U.S. v. Perez

• Decision Date: 03 May 1984
• Docket Number: D,No. 959,959
• Citation: 733 F.2d 1026
• Parties: UNITED STATES of America, Appellant, v. Luis PEREZ, a/k/a "Coco," Defendant-Appellee. ocket 84-1049.
• Court: U.S. Court of Appeals — Second Circuit

Page 1026

733 F.2d 1026

UNITED STATES of America, Appellant, v. Luis PEREZ, a/k/a "Coco," Defendant-Appellee.

No. 959, Docket 84-1049.

United States Court of Appeals Second Circuit.

Argued March 8, 1984.

Decided May 3, 1984.

Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., New York City (John M. McEnany, Marc J. Gottridge and Paul L. Shechtman, Asst. U.S. Attys., New York City, of counsel), for appellant.

Jed S. Rakoff, New York City (David M. Dubin and Andrea J. Berger, Mudge, Rose, Guthrie, Alexander & Ferdon, New York City, of counsel), for defendant-appellee.

Before TIMBERS and CARDAMONE, Circuit Judges, and TENNEY, District Judge. ^*

CARDAMONE, Circuit Judge:

This is an expedited appeal by the United States from orders entered January 12 and February 1, 1984 in the United States District Court, 579 F.Supp. 652, for the Southern District of New York (Weinfeld, J.). The orders suppressed the post-arrest statements of Luis Perez, a suspect in a conspiracy to distribute heroin, who had moved to suppress the confessions claiming that they were the product of unreasonable pre-arraignment ¹ delay. The government stated in response that the delay was necessary because available manpower was used to effect a search of a co-defendant's apartment. Following an evidentiary hearing the district court judge granted the motion to suppress without reaching or determining the question of whether the statements were involuntary. ²

Involved on this appeal is a significant question with respect to the construction of 18 U.S.C. Sec. 3501 (1982). More specifically, we must determine whether discretion exists under the terms of Sec. 3501(c) for a trial court to suppress a suspect's confession solely on account of delay--exceeding six hours from arrest to confession--where it finds such delay not reasonable. Because we conclude that the statute grants a district judge this discretion, we affirm.

I Facts

Viewed in a light favorable to the defendant, see United States v. Oates, 560 F.2d 45, 49 (2d Cir.1977), the record reflects the following facts. On Friday, October 28, 1983 at 3:25 p.m. on Manhattan's Lower East Side, federal Drug Enforcement Administration (DEA) agents arrested defendant Perez and two other men suspected of selling heroin. The agents transported them, together with a fourth suspect arrested earlier that day, to the DEA offices at 57th Street and Eleventh Avenue. Upon arrival there the suspects were advised of their Miranda rights and "processed," i.e., fingerprinted, strip-searched and photographed. At about 4:45 p.m., Perez was placed in a holding cell, while the agents turned their attention to obtaining a search warrant for the premises of Warren Toney, another suspect in the alleged drug ring. Meanwhile, Camille Colon, one of the agents involved in Perez' arrest, left the DEA offices and arrived at Assistant United States Attorney (AUSA) Daniel Perlmutter's office at Foley Square at 5:00 p.m. Perlmutter was assigned to draft the warrant application, and at 6:15 p.m. United States Magistrate Joel Tyler issued a search warrant for Toney's apartment.

While Perez waited in his holding cell at 57th Street, no fewer than seven DEA agents were sent to Toney's apartment. There, they seized drug paraphernalia, ledgers, jewelry and two handguns, and arrested Toney and another suspect, Jorge Negron. The agents took Toney and Negron to the DEA office for processing.

At 10:00 p.m., after Toney and Negron had been processed, the agents transported Perez and the other defendants to the United States Attorney's office at Foley Square. Colon informed AUSA Perlmutter that Perez had not given a statement. By this time on Friday night there were no U.S. Magistrates available, so Perez could no longer be arraigned. Although Perez had not yet received court-appointed counsel from the Legal Aid Society (such takes place at the initial appearance before the Magistrate), the decision was made to "interview" him. The AUSA candidly testified at the suppression hearing that the purpose of the pre-arraignment interview--used routinely by the U.S. Attorney for the Southern District of New York--was to obtain a confession. At 11:20 p.m., Perlmutter interviewed Perez, again advising him of his Miranda rights. During this interview Perez made a lengthy inculpatory statement describing his activities earlier that day and his involvement with the other suspects. Perez then spent the night in a cell at the Metropolitan Correctional Center (MCC).

