Opinion
No. 00 CR 562
October 25, 2001
ORDER
Defendant, Mark Reed ("Reed"), was arrested on July 17, 2000 for conspiracy to possess and distribute controlled substances. Reed now moves to quash his arrest and suppress evidence and statements made to law enforcement officers pursuant to Federal Rule of Criminal Procedure 12(b)(3). For the reasons discussed below, Defendant's motion is denied.
FACTUAL BACKGROUND
The following factual background is derived from the exhibits submitted with the parties' pleadings and the testimony that was given at the suppression hearing held on August 9, 2001. Where necessary, this overview summarizes the parties' conflicting accounts.
The parties advised the court at the time of that hearing that they expected to call additional witnesses at a later date. As of September 24, 2001, AUSA Sean Berkowitz notified the court that the parties had elected to call no further witnesses and asked the court to decide this motion on the existing record.
At 2:24 in the afternoon of July 17, 2000, Illinois State Trooper C.G. Fifield pulled over a pickup truck driving south on I-57 near Peotone. (Transcript of Suppression Hearing (hereinafter "Tr."), at 5-6, 121-122.) According to Officer Fifield, the truck was traveling 63 M.P.H. in a 55 M.P.H. zone. (Id. at 5-6.) Riding in the pickup were Defendant Reed, driver Alfonso Garnica, and truck owner Thomas Martin. (Id. at 5-6, 121-122.) Attached to the pickup was a trailer containing two horses. (Id.) Officer Fifield issued a speeding warning to Mr. Garnica and arrested him for driving with a suspended license. (Id. at 7-8, 122.) Mr. Garnica paid a $100 cash bond to be released from custody. (Id.) Officer Fifield also performed background checks on Defendant and Mr. Martin to ensure that someone with a valid driver's license could drive the pickup. The background checks revealed that both men had criminal records and had been arrested for drug activity. (Id. at 12-13.)
While issuing these citations and performing the background checks, Officer Fifield asked the occupants of the truck what they were doing. The parties agree that Defendant Reed told Officer Fifield that Mr. Martin was finalizing a divorce (Id. at 11, 124.); Defendant further recalls telling Officer Fifield that he was accompanying Martin because of Martin's recent health troubles. (Id. at 124.) There is disagreement over Martin's response. Defendant Reed contends that Martin told Fifield of his impending divorce and the purchase of two horses (Id. at 11-12), while Fifield testified that Martin only mentioned buying two horses and made no mention of his divorce. (Id. at 11-12.) Officer Fifield's account is consistent with the field report he completed, which includes the additional note that "Martin or Garnica couldn't tell [Officer Fifield] where they had gotten the horses or from whom." (Illinois State Police Field Report, Ex. B, Defendant's Motion to Quash Arrest and Suppress Evidence and Statements (hereinafter "Defendant's Motion"); Ex. 5, Government's Response to Defendant's Motion to Quash Arrest and to Suppress Evidence and Statements (hereinafter "Gov.'s Response").) At about this time, Officer Fifield also noticed that all five entrances to the horse trailer were padlocked shut. (Tr. at 9; Gov.'s Response at 3.)
After Officer Fifield determined that Mr. Martin had a valid driver's license, Mr. Martin moved into the driver's seat of the pickup. (Tr., at 13, 154.) Officer Fifield stated that he told all three men that they were free to go, but Defendant testified that Officer Fifield never told him he was free to go. (Id.) In response to a question from Officer Fifield, Mr. Martin stated that he had no drugs, weapons, or money in the pickup and agreed to Officer Fifield's request for permission to search the vehicle. (Id.) According to Officer Fifield, Mr. Martin signed a consent form allowing him to search the pickup and the trailer at that time; Defendant maintains that Mr. Martin orally consented to the search and signed the consent form at a later time. (Id. at 13-14, 154.)
At this point Mr. Martin drove the pickup to a nearby weigh station and Officer Fifield called in additional officers to help him search the vehicle. (Id. at 14.) The police searched the trailer and found two bundles wrapped in pink cellophane and hidden under some plywood that was covered by bales of hay. (Id. at 15-16.) These bundles contained U.S. currency later determined to total $93,981. (Id. at 16, 129; Def.'s Motion, Ex. B; Gov.'s Response, Ex. 5.) During the search the Defendant remained inside one of the buildings at the weigh station. (Tr., at 15, 127.)
