Opinion
No. 06 CR 468 (SAS).
September 21, 2006
Rua Kelly, Assistant United States Attorney, New York, New York, for the Government.
Richard Boulware, Esq., Federal Defenders of New York, Inc., New York, New York, for Defendant.
OPINION AND ORDER
Jeffrey Mattiex moves to suppress statements he made in connection with an incident at the Veterans Affairs Medical Center (the "VA Hospital") on May 22, 2006. Mattiex also seeks the dismissal of the indictment on the ground that a VA police officer deliberately destroyed allegedly exculpatory evidence consisting of certain videotape. Both motions are denied for the reasons set forth below. I. BACKGROUND
Mr. Mattiex is seeking to suppress two series of statements. The first series occurred upon Mr. Mattiex's [detention] and in response to statements by VA officers and the second series occurred after Mr. Mattiex had been arrested and placed in a jail cell." Jeffrey Mattiex's Post-Hearing Reply Memorandum in Support of His Motion to Suppress Evidence Based Upon an Illegal Interrogation and Seizure and His Motion to Dismiss for the Deliberate Destruction of Evidence ("Reply") at 3. To clarify, the first series consists of statements made while Mattiex was in custody but before he was arrested. Statements in the second series were made by Mattiex after he was arrested and after he allegedly waived his Miranda rights. The parties are preparing a stipulated set of facts to avoid re-opening the hearing with respect to the circumstances surrounding the issue of whether Mattiex was advised of his Miranda rights.
Defendant did not testify at the suppression hearing. However, his two-page Affidavit does not conflict with any of the testimony of the witnesses who did testify. See 8/7/06 Affidavit of Jeffrey Mattiex. As there is no conflicting evidence, I generally accept the evidence submitted by the Government's witnesses as true.
A. The Incident
In March of 2006, Detective Armando Rivera, a detective with the VA police, placed a flag in Mattiex's computer file because the police wished to question him in connection with an identity theft case. On May 22, 2006, after seeing the flag, a VA Hospital employee notified James Thurston, a Sergeant with the VA police department, that Mattiex was on the premises. Sergeant Thurston informed Rivera and the two men approached Mattiex in the VA Hospital's benefits eligibility area. Upon their encounter, Rivera told Mattiex that there was a problem registering his benefits and that Mattiex must accompany them to straighten it out. Mattiex was also told that he must contact his parole officer. Mattiex, who appeared calm at the time, went with Rivera and Thurston to a nearby police interview room which also housed a holding cell.
See Transcript of 8/8/06 Suppression Hearing ("Tr.") at 12.
See id. at 74.
See id. at 14, 48, 77-78.
See id. at 18, 78.
See id. at 21-22.
See id. at 14, 78-79.
Once inside the room, Rivera instructed Mattiex to take a seat, which he did. While Mattiex was seated, Rivera told him that there were problems with his benefits and questions about his state parole and, consequently, Mattiex "was going to have to stay" until these matters were straightened out. Rivera then informed Mattiex that he would have to go into the holding cell. Upon hearing this, Mattiex became irate and started cursing: "What the fuck do you want; you'd better get the rest of your fucking guys here; I'm not going to fucking jail." Although Rivera asked Mattiex to calm down, Mattiex kept repeating "I'm not going to jail, I'm not going to fucking jail." By now, Mattiex's tone of voice and body language became aggressive.
See id. at 80, 82. At Mattiex's suppression hearing, Rivera testified that he did not tell Mattiex that he was free to leave. See id. at 54. In fact, Mattiex was not free to leave until he finished answering Rivera's questions. See id. at 55.
Id. at 81.
See id. at 82, 84.
Id. at 22.
Id. at 24.
See id. at 23, 81-82.
While Mattiex remained seated, Thurston grabbed his right arm to escort him into the holding cell but Mattiex stood up and began pushing and shoving Thurston. After Mattiex pulled free from Thurston's grip, Thurston reached around Mattiex's body from behind and grabbed his left arm. Mattiex continued to struggle and resist, pushing against both Thurston and Rivera. Rivera then grabbed Mattiex's right arm with his left hand. With his police radio in his right hand, Rivera repeatedly called for assistance from other officers. As the struggle continued, Rivera swept one of Mattiex's legs out from under him, causing all three men to fall to the ground. Shortly thereafter, Officer Eddie Lewis entered the room and tackled all three by jumping on Mattiex's back. Sergeant Martin O'Reilly entered next and added his weight in an attempt to subdue Mattiex. Mattiex was eventually subdued, handcuffed, and placed inside the holding cell, where he remained for several hours.
