The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
Charles McFarland has been indicted for possessing a handgun as a convicted felon, see 18 U.S.C. §§ 922(g) and 924(a)(2), and now moves to suppress two statements he made to police officers. See Dkt. No. 11; see also FED. R. CRIM. P. 12(b)(3)(C). His motion is granted and both statements are suppressed because: (1) his first statement was the result of custodial interrogation, and he was not advised of his Miranda rights; and (2) his second statement was the result of custodial interrogation, and it was not preceded by a voluntary waiver of his Miranda rights, nor was it voluntary under the due process clause. To the extent the motion seeks suppression on alternative theories, it is denied because: (1) his first statement was voluntary under the due process clause; and (2) his second statement did not violate the "ask first, Mirandize second" interrogation technique proscribed by Missouri v. Siebert, 452 U.S. 600 (2004).
The essential facts are based on the court's evaluation of the following: the applicable burden of production and proof; the testimony of New York City Police Sargent Daniel Chiarantano, Bureau of Alcohol, Tobacco and Firearms ("ATF") Special Agent Marc Maurino, and New York State Department of Corrections Investigator Chris Martuscello; the suppression hearing exhibits; the parties' submissions; and the resolution of credibility issues. See FED. R. CRIM. P. 12(d); see also United States v. Miller, 382 F. Supp. 2d 350, 361-363 (N.D.N.Y. 2005) (burden of production and proof).
On September 20, 2000, a Smith and Wesson .40 caliber handgun was stolen from Lawrence Grimmer during a residential burglary in Schenectady, New York. Four months later, Domiyon Taylor was arrested for the burglary, and told Schenectady police officers that McFarland took the gun from him during a street encounter. On May 21, 2003 - almost two and one-half years after the burglary - Martin Diggs shot and wounded two New York City police officers. The Smith and Wesson was recovered at the scene.
The following day, Chiarantano was asked to trace the gun's history. With the aid of a telephone, and information from a supervisor and a computer, Chiarantano learned that McFarland had once possessed the gun, that he had recently been arrested, and that he was then incarcerated in the Tombs, a New York City detention facility.
On the evening of May 23, 2003, Chiarantano went to the Tombs to interview McFarland. Beforehand, Chiarantano knew: McFarland was not a suspect in the Diggs shooting because he was in custody on state criminal and parole violation charges at the time; McFarland had a prior felony conviction; and, if McFarland admitted prior possession of the handgun, his admission could result in his prosecution for possession of the handgun, or provide leverage to induce his cooperation. Despite that knowledge, Chiarantano had no interest in prosecuting McFarland. Instead, he was exclusively focused on the police shooting, the history of the handgun, and the potential utility, if any, of McFarland as a witness.
The interview lasted ninety minutes, and occurred in an attorney conference room. McFarland was escorted to the room by a uniformed corrections officer, and his handcuffs were removed. The corrections officer remained outside the door while McFarland, Chiarantano and two other police officers remained inside. The room was adequately lit, McFarland sat at a conference table, Chiarantano led the conversation, and McFarland was cordial throughout. Chiarantano told McFarland that he was conducting a witness interview to trace the history of the Smith and Wesson, and that McFarland was not a suspect. Although Chiarantano knew that McFarland might make incriminating statements, he did not advise McFarland of his Miranda rights. At some point during the ninety minutes, Chiarantano told McFarland that he could stop answering questions at any time, but the government has failed to prove at what point that admonition occurred.
During the interview, McFarland admitted that he took the handgun from Taylor, and identified those who took it from him. Additionally, Chiarantano asked McFarland for information concerning homicides or other violent crimes. Chiarantano routinely asked such questions to gather police intelligence even though he knew those questions might result in incriminating admissions. In response, McFarland disclosed information about a murder by Lamar Reid in the Capitol District area, and provided the name of an Albany Detective that Chiarantano could contact. Seeking a quid pro quo for his disclosures, McFarland asked what Chiarantano would do for him. Chiarantano responded that he would contact the Albany Detective and if McFarland's information proved useful, McFarland's cooperation would be brought to the attention of officials involved in McFarland's current difficulties.
