Opinion
4:00CR3091
May 3, 2001
MEMORANDUM AND ORDER ON THE DEFENDANTS' OBJECTION TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter is before me on the defendants' objection to the report and recommendation of the magistrate judge regarding their motion to suppress, filing 30. Pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4, I have conducted a de novo review of the portions of the report and recommendation to which objection has been made. I have done so by studying the defendants' and the government's briefs, the complete transcript of the suppression hearing of March 5, 2001, and the exhibits admitted into evidence at that hearing. I find that the portion of the report and recommendation regarding Gregory Syslo should be adopted, but that the defendants' objection to the portion of the report and recommendation regarding Dennell Syslo must be sustained in part. The defendants' motion to suppress (filing 16) must therefore be granted as to a portion of Dennell Syslo's statement which shall be identified with particularity below.
The case arises out of a burglary at the NBC Bank in Lincoln, Nebraska, that occurred on July 4, 2000. An investigation of this burglary eventually led to the questioning of the defendants, Gregory Syslo and Dennell Syslo, at the Lincoln Police Department station on November 1, 2000. The defendants seek to suppress incriminating statements made by them during this questioning. A more detailed summary of the background facts appears in the magistrate judge's report and recommendation.
I. ANALYSIS A. Dennell Syslo
I have carefully reviewed the magistrate judge's entire report and recommendation (filing 27), and I must respectfully disagree with his conclusion that the entirety of Dennell Syslo's statement to the police was not obtained as a result of coercion. (Report, Order, and Recommendation at 13-14).
As the magistrate judge correctly stated, the government must show by a preponderance of the evidence that the defendant voluntarily relinquished her rights under Miranda v. Arizona, 384 U.S. 436 (1966), that she was fully aware of the nature of the rights being waived, and that she was aware the consequences of waiving those rights. Moran v. Burbine, 475 U.S. 412, 421 (1986); Colorado v. Connelly, 479 U.S. 157, 168-69 (1986). In order for a waiver of Miranda rights to be deemed voluntary, it must be "the product of free and deliberate choice rather than intimidation, coercion, or deception." Id. In United States v. Lynumn, 372 U.S. 528, 534 (1963), a confession was found to have been coerced and the defendant's will overborne by the police when the confession was made in response to a threat that the defendant would lose state financial aid for her two children and that her children would be taken from her if she did not cooperate. It has since been recognized that merely implying that a mother and her child will be separated supports a finding that the defendant did not voluntarily waive his right to remain silent.United States v. Griffin, 572 F. Supp. 126, 128 (D.D.C. 1983).
Although Lynumn was not concerned with the voluntariness of aMiranda waiver per se, but rather the voluntariness of a confession under the Fourteenth Amendment, "[t]here is obviously no reason to require more in the way of a 'voluntariness' inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context." Colorado v. Connelly, 479 U.S. 157, 168-69 (1986).
There is no dispute that Dennell Syslo was in the custody of the police at the time she executed her Miranda waiver form. While in police custody and just prior to executing the form, Dennell Syslo claims that she was told by Investigator Hruza that if Dennell did not cooperate and make a statement, she would be sent to jail and her children would not be going home with her. (Hr'g Tr. at 153:13-156:4.) Investigator Hruza denies making such a statement, at least at that time. (Hr'g Tr. at 113:13-114:13.) It is unclear whether the magistrate judge found that such a threat was actually made, but he did find that at the conclusion of Dennell Syslo's statement, Investigator Hruza allowed Dennell "to go home as she promised." (Report, Order, and Recommendation at 13 n. 4.) I find that, regardless of whether Dennell was threatened prior to executing the Miranda waiver form, there is no evidence that Dennell's will was overborne by such a threat. United States v. Lynumn, 372 U.S. at 534 ("We have said that the question in each case is whether the defendant's will was overborne at the time he confessed."). Indeed, Dennell Syslo herself did not testify that her will was overborne by the threat she claims occurred, but only that her execution of the Miranda waiver form 'had something to do' with the alleged threat and was a mere "formality." (Hr'g Tr. at 155:10-156:1; 154:19-25.) In the absence of any evidence to the contrary, I find that the government has satisfied its burden of establishing that Dennell Syslo's will was not overborne when she executed the Miranda waiver form, and that Dennell voluntarily waived her Miranda rights.
On the other hand, the portion of Dennell Syslo's statement beginning at page 33, line 1703, and continuing through its conclusion was obtained through coercive tactics that overbore the will of Mrs. Syslo and must be suppressed. United States v. Lynumn, 372 U.S. at 534. The notion that the children were being kept at the police station in order to assist the police in coercing a statement from Dennell is supported by Investigator Hruza's testimony that, although Dennell Syslo's mother-in-law was to be contacted on Dennell's behalf and informed that Dennell, Gregory, and the children were all at the police station, it was not a part of this arrangement to allow the mother-in-law to take the children from the station as Dennell desired. (Hr'g Tr. at 118:15-119:20.) Most importantly, the following excerpts from the transcript of Dennell Syslo's statement reveal the coercive force applied by the police and the effect of this coercion upon Dennell's will:
Inv. Hruza: Why would he lie?
