The opinion of the court was delivered by: Matsumoto, United States District Judge:
On September 20, 2012, defendant Shabani Khamisi Jabu, a native Swahili-speaker from Tanzania, moved to suppress certain custodial post-arrest statements made by him, arguing that he was never advised of his Miranda rights in a fashion that he could fully understand because he does not speak English. (ECF No. 12, Notice of Motion dated 9/20/12.) The government opposed the motion, and a suppression hearing was held on October 19, 2012 regarding the circumstances under which Mr. Jabu made the challenged post-arrest statements to law enforcement. (Docket entry dated 10/19/12.)
Additionally, in accordance with the court's order at the October 19, 2012 suppression hearing, on October 22, 2012, the government confirmed that a certain Homeland Security "checklist" document, discussed in detail below, was discarded by the government's witness, Special Agent Carlos Soto. (ECF No. 20, Gov't Ltr dated 10/22/12.) The record for the suppression hearing was deemed closed, given that defendant did not request it to remain open, and the motion is ripe for decision.
For the following reasons, after hearing the testimony of Special Agent Carlos Soto, which the court finds to be credible in all respects, and reviewing the parties' respective submissions and exhibits admitted into evidence at the suppression hearing, the court finds that Mr. Jabu knowingly, intelligently, and voluntarily waived his Miranda rights. The challenged post-arrest statements are thus admissible and Mr. Jabu's motion to suppress is denied.
Although the testimony at the suppression hearing did not address the events precipitating Mr. Jabu's arrest at JFK Airport, the court heard from Special Agent Carlos Soto ("Agent Soto") from the Department of Homeland Security, Homeland Security Investigations. (Tr. at 4-5.) Agent Soto testified under oath that at approximately 5:30 p.m. on June 17, 2012, he was alerted by Customs and Border Protection ("CBP") Officer Massimo to Mr. Jabu's presence in a holding area of Terminal One of JFK Airport. (Id. at 6-7, 25-26, 64.) Mr. Jabu had been arrested by CBP Officers on June 17, 2012 at JFK airport after a flight arriving from Paris, France. (Id. at 6-8.)
Agent Soto testified that he was lead case agent responsible for conducting the interview of Mr. Jabu. (Id. at 9.)
He testified that he and his partner, Special Agent John LaBatt (together, the "HSI Agents"), arrived at the area in which Mr. Jabu was detained, which was Terminal One of JFK airport, at approximately 5:50 p.m. on June 17, 2012. (Id. at 9, 26.)
Upon arrival, Agent Soto first spoke to CBP Officer Massimo and asked if Mr. Jabu spoke English, and Officer Massimo responded "yes." (Id. at 7-8, 64.) Agent Soto testified that he asked this question to ascertain if an interpreter was required in order to interview Mr. Jabu, in accordance with HSI Department standard practices. (Id. at 8-10.) Agent Soto also testified to the methods he would have used to secure an interpreter's services had he believed one was necessary, and the fact that Agent Soto had previously used interpreters to interview non-English speaking individuals. (Id. at 10, 50-51.) Agent Soto himself speaks English and a little Spanish. (Id. at 22.)
Agent Soto then testified that at approximately 6:00 p.m., he and Agent LaBatt entered the holding area to meet Mr. Jabu. (Id. at 9, 26.) According to Agent Soto, Mr. Jabu was alone in the holding area, seated and handcuffed to a bench on which he sat. (Id. at 9, 26-27.) The parties do not dispute that Mr. Jabu was in custody at this point. Agent Soto testified that he first asked Mr. Jabu if he spoke English, and Mr. Jabu responded "yes," in English. (Id. at 9-10.) Agent Soto then introduced himself and Agent LaBatt to Mr. Jabu. (Id. at 10-11.)
Agent Soto testified that he then commenced reading Mr. Jabu his Miranda rights, in English, from a card supplied by the Department of Homeland Security. (Id. at 11-13.) Although Agent Soto had misplaced the original Miranda warnings card he used with Mr. Jabu by the time of the suppression hearing, he testified that Government Exhibit 4 was an accurate copy of the original warnings and Government Exhibit 4 was admitted into evidence. (Id.)
According to Agent Soto, whom the court found entirely credible, Agent Soto believed that Mr. Jabu understood his Miranda rights and waived them knowingly and voluntarily. (Id. at 16.) Agent Soto testified that at the start of the interview when the Miranda warnings were first being read, Mr. Jabu asked Agent Soto in English to slow down his speech, and Agent Soto did so. (Id. at 19, 50.) Agent Soto further testified that in response to being asked whether he understood the Miranda warnings that Agent Soto had just read to him in English, Mr. Jabu nodded his head in an up-and-down manner, which Agent Soto understood to be an affirmative response. (Id. at 14-15.) Additionally, when next asked whether he was willing to waive his rights and speak with Agent Soto outside the presence of an attorney, Mr. Jabu answered "yes," in English. (Id. at 14, 16.) Based on these responses and Mr. Jabu's generally alert, responsive demeanor, Agent Soto believed that Mr. Jabu understood the Miranda warnings and related questions. (Id. at 16-17, 19-20.) Agent Soto further testified that Mr. Jabu did not ask for the Miranda warnings to be repeated and that Mr. Jabu did not ask any other questions or otherwise indicate that he did not understand what was being said to him. (Id. at 17, 19.) After the warnings, Mr. Jabu was seated quietly and remained compliant with Agent Soto. (Id. at 17-18.)
Agent Soto additionally testified that, pursuant to the training he received from the Department of Homeland Security, the interviewing agent has discretion whether to have a defendant sign a written Miranda waiver form. (Id. at 18, 39- 40.) Agent Soto stated that he did not ask Mr. Jabu to sign a Miranda waiver form because Agent Soto did not have such a waiver form available at the time of Mr. Jabu's interview and because it is not Agent Soto's practice to use the waiver form for every interview. (Id. at 18.) Agent Soto also stated that has begun to carry the waiver form in the last few months, which he produced during the hearing and was admitted as Defense Exhibit A. (Id. at 36-39.)
According to Agent Soto, after Mr. Jabu appeared to indicate his knowing waiver of his Miranda rights, Agents Soto and LaBatt spent approximately 15-20 minutes interviewing Mr. Jabu in English. (Id. at 18, 31.) Some of the questions Agent Soto asked of Mr. Jabu could be answered with a "yes" or "no" response, but others were open-ended, in the sense that they required substantive explanations or responses. (Id. at 18-19.) Agent Soto testified that Mr. Jabu appeared to fully understand the questions posed to him and that the answers Mr. Jabu gave in English were both ...