U.S. v. Morales

• Citation: 834 F.2d 35
• Decision Date: 17 November 1987
• Docket Number: D,No. 41,41
• Parties: UNITED STATES of America, Appellee, v. Elpiko MORALES, Defendant-Appellant. ocket 87-1155.
• Court: U.S. Court of Appeals — Second Circuit

Page 35

834 F.2d 35

UNITED STATES of America, Appellee, v. Elpiko MORALES, Defendant-Appellant.

No. 41, Docket 87-1155.

United States Court of Appeals, Second Circuit.

Argued Sept. 22, 1987.

Decided Nov. 17, 1987.

Peter B. Sobol, Asst. U.S. Atty. for the S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y., John F. Savarese, Asst. U.S. Atty., of counsel), for appellee.

David Seth Michaels, Spencertown, N.Y., for defendant-appellant.

Before LUMBARD, OAKES, and KEARSE, Circuit Judges.

LUMBARD, Circuit Judge:

Elpiko Morales appeals from a judgment of conviction entered on March 27, 1987 in the Southern District of New York by Judge John E. Sprizzo following a jury trial. The jury found Morales guilty of both possession of narcotics and the separate offense of possession of narcotics while an inmate in the Metropolitan Correctional Center (MCC). On March 25, 1987, Judge Sprizzo sentenced Morales to a one-year term of incarceration for the first offense to be served concurrently with the three-year term Judge Sprizzo imposed for the second offense. Morales is currently serving this sentence.

Morales claims that the district court erred in admitting into evidence his response to two questions posed by Robert Newman, a physician's assistant at the MCC in Manhattan, during a routine medical examination following his commitment to that facility. He contends that Judge Sprizzo erred in refusing to suppress that testimony because those questions constitute a custodial interrogation pursued for an investigative purpose, designed to elicit incriminating admissions which required Newman to give him Miranda warnings which Newman did not do.

I.

On November 20, 1986, the grand jury returned a two count indictment against Elpiko Morales, charging him with (1) possessing with intent to distribute approximately 21.48 grams of cocaine and diluents on October 11, 1985 in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(B) (prior to amendments effective October 27, 1986) and (2) possessing approximately 21.48 grams of cocaine and diluents on October 11, 1985 while he was an inmate at the MCC, a federal correctional facility, in violation of 18 U.S.C. Secs. 1791(a)(1)(C), 1791(a)(2) (Supp.1985). Before his trial, Morales moved to suppress the admission of certain statements he made to Robert Newman, a physician's assistant at the MCC, and to a supervisory prison official after Morales had been found in possession of cocaine during a routine physical examination.

The trial record shows that Morales arrived at the MCC during the afternoon of October 11, 1985. Morales had been transferred to the MCC from the United States penitentiary in Lewisburg, Pennsylvania where he was serving a federal sentence for a parole violation. Under the facility's procedures, he would have been "pat-searched" upon his arrival and then placed without restraints in a holding pen with the other newly arrived prisoners. Approximately two and one-half hours later, he was brought to a medical examination room for a routine physical given to all new inmates.

Newman, the physician's assistant who examined Morales, testified that according to standard MCC procedures, he questioned Morales about his medical history and conducted a physical examination. After concluding the examination, Newman testified that he returned to his desk to finish writing his medical report. Morales, who was standing about six to eight feet away from Newman at that time, pulled up his pants. Newman testified that he noticed a small white package fall to the floor at the same time Morales raised his pants. Newman further testified that Morales bent down "nonchalantly" and put the package back in his pocket. According to Newman, after seeing this occur, Newman asked "What is that?" Morales replied "That was nothing. It was the papers they gave me up in R & D [Receiving and Discharge]." At trial, Newman testified that out of curiosity he then asked to see the package because the object that he saw fall had not seemed to fall as a piece of paper would have fallen. In response to this request, Morales walked toward Newman and took the package out of his pocket. Newman again asked, "What is that?" and Morales replied "I don't know."

