The opinion of the court was delivered by: Sand, J.
Defendant Gerard Snipe was indicted for possession of a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1). He moved to suppress two statements that he allegedly made to the police after his arrest, claiming they were obtained in violation of the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966). The Court conducted a suppression hearing on April 9, 2007 and April 26, 2007 where the two arresting officer and two officers from the Gun Enhancement Unit (GEU) testified. The defendant did not testify at the hearing.
Testimony at the Suppression Hearing
Snipe was arrested on September 24, 2006 near Jessup Avenue in the Bronx for possession of a firearm, which the police recovered the same day. The arresting officers, Lieutenant Richard Gibson and Officer Felix Gross, handcuffed Snipe, placed him in the back of their police car and drove him first to his apartment to drop off keys and pick up an asthma pump and then to the stationhouse. The officers did not give Snipe Miranda warnings at any time during the car ride. Both officers testified that, shortly after they placed him in the car, Snipe asked them if they could get rid of the bullets in the gun. (Tr. 52, 79.) According to the officers, this initial statement was not in response to any question posed by either of them. (Tr. 52.) Through his lawyer, Snipe denies making any such statement. (Tr. 6.)
Officer Gross testified that after Snipe made the initial statement about the bullets, he started a conversation with Snipe and asked him several questions about where he got the gun and why he had it. (Tr. 52.) In response to these questions, Snipe told him that "he had problems, he had a beef with someone in the neighborhood, so he was carrying it for his protection." (Tr. 52.)
Lieutenant Gibson testified that when they drove to Snipe's apartment, Officer Gross went inside to drop off Snipe's property leaving Gibson and Snipe in the car alone. (Tr. 79.) While Officer Gross was inside, Lieutenant Gibson testified, Snipe again mentioned getting rid of the bullets. (Tr. 82.) Gibson then asked Snipe a series of questions about where he got the gun and his criminal history. (Tr. 79.) In response, Snipe told him that the streets were bad and that he went to Pennsylvania to get away from some people in his neighborhood. (Tr. 79, 86.) While he was there, he got the gun for protection. (Tr. 79, 86.)
After Officer Gross returned to the car, the police drove Snipe to the 48th Precinct. Officer Gross testified that at 11:35 p.m. he interviewed Snipe in the muster room at the precinct. (Tr. 55.) He testified that he read Snipe Miranda warnings from a pre-printed form and that Snipe indicated that he understood each warning by writing "yes" on the form. (Tr. 55; Gov't Ex. 2.) Next to the last question, "Now that I have advised you of your rights, are you willing to answer questions?" Gross testified that Snipe wrote "No" and declined to make a statement. (Tr. 55; Gov't Ex. 2.) Gross also testified that Snipe wrote his initials at the bottom of the form. (Tr. 56; Gov't Ex. 2.) When Snipe indicated that he did not want to make a statement, Gross took him back to his cell and did not again attempt to obtain a statement from him. (Tr. 56.) Gross testified that Snipe never requested a lawyer. (Tr. 56.)
Later in the evening, Officers Tim Garcia and Frank Vetell of the NYPD's Gun Enhancement Unit arrived at the 48th Precinct. According to Officer Garcia, the basic job of officers with the GEU is to "go out and interview everyone in the city who is arrested with a firearm in an attempt to gain information on where these firearms are coming from." (Tr. 9.) Both arresting officers testified that they spoke with Officers Garcia and Vettel together, (Tr. 72-73, 90), but both GEU officers testified that Garcia spoke with the arresting officers alone while Vettel talked with other officers who were not involved with the case. (Tr. 12, 33.)
The arresting officers both testified that they told the GEU officers about the statements that Snipe made in the car-both that he asked if they could "lose" the bullets and that he told them that he got the gun for protection, that he had problems with people in the neighborhood, and that he had gone to Pennsylvania to get away from these people. (Tr. 73-74, 90-91.) Neither Officer Gross nor Lieutenant Gibson could recall whether they told the GEU officers that Snipe had invoked his right to silence after receiving Miranda warnings. (Tr. 57, 91.) Officer Garcia provided a contradictory account. He testified that the arresting officers only told him about one statement that Snipe made-that he asked them to remove the bullets. (Tr. 13.) Garcia specifically denied that the arresting officers told him about any other statements by Snipe about needing the gun for protection, his conflict with people from the next block, or going to Pennsylvania. (Tr. 19-20.) Garcia also testified that the arresting officers did not tell him that Snipe had received Miranda warnings or that he had refused to make a statement earlier that evening. (Tr. 95.)
After speaking with the arresting officers, at about 12:50 a.m., Garcia and Vettel went to the holding cell and took Snipe to a different room. (Tr. 13.) Garcia took the lead in the interrogation and read Snipe Miranda warnings from a form. (Tr. 13-14.) Garcia testified that as he read Snipe each of the warnings, he asked Snipe if he understood. (Tr. 15.) When Snipe answered "yes," Garcia wrote "yes" on the form. (Tr. 15.) Garcia testified that Snipe then wrote his initials "GS" next to each "yes" and signed the bottom of the form indicating his willingness to answer questions after having been advised of his rights. (Tr. 15; see also Gov't Ex. 1.) Officer Vettel corroborated this account, testifying that he witnessed Snipe write his initials on the form and sign it. (Tr. 34, 39.) Both GEU officers testified that after signing the form waiving his Miranda rights, Snipe made a statement that he was having trouble with some people from the next block, that he moved to Allentown, Pennsylvania to get away from those people, that he bought the gun in Allentown from a crackhead for $50, and that when he came back into town to see his girlfriend he brought the gun for protection. (Tr. 15-16, 34-35.) Garcia testified that when he asked Snipe "if he knew anyone who had other guns," Snipe became annoyed and said "I don't want to talk to you anymore." (Tr. 16.) At that point, Garcia testified, the officers terminated the interview and placed Snipe back in the holding cell. (Tr. 16.)
Through his lawyer and by affirmation, Snipe maintains that he did not make any statements to the police at the precinct after receiving Miranda warnings. (Def.'s Mem. in Support at 10; Snipe Aff. ¶¶ 3-4.) He maintains that the only statements he made were in the car. (Def.'s Mem. in Support at 10; Snipe Aff. ¶¶ 3-4.)
Snipe argues that the Court should suppress the arresting officers' testimony that Snipe asked them to get rid of the bullets. Snipe does not argue that the statement was coerced or that he made it in a custodial setting in response to police interrogation; rather he argues that he did not make the statement at all. When a defendant volunteers a statement before being subjected to any custodial interrogation, that statement is admissible. Miranda, 384 U.S. at 478 ("Volunteered statements of any kind are not barred by the Fifth Amendment."); see also Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990). Both arresting officers testified consistently that Snipe's request that they get rid of the bullets was spontaneous and not in response to any questions posed by them. The defendant offers no evidence to the contrary, he merely represents through counsel that the statement was not made. The Court finds the arresting officers' ...