United States District Court, Southern District of New York
August 19, 2003
UNITED STATES OF AMERICA, GOVERNMENT, AGAINST DAMON RIPLEY, DEFENDANT
The opinion of the court was delivered by: Richard Casey, District Judge
OPINION & ORDER
Damon Ripley ("Defendant") is charged in a one-count Superseding Indictment with conspiring to distribute and to possess with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. § 846. Defendant pled not guilty on April 2, 2003. Defendant now moves to suppress statements he made during an August 6, 2002 meeting with the Government on the grounds that: (1) his Sixth Amendment right to counsel was violated; (2) the statements were obtained in violation of this Court's Local Civil Rule 1.4 and Local Criminal Rule 44.1(a); and (3) the statements were the fruit of alleged illegal police conduct. For the reasons that follow, Defendant's motion is DENIED.
On the night of August 2, 2002, New York City police officers stopped Defendant after observing him speeding and driving erratically. After stopping Defendant, the police officers searched his car and recovered a loaded firearm. Defendant was then detained and brought to a police station for questioning. After being advised of his Miranda rights and [ Page 2]
waiving those rights in writing at the police station, Defendant admitted that the firearm was his and that he possessed it because he feared reprisals related to a narcotics transaction in which he attempted to buy ten kilograms of cocaine for $50,000.
Following his arrest, on August 2, 2002 Defendant appeared before a magistrate and was again advised of his rights.
On August 6, 2002, Defendant met with Assistant United States Attorney Michael Kim and FBI agents. The Defendant did not have counsel present at this meeting because although the court had appointed a Legal Aid attorney to represent him at his August 2, 2002 presentment, he failed to qualify for appointment of counsel and had not yet retained counsel. At the commencement of this meeting, the Government advised Defendant of his Miranda rights and his right to retain counsel. Moreover, Defendant signed a letter and a written Miranda waiver which acknowledged that he was advised of his rights, but chose to freely speak with the Government.
During the meeting, Defendant admitted to trafficking in cocaine and provided details regarding specific cocaine transactions in which he had participated. Defendant also engaged in a consensual tape-recorded telephone call that he placed to a co-conspirator in the narcotics conspiracy. After admitting his involvement in narcotics trafficking and after engaging in the consensual tape-recorded telephone call, Defendant decided not to cooperate further with the Government.
Defendant now moves to suppress statements that he made during his August 6, 2002 meeting with the Government. Defendant argues that his Sixth Amendment right to [ Page 3]
counsel and Local Civil Rule 1.4 and Local Criminal Rule 44.1(a) were violated and that his statements were the fruit of alleged illegal police conduct.*fn1 For the reasons that follow, the Court concludes that neither the Sixth Amendment nor the Court's Local Rules were violated. The Court further concludes that Defendant's statements were sufficiently attenuated from his arrest and search and therefore are not tainted by any unlawful conduct alleged by Defendant.
A. Defendant's Sixth Amendment Rights Were Not
The Court first addresses Defendant's argument that the August 6, 2002 statements should be suppressed because they were elicited in violation of his Sixth Amendment right to counsel. Despite his argument to the contrary, Defendant's Sixth Amendment right to counsel did not attach at the moment he was arrested and brought before a magistrate. The Supreme Court has repeatedly recognized that "the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant." United States v. Gouveia, 467 U.S. 180
, 187 (1984). "[B]efore proceedings are initiated a suspect in a criminal investigation has no constitutional right to the assistance of counsel." Davis v. United States, 512 U.S. 452, 457 (1994). The Supreme Court has also explained that adversary judicial proceedings, "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment" arise only when "the government has committed itself to prosecute, and only then . . . the adverse positions of the government and defendant have solidified." Kirby v. Illinois, 406 U.S. 682
, 689 (1972). [ Page 4]
In fact, the Supreme Court has found that such bright line rules, particularly in the area of constitutional criminal procedure, are necessary in order to give guidance to law enforcement authorities. See United States v. Frank, 8 F. Supp.2d 284, 306 (S.D.N.Y. 1998). As a result, the right to counsel has not been held to attach prior to the initiation of a formal charge. See, e.g., United States v. Duvall, 537 F.2d 15, 20-22 (2d Cir. 1976) (right to counsel did not attach after arrest based on complaint filed for purposes of obtaining arrest warrant, but before arraignment); United States v. Rahman, 1994 WL 388918, at *6 (S.D.N.Y. July 22, 1994) (stating that right to counsel did not attach until filing of indictment); United States v. Kornblau, 586 F. Supp. 614, 622 (S.D.N.Y. 1984) (holding that the right to counsel was not triggered by pre-indictment arrest because it is not a critical stage of the prosecution); see also, e.g., Von Kahl v. United States, 242 F.3d 783, 789 (8th Cir. 2001) (concluding that right to counsel did not attach with filing of criminal complaint and issuance of arrest warrant); United States v. Mendoza-Cecelia, 963 F.3d 1467, 1473 (11th Cir. 1992) (holding right to counsel did not attach at a defendant's initial appearance before a magistrate), rev'd on other grounds, Coleman v. Singletary, 30 F.3d 1420 (11th Cir. 1994). Defendant's August 6, 2002 statements — made prior to the August 16, 2002 indictment — were obtained at a point prior to the formal commencement of criminal proceedings against him. Accordingly, Defendant's Sixth Amendment right to counsel was not yet implicated.
