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June 6, 2005.


The opinion of the court was delivered by: JOAN AZRACK, Chief Magistrate Judge

Memorandum & Order

Defendant moves to suppress statements made to law enforcement officers before and after his arrest in the above matter on the ground that the statements were obtained by unlawful custodial interrogation in violation of defendant's Miranda rights. A hearing on the motion was held on March 10 and March 22, 2005. I conclude that defendant's constitutional rights were violated by his unwarned custodial interrogation, and therefore his unwarned statements must be suppressed. Subsequent Miranda warnings administered to defendant, however, were effective in conveying to defendant his rights, and therefore his motion to suppress post-warning statements is denied.


  Defendant Yochanan Cohen is charged in a one count information with engaging in sexual contact with another person without that other person's permission. See 18 U.S.C. § 2244(b) (2005). The charge arises from defendant's conduct on a flight from Salt Lake City to New York City's John F. Kennedy Airport on April 10, 2004. Defendant put his hand on the leg of the woman sitting in the seat next to him and moved his hand up her leg, under her skirt and touched her underwear. The woman thereafter changed seats and alerted the flight crew. The passengers were told over the public address system that, when the airplane landed, they had to remain in their seats for security reasons. Officers David Lim, Shirley Smith and Sergeant Richard Alymer of the Port Authority Police Department ("PAPD") met the flight at the airport.

  PAPD Officer David Lim testified that he was told by the desk officer that a problem, something sexual, had occurred on an incoming flight. Lim understood this to mean that a possible sexual assault had occurred. He told Sergeant Alymer, and they went to the gate, accompanied by Officer Smith. Lim testified that when the flight arrived, at 5:30 am, he told a flight attendant to warn the passengers not to leave their seats. Passengers had been previously warned to remain in their seats until further notice because of a security situation.*fn1 Officer Smith boarded the aircraft and escorted defendant's former seatmate, the complaining witness, off of the plane. Lim and Alymer then questioned the complaining witness about the incident. She told them that defendant had touched her leg and moved his hand up her skirt to her underwear. The complainant told defendant no after the first time he touched her but did not alert the flight crew. Defendant stopped touching her when a flight attendant approached. He fell asleep, and upon his waking up, some 15 or 20 minutes later, defendant did the same act. The complaining witness therefore left her seat. She told the officers that she wanted to file a complaint.

  After interviewing the complainant, Lim boarded the aircraft with the flight attendant. The flight attendant pointed out defendant, and Lim went over to defendant and escorted him off the plane. Lim testified that he had no conversation with defendant while removing him from the plane; Lim simply gestured for defendant to follow him, a request with which defendant complied. Defendant took with him his carry-on bag. Lim did not touch defendant. Lim took defendant about 10 or 15 feet away from the door of the plane. This was about one-quarter of the way down the jetway, which Lim estimated was 60 feet in length.*fn2 Present in the jetway was an airline security officer, about midway between the airplane and the terminal. Lim testified that he and Sergeant Alymer were the only law enforcement personnel present for defendant's questioning.*fn3 The flight attendant waited at the door of the airplane during the interview.

  Alymer asked defendant what had happened. Defendant proceeded to describe his actions. While in flight, there was some contact between himself and the complainant. The complainant did not, according to defendant, complain about his touching her leg. Defendant had his hand on the complainant's leg until a flight attendant passed by. Defendant fell asleep for about 15 minutes, and when he awoke started to touch the complainant again. She then took out her purse, applied cosmetics and left her seat. Lim testified that defendant stated that he did not think anything of the complainant's leaving. Defendant made his statement in a narrative form, and Lim testified there was no need to interrupt defendant's recounting. Defendant did not say that the complaining witness had objected to his touching of her leg. Lim testified that neither defendant nor Alymer were agitated during this conversation; defendant was fairly calm. Lim observed that defendant understood questions in English and Lim understood defendant.

  After the conversation, which lasted about 5 to 10 minutes, Alymer ordered Lim to place defendant under arrest. Lim testified that prior to hearing defendant's story, no decision had been made as to whether to arrest defendant or not. That is, Lim and Alymer wanted to hear defendant's side of the story. During the interview, the officers' hands were not on defendant and while their weapons were apparent on their hips, the weapons were not drawn. Alymer told Lim to summon Officer Nagle to transport Lim and defendant to the precinct. Defendant was driven to the precinct in a marked car. The trip took about 10 minutes. There were no conversations between defendant and the officers on the ride to the precinct.

