United States District Court, W.D. New York
REPORT, RECOMMENDATION AND ORDER
KENNETH SCHROEDER, JR. UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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.
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,
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.
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.
Suppression of Defendant's Statements
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.,
Fare v. Michael C., 442 U.S. 707, 724-25, (1979).
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.
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
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 ...