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UNITED STATES v. FRANK

May 6, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
DERIC FRANK, Defendant.



The opinion of the court was delivered by: COTE

DENISE COTE, District Judge:

 In this capital prosecution, the defendant, Deric Frank ("Frank") is charged with abducting his former girlfriend, Shaneika Price ("Price"), transporting her across state lines, and killing her by setting fire to the car after locking her in the trunk. Frank has filed numerous motions challenging, among other things, the constitutionality of the statutes under which he is prosecuted, the sufficiency of the Indictment in this case, and the admissibility of certain of the Government's evidence. The Court has already issued an Opinion addressing Frank's challenges to the statutes and the Indictment. In this Opinion, the Court will address Frank's motion to suppress his statements made to the police following his arrest on March 13, 1997, and certain evidence found by the police pursuant to a search warrant executed on March 14. The Opinion follows two days of hearings on the suppression motions -- at which Frank did not testify -- and post-hearing briefing by both parties.

 I. BACKGROUND

 A. The February 21 Restraining Order

 Frank and Price had a complex relationship that spanned many years and was punctuated by disharmony. In 1991, Price gave birth to a son, Jonathan Price, whom she claimed was fathered by Frank, and whom Frank, at times, acknowledged as his son. Just three weeks prior to her death, Price applied for and obtained an order of protection against Frank. The order, which was based on a pre-printed form filed in Connecticut Superior Court, was entered by the court on February 21, 1997. The order required that Frank

 
Refrain from imposing any restraint upon the person or liberty of the applicant [Price].
 
Refrain from threatening, harassing, assaulting, molesting, sexually assaulting or attacking the applicant.
 
Refrain from entering the family dwelling or the dwelling of the applicant.

 On March 5, 1997, Price filed a harassment complaint against Frank with the Norwalk Police Department. Price's statement in support of her complaint, which was reduced to writing by Police Officer Shawn Morin and approved by Price, stated:

 
Deric Frank who is my ex-boyfriend has been physically and emotionally abusive in the past towards me. I have observed Deric Frank following me and sitting in front of my residence waiting for me to come home. Deric Frank has also tried to followed [sic] me to my place of employment. I loose [sic] him so he doesn't follow me to work and cause a scene. Deric Frank has also called my place of employment numerous times. I went to the Stamford Court house on 02/21/97 and filed for a restraining order against him and it was served on him. I filed for this restraining order do [sic] to I am concerned for my safety and the safety of my child do [sic] to Deric's actions in the past. Scenes [sic] the restraining order was served on Deric Frank he has called my place of employment and has come past my residence watching me and calls my house. On this date 03/05/97 Deric Frank called my place of employment and was also in front of my residence upon me [sic] getting home.

 On the basis of Price's March 5, 1997 complaint, Officer Morin prepared on that date a "Complaint and Incident Report" which documented Price's complaint and set forth Morin's intention to arrest Frank for violation of the February 21 restraining order if he were able to locate Frank prior to the end of his tour. In the alternative, Morin indicated that he would apply for a warrant for Frank's arrest.

 B. The March 10 Arrest Warrant

 On March 9, 1997, Morin prepared an Arrest Warrant Application ("Application"), a two page document containing in its body a six paragraph affidavit by Morin. At the bottom on each page of the Application, the judge's signature attests that the judge has read the affidavit and finds probable cause. Morin's affidavit in support of the application repeated the facts conveyed in Price's March 5 complaint -- namely, that Price had obtained a restraining order against Frank on February 21, and that, since that time, Frank had followed and called Price repeatedly and waited for her outside her residence. The affidavit also specifically recounted that Price had stated that "she was afraid of Deric Frank and when she sees him around her residence she runs into her residence and locks the doors so she doesn't have any contact with him." The affidavit further set forth Morin's contacts with Frank on the telephone and his unsuccessful efforts to secure Frank's cooperation.

 The affidavit did not indicate the offense for which Morin believed an arrest warrant was appropriate. It did, however, state that Morin had advised Frank that if Frank did not cooperate, "an arrest warrant would be filed against him for violation of the restraining order." In its final paragraph, the affidavit stated:

 
This officer respectfully requests that this arrest warrant be issued for Deric Frank do [sic] to this is a domestic problem and it appears to be a on going [sic] problem which has been physically and emotionally abusive in the past towards Shaneika Price. That I gave Deric Frank every opportunity to come to headquarters and speak to this officer regarding this matter. That Deric Frank's actions towards this officers [sic] attempts to speak to him resulted in a negative ending in this CO-operation [sic].