See id. at 82, 85. "The testimony of Sgt. Thurston — testimony that is completely consistent with Mr. Mattiex's affidavit — established that Mr. Mattiex was first ordered into the cell and then physically grabbed before he offered any physical resistance." Reply at 9-10 (emphasis in original).
See Tr. at 86.
See id.
See id. at 27.
See id.
See id. at 28-29.
See id. at 115.
See id. at 125.
See id. at 111, 118-19.
After his arrest, Mattiex was advised of his Miranda rights which he allegedly waived by signing an Advice of Rights form. Indicating that he understood his Miranda rights, Mattiex allegedly made statements to the effect: (1) that he knew there was an active warrant for his arrest; and (2) that he "fucked up" after Rivera indicated to him that he had not reviewed Mattiex's rap sheet for warrants.
See Complaint 06 MAG 734 ¶ 6.
See id. Presumably, Mattiex "fucked up" by conceding the existence of an active warrant when Rivera had no knowledge of the warrant.
B. The Videotape
At the hearing, both Rivera and O'Reilly testified that a video camera is positioned in the police interview room to record activity within the holding cell. The camera, which records the holding cell and a small area in front of the holding cell, was fully operational on May 22, 2006. The videotaped recordings of this camera are automatically saved for twelve days if no steps are taken to preserve the recordings. However, Rivera and O'Reilly have been trained in how to retrieve and safeguard videotaped recordings made within the VA Hospital, including those made within the police interview room.
See Tr. at 31, 127-28.
See id. at 38, 40.
See id. at 40-41.
See id. at 40, 134-35.
Rivera further testified that he viewed the videotape of the day of the incident but that "[t]he only thing that would have been [sic] recorded was Mr. Mattiex entering the holding cell." According to Rivera, the videotape did not capture any aspect of the physical altercation involving Mattiex. Although Rivera recognized the importance of preserving relevant evidence, he deliberately decided not to preserve the videotape in question. Furthermore, Rivera conceded that he did not show the videotape to anyone else, nor did he inform anyone of his decision permitting the destruction of the videotape.
Id. at 41-42.
See id. at 43. All four officers testified that the struggle with Mattiex was confined to that portion of the room closest to the door and the computer desk, see id. at 31-32, 94, 113, 127, while Rivera and O'Reilly testified that the video camera did not capture the area where any of the officers had struggled with Mattiex. See id. at 31, 127-28.
See id. at 44.
See id. at 43.
II. LEGAL STANDARDS
A. Fourth Amendment Protections
The Fourth Amendment to the United States Constitution states: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. . . ." "As our [ Fourth Amendment] cases make clear, there are three levels of interaction between agents of the government and private citizens" with each level requiring a different degree of justification. First, the police may initiate a voluntary encounter with an individual and ask questions so long as the person is willing to listen. Such an encounter does not constitute a seizure and therefore does not require any justification nor "trigger Fourth Amendment scrutiny unless it loses its consensual nature." Second, a police officer may briefly detain a person as part of an investigation if he has "a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if the officer lacks probable cause." Third, the police may arrest an individual if they have probable cause to believe that he has committed a felony or a criminal offense in the police officer's presence. A consensual encounter ripens into a seizure, whether an investigative detention or an arrest, when a reasonable person under all the circumstances would believe that he was not free to leave. "The test is an objective one based on how a reasonable innocent person would view the encounter."
U.S. Const. amend. IV.
United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995).
See Brown v. City of Oneonta, N.Y., 221 F.3d 329, 340 (2d Cir. 2000).
Florida v. Bostick, 501 U.S. 429, 434 (1991).
United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
See Atwater v. City of Lago Vista, 532 U.S. 318, 340-41 (2001).
See United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992).
Id. (citations omitted).
B. Reasonable Suspicion
An investigative detention, or so-called Terry stop, is constitutional if supported "by a reasonable and articulable suspicion that the person seized is engaged in criminal activity." Under Terry and its progeny," a law enforcement officer who can point to `specific and articulable facts which, taken together with rational inferences from those facts,' would `warrant a man of reasonable caution in the belief' that a brief investigative stop is appropriate, may make such a stop on less than probable cause to arrest." While such a detention does not require probable cause, it does require something more than an "inchoate and unparticularized suspicion or `hunch.'"
