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United States v. Cooper

United States District Court, W.D. New York

September 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DEONTE COOPER, Defendant.

          REPORT, RECOMMENDATION AND ORDER

          H. KENNETH SCHROEDER, JR. UNITED STATES MAGISTRATE JUDGE

         This case was referred to the undersigned by the Hon. Elizabeth A. Wolford, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions.

         PRELIMINARY STATEMENT

         The defendant, Deonte Cooper (“the defendant”), is charged, along with other co-defendants, with having violated Title 18 U.S.C. § 371 (Conspiracy to Commit Firearms Offenses). Dkt. #31. He filed a motion seeking to suppress the use of statements allegedly made by him to law enforcement personnel and evidence seized pursuant to a state search warrant for his residence. Dkt. #69. The government filed its opposition to this motion. Dkt. #74. Thereafter, an evidentiary hearing was held by this Court relating to the claims raised by the defendant in his motion to suppress, and a transcript of that hearing was filed on July 31, 2019. Dkt. #107. At the hearing, the government called Detective Michael Palinkas of the Ashtabula, Ohio Police Force and Special Agent Elizabeth Gardner of the Bureau of Alcohol, Tobacco, Firearms and Explosives as witnesses and also offered a No. of exhibits which were received in evidence. The defendant did not call any witnesses and did not testify at this hearing. A post-hearing memorandum of law in support of the defendant's motion to suppress was filed on August 29, 2019 (Dkt. #115) and the government filed its memorandum in opposition on August 31, 2019 (Dkt. #116). The matter was then taken under advisement by this Court.

         FACTS[1]

         In April of 2018, a joint task force, consisting of state and federal law enforcement officers, became aware of multiple sales of firearms to a large No. of people residing in the Ashtabula, Ohio area. T. 64. An investigation of this gun trafficking in the Ashtabula, Ohio area was undertaken, and an additional component of narcotic trafficking was added to that investigation. T. 6-7, 59. The residence of the defendant, 6259 Runkle Avenue, Ashtabula, Ohio was identified as a place where narcotics were being distributed. T. 9-10.

         On May 30, 2018, a surveillance of 6259 Runkle Avenue was conducted, and during the course of that surveillance, it was determined that there was “traffic coming in and out of that house” which resulted in making “several stops of those individuals” who had been observed entering and leaving the premises at 6259 Runkle Avenue that day. T. 74. One of the individuals stopped in this “interdiction” was Derek Welch who was taken to Ashtabula Police Headquarters and interrogated by Detective Palinkas because fentanyl had been found on his person after leaving 6259 Runkle on May 30, 2018. T. 11-12. Welch told Detective Palinkas that he had gone to 6259 Runkle Avenue that day for the purpose of purchasing fentanyl from a person he knew as “Terry” who was later identified as the defendant. Welch told Detective Palinkas that he had been at 6259 Runkle Avenue “approximately twenty (20) times” in 2018 for the purpose of purchasing heroin. Government Exhibit 1, p. 6, ¶ 25. Welch also showed Detective Palinkas the record of his cell phone communications with the defendant that were on his cell phone, including the arrangement for the purchase of fentanyl from the defendant on May 30, 2018. T. 12, 46, 60-61. As a result of this information obtained from Welch and the information developed by the joint task force in April and May of 2018 relating to gun and narcotic trafficking, Detective Palinkas submitted his sworn affidavit to Laura Digiacomo, Judge, Ashtabula Municipal Court in support of his application seeking a search warrant for the premises located at 6259 Runkle Avenue, Ashtabula, Ohio. T. 12-13, Government Exhibit 1. As part of his affidavit, Detective Palinkas stated, based on the aforesaid investigation, that he believed there was probable cause that narcotics “and any items associated with the trafficking of narcotics, ” including “firearms and other prohibited weapons” would be found at 6259 Runkle Avenue. Government Exhibit 1, pp. 6-7.

         Judge Digiacomo issued a search warrant on May 30, 2018 authorizing the search of 6259 Runkle Avenue, Ashtabula, Ohio and the seizure of drug trafficking evidence found in that premises after finding that probable cause for the issuance of a search warrant had been established in the May 30, 2018 affidavit of Detective Palinkas, which affidavit she expressly “annexed, incorporated and adopted” in the search warrant “as if the [affidavit] were fully written [in the search warrant].” Government Exhibit 1, p. 1.

         A Search of the premises at 6259 Runkle Avenue was conducted on May 30, 2018 by joint task force officers which resulted in the finding and seizure of marijuana, two bags of white powder, fentanyl, drug paraphernalia, ammunition, a rifle and U.S currency. T. 19-20, 29-30, 52-53.