As promised, Chiarantano subsequently called the Albany Police and shared McFarland's homicide information. Two and one-half weeks later on June 12, two Albany Detectives met Chiarantano at the Ulster Correctional Facility where McFarland was then incarcerated. Without Miranda warnings, Chiarantano and the Detectives sought to interview McFarland.*fn1 The conversation lasted twenty minutes, and was terminated when McFarland refused to answer questions. He was upset because his earlier cooperation did not result in his release from jail.
Almost two years later, Maurino was cooperating with the Albany Police Department, and again focused on the earlier McFarland disclosure. Shawndell Smith had been murdered in 2001, and Albany's investigation had stagnated. Lamarr Reid was a suspect, but there was insufficient evidence to arrest or prosecute him. However, the police believed that McFarland's identification of Reid as the murderer was credible. A plan evolved to compel McFarland's cooperation in the homicide investigation by leveraging his prosecution for possession of the Smith and Wesson. Because of uncertainty regarding the admissibility of McFarland's non-Mirandized admission to Chiarantano, Maurino decided to Mirandize McFarland, re-interview him, and surreptitiously record the conversation.
Maurino knew that McFarland had refused to answer the Albany Detectives' questions, and he anticipated that McFarland might again balk if he knew that the investigative focus was to obtain incriminating admissions. Therefore, he planned a ruse. He decided to tell McFarland that he was simply seeking further clarification of details previously disclosed to Chiarantano regarding the Diggs shooting. Before the interview, Maurino learned that McFarland had a prior record, including a 1999 conviction for felony drug possession, a 2001 conviction for the misdemeanor of resisting arrest, and a 2004 conviction for felony weapons possession. He also knew that McFarland had served a prison sentence after his first conviction, and was then serving a second prison sentence as a result of his second felony conviction. Despite his prior criminal record, McFarland had no familiarity with his Miranda rights.*fn2
Before March 2, 2005, Martuscello orchestrated McFarland's move from a prison near Buffalo to the Washington Correctional Facility, a medium security prison near the Capitol District. On March 2, Maurino and Martuscello questioned McFarland in a well lit and otherwise nondescript interview room which was surreptitiously wired beforehand. McFarland was accustomed to state prison regulations, and arrived for the interview in the company of a corrections officer. When the interview ended thirty minutes later, McFarland left unescorted because he had a pass that permitted free movement within the facility. During the interview, McFarland was uncuffed, and he sat across a table from Maurino and Martuscello.
At the outset, Martuscello identified himself as a New York State Inspector General's Office Investigator, and Maurino as an ATF Special Agent. Maurino then used a preprinted card to advise McFarland of his Miranda rights as follows: "You have the right to remain silent. Anything you say can be used against you in court. You have the right to consult with an attorney and to have them (sic.) present during questioning. If you cannot afford an attorney, one will be appointed to represent you prior to questioning." Under a header designated "The Waiver," the card scripted two additional questions as follows: "Do you understand your rights? Are you willing to waive those rights and talk to me?" Maurino did not ask those questions. He did, however, state: "We're in a facility, so I gave you your rights, do you understand that?" McFarland responded: "Yes."
During the suppression hearing, McFarland aggressively cross-examined Maurino regarding Maurino's subjective view as to whether McFarland's answer reflected an understanding that he was in a "facility," or an understanding of his "rights." Maurino's subjective view is irrelevant. Objectively, the court concludes that McFarland's answer was an acknowledgment that he understood his Miranda rights. Given the objective circumstances, McFarland knew he was not required to answer questions. He was previously told as much by Chiarantano and he demonstrated his comprehension when he refused to answer questions during the Albany Detectives' interview. McFarland was accustomed to police confrontations in a prison setting, he clearly had no difficulty in communicating with the police, and he clearly understood his situation. Objectively, his affirmative answer reflected that he understood the first of Maurino's two unasked questions; namely, do you understand your rights? The critical issue, however, is whether his response can be objectively construed as an affirmative answer to the second unasked question; namely, are you willing to waive those rights and talk to me? The court concludes that it cannot. The objective circumstances fail to support the conclusion that McFarland's sole affirmative answer was alone sufficient to constitute a waiver of his Miranda rights.