Reid v. Georgia, 448 U.S. 438, 440 (1980) (per curiam) (citing, inter alia, Terry, 392 U.S. at 16-19).
United States v. Jaramillo, 25 F.3d 1146, 1150 (2d Cir. 1994) (quoting Terry, 392 U.S. at 21-22).
Terry, 392 U.S. at 27.
C. Custodial Interrogation
To preserve the Fifth Amendment right against self-incrimination, the Supreme Court has held that the police may not interrogate a suspect who has been taken into custody without first warning that person "that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed form him prior to any questioning if he so desires." If a suspect is not so warned, the Government is barred from using any statements obtained during the interrogation in establishing its case in chief.
Miranda v. Arizona, 384 U.S. 436, 479 (1966).
See Michigan v. Harvey, 494 U.S. 344, 350 (1990); United States v. Newton, 369 F.3d 659, 668 (2d Cir. 2004).
Thus, Miranda rights are triggered whenever there is custodial interrogation. With regard to custody, "[c]ourts must examine all of the circumstances surrounding the interrogation and determine how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action." In determining whether a suspect is in custody, courts must consider, under the circumstances, whether "a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave."
Yarborough v. Alvarado, 541 U.S. 652, 663 (2004) (quotation marks and citation omitted).
Id. (quotation marks and citation omitted).
In assessing whether interrogation took place, courts `} should consider the totality of the circumstances of the police officers' conduct. The act of interrogation encompasses "express questioning or its functional equivalent." Interrogation, which need not be conducted with formal questions, occurs whenever a law enforcement agent's statement is "reasonably likely to elicit an incriminating response."
See United States v. Cota, 953 F.2d 753, 758 (2d Cir. 1992). However, the "[p]olice cannot be faulted for the unforeseeable results of their words or actions." United States v. Reyes, 353 F.3d 148, 154 (2d Cir. 2003).
Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).
Id. at 302. See, e.g., United States v. Montana, 958 F.2d 516, 518 (2d Cir. 1992) (by informing defendants that any cooperation would be brought to the prosecutor's attention, police officers engaged in the functional equivalent of interrogation).
D. Probable Cause and Fruit of the Poisonous Tree
"Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been committed by the person to be arrested." Where an arrest is illegal, i.e., not supported by probable cause, evidence obtained as a result of that arrest may be suppressed as "fruit of the poisonous tree."
United States v. Gagnon, 373 F.3d 230, 234 (2d Cir. 2004) (quotation marks and citation omitted).
See United States v. Bailey, 691 F.2d 1009, 1013 (11th Cir. 1983) ("When evidence is seized during a search of the person after an illegal arrest, it will be suppressed as the tainted product of the unlawful police action, unless the prosecution carries its burden of showing that the taint has been purged.").
However, lack of probable cause for an initial arrest does not necessarily invalidate the constitutionality of a subsequent arrest. "Notwithstanding a strong causal connection in fact between lawless police conduct and a defendant's response, if the defendant's response is itself a new, distinct crime, then the police constitutionally may arrest the defendant for that crime." This rule has been applied to resisting arrest cases.
Id. at 1016-17. See also United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997); United States v. Garcia-Jordan, 860 F.2d 159, 161 (5th Cir. 1988) ("[W]here a defendant's response to an illegal stop or arrest is itself a new, distinct crime, the police can ordinarily conduct a legal arrest and search in connection with the new crime.").
See, e.g., United States v. Sledge, No. 06-1480, 2006 WL 2561235, at *3 (8th Cir. Sept. 7, 2006) ("In our circuit, resistance to an illegal arrest can furnish grounds for a second, legitimate arrest."); United States v. Schmidt, 403 F.3d 1009, 1016 (8th Cir. 2005) (same); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001) ("The absence of probable cause does not grant an individual the right to offer resistance.").
"There is a strong policy reason for holding that a new and distinct crime, even if triggered by an illegal [stop], is a sufficient intervening event to provide independent grounds for arrest." As recognized by the Bailey court, "[a] contrary rule would virtually immunize a defendant from prosecution for all crimes he might commit that have a sufficient causal connection to the police misconduct." Furthermore, "[w]hen a defendant commits a new and distinct crime during an unlawful detention, the Fourth Amendment's exclusionary rule does not bar evidence of the new crime."
Sprinkle, 106 F.3d at 619.