Second, even if Defendant's Sixth Amendment right to counsel had attached prior to his August 6th statements, Defendant waived those rights. As the Second Circuit recently explained in United States v. Yousef, 327 F.3d 56, 140-41 (2d Cir. 2003), "the attachment of the Sixth Amendment right to counsel . . . does not preclude a defendant from validly waiving his [ Page 5]
right to counsel." Rather, the Second Circuit stated, "it is the defendant's invocation of his right to counsel that vitiates the validity of a waiver subsequently obtained during a government-initiated interrogation." Id. at 141. In Yousef, the Second Circuit held that statements a defendant gave after indictment to law enforcement authorities were admissible because the defendant had been provided Miranda warnings, and then provided a written waiver of his Miranda rights. Moreover, in Patterson v. Illinois, 487 U.S. 285, 293 (1988), the Supreme Court held that statements given after a defendant was indicted were admissible where the Defendant had been given Miranda warnings and did not ask for counsel. In sum, a defendant's waiver of his Miranda rights amounts to an effective waiver of his Sixth Amendment right to counsel provided that he has not previously invoked the right to counsel.
Here, as in Yousef and Patterson, the Defendant did not request counsel prior to the August 6th meeting; the Defendant had been provided his Miranda rights; and the Defendant then waived those rights. In fact, between his arrest and the August 6th statements, the Defendant had been advised of and waived his Miranda rights three times. Moreover, on August 6th the Defendant signed two documents outlining that he had been advised to retain an attorney and that he could cease answering questions at any time. Nevertheless, the Defendant decided to continue with the meeting. Accordingly, even if the Court were to hold that the Defendant's Sixth Amendment rights had attached prior to his August 6th statements, the Defendant provided an effective waiver of his right to counsel.
B. Local Civil Rule 1.4 and Local Criminal Rule 44.1 Were Not Violated
During oral argument Defendant asserted for the first time that under the Court's Local Rules, prior to the August 6th meeting the Government was required to contact and confer [ Page 6]
with Mr. Seth Faber, the attorney appointed to represent Defendant solely for his initial appearance. Defendant asserts that under the Court's Local Rules, Mr. Farber remained obligated to represent Defendant until Mr. Farber was relieved by the Court, and thus, the Government should have conferred with him. The Court first notes that the magistrate plainly stated that Defendant failed to qualify for appointed counsel and therefore Mr. Farber would be appointed solely for the purposes of Defendant's initial appearance. See Presentment Transcript, at 3 ("In light of both your income and your assets, I am not prepared to grant your application for appointment of counsel. It will be necessary for you after these proceedings to retain counsel."). As the magistrate made clear, there was not a continuing relationship between Mr. Farber and Defendant beyond Defendant's initial appearance. The Government therefore had no obligation to contact Mr. Farber prior to meeting with Defendant on August 6th.*fn2
Despite this fact, Defendant asserts that Local Civil Rule 1.4 and Local Criminal Rule 44.1(a) required the Government to contact and confer with Mr. Farber before the August 16th meeting with Defendant. The Court first notes that Local Civil Rule 1.4 applies in criminal proceedings. See Local Criminal Rule 1.1(b) ("In addition to these Local Criminal Rules, Local Civil Rules 1.2 through 1.10 . . . apply in criminal proceedings."). Local Civil Rule 1.4 provides that an attorney who has appeared as attorney of record for a party may be relieved or displaced only by court order and may only withdraw if leave of the Court is granted. In criminal cases, however, Local Civil Rule 1.4 applies only after an attorney has filed a notice of appearance with the clerk's office. Local Criminal Rule 44.1(a) states: [ Page 7]
Attorneys representing defendants in criminal cases
shall file a notice of appearance in the clerk's
office and serve a copy on the United States
attorney. Once such a notice of appearance has been
filed, the attorney may not withdraw except upon prior
order of the court pursuant to Local Civil Rule 1.4.