  Defendant was placed alone in a holding cell at 6:10 am, about forty minutes after the plane had landed. While defendant was in the cell, Lim alerted the Federal Aviation Administration and the Federal Bureau of Investigation ("FBI") of defendant's arrest. Lim testified that he did so because the crime allegedly had been committed in federal airspace, and thus federal agencies would likely have jurisdiction. When Lim called the FBI, he spoke to Special Agent Robert Ward. Lim did not remember what he told Ward or whether he asked Ward if the PAPD ought to interview or refrain from interviewing defendant.

  PAPD Detective French Pearson arrived in the holding area and asked Lim what happened. Lim told Det. Pearson that a suspect was in their custody that had allegedly inappropriately touched a woman on an incoming flight. Pearson requested to speak with defendant. Lim did not tell Pearson the content of Lim's interrogation of defendant before Pearson began his interrogation of defendant. Lim did not know whether Pearson spoke with the complainant or with Alymer before Pearson spoke with defendant. Lim told Pearson to read defendant his rights. Lim and Pearson went over to the holding cell, and from outside the cell, administered to defendant his Miranda warnings. Defendant responded that he understood the warnings. Defendant was asked to sign the rights card, which he did, after which Pearson signed it as well. Lim testified that defendant did not ask for a lawyer. Lim denies telling defendant that this was not serious or not a big deal and that defendant did not need a lawyer. Lim further denies telling defendant that women often change their minds about "these" complaints. Lim did not discuss defendant's statement with anyone before he and Pearson interviewed defendant.

  With Lim at his side, Pearson asked defendant to tell the officers what had happened. Defendant began talking and reiterated what he had earlier told Lim and Alymer. He stated that he moved his hand so far up the complainant's leg that he could see her underwear, which were white. Lim stated that this interview lasted about 10 minutes, and defendant recounted basically the same statement he had made to Lim and Alymer.

  On cross examination, Lim stated that from the complaining witness's description of the incident, the police had enough information to arrest defendant. But Lim said that since there are always two sides to a story, the officers wanted to give defendant an opportunity to tell his side. Lim admitted that defendant would not have been permitted to leave the jetway if he had refused to speak. Rather, if defendant did not speak to the officers, he would have been arrested. Defendant, according to Lim, thus had no choice but to answer the officers' questions. Lim did not think to Mirandize defendant on the jetway before he and Alymer began their interrogation. Lim did not, however, tell defendant that he was required to answer the officers' questions. If defendant had told a different story that Lim or Alymer thought warranted asking the complaining witness about, they would have taken his story back to her.

  Detective French Pearson also testified at the hearing. Pearson was asked by his lieutenant to assist in interviewing a suspect.*fn4 Pearson was told by the lieutenant that passengers from an incoming flight had been taken to the precinct. He was further told that defendant had touched someone without her consent. No one told Pearson the content of defendant's statement, and he was not informed of the content of the complainant's statement. Pearson testified that when he and Lim were outside defendant's cell, they read him his Miranda rights and had no other conversation about the necessity of counsel or any topic other than what appeared on the rights card. Pearson testified that defendant asked no questions before waiving his rights, and that defendant did not seem reluctant to speak with him.

  Pearson's conversation with Lim about defendant included a description of how the incident occurred. According to Pearson, he and Lim spoke only briefly. Pearson knew before his interview with defendant that the federal government would become involved and take jurisdiction over the case. Pearson testified that he did not try to determine whether defendant had made any statements to law enforcement officers before interviewing him, and he thus did not know that Alymer had interviewed defendant on the jetway. He testified, however, that based on his experience, he was sure that law enforcement officers had interviewed defendant at the scene.*fn5

  Pearson also asked defendant what happened on the plane. Defendant told him that his and the complaining witness's elbows and knees were touching, and that he put his hand on her knee and, since she did not stop him, he moved his hand up to her underwear. Defendant told Pearson that he had put his jacket over the area on her lap where he had placed his hand. Defendant then slept for 20 minutes and when he awoke, because his and her knees were still in contact, touched the complainant again. The complainant then moved defendant's hand and left the aisle. Defendant saw the complainant speaking with a flight attendant.