The events immediately following the discovery of the currency are disputed. Defendant contends that the police arrested him at 4:00 p.m., soon after they found the hidden money. (Id. at 130; Def.'s Motion at 2; Unsworn Declaration of Mark A. Reed, Ex. 2, Def.'s Motion.) Defendant points to a federal investigation report submitted in this case that lists his arrest time as 1600 hours. (Department of the Treasury Report of Investigation, Ex. C at 00026, Def.'s Motion.) Defendant testified that soon after his arrest, the police read him his Miranda rights and he signed a document acknowledging that he understood those rights. (Tr., at 131; Ill. State Police Statement of Constitutional Rights and Waiver (hereinafter "ISPA Stmt."), Ex. 5, Def.'s Motion.) The form was signed at 4:19 p.m. (ISP Stmt., Ex 5, Def.'s Motion.) In fact, Defendant acknowledged at the hearing that he did understand his constitutional rights at the time that he signed the police form. (Tr. at 160-61.) Defendant asserts that after being read his rights and signing the form, he was handcuffed and driven to Illinois State Police Headquarters. (Tr. at 132, 136.) According to Officer Fifield, Defendant Reed was not under arrest at this time. The Officer testified that Defendant was a passenger in the front seat of the squad car, unrestrained during the drive to the Illinois State Police Headquarters. (Id. at 17.) Customs Agent Babcock, who filled out the form entering 1600 hours as the arrest time, called this entry a "mistake" and testified that no one present at the search told him that Reed had been arrested at 4:00. (Id. at 103-04.) He testified that he made the mistake because he wished to save time by not having to review his notes or call a busy fellow agent. (Id. at 114-16.)
The parties also disagree about what happened after Defendant was taken to the State Police Headquarters in Lockport. In Defendant's account, his handcuffs were removed, and he was escorted to a conference room. (Id. at 138.) As noted, Officer Fifield denied ever handcuffing Defendant, and Bolingbrook Police Officer Brian Hafner stated that he first saw the Defendant in a conference room in Lockport without handcuffs at approximately 5:34 p.m. (Id. at 50-51, 71.) Officer Hafner testified that he told the Defendant that he was not under arrest, read him his Miranda rights, and asked him to sign a second form stating that he understood his rights. (Id. at 51-52.) This second form was signed at 5:34 p.m. (ISP Stmt., Ex. 6, Def.'s Motion.) While Reed acknowledges hearing his rights and signing the form, he contends that while at the police headquarters, he believed he was under arrest and was never advised that he was free to go. (Id. at 140.)
While at police headquarters, Defendant was interviewed several times. Between approximately 5:30 p.m. and 6:30 p.m., Defendant was interviewed by Officer Hafner and his partner, Officer Michael O'Neill. (Id. at 56, 140.) During this interview, Defendant answered questions about his personal history and his companions in the truck. (Id.) Some time after this interview, Defendant was asked additional questions in the presence of federal Customs Officer Peter Beckman (Id. at 84-86, 173.) It is undisputed that Defendant was left alone and unrestrained in the conference room both before and after these interviews. (Id. at 51, 84, 173-74.) Officer Hafner testified that this room was unlocked; Defendant states that he never tried to open the conference room doors and believed that an attempt to leave would constitute an escape attempt. (Id. at 83, 171, 182.)
After the set of questions before Customs officers, Defendant was left alone in the conference room again before being fingerprinted at approximately 8:35 p.m. (Id. at 84.) Defendant acknowledged having a lot of solitary "down time" in the conference room, and conceded that he thought about his pending case and the trouble he might be in. (Id. at 174.) He testified that during his fingerprinting, he decided to affirmatively cooperate and start being honest with the police. (Id.)
Officer Hafner stated that while being interviewed, the Defendant mentioned a ranch near Route 30 in Joliet where he and the two other men in the pickup had been earlier in the day. (Id. at 54.) The Defendant agreed to drive to the ranch with the police to show them where it was and did in fact accompany Officer Hafner and his partner to the ranch. (Id. at 56, 59, 143-44.) The parties disagree as to whether the Defendant was handcuffed during this trip and whether he was informed that he was free to leave upon returning from the ranch. (Id. at 57, 60, 141-42, 176.)
