US v. Camacho

• Decision Date: 25 May 1990
• Docket Number: No. 89-650-CR.,89-650-CR.
• Citation: 739 F. Supp. 1504
• Parties: UNITED STATES of America, Plaintiff, v. Pablo CAMACHO, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

739 F. Supp. 1504

UNITED STATES of America, Plaintiff, v. Pablo CAMACHO, et al., Defendants.

No. 89-650-CR.

United States District Court, S.D. Florida.

May 25, 1990.

Edward Nucci, Daniel Gelber, Asst. U.S. Attys., S.D. Fla., Miami, Fla., for plaintiff.

James R. Gailey, Miami, Fla., for defendant Pablo Camacho.

John Bergendahl, Asst. Federal Public Defender, Miami, Fla., for defendant Charlie Haynes.

David Goodhart, Miami, Fla., for defendant Ronald Sinclair.

Richard Sharpstein, Coconut Grove, Fla., for defendant Thomas Trujillo.

Roy Kahn, Miami, Fla., for Nathaniel Veal, Jr.

Leonard Baer, Coral Gables, Fla., for defendant Andy Watson.

ORDER

MARCUS, District Judge.

This Cause has come before the Court upon Defendants' Motion to Suppress Statements filed on February 7, 1990. For the reasons set forth below, Defendants' Motion is GRANTED in part and DENIED in part.

I.

The Defendants Pablo Camacho, Charlie Haynes, Ronald Sinclair, Thomas Trujillo, Nathaniel Veal, Jr. and Andy Watson, members of the Street Narcotics Unit of the Miami Police Department, have been charged under Title 18 U.S.C. §§ 241 and 242 with violating the civil rights of Leonardo Mercado. These charges arise out of an incident occurring on the evening of December 16, 1988 at which time the Defendants allegedly engaged in a struggle with Mercado which led to his death.

In their motion, Defendants now seek to suppress various statements concerning the events surrounding the death of Leonardo Mercado on December 16, 1988¹. The defendants maintain that the statements were coerced and made involuntarily because they were threatened with dismissal from their jobs as policemen if they refused to give statements.² Therefore, the Defendants contend, the statements must be suppressed under Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) and its progeny. Determination of the issues raised by the Defendants' Motion requires a careful review of the events occurring on the night of December 16 and into the following morning. We conducted a lengthy evidentiary hearing as to these matters and make the following findings of fact and conclusions of law.

II.

The events at issue began at approximately 5:30 p.m. on the evening of December 16, 1988, when the Defendants, while on duty, arrived at the corner of North West 7th Avenue and Thirty-Second Street, the scene of an incident leading subsequently to the death of Leonardo Mercado. Shortly after radio notification by the Defendant officers that Mercado had been seriously injured while in the custody of the officers, Miami Police Department Sergeants Manuel Orosa and Anthony Rodriguez arrived at the scene. Shortly after his arrival, Sergeant Orosa briefly questioned Officers Camacho and Sinclair regarding the events which had transpired. In substance, Camacho and Sinclair informed Orosa that a struggle had ensued between Camacho and Trujillo and Mercado inside the house located on the property. Shortly thereafter, the other four Officers entered the house to render assistance. Additionally, Haynes, Sinclair, Veal and Watson informed Orosa that they had no "hands on" contact with Mercado. Pursuant to standard department procedure, Orosa ordered the six officers to return to the police station.

Upon arriving at the police station, the Defendants proceeded to the Street Narcotics Unit office on the second floor of the building. While the Defendants were in the Street Narcotics Unit office, Lieutenant Mike Gonzalez, Commander of the Departments' Homicide Division, was informed that Mercado had died of injuries received during the incident involving the Defendants. Departmental policy requires that the Homicide Division conduct an investigation of all in-custody deaths. Accordingly, Gonzalez determined that a "shooting team"³ should be assembled consisting of Homicide personnel, a representative from the State Attorneys Office and a representative from the Internal Security Division of the Police Department. In order to begin the investigation, Gonzalez directed Sergeant Rodriguez, a member of the Homicide Division, to go to the second floor and direct the Defendants to appear at the Homicide Division on the fifth floor of the building. In accordance with Gonzalez's order, Rodriguez informed the Defendants that Gonzalez had ordered them to appear at the Homicide Division. During this time, Rodriguez came upon Defendants Camacho and Trujillo who informed Rodriguez that they were involved in the incident.⁴

