 b. Was Zahrey interrogated during the modification?

 Miranda protections are not invoked unless a person who is in custody is interrogated by law enforcement agents. "'Interrogation,' as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself." Rhode Island v. Innis, 446 U.S. 291, 300, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). As a result, not "all statements obtained by the police after a person has been taken into custody are to be considered the product of interrogation." Id. at 299. The Supreme Court has ruled that the Miranda safeguards come into effect "whenever a person in custody is subjected to either express questioning or its functional equivalent," id. at 300-01, and has defined "functional equivalent" as "any 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." Id. at 301. A court's inquiry into whether a suspect was interrogated should focus on "the perceptions of the suspect, rather than the intent of the police." Id. at 301.

 It is undisputed that the IAB officers did not engage in express questioning of Zahrey during the modification, other than to ask the location of his weapons. (Tr. 23, 29, 30, 69.) And nothing indicates that any of the officers should have known that "their conversation was reasonably likely to elicit an incriminating response from [Zahrey]." Id. at 302. The officers credibly testified that at the 81st Precinct, rather than speaking of the Police Department's underlying suspicions or investigation relating to defendant Zahrey, they addressed their concerns only to the mechanics of the modification procedure. (Tr. 23, 29, 30, 69, 204-05.) Their primary interest was retrieving Zahrey's guns, and in fact when Zahrey asked or made comments about the reasons behind his modification, the officers advised him not to speak and told him that they would not speak of the investigation, except to say that it was serious and criminal in nature. (Tr. 76, 77, 78, 206, 211-12.) In my view, the officers made a deliberate effort to avoid speaking about ...


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