During this trip, which began at about 9:00 p.m., Officer Hafner claims that the Defendant told him about a previous trip when he helped Mr. Martin and Mr. Garnica transport a shipment of marijuana from Mexico to the ranch in Joliet. (Id. at 54, 63.) According to Officer Hafner, the Defendant told him that Mr. Martin and Mr. Garnica went to Mexico to buy marijuana while the Defendant waited for them in a hotel in Texas. Then when Mr. Martin and Mr. Garnica returned, the three men drove the marijuana — approximately 100 kilograms — from Texas to the Joliet ranch in the same truck and trailer that they had driven on this occasion. (Id.) Defendant made no mention of this conversation in his own account of the trip to the ranch, but he did state that after the trip to the ranch he was interviewed by customs agents at police headquarters and told them details about the transportation of marijuana from Texas to Illinois. (Id. at 144-45.)
This interview occurred at approximately 10:00 p.m. (Id. at 97, 118.) Officers Hafner and Babcock testified that Defendant was only arrested after the conclusion of this interview, at which time Defendant was taken from the police headquarters to the Metropolitan Correctional Center. (Id. at 97, 107.) The state police form filed after Defendant's arrest indicates that the arrest occurred at 11:55 p.m. (Illinois State Police Personal History Report, Ex. 4, Gov.'s Resp.) As noted, Defendant argues that he was placed under arrest at approximately 4:00 p.m.
DISCUSSION
As noted in the factual background, the parties dispute the time of Defendant's arrest, and by extension, the existence of probable cause at the time of his arrest. This court need not reach these questions, however, to rule on Defendant's motion to suppress. In Brown v. Illinois, the Supreme Court held that confessions obtained by the state in violation of a party's Fourth Amendment rights need not be excluded if the confessions are both voluntary and "`sufficiently an act of free will to purge the primary taint.'" 422 U.S. 590, 602 (1975), quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963). The Brown court articulated the factors that courts must consider in determining whether a confession fulfilled the Wong Sun requirement of free will: the voluntariness of the statement, "the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct." Brown, 422 U.S. at 603-04. The burden of showing admissibility rests on the prosecution. Id. at 604.
Even assuming that Defendant was improperly arrested without proper cause, the facts of this case suggest that his confession need not be suppressed as tainted fruit of an unconstitutional search. As a threshold matter, there is nothing in either the record or Defendant's pleadings to indicate that his confession was anything but voluntary. Defendant testified that he decided to tell the State Police what he knew about his co-defendants because he believed it was in his interest to do so. (Tr. at 176.) Defendant also acknowledged that one of his motivations for wanting to cooperate with the officers was the possibility of getting money under an Illinois state program that provides informers with a proportion of the cash and drug street value that their information helps police officers to seize. (Id. at 175-76.) There is no evidence on the record of police intimidation or coercion, and Defendant does not argue that any officers promised him money in exchange for a confession. Moreover, the police read Defendant his Miranda warnings not once, but twice-a factor specifically noted by the Brown court as evidence that a confession has not been obtained by exploitation of an illegal arrest. Brown, 422 U.S. at 603.