At 9:00 the next morning, a Saturday, the defendant was brought from the MCC to the U.S. Courthouse for arraignment. Throughout the morning, he was processed by the U.S. Marshals for the purpose of obtaining the same "pedigree" information he had provided to the DEA agents the previous day. He was interviewed by a pre-trial services officer and waited while AUSA Perlmutter interviewed the other four suspects (Perlmutter had not done so the previous evening). Sometime early Saturday afternoon, Perez was taken to a courtroom where for the first time he consulted with counsel, in this case the Legal Aid lawyer assigned to represent, for purposes of arraignment only, all six individuals arrested. Meanwhile, during Saturday morning and early afternoon, Perez had made two further inculpatory statements regarding the lucrative nature of his "work" and his desire to "catch up with" a suspected informant. It was not until 2:30 p.m., 23 hours after his arrest, that the defendant first appeared before a magistrate.

At the arraignment, the magistrate again advised Perez of his rights and of the government's charges against him, set his bail and found him eligible for appointment of counsel. After his arraignment Perez made no further statements to the prosecution. Instead, he moved to suppress his confessions on two grounds: first, that they were not voluntary because he was a heroin addict who, deprived of that drug, was suffering withdrawal symptoms during the interview; and, second, that the confessions were the fruit of an unlawful pre-arraignment delay.

In a written opinion, Judge Weinfeld expressly declined to address the issue of whether Perez' confessions were voluntary and granted the defendant's motion to suppress solely on what he concluded was the government's "unnecessary and unreasonable" delay in arraigning Perez. Analysis of the applicable statutes, rules and decisional law demonstrates that a district court judge may exclude a confession obtained where a pre-arraignment delay unreasonably extends beyond six hours from the time of arrest. Because there is ample support for the district court's findings of fact and conclusion of law that the government's delay in this case was not reasonable, we affirm his orders suppressing Perez' confessions. Our reasons follow.

II History

Fed.R.Crim.P. 5(a) was enacted in 1946. Today's Rule 5(a) provides in pertinent part:

An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate or, in the event that a federal magistrate is not reasonably available, before a state or local judicial officer authorized by 18 U.S.C. Sec. 3041. (emphasis added).

Rule 5(a) is a "restatement, without substantive change, of several prior specific federal statutory provisions." Mallory v. United States, 354 U.S. 449, 452, 77 S.Ct. 1356, 1358, 1 L.Ed.2d 1479 (1957). While the proper remedy for a violation of Rule 5(a) has been the source of considerable debate over the years, as the discussion below indicates, Rule 5(a) remains in full force, having been most recently amended in other respects in 1972.

Even before the adoption of the federal criminal rules, the Supreme Court, pursuant to one of Rule 5(a)'s predecessor statutes, created an exclusionary remedy for violations of a defendant's right to a prompt arraignment. In McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), the Court in an opinion by Justice Frankfurter suppressed the defendants' pre-arraignment confessions on the sole ground that the government failed to present them promptly to a magistrate. It appeared to the Court that the McNabb brothers had not been arraigned for two days following their arrest, during which time they had been strenuously interrogated. The Court did not suppress their confessions on constitutional grounds, but chose instead to bottom its holding on the exercise of "its supervisory authority over the administration of criminal justice in the federal courts." Id. at 341, 63 S.Ct. at 613.

Justice Frankfurter again wrote, this time for a unanimous court, in Mallory v. United States, supra. There, the government delayed a suspect's arraignment for over seven hours although a magistrate was readily available, and the Court held that suppression was required. 354 U.S. at 455, 77 S.Ct. at 1360. The rule of exclusion when the government "unnecessarily" delayed arraignment became known as the McNabb-Mallory rule.

In 1966 the Supreme Court handed down its landmark decision holding that a defendant has certain constitutional rights of which he must be informed before any interrogation may proceed. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda created a prophylactic rule requiring suppression in certain cases without the need to find "the defendants' statements to have been involuntary in traditional terms." Id. at 457, 86 S.Ct. at 1618.

As a result of the public debate that ensued, Congress in 1968 enacted Title II of the Omnibus Crime Control and Safe Street Acts, 18 U.S.C. Sec. 3501. Section 3501 provides in part:

(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the...