The opinion of the court was delivered by: William M. Skretny United States District Judge
1. On February 2, 2005, the Grand Jury for the Western District of New York returned a four count Indictment charging Defendants John Wesley DeGounette and Andrew Buxton with various narcotics and gun related offenses. This Court thereafter referred this matter to the Honorable H. Kenneth Schroeder, United States Magistrate Judge, for all pretrial matters pursuant to 28 U.S.C. § 636(b)(1).
2. On April 8, 2005, Defendant Buxton filed a motion seeking, among other things, to suppress statements he made following his arrest at the United States -Canadian border on December 19, 2004. By motion filed on April 20, 2005, Defendant DeGounette joined in Buxton's motion, including his suppression request. Judge Schroeder conducted an evidentiary hearing on the suppression issue on April 21, 2005.
3. By Report, Recommendation and Order entered on January 31, 2006, Judge Schroeder recommended that Defendants' request to suppress their statements be denied.*fn1
4. After numerous extensions, Defendant Buxton filed timely Objections to Judge Schroeder's Report, Recommendation and Order in accordance with 28 U.S.C. § 636(b)(1)(C) and Local Rule 72.3(a)(3), in which Defendant DeGounette later joined.
After full briefing on the Objections, this Court heard oral argument on July 31, 2006, and set a supplemental briefing and argument schedule. After numerous extensions to facilitate plea negotiations, the parties requested that the previously scheduled oral argument appearance be converted to the taking of a plea. However, at the scheduled appearance on December 4, 2006, the plea did not go forward as planned, and this Court set a new supplemental briefing schedule. This Court heard supplemental oral argument on Defendants' Objections on January 25, 2007, and reserved decision at that time.
5. This Court has thoroughly reviewed de novo Judge Schroeder's Report, Recommendation and Order, Defendants' Objections, the arguments of counsel, and the applicable law. Upon due consideration, this Court finds no legal or factual error in Judge Schroeder's Report, Recommendation and Order, except with respect to its failure: (1) to acknowledge that Defendant Buxton refused to talk to Detective Judge after the officer advised him of his Miranda rights; (2) to determine whether Buxton's refusal constituted an invocation of his right to remain silent; (3) if so, to determine whether Buxton thereafter waived that right; and (4) to acknowledge that Defendants' statements while being escorted to the car were in response to Detective Judge's questions and were not "spontaneous."
6. It is well-established that if the government wishes to introduce a statement made by a defendant during a custodial interrogation, it bears the burden of establishing by a preponderance of the evidence that the suspect waived his Miranda rights -- including his right to counsel and his right to remain silent -- and that his statement was "truly the product of free choice." United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). In Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed. 2d 362 (1994), the Supreme Court held that a custodial interrogation must cease when a suspect unambiguously invokes his right to counsel. The question of whether a suspect has invoked his Sixth Amendment right is an objective one: that is, whether the suspect "articulated his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis, 512 U.S. at 459, 114 S.Ct. at 2350.
Several Circuit courts have applied this objective test to determine if a suspect has effectively invoked his right to remain silent. See, e.g., United States v. Banks, 78 F.3d 1190, 1197-98 (7th Cir. 1996) (applying Davis test to determine if the suspect's invocation of his right to remain silent was ambiguous or equivocal), vacated on other grounds, 519 U.S. 990, 117 S.Ct. 478, 136 L.Ed. 2d 373 (1996); Medina v. Singletary, 59 F.3d 1095, 1100 (11th Cir. 1995) (same); see also Burket v. Angelone, 208 F.3d 172, 200 (4th Cir. 2000) (holding that in light of Davis, the trial court's admission of statement following his ambiguous statement invoking the right to remain silent was not contrary to clearly established federal law); Barnes v. Johnson, 160 F.3d 218, 224-25 (5th Cir. 1998) (same), cert. denied, 526 U.S. 1118, 119 S.Ct. 1768, 143 L.Ed. 2d 798 (1999); United States v. Ramirez, 79 F.3d 298, 305 (2d Cir. 1996) (assuming, but not explicitly holding, that Davis applies to invocations to right to remain silent); United States v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995) (citing Davis in its analysis of whether the suspect invoked his right to remain silent).
If a suspect states unequivocally before or during an interrogation that he wishes to remain silent, the officer must cease the interrogation. See, e.g., Campaneria v. Reid, 891 F.2d 1014, 1021 (2d Cir. 1989), cert. denied, 499 U.S. 949, 111 S.Ct. 1419, 113 L.Ed. 2d 471 (1991). Generally, in determining whether a suspect has invoked his right to remain silent, a court must liberally construe his words or actions, taking into account the totality of the circumstances under which they were spoken or made. Bradley v. Meachum, 918 F.2d 338, 342 (2d Cir. 1990); see also Ramirez, 79 F.3d at 304 (2d Cir. 1996) (citing Quinn v. United States, 349 U.S. 155, 162-63, 75 S.Ct. 668, 673, 99 L.Ed. 964 (1955), for the proposition that "[a] suspect need not rely on talismanic phrases or any special combination of words to [effectively] invoke his Fifth Amendment right to remain silent").
Once a suspect has unequivocally invoked his "right to cut off questioning," an interrogator must "scrupulously honor" this request by immediately ceasing questioning. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed. 2d 313 (1975). The Second Circuit has held that if it is unclear whether a suspect wants to end an interrogation, the officers may ask narrow questions for the sole purpose of clarifying the ambiguity. Campaneria, 891 F.2d at 1021 (internal quotation marks omitted). An officer may not, however "persist[ ] in repeated efforts to wear down [the suspect's] resistance and make him change his mind." Mosley, 423 U.S. at 105-06, 96 S.Ct. at 327.
Provided that an officer immediately ceases an interrogation at a suspect's request, questioning can resume under certain circumstances without running afoul of Miranda. See Mosley, 423 U.S. at 101-05, 96 S.Ct. at 325-27 (holding that it was proper to resume questioning of a suspect who had invoked his right to remain silent, where the initial interrogation was immediately ceased upon his request, the suspect was readvised of his Miranda rights, and was questioned by another officer at another location about an unrelated crime after an interval of more than two hours).
In the instant case, the record reflects that on the evening of Defendants' arrest, Detective Judge and Special Agent Lamoureaux entered the holding cell where Defendant Buxton was being held. With Agent Lamoureaux present in the room, Detective Judge identified himself as a police officer and advised Buxton of his rights by reading them from a "Miranda card." (T. at 56-57, 92, 96, 109, 110-11, 115-16).*fn2 After advising Buxton of his rights, Detective Judge asked him if he understood "each of these rights," and Buxton replied "yes." (T. at 58, 116). However, according to Detective Judge's testimony, Buxton declined to answer his questions. At the suppression hearing, Detective Judge testified as follows:
Q: After you finished advising [Mr. Buxton] of these rights, did you speak with [him] . . . specifically about the ...