Here, Mr. Farber was appointed to represent Defendant solely for purposes of his initial appearance before a magistrate and therefore did not file a notice of appearance. Thereafter, on August 20, 2002 Defendant's retained counsel filed the first and only notice of appearance with the Clerk of the Court. See Dkt. No. 4. Given that Mr. Farber was appointed solely to represent Defendant at his initial presentment and that he did not file a notice of appearance with the Clerk, the Court's Local Rules addressing the withdrawal and substitution of counsel are not implicated. In conclusion, the Court's Local Rules were not triggered before the August 6th meeting; the Government therefore did not violate Local Civil Rule 1.4 or Local Criminal Rule 44.1(a) when Assistant United States Attorney Kim and FBI agents met Defendant without consulting or notifying Mr. Farber.
C Defendant's August 6, 2002 Statements Are Not "Fruit
of the Poisonous Tree"
The Court concludes that the August 6th statements may not be suppressed under the "fruit of the poisonous tree" doctrine. As stated previously, the Defendant had asserted the search of his vehicle was unlawful because the police officers lacked consent to search it. The Government decided not to contest Defendant's motion to suppress the firearm discovered during the search and a statement Defendant made immediately following his arrest because the arresting police officers did not recall consent being given. Therefore, solely for purposes of this motion, the Court assumes that the search of Defendant's vehicle was unlawful.
Even assuming this fact, Defendant's statements to law enforcement authorities [ Page 8]
provided four days later is sufficiently attenuated from any unlawful conduct. In Brown v. Illinois, 422 U.S. 590, 603 (1975), the Supreme Court set forth three factors to consider in order to determine whether evidence may be deemed sufficiently attenuated from unlawful conduct. The three factors are: (1) the amount of time between the unlawful conduct and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the flagrancy of the unlawful conduct. See id. Whether a statement may be deemed sufficiently attenuated "must be answered on the facts of each case." Id.; see also United States v. Thompson, 35 F.3d 100, 105 (2d Cir. 1994).
Having examined the facts of this case, for the following reasons the Court denies Defendant's motion to suppress his August 6th statements. First, Defendant's August 6th statements were made four full days after he was taken into custody. See Wong Sun v. United States, 371 U.S. 471 (1963) (holding admissible statement made several days after illegal arrest). Second, significant intervening circumstances occurred during these four days to remove any taint. For instance, Defendant was advised of and waived his Miranda rights three times.*fn3 Moreover, Defendant signed a letter before making the August 6th statements, which clearly documented that he understood he was not obligated to speak with the Government and that he had been advised of his right to obtain counsel before making a statement. See Kim Aff. ¶ 5.*fn4 In [ Page 9]
addition, following his appearance before a magistrate, Defendant consulted with counsel appointed solely for this appearance and with his family members before deciding that he would not retain counsel prior to the August 6th meeting. The fact that Defendant appeared before a judicial officer, was advised of his Miranda rights on three occasions and had the opportunity to consult with and retain counsel indicate that the August 6th statements were sufficiently attenuated from any unlawful conduct. See United States v. Weisman, 624 F.2d 1118, 1126 (2d Cir. 1980).
Further demonstrating that Defendant's August 6th statements were the product of Defendant's free will and are not tainted by any earlier unlawful conduct is the fact that, in addition to his oral statements, Defendant made a written statement documenting his involvement in a narcotics conspiracy. See United States v. Delgado, 797 F. Supp. 213, 222 (W.D.N.Y. 1991) ("[T]he nature of a written statement . . . allows defendant to reflect upon the statement he wishes to make and to review it before signing it, making it more likely that the statement is a product of free will."). Finally, Defendant also placed two recorded telephone calls to a co-conspirator during the August 6th meeting. This fact further demonstrates that Defendant's statements were borne of his free will and his intention to cooperate with the Government.
For these reasons, Defendant's August 6th statements are sufficiently attenuated from any illegal conduct associated with his arrest and the search of his vehicle following his arrest. Accordingly, the Court concludes that the August 6th statements are fully admissible at trial. [ Page 10]
For the foregoing reasons, the Court concludes that: (1) Defendant's Sixth Amendment rights were not violated; (2) Local Civil Rule 1.4 and Local Criminal Rule 44.1(a) were not triggered before Defendant's August 6th meeting with the Government; and (3) Defendant's August 6th statements are sufficiently attenuated from the arrest and search four days earlier. The Defendant's motion to suppress is therefore denied.
The Government and Defendant are directed to appear at a status conference on August 22, 2003 at 2:00pm in Courtroom 17B.