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U.S v. RIPLEY

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.

I. Background

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.

II. Discussion

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 Violated
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 ...


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