The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #6.
The defendant, Malik Samuel, is charged in a two-count Indictment with having violated Title 18, United States Code, Sections 922(g)(1) and 924(a)(2) (Count 1) and the defendant also faces a forfeiture count (Count 2) pursuant to Title 18, United States Code, Sections 924(d) and 3665, and Title 28, United States Code, Section 2461(c). Dkt. #1.
As a threshold matter, the Court notes that the trial of this matter was scheduled to begin on June 22, 2010 before United States District Judge Richard J. Arcara. Following the final pretrial conference held on June 21, 2010, Judge Arcara referred this matter to the undersigned for the limited purpose of hearing and reporting upon a discrete issue raised by the defendant in his motion in limine. More specifically, presently pending before this Court is that portion of the defendant's motion in limine seeking to preclude the government from offering at trial any alleged statements made by the defendant to law enforcement after the defendant had invoked his right to remain silent. Dkt. #46, pp.1-4. This Court directed the government to file its response to the instant motion in limine no later than 5:00 p.m. on June 28, 2010. Dkt. #47. Consistent with this Court's June 21, 2010 Order, the government filed its response on June 28, 2010. Dkt. #48. In addition, the Court directed the parties to stipulate to a set of facts not in dispute for purposes of oral argument on the instant motion. On June 28, 2010, the government provided defense counsel with a proposed stipulation of facts. On July 1, 2010, the government filed a Memorandum (Dkt. #49), wherein it advised the Court, inter alia, that as of July 1, 2010 at 4:00 p.m., defense counsel had not responded to the proposed stipulation. Although the defendant was provided with the opportunity to file reply papers by June 30, 2010, the defendant elected not to file any reply papers. Oral argument on defendant's motion was held on July 2, 2010. For the following reasons, it is recommended that defendant's motion in limine to suppress statements made by him to law enforcement after he invoked his right to remain silent be granted.
This Court had previously issued its Report, Recommendation and Order with respect to defendant's motion to suppress physical evidence, statements made by the defendant and "audiotape evidence" (Dkt. ##4 and 11). Dkt. #22. As set forth in this Court's previous Report, Recommendation and Order, the defendant sought to suppress his statements on the grounds that the pursuit of the defendant by Buffalo Police Department officers was "unlawful" and accordingly, any evidence recovered and any statements made by the defendant, after the pursuit began was "fruit of the poisonous tree" and must be suppressed. See Dkt. ## 4, 11 and 22. For the first time in his motion in limine, the defendant argues that his statements made to law enforcement must be suppressed because the statements were obtained in violation of his Fifth Amendment rights. More specifically, after having been placed under arrest and read his Miranda warnings, the defendant, without equivocation, stated "I plead the fifth. I just did six years. I know whats up." Dkt. #8-2, p.5. Thereafter, the defendant was subjected to further custodial interrogation and made statements. As will be discussed in greater detail below, the defendant argues that any attempt to use those statements made by him after he unequivocally invoked his right to remain silent would be a violation of his Fifth Amendment rights.
On February 8, 2009, Buffalo Police Department officers, responding to a call concerning shots fired, observed the defendant operating a vehicle at a high rate of speed and "fleeing from the location of the shooting." Dkt. #8, p.2. The Buffalo Police Department officers pursued the defendant's vehicle to the intersection of Bailey and Walden Avenues where it had momentarily stopped. Id. As Buffalo Police Department Lieutenant Kwiatkowski approached the defendant's vehicle, he observed what appeared to be a handgun in the defendant's right hand. Id. The defendant then drove off at a high rate of speed, nearly striking Buffalo Police Department Officer Cieply's patrol car. Id. (The defendant was subsequently issued a speeding ticket for traveling 75 miles per hour in a 30 miles per hour zone. Dkt. #8-2, p.4.) While the Buffalo Police Department officers continued to pursue the defendant's vehicle, Lieutenant Kwiatkowski and Lieutenant Bartoszewicz observed the defendant reach out the window of his vehicle and throw the handgun over the top of the vehicle with his left hand, nearly striking Lieutenant Bartoszewicz's patrol car. Dkt. #8, p.2. The defendant continued driving at a high rate of speed, but eventually stopped at 97 Gatchell Road, Buffalo, New York where he was arrested. Id. Buffalo Police Department Officer Crowley recovered the loaded weapon with one spent round in the area where the officers had observed the defendant throw it from the vehicle. Id. The defendant was arrested at 97 Gatchell Road and given Miranda warnings by Buffalo Police Department Officer Alvarez. In response, the defendant voluntarily stated, "I plead the fifth, I just did six years, I know whats up." Id.
Thereafter, between approximately thirty and forty-five minutes after his arrest, the defendant was transported to the C-District police station. Dkt. #48, p.3. While at the police station, Lieutenant Kwiatkowski asked the defendant, "when was the last time you were arrested?" The defendant replied, "I did six years for a gun." Id.
Lieutenant Kwiatkowski then asked the defendant the following series of questions and the defendant provided the following responses:
Lt. Kwiatkowski: I saw that other car chasing you. What was going on?
Defendant: We were coming from ...