Opinion
01 Cr. 848 (SWK)
October 7, 2002
OPINION AND ORDER
Defendant Jose Luis Perez moves to suppress certain statements he made to officers during his arrest on August 31, 2001. For the reasons set forth below, the Court grants Perez's motion and orders the suppression of any statements he made on that day following his assertion of his right to counsel.
I. BACKGROUND
Previously, Perez moved for the suppression of evidence seized from his home and statements he made on several different occasions. The Court originally held a suppression hearing as to that motion on February 28, 2002. In an order dated August 6, 2002, the Court denied Perez's motions. See United States v. Perez, No. 01 Cr. 848 (SWK), 2002 WIL 1835601 (S.D.N.Y. Aug. 8, 2002)
At that prior suppression hearing, Investigator William Kelly of the New York State Police Department and a member of the Drug Enforcement Administration ("DEA") Task Force testified as to the circumstances surrounding the investigation and eventual arrest of Perez. However, several months after that hearing and the Court's Order denying Perez's motion to suppress, Investigator Kelly came forth with his notes regarding the arrest and several other encounters with Perez. At the top of the first page of his notes, Investigator Kelly wrote that Perez asked to speak to his lawyer prior to discussing possible cooperation with the Government. Although the Government had an obligation under 18 U.S.C. § 3500 to disclose Investigator Kelly's notes to defense counsel prior to the suppression hearing, these notes were not disclosed until August 14, 2002. Therefore, Perez's counsel did not have an opportunity to question Kelly about the statements contained within those notes at the first suppression hearing. The Court then granted Perez's motion to reopen the suppression hearing for the limited purpose of determininq whether, and at what point, he asked for a lawyer during his August 31, 2001 arrest.
II. FACTS
The circumstances of Perez's arrest on August 31, 2001 were set forth in great detail in the Court's August 6, 2002 Order. Only those facts relevant to the instant motion will be outlined below.
At the suppression hearing held on February 28, 2002, Investigator Kelly testified about statements made by Perez during his arrest. Kelly, an investigator with over 20 years experience with the New York State Police and 12 years of experience with the DEA Task Force, stated that he arrested Perez on the afternoon of August 31, 2001, and read Perez hisMiranda rights. See Feb. 28, 2002 Tr. at 3. Subsequently, he asked Perez if he wanted to talk to him, and Perez replied that he was not sure what he could talk about, that "[h]e didn't know what was going on." Feb. 28, 2002 Tr. at 5. Investigator Kelly reiterated to Perez that he was under arrest and informed him that he was being charged with conspiracy to distribute cocaine. See Feb. 28, 2002 Tr. at 5. He further testified that he informed Perez that there were certain things he could do to "help himself." Feb. 28, 2002 Tr. at 5. As his testimony continued, Kelly related many things Perez said that day and the discussion they had regarding consent to search his home and Perez's refusal to sign a consent to search form. See Feb. 28, 2002 Tr. at 5-6. Perez's prior counsel, David Goldstein, Esq., did not ask Investigator Kelly any questions regarding statements his client may have made during his arrest.
At the October 2, 2002 hearing, Investigator Kelly testified that during the arrest Perez requested an opportunity to speak with his counsel regarding possible cooperation with the Government. See Oct. 2, 2002 Tr. at 4. According to Investigator Kelly, this request came "after the other statements" Perez made that day. Oct. 2, 2002 Tr. at 4. However, upon cross-examination, Investigator Kelly admitted that he did not precisely recall when Perez requested to speak with his attorney. See Oct. 2, 2002 Tr. at 25.
The relevant testimony is as follows:
Q: So the first thing you recalled was that he asked for an attorney?
A: Well, I didn't say I put them down in order. I said I put them down when I recalled them. Now, it's possible I recalled everything on this first page. But I had to write something first. But, I'm not really sure. It's possible the first thing I recalled was that at one point, he asked for or he said he might cooperate. But he wants to talk to a lawyer first. So maybe that is what I recalled first, so it's possible.