  Pearson's interview of defendant also lasted 5 to 10 minutes. Defendant was afterwards removed from his cell and brought to an interview room in the detective's area of the precinct. Once defendant was in the new interview room, at 7:25 am, Pearson asked him if he would be comfortable making a written statement. Defendant answered that because he did not write well, he would prefer to write a first draft of any statement on his laptop. Thus, Pearson took defendant into the room next door, a room equipped with electrical outlets, and gave defendant his laptop. Defendant was guarded at this time by an Officer White. White did not speak with defendant. Pearson left the room for about 10 or 15 minutes while defendant wrote out the statement. When defendant had completed a second, hand-written statement, defendant and Pearson signed the statement; this was about 8:40 am. Defendant did not show Pearson what he had written on the laptop. Pearson testified that defendant never asked him the purpose of the statement.

  Pearson contacted the United States Attorney's office in Brooklyn and was informed that the federal government would be prosecuting defendant's case. Pearson could not recall at what time he contacted the federal authorities or even if he personally made the contacts. Pearson waited about one or two hours for Special Agent Ward of the FBI to arrive. Pearson had no contact with defendant during this time. When Ward arrived, Pearson briefed Ward on the situation; Pearson told Ward that defendant was brought to the precinct on suspicion of non-consensual sexual contact. Pearson told Ward the contents of defendant's statement, including that it was defendant's understanding that the touching was consensual. Pearson testified that he could not recall whether Ward asked to read defendant's written statement before beginning an interview with defendant.

  Pearson took defendant back to the original detective's interview room. There Pearson sat in on another interview of defendant with Special Agent Ward. Ward administered defendant his Miranda warnings. Another PAPD Detective, Det. Kehoe, was also present for this interview. After the Ward/Pearson interview, defendant was taken to central booking. Special Agent Robert Ward testified that he spoke with Detectives Pearson and Kehoe about defendant's case prior to Ward's interview with defendant. Pearson gave Ward a summary of the incident and defendant's and the complainant's statements. Ward testified that the statement defendant gave Ward was consistent with the summary he heard from Pearson. After administering defendant Miranda warnings, Ward asked defendant if he understood the warnings and if so would he sign the rights card. Defendant would not sign the rights card and instead asked to hear the allegations against him so he could decide if he wanted to speak with an attorney prior to answering Ward's questions. Ward explained the allegations against defendant, that the woman sitting next to defendant on the airplane had complained that he had put his hand under her skirt. Defendant then told Ward that this was not true, and that defendant wanted to tell his version of the incident. Defendant then gave his version of the events to Ward. Defendant said that from the beginning of the flight, his knees and shoulders were in contacted with the complainant's knees and shoulders. Thinking that she might be coming on to him, he put his hand on her leg. He then waited 15 minutes, and reached up and touched her underwear. Seeing a flight attendant approaching, defendant removed his hand. When defendant touched the complainant's leg again, she turned away from him, and then left the seat. Defendant took this to mean that the complainant no longer wanted the touching to go on, and so he stopped. Ward told defendant that defendant's version of the incident did not seem credible to Ward. At that point defendant asked for an attorney and questioning ceased.

  Ward testified that as he was later driving defendant to the courthouse, defendant told him that he did not see the incident as sexual, that it was more like a game. Defendant asked Ward if he could pay the complainant restitution, and keep the matter out of the courts. Ward told defendant he could not, and that since he was arrested, the matter was already in the courts. Defendant also testified at the hearing.*fn6 On April 10, 2004, he was returning from a business meeting in Idaho. Defendant heard an announcement over the public address system that there was a security issue and that passengers were to remain seated when the airplane landed.

  When the aircraft landed, defendant, from his seat near the front of the airplane, watched as an officer boarded the plane and escorted the complainant off of the aircraft. He also noted another officer at the door of the airplane. He testified that he knew then that the security situation mentioned in the public address involved him.

  According to defendant, Lim approached defendant and asked if he was Yochanan Cohen. Defendant answered that he was and Lim motioned with his hand for defendant to follow him. Defendant asked if he could take his luggage, and Lim then looked around and said yes. Lim then took defendant to right near the door of the airplane. Defendant testified that he requested that they move further into the jetway so as not to be in the sightline of any of the passengers. The officers then took defendant a little further into the jetway. Defendant testifies that he remembers seeing several more officers in addition to Lim. He saw some men without uniforms and assumed they were detectives.

  Defendant was approached by a large officer in sunglasses, who asked him what happened on the plane. Defendant asked regarding what, and Alymer, the large officer in sunglasses, told defendant that the woman sitting next to him had complained that defendant had touched her without permission. Defendant said that this was not true, that defendant had permission to touch her. He told Alymer he did nothing wrong. Defendant testified that he still thinks he did nothing wrong. Defendant testified that he and the woman next to him had been touching each other for an hour and half, and had ...

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