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United States v. Kerr

November 25, 2009

UNITED STATES OF AMERICA,
v.
DESMOND KERR, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this criminal proceeding against Desmond Kerr ("Defendant") for possession with intent to distribute 3,4 methylenedioxymethamphetamine ("MDMA"), a Schedule I controlled substance, in the form of tablets represented to be "ecstasy," in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(C), are two pretrial motions filed by Defendant (Dkts 26 and 29). The Government has opposed Defendant's motions. For the reasons set forth below, Defendant's motions are denied.

I. RELEVANT BACKGROUND

Defendant Kerr has filed the following two motions: (1) a motion to suppress statements made by him after he was arrested, pursuant to Fed. R. Crim. P. 12(b)(3) and 41 (Dkt 26); and (2) a motion to dismiss the indictment, pursuant to Fed. R. Crim. P. 12(b) (Dkt 29).

II. DISCUSSION OF DEFENDANT'S MOTION TO SUPPRESS STATEMENTS

A. Governing Legal Standard

As indicated above in Part I of this Decision and Order, Defendant Kerr has requested that the Court suppress statements made by him after he was arrested, pursuant to Fed. R. Crim. P. 12(b)(3) and 41. More specifically, Defendant Kerr argues that statements that he made after he was arrested, while he was being transported from the Port of Entry in Alexandria Bay, New York to the Onondaga County Jail in Syracuse, New York, should be suppressed because "[t]he long hours between his detention [at Alexandria Bay] and his being lodged in the Onondaga County Jail overbore his will to remain silent." (Dkt. No. 26, Part 2.) The Government has opposed this motion.

When an individual is in custody, that individual is entitled to a reading of his Miranda rights. In addition, in Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that, after an individual is Mirandized, "[i]f [an] interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda, at 475. The Court further held that "[a]n express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver." Id. However, "a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained." Id.

"Although the Court held that an express statement can constitute a waiver, and that silence alone cannot, the 'court did not hold that such an express statement is indispensable to a finding of waiver.'" U.S. v. Copeland, 830 F. Supp. 216, 218 (S.D.N.Y. 1993) (quoting North Carolina v. Butler, 441 U.S. 369, 372 [1979]). "An express written or oral statement of waiver of the right to remain silent or right to counsel is not inevitably either necessary or sufficient to establish waiver." Copeland, 830 F. Supp. at 218 (citation omitted). "The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case." Id. (citations omitted).

"Statements may be voluntary if[, after being read his Miranda rights,] the accused initiates further communications, exchanges, or conversations with the questioners." Id. at 218-19 (citing Edwards v. Arizona, 451 U.S. 477, 485 [1981]) (other citation omitted). In addition, "[w]here a suspect affirmatively volunteers statements, and is in control of choices made, there is no compulsion as that term is used in the Fifth Amendment, nor are the objectives of the Amendment or its implementation through Miranda offended." Id. at 219 (citations omitted)

B. Relevant Facts

Because this Decision and Order is issued primarily for review of the parties, and because the parties have demonstrated (in their briefs) an accurate understanding of the relevant facts (which were also discussed at the Pretrial Conference on October 21, 2009 and the Suppression Hearing on October 27, 2009), the Court will not provide a description of the relevant facts, but will assume the parties' familiarity with them. As a result, the Court will refer to the facts in its analysis of Defendants' motions only when necessary.

C. Analysis

As an initial matter, the Court finds, based on the credible testimony from the hearing held on October 27, 2009, that Defendant Kerr was properly advised of his rights under Miranda when he was formally arrested at approximately 11:20 a.m. on February 14, 2009. In addition, the Court finds, based on the credible testimony by Agent Jason Egerbrecht at the hearing, that Defendant Kerr knowingly, voluntarily, and intelligently waived his Miranda rights when he initiated a conversation with Agent Egerbrecht, Agent Sean Boutot, and Agent Mike Ball, while these three agents were transporting Defendant to the Onondaga County Jail, stating, among ...


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