Ms. Syslo's first name is misspelled in the transcript of her statement. I have corrected the error in the material excerpted here. Otherwise, the quoted material is presented as it appears in the transcript.
Inv. Hruza: Because you don't know what he's told us for sure and you're trying to protect yourself cause you know right now you're sitting on the line whether you go to jail or you walk out of here with your kids?
Dennell Syslo: So why would I lie to you and jeopardize not being with my kids?
Inv. Hruza: Because you don't know what I know and I keep finding out more every time I go out. Make a decision.
. . .
Dennell Syslo: I don't wanna go to jail for what he did.
Inv. Hruza: You know something.
Dennell Syslo: I don't I didn't do it.
Inv. Hruza: You know I don't want to take you away from your kids and put you in jail okay but I need you to be truthful and not hold back from me anymore.
Dennell Syslo: I didn't do it, I didn't do it and I don't want to go to jail because [he did something.]
. . .
Inv. Hruza: . . . you know it doesn't make a different, not a darn bit of difference whether it was 20,000 you counted or 90,000 you counted the ticket's still the same. If ya lie about it that makes the difference.
Dennell Syslo: I
Inv. Hruza: Tell the truth please. You are sitting on a fine line and your head, I can see your head clickin' right now, do I, don't I, do I, don't I, am I gonna go to jail is she telling me the truth, what do I do, what do I do?
Dennell Syslo: How do I know that . . .
Inv. Hruza: I am . . .
Dennell Syslo: I can trust you?
Inv. Hruza: Because . . .
Dennell Syslo: That you're not gonna turn around what I'm telling you?
Inv. Hruza: Because first of all we're on tape and I'm telling you, you tell the truth I'm not gonna take you to jail. You may get a ticket, you are probably going to get a ticket, okay but I won't take you to jail. If you lie to me and keep lying to me you are most likely going to go to jail, that's on tape okay?
Dennell Syslo: All right. . . .
Inv. Hruza: I need you to tell me the truth. Get off the fence and tell the truth.
. . .
Inv. Hruza: He's told the truth . . .
Dennell Syslo: But,
Inv. Hruza: You ought to know that by what I am telling you right now. You know that came out of his mouth.
Dennell Syslo: Oh, god.
Inv. Hruza: You can go over there and sit in the jail with him or you can go home with your kids.
Dennell Syslo: I want to go home. I didn't go with him. I didn't do it. I didn't go with him. (Inaudible). I didn't want him to do it. I didn't ask him to do it.
Inv. Hruza: Tell me how he did it.
(Ex. 11 at 32:1699-33:1711; 34:1791-1802; 35:1859-36:1889; 37:1937-1953.)
The government argues that United States v. Casal, 915 F.2d 1225 (8th Cir. 1990), is controlling on this issue. In Casal, the defendant argued that the police used the presence of his girlfriend as a "bargaining chip" in order to coerce a confession. Id. at 1228. However, since the girlfriend was probably present at the station for a legitimate police purpose, such as protection or questioning, and since the girlfriend was not recruited to persuade the defendant to confess, the court rejected the defendant's argument. Id. at 1228-29. Also, the court expressly found that the police did not make any threats to the defendant concerning his girlfriend. Id. at 1229. In the present case, not only were express threats made to Dennell Syslo concerning her children, but there is no evidence of any legitimate purpose supporting the children's detention at the police station when Dennell sought to have her mother-in-law remove them prior to the interrogation. Instead, it seems to me that the children were kept at the station in order to assist the officers in coercing a confession from Dennell Syslo.
Dennell Syslo was placed in a police dominated atmosphere and expressly threatened that, unless she "told the truth," she would not be allowed to leave the station with her children. Dennell was confonted by several officers in her home and was taken to the police station in a police vehicle after one officer helped her dress the children for the trip. The hearing testimony reflects that the Syslo children were upset upon arriving at the police station and had to be comforted for a period of time before they were left in the officer's lounge under the supervision of a member of the victim witness unit. The fact that Dennell Syslo was aware that her three-year-old son was upset by the day's events is reflected in Exhibit 5. After her children were placed in a nearby room with a stranger, Dennell was not allowed to contact a relative to come and retrieve the children. Dennell was also asked to write two notes to her husband, both of which were designed to conveyed to him the fact that the children were being held at the police station along with her. Although there is evidence that Mrs. Syslo is educated, there is no indication that she has had any previous exposure to police interrogation. The latter pages of the transcript of Dennell Syslo's statement present a dialogue between a distressed mother who wanted to leave the police station with her children and a police officer who repeatedly played upon this distress by making threats. I find that the government has failed to establish that the portion of Dennell's statement beginning at page 33, line 1703, and continuing through its conclusion was not obtained through coercive tactics that overbore the will of Mrs. Syslo, and therefore that portion of the statement must be suppressed. United States v. Lynumn, 372 U.S. at 534.
B. Gregory Syslo
As to defendant Gregory Syslo, Magistrate Judge Piester has correctly found the facts and applied the law, and I find that the portion of the report and recommendation regarding Gregory Syslo should be adopted. The defendants' motion to suppress (filing 16) therefore must be denied in part. Although I am not required to do so, I shall write briefly to respond directly to two of the defendants' objections that I feel merit additional comment.
