thought Porter had been lying by minimizing his involvement in two of the murders they had discussed, and that if he was going to lie about such fundamental details there was no point in continuing the conversation. When Porter insisted he was telling the truth, Rather left the room, leaving Capers and Sofer behind. After another 15 minutes or so, Rather called Capers out of the room, and Capers reported that Porter was sticking to his denials. At that point, believing no further information would be forthcoming, Rather arranged for detectives to come to arrest Porter for the murder of James Taylor.
At no time prior to this arrest on September 13 was Porter ever told or given any reason to believe that he was not free to leave, to come and go as he pleased, or to decide not to speak further to Rather or Capers. Finally, Porter was first indicted on the charges in this case on November 14, 1996.
The foregoing is largely not in dispute. There are, however, two significant facts argued by the parties. First, Porter claims that, during their first conversation on August 29 (prior to the Chelsea Piers meeting), Porter asked Capers whether he would act as his attorney during the conversations with Rather. Capers denies ever making such a promise. The Court finds that no such promise was made. Capers was working for the D.A.'s office; he told Porter this, and this Court so finds. Even though Porter disputes this fact, he admits that Capers referred to himself as an "investigator," referred to his "colleagues" in the D.A.'s office, took Porter to his office in the D.A.'s building one floor below Rather, and that Porter saw his credentials as an investigator while he was in Capers's office. There was, at least, no apparent attempt on Capers's part to hide his association with the D.A.'s office. It is so implausible that anyone would believe an investigator for the District Attorney would act as an attorney for a criminal suspect, or that a suspect with Porter's experience with the criminal justice system would entrust his legal representation to an employee of the D.A., that this Court finds it incredible that Capers, even if he were inclined to employ some sort of ruse to get Porter to talk, would think that this particular ruse could work. This Court finds that neither Capers nor any other government agent represented to Porter that they would act as his attorney.
Second, Porter claims that Rather and Capers promised him that anything he said would be "off the record" and would not be used against him -- in effect, granting Porter use immunity. Rather and Capers claim no such promise was made. Rather did tell Porter that the purpose of the discussions would be for him to understand Porter better and to get background on their investigation; not surprisingly, Rather did not tell Porter that he was attempting to elicit information from Porter to use in a possible criminal case against him. Rather also did represent to Porter at the September 4 meeting that the conversation was not being recorded -- a true statement -- but did not make this representation on subsequent days. Even if it were reasonable for Porter to believe that this meant none of the sessions would be recorded, a promise not to record the conversation is in no way a promise that the information being told to the D.A. would not be used against him. Finally, as for Capers, he did tell Porter that if he were to become a cooperating witness he could possibly get something in return, but this Court finds that he never promised Porter immunity in return for speaking with the D.A.'s office. In sum, this Court finds that no promise of immunity was ever made.
The Court now turns to the legal significance of these facts. Preliminarily, the Court notes that, as conceded by Porter, prior to his arrest on September 13 he was not in custody; therefore, he was not entitled to Miranda warnings. See, e.g., Neighbour v. Covert, 68 F.3d 1508, 1510 (2d Cir. 1995). Nor had he yet been charged with any crimes, so his Sixth Amendment right to counsel had not attached. See, e.g., United States v. Kon Yu-Leung, 910 F.2d 33, 37 (2d Cir. 1990).
This of course does not end the inquiry, for a confession may still be deemed involuntary, such that the Fifth Amendment forbids its introduction at trial, if "an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant's] will to resist and bring about confessions not freely self-determined." United States v. Mitchell, 966 F.2d 92 (2d Cir. 1992) (internal quotations omitted). Impermissible conduct includes not only force and threats of force, see Arizona v. Fulminante, 499 U.S. 279, 287, 111 S. Ct. 1246, 1252-53, 113 L. Ed. 2d 302 (1991), but the Second Circuit has also noted that "material misrepresentations based on unfulfillable or other improper promises might perhaps overbear a defendant's will." United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995). In making this determination, the Court must consider "the totality of all the surrounding circumstances," id. at 264-65 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854 (1973)), including Porter's "background and experience, the conditions of his interrogation and the conduct of the law enforcement officers." Ruggles, 70 F.3d at 265. However, at a minimum, there must be some element of police misconduct giving rise to the confession in order to find a confession involuntary. See Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 520, 93 L. Ed. 2d 473 ("Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law."). The burden is on the government to establish the voluntariness of a confession by a preponderance of the evidence. See United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991).