Turning to the temporal proximity factor, the court finds that approximately five or six hours elapsed between 4:00 (the hour at which Defendant alleges he was arrested) and the inculpatory statements sought to be suppressed. Although there is some factual uncertainty on this point, Defendant's first inculpatory statements appear to have come during either the 9:00 p.m. drive to the Joliet ranch or the subsequent 10:00 interview with customs officers. In assessing this five or six hour span, the court is mindful of the Seventh Circuit's express comment that the time span between alleged police misconduct and a confession is not "dispositive on the question of taint." United States v. Patino, 862 F.2d 128, 133 n. 3 (7th Cir. 1988). Indeed, given the fact-specific nature of the Brown test, it is not surprising that prior cases provide unclear guidance on this factor. The court finds that the span between the alleged arrest and Defendant's statements weigh in favor of suppressing the statements but only slightly. W i t h regard to the second Brown factor, the court finds that intervening circumstances were not by themselves sufficient to purge the taint of the allegedly illegal arrest. The government argues that Defendant had time for reflection during several periods of solitude before and after interviews at state police headquarters. The evidence before the court is inconclusive on the question of whether these interludes actually broke or interrupted the causal chain leading from the allegedly unlawful arrest to Defendant's inculpatory statements. A suspect believing himself to be in custody may well not have perceived solitary moments in state police headquarters as anything other than a momentary break in the progression from arrest to incarceration. Other cases finding that intervening circumstances purged the taint of illegal police conduct rest on more recognizable disjunctions between police illegality and the challenged confession. See Fazio, 914 F.2d at 958 (taint purged in part because suspect drove his own car to meet police at site removed from illegally searched restaurant); Patino, 862 F.2d at 133 (taint purged where challenged confession came after six days of freedom during which time defendant was free to contact friends or counsel). See also United States v. Wellins, 654 F.2d 550, 555 (9th Cir. 1981) ("We have . . . relied on a subsequent release from custody, an appearance before a magistrate, discussions with a lawyer, and subsequent convictions on unrelated charges as examples of intervening circumstances that are sufficient to break the causal connection between the arrest and consent.")
See Taylor v. Alabama, 457 U.S. 687, 691 (1982) (confession that followed illegal arrest by six hours was not sufficiently attenuated where suspect remained in police custody, was unrepresented by counsel, had been questioned, fingerprinted, and subjected to a lineup.) But cf. Rawlings v. Kentucky, 448 U.S. 98, 1078-08 (1980) (relatively nonthreatening congenial atmosphere of a 45 minute detention preceding a statement `outweigh[ed] the relatively short period of time that elapsed between the initiation of the detention and petitioner's admissions"); United States v. Fazio, 914 F.2d 950,958 (7th Cir. 1990) (passage of single hour between illegal and search and confession sufficed to attenuate taint where defendant freely agreed to speak with police and drove his car to meeting).
What the court finds dispositive here is the third factor — the "purpose and flagrancy of the official misconduct." As the Seventh Circuit has noted, this factor is "tied to the rationale of the exclusionary rule itself." Fazio, 914 F.2d at 958. "The rule is calculated to prevent, not to repair. Its purpose is to deter-to compel respect for the constitutional guaranty in the only effectively available way-by removing the incentive to disregard it." Brown, 422 U.S. at 600. On the facts before it in this case, the court can find no evidence that the police either purposely or flagrantly violated Defendant's constitutional rights. Unlike Brown, where police acting without a warrant broke into the defendant's apartment and searched it before arresting him, it can not be said that the manner of Reed's arrest "gives the appearance of having been calculated to cause surprise, fright, and confusion." Id. at 605. As noted, the police on several occasions read Defendant his Miranda rights, which he concedes he understood. Moreover, there is no evidence of bad faith on the part of the police. See United States v. Green, 111 F.3d 515, 523 (7th Cir. 1997) (illegal search was not purposeful or flagrant violation in part because police did not act in bad faith). In sum, there is no indication that any police action in this case was "undertaken in an effort to benefit the police at the expense of the suspect's protected rights." Fazio, 914 F.2d at 958. Accordingly, the court denies Defendant's motion to suppress.
Two final matters bear some comment. First, in his pleadings, Defendant appears to challenge only the arrest that allegedly occurred at 4:00 p.m. The court therefore does not consider the propriety of arresting Defendant at 11:55 p.m., but notes that Defendant Reed's inculpatory statements appear amply to satisfy probable cause. Second, while the court's disposition of this motion renders any exacting scrutiny of the alleged 4:00 arrest unnecessary, the government's argument that it had probable cause to arrest Defendant at that time is not frivolous.
As the government notes, several factors support that argument: (a) Garnica, Martin, and Reed were transporting a large amount of cash hidden in the floor of a trailer and packaged in cellophane wrapping while traversing a known drug route; (b) the three men gave inconsistent stories about the purpose of their trip; (c) the trailer attached to the pickup was locked with five separate padlocks; (d) Martin had prior drug convictions and Reed had a recent arrest for a drug charge; (e) none of the men could produce any records relating to the supposed recent purchase of the horses; and (f) Martin lied about the existence of money in the trailer. In light of these factors, the government contends that its officers had both particularized knowledge and a reasonable belief that Defendant Reed had broken the law.