First, the defendants claim that the magistrate judge's determination that Gregory Syslo voluntarily, knowingly and intelligently waived hisMiranda rights was erroneous. It is argued that Mr. Syslo was not fully aware of the consequences of waiving his rights because he was unaware that he was going to be "interrogated" when he executed the Miranda waiver form provided by the police. (Br. of Defs.' in Supp. of Objection to the Magistrate Judge's Report and Recommendation at 8.) The defendants argue that when he executed the Miranda waiver, Mr. Syslo was only asked to fill out a handwriting exemplar document (see Hr'g Tr. at 183:6-11), and that filling out a handwriting exemplar does not amount to an interrogation. Initially, although I do not decide whether a request for a handwriting exemplar made by police investigators involved in a forgery case generally amounts to an "interrogation," it seems to me that such a request does indeed fit within the definition of "interrogation" supplied by the defendants. In addition, and perhaps more importantly, I find that at the time he executed the Miranda waiver, Mr. Syslo was informed that he was going to be questioned regarding the forgery case associated with the handwriting exemplar, and therefore his waiver was knowing and intelligent for the reasons stated by the magistrate judge. (See Hr'g Tr. at 62:16-21.) This finding is also supported by the fact that questioning regarding the forgery case did occur following Investigator Clark's interrogation regarding the NBC bank burglary. (See, e.g., Id. at 78:12-20.) The magistrate judge properly relied upon Colorado v. Spring, 479 U.S. 564 (1987) and McKee v. Nix, 995 F.2d 833 (8th Cir. 1993), and correctly determined that Gregory Syslo knowingly, intelligently, and voluntarily waived his Miranda rights.
The defendants cite the following definition of interrogation: "'Interrogation' is 'express questioning,' or words or actions 'that the police should know are reasonably likely to elicit an incriminating response." United States v. Turner, 157 F.3d 552, 556 (8th Cir. 1998) (quoting United States v. Hatten, 68 F.3d 257, 262 (8th Cir. 1995). The court in Turner was concerned with distinguishing volunteered statements from those obtained as a result of police interrogation. Since Mr. Syslo did not "volunteer" the handwriting exemplar discussed in the present case, but rather provided it in response to a request from the police, it should not be surprising that the defendants' proffered definition is of little assistance to their argument.
Secondly, the defendants argue that Mr. Syslo's confession was involuntary and the result of coercion in part because his will was overborne by the threat of dire consequences to his wife and children. Mr. Syslo alleges that an investigator said, "You better tell me everything or you and your wife will go to jail and your kids will go to a foster home." (Report, Order, and Recommendation at 4.) The defendants argue that this statement must have occurred because nothing else would explain Mr. Syslo's insistence upon seeing proof that Dennell Syslo and the children were actually present at the police station. However, Gregory Syslo himself explained his insistence thusly:
Which is why, you know the reason, the reason I want, the reason that I needed this picture to know Dennell I [sic] was here because you guys wouldn't prove this without a confession. I'm sorry. You wouldn't. If it was not for a confession you could not have proved this. There were no fingerprints. There's no evidence left.
Though the word "I" appears here in the transcript of Gregory Syslo's interview (Ex. 4), my review of Exhibit 3 reveals that this word was not uttered by the defendant.
(Ex. 4 at 6:302-306.) It seems to me that the notes from Dennell and the photo of the children were provided to Gregory Syslo at his request to prove that his wife and children were at the station, not to overbear his will and pressure him to confess. Also, it is not the case, as the defendant argues, that the only reason Gregory Syslo wanted proof of his family's presence was related to a threat that "you and your wife will go to jail and your kids will go to a foster home." Instead, it appears that Mr. Syslo may have wanted proof of his family's presence in order to evaluate the investigators' claim that Dennell was telling them the truth about the burglary. The magistrate judge therefore correctly determined that the aforementioned threat was not made to Gregory Syslo, and that his confession was voluntary and not coerced. I find this to be true despite the fact that I have found that a similar threat was made to Dennell Syslo, both prior to and during her interrogation. Moreover, even if such a threat were made to Gregory Syslo, it seems clear that Mr. Syslo's will was not overborne by the threat. The statement quoted above, along with other evidence before me, suggests that Gregory Syslo decided to confess when he came to believe that Dennell Syslo was truly at the police station and had already implicated him, not after he was overborne by threats regarding his family. United States v. Lynumn, 372 U.S. at 534.
The defendants' remaining arguments regarding the statement of Gregory Syslo are addressed within the report and recommendation of the magistrate judge, which I adopt in all respects as it relates to Gregory Syslo.
IT IS ORDERED that:
The defendants' objection to the magistrate judge's Report, Order, and Recommendation denying the defendants' motions to suppress, filing 30, is sustained in part as explained above.
The defendants' motion to suppress, filing 16, is granted in part as explained above. The portion of the statement of Dennell Syslo beginning on page 33, line 1703 and continuing through the end of the statement shall not be admitted into evidence.
The magistrate judge's Report, Order, and Recommendation, filing 27, is otherwise adopted.