There is simply no such misconduct here. There is, first of all, no claim that the police used physical force, threats, or in any way mistreated Porter; to the contrary, Porter was placed in a hotel for approximately two weeks and given money for expenses. In addition, the Court has already noted that it finds that the government has shown by a preponderance of the evidence that no government agent promised Porter immunity from prosecution or that his statements would not be used against him. Rather did represent to Porter that he was not being recorded on September 4, but this was in fact true, and Rather made no such representations on the days he did record the statements. Finally, the government has shown by a preponderance of the evidence that Capers made no representation to Porter that he would act as his attorney.
We are left, then, with only two representations by the government that could possibly form the basis of a claim of misconduct. The first is the representation by Capers to Porter that he was likely to be indicted, and that in his experience the earlier one expressed willingness to cooperate with the government the better a deal a defendant might get. The Court has found that Capers did not promise Porter a cooperation agreement, but only talked in general terms about the benefits of cooperation. There is nothing improper in this conduct. The government is free to tell a suspect the benefits of cooperation, see, e.g., Ruggles, 70 F.3d at 265; United States v. Bye, 919 F.2d 6, 9-10 (2d Cir. 1990), as long as 'the characteristics of the suspect and the conduct of the law enforcement officials do not otherwise suggest that the suspect could not freely and independently decide whether to cooperate or remain silent." United States v. Guarno, 819 F.2d 28, 31 (2d Cir. 1987). There is nothing to suggest such a result in the encounter between Porter and Capers, and thus there was nothing improper about Capers's discussion of this point.
The second possible basis for finding misconduct were the discussions by Rather and Capers with Porter about the safety of Porter and his family, and the statements by them which suggested that if Porter were to become a cooperating witness, his family could be given protection. While it is true that a confession induced by a credible threat of physical violence to the suspect, combined with a government promise of protection conditioned upon the suspect's confession, can be considered involuntary, see Fulminante, 499 U.S. at 287, 111 S. Ct. at 1252-53, the discussions in this case do not rise to the level seen in Fulminante. To begin with, the threat to Porter's safety (if any) stemmed from his alleged co-conspirators; government agents played no part in creating the danger. Second, Rather and Capers never suggested that the police would refuse to protect him and his family if he did not confess. Instead, they were doing two things: first, informing Porter of one of the possible benefits of cooperation (i.e., getting off the street and out of danger), and second, allaying any possible fear that if Porter should choose to become a cooperator, his family would be subject to recriminations from his alleged co-conspirators. As noted earlier, there is nothing improper in spelling out for a suspect the benefits that could flow from his cooperation.
The Court can therefore find no government misconduct upon which a claim of involuntariness could rest. However, even if any of the above conduct were deemed improper, at least for purposes of satisfying Connelly, under the totality of the circumstances the Court finds that the government has met its burden of showing that Porter's will was not overborne and that his confession was therefore voluntary. Porter had substantial experience with the criminal justice system, having been arrested several times before. He testified that he had been read his Miranda rights on these occasions and that he understood what those rights were. He also stated that he understood that Rather was an Assistant District Attorney conducting a criminal investigation. Porter knew he was under no obligation to confess involvement in criminal activity to Rather. He did so because he chose to focus, perhaps unwisely, on the possibility that cooperation with the D.A.'s office would pay off in some way to the exclusion of carefully considering whether he had received any promise that his confessions would not be used against him. In short, Porter heard what he wanted to hear. There is little doubt that Rather and Capers chose their words and actions carefully in an attempt to capitalize on Porter's desire to extricate himself from the possibility of arrest and conviction, but they did not act improperly in doing so. The choice to speak was at all times Porter's. There is, then, no basis for suppression of his statements.
For the foregoing reasons, the Court denies Porter's motion to suppress his statements as involuntary.
Dated: New York, New York
February 13, 1998