         The defendant was arrested and interrogated by Special Agent Gardner. Before conducting the actual interrogation of the defendant, Special Agent Gardner utilized an “ATF form” (Government Exhibit 5) by reading the “Statement of Rights” stated in that form to the defendant. T. 64-65, 66-67. After Special Agent Gardner finished reading the “statement of rights” to the defendant, she asked him if he understood his rights which the defendant acknowledged he did. She then asked the defendant if he wished to waive those rights which the defendant indicated he did and thereupon signed the “waiver” of rights (Government Exhibit 5). T. 64-65, 67-68, 71. Special Agent Gardner then signed the form as a witness. T. 65. The interview and interrogation of the defendant by Special Agent Gardner was video and audio recorded on May 30, 2018. Government Exhibit 6.

         DISCUSSION AND ANALYSIS

         1. Suppression of Defendant's Statements

         In his affidavit filed in support of his motion to suppress the use of his statements given to law enforcement officers after being arrested, the defendant asserts that “at the time that [he] made the statements, [he] was not represented by an attorney” and that he “did not voluntarily make these statements.” Dkt. #79, p. 1, ¶ 2.

Miranda further recognized that after the required warnings are given the accused, “[i]f the 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.” 384 U.S., at 475, 86 S.Ct., at 1628. We noted in North Carolina v. Butler, 441 U.S., at 373, 99 S.Ct., at 1757, that the question whether the accused waived his rights “is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.” Thus, the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel. Miranda v. Arizona, 384 U.S., at 475-477, 86 S.Ct., at 1628-1629.

Fare v. Michael C., 442 U.S. 707, 724-25, (1979).

         The United States Supreme Court has expressly stated:

Echoing the standard first articulated in Johnson v Jerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 58 S.Ct. 1019, 146 ALR 357 (1938), Miranda holds that “[t]he defendant may waive effectuation” of the rights conveyed in the warnings “provided the waiver is made voluntarily, knowingly and intelligently.” 384 US, at 444, 475, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10 Ohio Misc. 9, 36 Ohio Ops 2d 237, 10 ALF.3d 974. The inquiry has two distinct dimensions. Edwards v. Arizona, supra, at 482, 68 L.Ed.2d 378, 101 S.Ct. 1880; Brewer v Williams, 430 U.S. 387, 404, 51 L.Ed.2d 424, 97 S.Ct. 1232 (1977). First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Fare v Michael C., 442 U.S. 707, 725, 61 Ed 2d 197, 99 S.Ct. 2560 (1979). See also North Carolina v Butler, 441 U.S. 369, 374-375, 60 L.Ed.2d 286, 99 s Ct 1755 (1979).

Moran v. Burbine, 475 U.S. 412, 421 (1986); see also United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995).

         In making a determination as to whether a defendant's confession or statements given were voluntarily given, the Court of Appeals for the Second Circuit has set forth guidelines to be utilized in that decision-making process of applying “the totality of the circumstances test.”

In applying the totality of the circumstances test, those factors that a court should consider to determine whether an accused's confession is voluntary center around three sets of circumstances: (1) the characteristics of the accused, (2) the conditions of interrogation, and (3) the conduct of law enforcement officials. The relevant characteristics of the individual who confessed are the individual's experience and background, together with the suspect's youth and lack of education or intelligence. See Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047; Guarno, 819 F.2d at 30. The second circumstance, the conditions under which a suspect is questioned, includes the place where an interrogation is held, Mincey, 437 U.S. at 398, 98 S.Ct. at 2416 (“It is hard to imagine a situation less conducive to the exercise of ‘a rational intellect and a free will' than [interrogation in a hospital's intensive care unit].”); see also Bram, 168 U.S. at 563, 18 S.Ct. at 194, and the length of detention, Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047. The presence or absence of counsel is a significant condition because counsel can “assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process.” Miranda, 384 U.S. at 469, 86 S.Ct. At 1625.
The final and most critical circumstance for purposes of this appeal is the law enforcement officers' conduct. Facts bearing on that conduct include the repeated and prolonged nature of the questioning or the failure to inform the accused of his constitutional rights, Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047; whether there was physical mistreatment such as beatings, see Brown v. Mississippi,297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); or long restraint in handcuffs, and whether other physical deprivations occurred such as depriving an accused of food, water or sleep, see Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047; or even of clothing, see Bram, 168 U.S. at 561, 18 S.Ct. at 194 (suspect was taken to police detective's office and there “he was stripped of his clothing”) for a ...

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