 The pre-printed findings of probable cause that appear on the bottom of each page of the Application, to which the judge affixed his signature on March 10, similarly do not state the offense for which the warrant was approved. Rather, the findings state simply that

 
there is probable cause to believe that an offense has been committed and that the accused committed it and, therefore, that probable cause exists for the issuance of a warrant for the arrest of the above-named accused.

 Also on March 10, Morin prepared an arrest warrant and an "Information." The arrest warrant, which did not require any designation as to the offense for which arrest was authorized, also was signed by the judge on March 10. Unlike the Application and warrant, the Information specified that Frank had violated Connecticut General Statute Section 53a-107, which defines criminal trespass in the first degree. In his affirmation filed in support of the Government's opposition to the Defendant's motion to suppress, *fn1" Morin explained that his decision to cite the criminal trespass statute reflected the Norwalk Police Department's general practice of charging persons who have violated orders of protection with this infraction. Morin explained:

 
The restraining order [issued upon Price's application], like all such orders with which I am familiar, contains a specific citation to the criminal trespass statute, stating (consistent with that statute) that "entering or remaining in a building or any other premises in violation of this order constitutes criminal trespass in the first degree." In my experience, where it is credibly alleged that an individual has violated such an order by following someone from their home and work place and waiting for that person at their home, we typically charge that individual with criminal trespass.

 Morin further stated that, although he cited only the criminal trespass statute in the Information, he was aware of several statutes that Frank could be found to have violated based on Price's complaint. Indeed, Morin stated that, at the time he executed his affidavit in support of the arrest warrant, he knew based on his training and experience that "probable cause existed" to believe that Frank had also violated, at a minimum, Connecticut's harassment and stalking laws, Sections 53a-183 and 53a-183, respectively. The choice to cite the criminal trespass statute in the Information reflected, as indicated above, the convention in the police department and the fact that Connecticut's standard order of protection explicitly incorporates the criminal trespass statute.

 C. Frank's March 13 Arrest in Florida

 Price's body was found by New York police on March 11, 1997. In the early morning of March 12, Frank boarded a bus in New York that was headed to Florida. Upon a tip from an aunt of Frank's who lived in Florida, a night-duty agent with the Federal Bureau of Investigation ("FBI") learned that Frank was due to arrive in the state by bus on the morning of March 13 and that he was "wanted in connection with the murder of his girlfriend." The tip was referred to the Violent Crimes/Fugitive Task Force for South Florida and the Caribbean (the "Task Force"), which is comprised of agents of the FBI and state and local police officers. Using the national computerized "NCIC" system, the Task Force verified that a misdemeanor warrant was outstanding for Frank's arrest and that he was wanted for questioning by New York police as a suspect in the murder investigation. At approximately 10:20 a.m. on the morning of March 13, Frank was met at the Fort Lauderdale bus station by a team of seven or eight members of the Task Force, led by Fort Lauderdale Police Detective David Dittman. As was customary, a state -- as opposed to a federal -- member of the Task Force was assigned to lead the arrest team, because the fugitive was wanted on state charges.

 The following facts are based on the testimony of Detective Dittman and FBI Special Agent Talarah Gruber, another member of the Task Force who was present at Frank's arrest, and the documents that were admitted into evidence in the course of their testimony. *fn2" When Frank stepped off the bus, Detective Dittman and a few other officers calmly approached him, with guns held at their sides, having recognized him from a photograph they had been provided. Frank at first denied his identity, but then conceded that he was Deric Frank. The officers handcuffed Frank, patted him down, and read him his Miranda warnings. Frank indicated that he understood his rights, and also indicated that he was willing to speak. The Court finds on the basis of this evidence that Frank knowingly and voluntarily waived his rights protected by the Miranda warnings.

 Frank was informed that he was being arrested on a warrant from Connecticut, and that there were detectives from New York who wanted to speak to him about another matter. When the officers asked Frank if he knew why they were there, he said something to the effect of, "Yeah, they say I killed my son's mother, but I didn't do it." Having first checked to see if Frank had any luggage on the bus -- he had none -- the officers transported Frank to the Fort Lauderdale police city jail, only a five minute drive from the bus station. Thereafter, Frank was transferred to a county jail where he was held on the Connecticut charges. Had he been arrested on federal charges, Frank would have been taken to a federal facility. Special Agent Gruber chatted casually with Frank in the car on the way to the city jail and found Frank talkative, alert, and articulate. The involvement of the federal members of the Task Force ended when Frank was delivered to the city jail.