After taking the package, which turned out to be a plastic bag, Newman asked Morales to step into the hallway with him. Newman then radioed MCC Operations Lieutenant Steven Epstein. When Epstein arrived, he took the plastic bag from Newman and asked Morales where he had gotten the bag. According to Epstein, Morales replied "I found it in R & D." He also conducted a field test of the contents of the bag. After he determined that the results of the field tests were positive, Epstein placed Morales in an administrative segregation cell. As Epstein was walking away from the cell, Morales motioned to him to come back to the cell and allegedly said "I have information to help you ... I want to speak with a federal agent." According to Epstein, he did not ask Morales any more questions and advised Morales that he would have a later opportunity to speak with federal agents.

Newman testified that as part of his routine he had checked the examination room prior to Morales's arrival and recalled that there were no stray packages or articles in the room when Morales entered. Evidence also established that despite security measures, narcotics are smuggled into the institution by new inmates through the R & D area and that even inmates who had been previously pat-searched had been found during subsequent stripsearches to possess narcotics. In addition, an experienced drug enforcement agent testified that the amount of cocaine that Morales possessed was inconsistent with personal use.

Following a suppression hearing on February 23 and 24, 1987, Judge Sprizzo found (1) that Morales's statements to Newman were admissible, (2) that Morales's first statement to Epstein responding to Epstein's question about where he had found the packet had to be suppressed, and (3) that Morales's final statement to Epstein that he had some information was voluntary (i.e. not the product of interrogation) and, therefore, admissible.

On February 25, 1987, after a two-day trial, the jury found Morales guilty of the lesser-included offense of simple possession of narcotics on Count One and of the offense of possessing narcotics while an inmate in a federal facility charged in Count Two. On March 25, Judge Sprizzo sentenced Morales to a one-year prison term on Count One to be served concurrently with a three-year term he imposed on Count Two. The sentence was to run consecutively to an unrelated sentence that Morales was then serving.

II.

Morales's principal claim is that the district court erred by admitting his response to the two questions asked of him by Newman. He claims that the questions were asked while he was in custody and were asked with an investigative purpose and, as a result, the district court should have suppressed the testimony because Newman did not give him warnings in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Morales's secondary contention is that two cautionary instructions given by Judge Sprizzo were inadequate to cure the prejudice resulting from (1) the District Court's remarks to the jury panel during voir dire concerning Morales's prior conviction and (2) testimony by Newman that Morales had told him that certain injuries were the result of a "tussle" with the authorities.

The protections afforded by Miranda must be strictly enforced but should only be enforced in situations which implicate the concerns that motivated that decision. See Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 3148, 82 L.Ed.2d 317 (1984). The situations requiring that Miranda warnings be issued have generally been termed "custodial interrogation[s]." See Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984). Custodial interrogation exists when a law enforcement official questions an individual and that questioning was (1) conducted in custodial settings that have inherently coercive pressures that tend to undermine the individual's will to resist and to compel him to speak, Miranda, 384 U.S. at 467, 86 S.Ct. at 1624 (the in custody requirement) and (2) when the inquiry is conducted by officers who are aware of the potentially incriminatory nature of the disclosures sought, Garner v. United States, 424 U.S. 648, 657, 96 S.Ct. 1178, 1183, 47 L.Ed.2d 370 (1976) (the investigative intent requirement). Only questioning that reflects a measure of compulsion above and beyond that inherent in custody itself constitutes interrogation the fruits of which may be received in evidence only after Miranda warnings have been given. See United States v. Moody, 649 F.2d 124, 127-28 (2d Cir.1981). The questions asked must have been both likely to elicit an incriminating response and to produce psychological pressures that will subject the individual to the "will" of his examiner. See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980); Miranda, 384 U.S. at 457-58, 86 S.Ct. at 1618-19 (1966).

We conclude that none of Judge Sprizzo's findings from Newman's testimony that Newman had no investigative purpose when he asked Morales questions about the package that had fallen to the floor of the examination room as Morales was pulling up his pants at the end of the examination were clearly erroneous. Judge Sprizzo found that Newman had, at most, only a fleeting impression that the package might be contraband at the time he questioned Morales about the package.

Newman was not trained in interrogation and had no responsibility to investigate transgressions of prison rules or illegal conduct. Although he testified that he thought it was possible that the package contained contraband, he also testified that based upon his experience with other inmates and observations of...