Bailey, 691 F.2d at 1017.
Sledge, 2006 WL 2561235, at *3.
E. Destruction of Evidence
The Government's loss or destruction of material evidence may deprive an individual of his right to a fair trial. Where such a claim is raised, courts must look to the nature of the evidence and the prejudicial effect of its loss or destruction. Where the destruction of evidence is deliberate, "sanctions will normally follow . . . unless the Government can bear the heavy burden of demonstrating that no prejudice resulted to the defendant."
See United States v. Bakhtiar, 994 F.2d 970, 975-76 (2d Cir. 1993).
See id.
United States v. Bufalino, 576 F.2d 446, 449 (2d Cir. 1978).
III. DISCUSSION
A. Reasonable Suspicion
The Government asserts that the VA officers had reasonable suspicion to stop Mattiex. I agree. Before the stop, Rivera was investigating Mattiex for stealing the identity of "Michael A. Dougans." Moreover, Rivera was aware that Mattiex's parole officer was trying to locate him. Accordingly, Rivera clearly had reasonable suspicion when he initially stopped Mattiex.
See Government's Post-Hearing Memorandum of Law in Opposition to Defendant's Motion to Suppress Evidence ("Gov't Mem.") at 10.
See Tr. at 10.
See id. at 13.
B. Custodial Interrogation
The Government concedes that Mattiex was in custody while he was talking to the VA officers in the interview room. The Government contends, however, that Mattiex was never questioned and that his initial statements were voluntary and spontaneous, not the product of interrogation. Defendant disagrees, arguing that Rivera's statements to Mattiex "fall squarely within the definition of interrogation for Miranda purposes." According to defendant, Rivera's statement to Mattiex — that he would have to remain in custody until the VA resolved the problem with his benefits — virtually compelled a response given its implicit threat of continuing detention. But the Government correctly points out that the "threat" of placing a defendant in custody is insufficient as a matter of law to transform an otherwise neutral statement into the functional equivalent of interrogation. Interrogation, rather, "must reflect a measure of compulsion above and beyond that inherent in custody itself." In sum, although Mattiex was in custody while he was in the interview room, he was not subject to interrogation or its functional equivalent. Accordingly, defendant's first set of statements cannot be suppressed on the ground that Mattiex was improperly interrogated without first having been informed of his Miranda rights.
See Gov't Mem. at 13.
See id.
Defendant Jeffrey Mattiex's Post-Hearing Memorandum in Support of His Motion to Suppress Evidence Based Upon an Illegal Interrogation and Seizure and His Motion to Dismiss for the Deliberate Destruction of Evidence ("Def. Mem.") at 9.
See id. at 9-10.
See Gov't Mem. at 13.
Innis, 446 U.S. at 300.
C. Arrest Without Probable Cause
Mattiex argues that at the moment the VA officers physically grabbed him and tried to place him inside the holding cell, the officers did not have probable cause to arrest, as required by the Fourth Amendment. However, as Bailey and its progeny made clear, once Mattiex engaged in assaultive behavior toward the officers, there was probable cause to arrest him for resisting arrest. Thus, although Mattiex's initial arrest may have been without probable cause, Mattiex subsequently supplied the requisite probable cause by engaging in the separate and distinct crime of resisting arrest. Defendant's argument to the contrary, therefore, does not support the suppression of his second set of statements. Thus, there is no basis on which to suppress either defendant's first or second set of statements.
See Def. Mem. at 10, 12 ("Mr. Mattiex was seized the moment the officers grabbed him while he was seated and attempted to place him in the holding cell.). See also Reply at 8.
D. Destruction of Evidence
Finally, defendant's motion to dismiss the indictment based on the deliberate destruction of evidence must also be denied. As noted above, Rivera testified that the videotape in issue did not capture any of the activity within the police interview room involving the altercation between Mattiex and the VA officers. Given the configuration of the room, I find this testimony to be credible. Because the videotape was not material evidence, its deliberate destruction does not justify dismissal of the indictment.
IV. CONCLUSION
For the foregoing reasons, defendant's motion to suppress both sets of statements and his motion to dismiss the indictment are denied. Defendant is granted leave to file a supplemental motion to suppress his second set of statements based on Miranda, if he so chooses. The Clerk of the Court is directed to close these motions (Document # 7). A status conference is scheduled for October 5, 2006, at 3:00 p.m.
SO ORDERED.