 At the city jail, Dittman filled out the paperwork necessary to process Frank's arrest. The documents prepared by Dittman show that Frank was arrested on the Connecticut warrant for criminal trespass in the first degree. That paperwork was accompanied by copies of telexes sent between the Fort Lauderdale police and the Norwalk police confirming that Frank was wanted on a misdemeanor warrant for criminal trespass in the first degree, that Connecticut wished no bond to be permitted, and that it wished to extradite Frank. In addition, the telexes sent from Connecticut indicated that Frank was a suspect in a New York homicide.

 D. Frank's Interrogation on March 13 and 14

 Frank was taken into an interviewing room at the Fort Lauderdale city jail. Dittman introduced Frank to Detectives John Bourges and Robert Fox, two police officers from New York who had arrived on the scene, and whom Dittman had already informed that Frank was being cooperative and had been "Mirandized." Before Dittman stepped out of the interviewing room, it appeared to him that Frank was eager to talk to the Detectives. Frank did not ask to make a phone call or to speak to a lawyer. *fn3"

 New York City Police Detective Bourges testified to the circumstances of his interview with Frank. Bourges' recollections were confirmed and supplemented by Detective Fox's testimony. When Frank was brought into the interview room at the Fort Lauderdale jail, Bourges explained to Frank that he would like to speak with him about the death of Shaneika Price. Bourges also told Frank that, before he spoke with him, he would read him his Miranda warnings. Bourges proceeded to read Frank his rights from a pre-prepared sheet. Frank indicated verbally that he understood each of his rights as they were read to him. Frank also affixed his initials six times to the sheet from which Bourges read, indicating that he understood the rights that had been read to him, and that he wished to answer questions. He also wrote his complete signature at the bottom of the page. Bourges affixed the notation "1315hr" -- i.e., 1:15 p.m. -- next to Frank's signature to indicate the time at which the warnings were administered. The Court finds on the basis of this evidence that Frank knowingly and voluntarily waived his rights for a second time.

 Bourges observed that Frank was eager and willing to speak with the officers, and that he appeared to want to "set the record straight." Fox stated that Frank "wouldn't shut up" and communicated that he felt he had been set up. Frank appeared to both detectives to be alert and cognizant of his surroundings and answered each question clearly and concisely. He did not appear to be under the influence of any narcotics or alcohol. The detectives asked Frank if he wanted anything to eat or drink, to which Frank responded that he was not hungry but wanted a soda. The detectives got Frank an iced tea. At no time during the interview did Frank ask to speak with a lawyer or to use a telephone. *fn4" Throughout the interview, Frank was not handcuffed and the officers did not raise their voices or draw their weapons. Frank, who was seated at a table during the interview, occasionally became emotional in talking about Price; at some points he banged on the table, and at least once he threw a chair. *fn5"

 As the interview went on, Frank was given several breaks, which together amounted to approximately three hours. Frank also was allowed to use the bathroom and was given pizza. After each break, the officers asked Frank whether he wanted to continue, and each time he indicated that he did. At no point did Frank indicate that he wanted to stop the interview. Sometimes the detectives turned off the lights at Frank's request during the breaks, and on one occasion Frank was positioned on the floor with his eyes closed when the detectives returned. Each time, upon the detectives' return, Frank resumed the interview with no hesitation and no difficulty. At no point did Frank appear incoherent or to have trouble understanding what was being said. During the course of the interview, Frank participated in the preparation of a written statement recounting his relationship with Price and his whereabouts on the days of, and just before, her death. One of the things that Frank told the detectives during the March 13 interview was that he had changed his clothes on March 11 at the house of Cynthia Greene, where he often stays.

 At the end of the March 13 interview -- which actually concluded early on March 14 -- the detectives asked Frank whether they could continue with their interview later that day. Frank indicated that he was willing to do so, and the officers made arrangements to interview Frank again after he had been transported to the Broward County jail. While he was being transported from the city jail to the Broward County jail, Frank asked to use a telephone.

