The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
Defendant Parvinder Dosanjh is charged in an indictment filed March 12, 2008 with conspiracy to distribute narcotics in violation of 21 U.S.C. § 846, conspiracy to import narcotics in violation of 21 U.S.C. § 963, and conspiracy to launder money in violation of 18 U.S.C. § 1956. Defendant moves to suppress statements that she made to federal agents after receiving Miranda warnings. I held an evidentiary hearing on the motion on November 6, 2008. For the reasons discussed below, the motion is denied.
On April 8, 2008, around 7:30 p.m., federal agents arrested Defendant on the sidewalk outside her apartment in Santa Monica, California. The agents approached Defendant as she was walking with her boyfriend, Matthew Muzio, from the apartment to a nearby alley where his car was parked. The couple was about to drive to a restaurant for dinner. Defendant, who had smoked a marijuana cigarette before leaving, wore high heels and an evening dress, a "very high" miniskirt. (Tr. 7:17-8:13; 22:15-17; 77:19-79:10; 105:7-106:9.).
The agents told Defendant that they were executing an arrest warrant issued by this Court, the United States District Court for the Southern District of New York, pursuant to the indictment identified above. They separated Defendant and Muzio, placing them about 15 feet apart. I.R.S. Special Agent Philip Cousin asked Defendant if she remembered him from his interview of her in 2005 as part of a drug trafficking investigation. She said that she did not. Cousin then told Defendant that she was being placed under arrest, showed her a copy of the arrest warrant, and explained the charges against her. (Tr. 11:20-12:17; 78:19-79:10; 105:7-18.).
Defendant testified that she promptly asked for a lawyer, even before hearing Miranda warnings. Muzio testified that he shouted to Defendant not to speak to the agents without a lawyer. However, Cousin and Deputy U.S. Marshal Paul Kracht testified that they did not hear either statement, thus disputing Defendant's and Muzio's assertions. (Tr. 15:19-16:5; 61:17-62:3; 79:11-80:15; 97:8-99:4; 106:13-107:23.).
What is clear is that Defendant wanted very much to change into more comfortable and appropriate clothes for her detention, and asked Cousin to take her back to her apartment for that purpose. She testified, "I told the officer that I had no idea what he was talking about and that I wanted to see a lawyer and I wanted to go change my attire." (Tr. 79:12-15.). Cousin agreed to allow Defendant to return to the apartment to change at least her shoes. He began to recite the Miranda rights to Defendant, but she asked him not to do so on the sidewalk. As she testified, "I was quite nervous about the fact of what was going on and I didn't want my neighbors to know, so I told him when we get to the apartment let's make it happen over there." Kracht also testified that Defendant wanted to continue the arrest nearer to her apartment because she felt embarrassed. (Tr. 12:18-13:12; 59:17-60:19; 79:11-81:6.).
Cousin, Kracht, and Defendant climbed an open-air stairwell to Defendant's second-floor apartment. Standing outside her door, Cousin recited the Miranda rights to Defendant. He testified that he "asked her if she understood them and she said yes," and Kracht testified that she said "something to the effect of that's fine, I understand." (Tr. 17:5-22; 60:20-61:2; 81:9-82:2; 95:10-96:2.). Defendant went inside to change, sat at the kitchen table with the two agents, and consented to a search of the apartment. The agents moved her handcuffs from behind her body to the front, and other agents, all male, entered the apartment. (Tr. 34:7-8; 65:18-66:18.).
At first, Cousin sat at the table across from Defendant and suggested that she remove her jewelry before leaving with the agents for detention. (Tr. 18:10-18.). He then engaged Defendant in conversation. He commented that she was in serious trouble. He said that the agents knew that she had retrieved large bags of marijuana at the U.S.-Canada border, that she delivered those bags to others in exchange for bags of money, that she delivered the bags of money to different people, and that she apparently was involved in an organization that carried out these activities. (Tr. 84:12-85:16.). As Cousin testified, "I did tell her that I felt she was involved in marijuana distribution" and that her activities had hurt people. (Tr. 47:10-24.). Defendant testified that Cousin's tone and body language were aggressive, though she did not feel physically threatened. Cousin testified that he was standing "most of the time" while speaking to Defendant, and Kracht testified that Cousin "leaned down" to ask her questions, but Cousin denied that he had spoken or had acted aggressively. (Tr. 43:9-16; 63:4-6.).
Cousin testified that Defendant, in response to his comments and questions, said that she had picked up "large duffel bags" of marijuana at the Canadian border "a number of times," that the marijuana was used for medical purposes, and "that she didn't think it was so bad because it was only weed," which is "like a gift from God [and] not such a bad thing." He testified that Defendant said that she also picked up "knapsacks or gym bags," which she assumed were filled with money to buy more marijuana, and that she did not know from whom she retrieved the bags or to whom she delivered them. Cousin further testified that Defendant said, "I don't work for those people anymore," and, "I know it was illegal but I really didn't think it was a big deal, it's just marijuana." (Tr. 18:19-21:18; 40:16-43:17; 47:10-24; 82:15-85:17; 88:20-90:24; 97:8.).
After her conversation with Cousin, Defendant consented to agents searching her cell phone or BlackBerry, and asked to speak to Muzio to tell him to call a lawyer for her. Cousin asked no more questions and made no more comments. He escorted Defendant, who had changed into a blazer and pants, back to the street. About 20 minutes had passed since they had entered her apartment. (Tr. 21:19-23:1; 108:4-9.).
In Miranda v. Arizona, the Supreme Court held that "the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." 384 U.S. 436, 473-74 (1966). Because of these pressures, the Court held that "the prosecution may not use statements . . . stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination" guaranteed by the Fifth Amendment to the U.S. Constitution. Id. at 444. These safeguards are established if the police administer Miranda warnings that inform the suspect of his constitutional rights, and the suspect "waive[s] effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently." Id.
"To prove a valid waiver, the government must show (1) that the relinquishment of the defendant's rights was voluntary, and (2) that the defendant had a full awareness of the right being waived and of the consequences of waiving that right." United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995) (per curiam) (citing Moran v. Burbine, 475 U.S. 412 (1986)). The Government must prove a valid waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986). Accordingly, "courts must presume that a defendant ...