Investigator Kelly also stated that he created the notes about Perez's arrest in December of 2001. See Oct. 2, 2002 Tr. at 5. He explained that he simply forgot that he had made the notes when preparing for the previous suppression hearing and therefore, forgot to disclose them to the Government. See Oct. 2, 2002 Tr. at 29. Perez's request to consult with his attorney is the first thing listed in Investigator Kelly's notes, and other statements Perez made that day are written below. See Oct. 2, 2002 Tr. at 6, Gov't Ex. 10.
III. DISCUSSION
A. APPLICABLE LAW
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." A suspect's Sixth Amendment right to counsel attaches when a prosecution is commenced, that is, "at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." United States v. Gouveia, 467 U.S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 698 (1972) (plurality opinion)
Once a suspect asserts his right to counsel, interrogation must cease "until counsel has been made available to him." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). "If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence as trial." McNeil v. Wisconsin, 501 U.S. 171, 177 (1991)
"The courts must `give a broad, rather than a narrow, interpretation to a defendant's request for counsel.'" United States v. Quiroz, 13 F.3d 505, 511 (2d Cir. 1993). Any "[d]oubts must be resolved in favor of protecting the constitutional claim, and the courts must "`indulge every reasonable presumption against waiver of fundamental constitutional rights.'" Id. at 511 (quoting Michigan v. Jackson, 475 U.S. 625, 633 (1986)). Resolving any doubts in favor of the conclusion that the suspect did not intend to waive his right to consult counsel, the Supreme Court in Edwards ruled that the suspect's statement, "I want an attorney before making a deal, " was a sufficient invocation of his Miranda rights to require that all questioning cease. Edwards v. Arizona, 451 U.S. at 479, 487. Similarly, in Minnick v. Mississippi, in which the suspect said he would make a more complete statement when his lawyer was present, the Court ruled that he had sufficiently invoked his right to counsel to prevent further questioning by the authorities. See 498 U.S. at 148-49.
B. APPLICATION
It is undisputed in this case that Perez invoked his Sixth Amendment right to counsel during his arrest on August 31, 2001. When questioned at the October 2, 2002 suppression hearing, Investigatory Kelly clearly recalled that Perez requested an opportunity to speak with his counsel before deciding whether to cooperate with the Government. See Oct. 2, 2002 Tr. at 4. However, Investigator Kelly could not recall precisely when Perez made that statement. See id. At the prior suppression hearing, Investigator Kelly testified that he told Perez that he could cooperate with the Government at the beginning of their conversation.See Feb. 28, 2002 Tr. at 5. When asked what else Perez and he discussed that day, Investigator Kelly did not mention Perez's request to speak with his attorney. See Feb. 28, 2002 Tr. at 5-6.
The Court finds that Investigator Kelly's later statements regarding his inability to precisely recall at what point Perez requested an opportunity to speak with his attorney cast doubt on his earlier certainty that Perez's request was made at the end of their conversation. Additionally, his notes from that day begin with his recollection that Perez requested his attorney. Although he testified that he made the notes in no particular order and they were "[j]ust, as [he] recollected, what happened on that date, " Oct. 2, 2002 Tr. at 6, the Court reads Investigator Kelly's written notes as that Perez expressed his desire to speak with his lawyer prior to making the other statements written later on the page. This interpretation also corresponds with Investigator Kelly's previous testimony that cooperation was one of the first things he mentioned to Perez after reading him his Miranda rights. See Feb. 28, 2002 Tr. at 5. In light of Investigator Kelly's inability to recall the timing of the events of that day and the fact that the notes highlight Perez's request for counsel, the Court finds that Investigator Kelly's later statement that Perez requested a lawyer at the end of their conversation is not credible. Any uncertainty as to precisely when Perez requested his attorney must be resolved in favor of protecting the constitutional claim. See United States v. Quiroz, 13 F.3d at 511. Therefore, the Court finds that Perez asserted his right to counsel near the beginning of his conversation with Investigator Kelly and the statements he subsequently made, including those written on the bottom of the first page of the Investigator's notes, shall be suppressed.
IV. CONCLUSION
Therefore, for the reasons set forth above, the Court finds that Perez invoked his Sixth Amendment right to counsel during his arrest on August 31, 2001, and any statements he made subsequent to that are to be suppressed.