The opinion of the court was delivered by: Dora L. Irizarry United States District Judge
Defendant Jerry Benoit is charged with unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). Before the court is defendant's motion to suppress several pre and post-arrest statements. For the reasons set forth below, defendant's motion to suppress is denied.
The court held a hearing on April 3, 2006, at which the government presented one witness, Police Officer Joseph Collora, a twelve-year veteran of the New York City Police Department assigned to the Anti-Crime Unit of the 77th Precinct in Brooklyn, N.Y. (Hr'g Tr. at 3--4.) The court finds P.O. Collora's testimony credible.
On or about June 23, 2005, the 77th precinct received a report of shots fired in the St. Marks Avenue area of Brooklyn. About two days later, P.O. Collora and his partner, dressed in plain clothes and displaying their shields on chains around their necks, drove to the area to investigate. (Hr'g Tr. at 4--5, 16.) When they arrived, they observed the defendant and another man on the sidewalk. As the officers approached them, P.O. Collora observed the defendant bend down. P.O. Collora's partner heard a gun "click or clang" against the sidewalk. (Id. at 5.) When P.O. Collora directed his flashlight to the ground, he observed a silver firearm on the sidewalk near the defendant.
(Id. at 4--5.) P.O. Collora immediately arrested the defendant and his companion. Both were transported to the 77th Precinct. (Id. at 6.)
Once at the precinct, defendant was placed in a cell and remained there between the hours of 1:00 and 7:00 a.m. and slept through most of the night. At approximately 1:10 a.m., the defendant indicated he wanted to speak to P.O. Collora and made several statements (collectively, "Pre-Miranda Statements"): "The gun was there, it was not his, it was somebody else's. He also stated . . . that he only had picked up the gun once."*fn1 (Hr'g Tr. at 9.) After defendant made these statements, and at various times during the 1:00 a.m. to 7:00 a.m. period, P.O. Collora removed the defendant from his cell to take him to the bathroom and fingerprint him and questioned defendant regarding his pedigree information. (Id. at 6--9, 22.)
At approximately 7:00 a.m., defendant was taken to an office where he was handcuffed to a chair. No one other than the defendant, Detective Siegel, and P.O. Collora was present. P.O. Collora testified that Detective Siegel advised defendant of his Miranda rights at that time. (Hr'g Tr. at 9--10, 25--26.) After indicating orally and in writing that he understood his rights,*fn2 defendant stated that he was not going to turn anyone in, and that he wanted to be returned to his cell (collectively, "Post-Miranda Statements").*fn3 (Id. at 11, 13.) Defendant's statements were not reduced to writing. (Id. at 30.) P.O. Collora testified that the defendant did not appear to be under the influence of drugs or alcohol and was never asked about his level of education nor about whether he suffered from cognitive difficulties. (Id. at 12, 26.) At the time he questioned the defendant, P.O. Collora knew defendant had open criminal cases in Connecticut and New York but never asked whether defendant was represented by counsel in either case. (Id. at 26--27.)
At the hearing, the government introduced certificates of the defendant's two previous felony convictions in the state of Connecticut, one for attempted robbery in the first degree and related charges, and another for possession of drugs. (Hr'g Tr. at 14--15.)
A. Pre-Miranda Statements
Defendant moves to suppress his Pre-Miranda Statements because he claims he never made any such statements.*fn4 (Hr'g Tr. at 45.) In support of his motion, defendant points to the "screening sheet" completed by the District Attorney's Office ("D.A.'s Office"). (Id. at 45.) P.O. Collora testified that he never told the D.A.'s Office about defendant's Pre-Miranda Statements, and thus the "screening sheet" apparently fails to include them. Based upon this omission, defense counsel urges the court to discount as incredible P.O. Collora's testimony that defendant made the Pre-Miranda Statements. (Id.)
At the hearing, P.O. Collora testified that, in sum and substance, defendant made the following unprompted statements while still in his cell: that the gun had been there, it did not belong to the defendant, and defendant had picked up the gun once. (Hr'g Tr. at 8--9.) Although P.O. Collora failed to notify the D.A.'s Office about these Pre-Miranda Statements, he memorialized them in his memo book shortly after defendant made them. (Id. at 24.) The court finds this testimony credible.
Pursuant to Miranda v. Arizona, "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Safeguards include advising a defendant of Miranda warnings when he is ...