Next, Maurino began to execute his ruse. He told McFarland that he was engaged in a follow-up for New York City regarding the police shooting, and that he knew McFarland was not implicated in that crime. Maurino then referenced the prior McFarland-Chiarantano conversation, and the fact that McFarland was incarcerated when the police officers were shot. When McFarland disclaimed any knowledge of the police shooting, Maurino assured him that his alibi was solid, and that he was not a suspect in the police shooting. In response, McFarland said: "Then what's this for? I'm being arrested for what?" In turn, Maurino stated: "No. You're not being arrested for anything right now." He then pursued the ruse, and told McFarland that he was simply seeking further details in order to respond to inevitable questions that would arise during the Diggs attempted murder trial. In fact, Diggs had already been convicted, and was serving a state prison sentence. Maurino did not reveal that his true purpose was to gather incriminating admissions that could be used to leverage McFarland on a gun possession charge, and force his cooperation on the Reid homicide.
McFarland next sought to distance himself from his Chiarantano admissions, in essence claiming that he had said nothing, and just wanted the police out of his face. In response, Martuscello joined the conversation and the following exchange occurred:
Martuscello: We know where the gun went to you and then we know where the gun went from you. We're just trying to build that little bit of time line. The reason you were issued your Miranda warnings, even though you in ... you're a New York State inmate, you still have rights, okay? That's why I'm here, to make sure your rights are taken care of.
McFarland: You sure about this?
Martuscello: I'm positive. I work for the Department of Corrections, okay. I work for the Inspector General's Office, Narcotics ... This is what I do every day. I'm a representative of Commissioner Goord. I'm here to ensure that your rights aren't violated. That's why he read you your Miranda, okay. This is ... Nobody is looking to give you any charges. We're looking to build a time line and that's it. This had to do with a cop shooting and you were in jail at the time. You didn't shoot the cop, we know that. All right. I see you're getting a little bit of an attitude over there.
McFarland: I just didn't want to say anything ....
Martuscello: No, I know. I Know. If I were in your shoes I would too, I understand where you're coming from. You already gave some statements to other people. I wasn't there, I wasn't privy to that. Now this is just clean up from whatever you told them, okay. That's what's being discussed here. And that's it, there's nothing more to it, okay. He's the ATF. He don't need me, I'm here because of you. You belong to us whether you think you do or not. That's why I'm here, okay? Just so you understand what's going on.
McFarland: I'm no wise-ass going back to the City. That shit was all ... to me. I didn't have nothing to do with nothing. I know nothing about no cop being shot, none of that shit. You see what I'm saying? I didn't have no gun, none of that shit. You know what I told them ... to tell you the truth, I don't remember. So what's the follow-up? You come to interview me. This is your case.
Maurino then resumed the questioning, summarized McFarland's earlier conversation with Chiarantano, and ultimately asked whether McFarland got the gun from Domyion Taylor. McFarland then directly asked, "Am I going to be charged for having the gun?" Martuscello responded, "No." Maurino added that the conversation was related to the Diggs attempted homicide, and "it's ... not in my interest to charge you for this." McFarland then made admissions regarding his possession of the gun.
After his initial admissions, McFarland again balked at further conversation. The following exchange then occurred:
McFarland: ... I don't want to jam myself up ... like I jammed myself up right there ...
Martuscello: What's your fear?
McFarland: ... having my name labeled as a snitch.... Martuscello: Here's the problem from my standpoint. You're in a medium correctional facility. Okay? ... This is just me being devil's advocate. There's an active investigation going on where members of outside law enforcement placed the weapon that killed a cop in New York City in your hands at some point. Okay? What their trying to do is create a time line ... If I can't figure out how ... [the weapon] ... got from you to the murder, that leaves the Department of Corrections to believe that you were involved in the murder and I need to update you to a maximum security facility because you might now be a murderer.
Thereafter, McFarland made further admissions. At the conclusion of the interview, McFarland again asked if he was being charged, and both ...