 On March 14, Detectives Bourges and Fox resumed their interview with Frank. They greeted him and again read him his Miranda warnings. Again, Frank indicated verbally and in writing, by initialing and signing a Miranda warning form, that he understood each of his rights and was willing to answer questions. This form was executed at 12:20 p.m. on the 14th. The Court finds on the basis of this evidence that Frank knowingly and voluntarily waived his rights for the third time following his arrest. As was true the day before, Frank appeared eager to speak with the detectives on March 14. At no point did he ask to make a phone call or contact a lawyer. Likewise, as during the prior interview, Frank was not handcuffed and he appeared to be alert and cognizant of his surroundings. *fn6" During this interview, the detectives showed Frank photographs of Price; at times he became emotional, and at one point during the interview Frank tipped over the table in the interview room.

 E. Frank's Presentment to the Magistrate on March 15

 Frank's interview on March 13 ended sometime around midnight, after which he was brought back to the holding facility at the city jail to await transport to the Broward County jail. The processing documents at the city jail indicate that custody of Frank was transferred from the Fort Lauderdale city jail to the Broward County jail at 1:25 a.m. on March 14. Frank was not taken to the county jail earlier on March 13 because he was still being interviewed at 4:00 p.m. and at 8:20 p.m., the scheduled times at which the two daily buses depart to transport prisoners to the county jail.

 The processing documents from the Broward County jail indicate that Frank was booked there at 7:21 a.m., and was held on the basis of the Connecticut warrant for criminal trespass in the first degree. Frank was presented to a magistrate judge on March 15. According to Dittman, Frank would have to have been booked by 4 a.m. at the latest on March 14 in order to appear in court on March 14. Arrestees are presented at 8:00 or 8:30 a.m. in the Fort Lauderdale court, and there are no afternoon presentments. A two day span between arrest and presentment is not unusual in Broward County, and there was no deviation in this case from the County's customary processing and presentment procedures.

 Frank was presented to the magistrate judge on March 15 via videocamera. First, while awaiting arraignment, Frank was shown a pre-recorded videotape of a magistrate judge reading detainees their Miranda rights and advising them of additional rights and procedures. Next, the magistrate judge who was present in the courthouse viewed Frank via videocamera. He determined that Frank would be held without bond pending extradition. At the hearing, this Court viewed the videotape that Frank was shown advising him of his Miranda rights, as well as a videotape that depicted Frank's presentment before the magistrate. Through the use of a spit-screen device, the videotape displayed the magistrate judge on one screen and Frank on the other screen, as each would have viewed the other. The Miranda warnings that Frank was shown were extremely thorough and comprehensible. At his presentment, Frank looked alert and appeared to be in full control of his faculties. With his consent, Frank was eventually extradited to Connecticut.

 F. The March 12 and 14 Search Warrants

 Simultaneously with the investigation by Detectives Bourges and Fox in Florida, police officers in Connecticut were investigating Frank's connection to Price's death. *fn7" On March 12, two members of the Stamford Police Department, John J. Cahill and James McCauliffe (neither of whom were called to testify at the hearing), prepared an affidavit to submit to Connecticut Superior Court in support of an application for a warrant to search Frank's car, a 1992 Honda Accord owned by his sister but actually operated by Frank. The officers swore that they had probable cause to believe that Frank's car would contain, among other specified items, bodily fluids, shoeprints, fingerprints, weapons, and accelerant materials that might link Frank to Price's death. Their affidavit further set forth the following facts: (1) on March 11, a human body was found in a burned-out tan 1993 Toyota Corolla near the Cross Bronx Expressway; (2) on March 11 at 11:00 a.m., Price's mother reported her daughter missing to the Norwalk Police Department after receiving a call from Price's place of employment informing her that Price had not arrived for work; (3) Price's mother reported that Price had been involved in "recent family violence incidents with a male known as Deric Frank;" (4) Price's mother feared for Price's safety; and (5) Price owned a tan 1993 Toyota Corolla.

 The affidavit further stated that Norwalk police had found blood stains in the area in the parking lot where Price was known to park at her place of employment. It also stated that the Norwalk police had been in contact with the New York Police Department, which had reported that the burned-out car with the body in it was Price's. In addition, Stamford police had reported that a witness saw Price's vehicle exit the garage at her place of employment at approximately 8:50 a.m., the time when Price generally arrived at work. The witness stated that the car exited the garage at great speed, occupied by two persons, one described as "a heavy set black male." Another witness heard what he believed to have been a female scream at about the ...


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