By about 7:00 p.m. all six Defendants had appeared at the offices of the Homicide Division. As part of the standard procedure, the Defendants were directed to sit in the Homicide office at separate desks and were further told not to talk among themselves. Several Homicide officers were assigned to watch the Defendants and escort them when they walked about the offices or went to the bathroom. With the exception of Officer Camacho, who made an escorted trip to the hospital to be treated for injuries suffered during the struggle with Mercado, the Defendants remained in the Homicide offices throughout the night and into the early morning hours of December 17, 1989.

At approximately the same time that the Defendants reached the Homicide offices, Assistant State Attorney Jay Novick arrived at Homicide. Novick reported to Homicide for the purpose of acting as legal advisor to the investigating Homicide Officers. Lieutenant Gonzalez consulted with Novick regarding procedures to be followed in taking statements from Officers Haynes, Sinclair, Veal and Watson. By this time Gonzalez had been informed by Rodriguez that Officers Camacho and Trujillo were "hands on" officers who had apparently been directly engaged in the struggle with Mercado. The details of what happened to Mercado remained unclear to Gonzalez at this time. Novick and Gonzalez agreed that Gonzalez would first individually call each officer into his office in order to ask who was involved in the struggle with Mercado and who was simply a witness to the incident. Shortly thereafter, Haynes, Sinclair, Veal and Watson were separately called into Gonzalez's office and directed to inform Gonzalez of their status. Each of the four officers said that he was a witness to the incident involving Mercado.

During the course of the hearing, this Court also heard testimony from Sergeant Manuel Orosa, the immediate supervisor of Officers Camacho and Watson. Orosa stated that Lieutenant Gonzalez ordered him to give a statement on the evening of December 16, 1988. Orosa also testified it was his belief that an officer who refuses to give a statement would be relieved of duty. Orosa further said that this belief was based on his ten years of experience as a police officer and information gained at Fraternal Order of Police ("F.O.P.") meetings. Orosa indicated that Lieutenant Gonzalez wanted to know whether he was a witness or a principal and that he felt he had to give a statement. He also said Gonzalez told him that since he was a witness he was not entitled to a lawyer.

Following the initial questioning of the four witness officers by Gonzalez, the officers were told to continue waiting in the Homicide offices along with Officers Trujillo and Camacho. During this period, Homicide officers were engaged in interviews with civilian witnesses to the incident. As the night wore on, the civilians gave varying accounts of the incident involving Mercado. Some of them indicated that some of the officers who were considered to be witness officers may actually have been directly involved in the struggle with Mercado or others at the scene. The facts, however, were murky and unclear as the inquiry proceeded throughout the night and into the next morning.

Later that evening, Sergeant Richard Kinney, President of the local F.O.P. branch, arrived at Homicide. Following his arrival, Robert Klausner, counsel to the F.O.P., reached the offices. Klausner, a Florida lawyer, who had represented the F.O.P. and its members since 1979, testified that he had been involved in many similar inquiries and had represented many officers in the past. He further stated that he was familiar with the City and Miami Police Department's rules and ordinances, and indeed that he had originally been employed as an assistant city attorney. Klausner first spoke with Gonzalez, Homicide Sergeant Gerald Green, and Novick in order to assess the situation before speaking to each of the six Defendants. During this meeting, Klausner was directed by Lieutenant Gonzalez to consult with each of the Defendants in order to make a determination regarding who was directly involved in the incident and who was merely a witnesses. Gonzalez told Klausner that he wanted to know which officers were required to give a statement and which officers might volunteer. Klausner explained that a witness officer is required to give a statement under penalty of being disciplined or fired, and therefore the witness officer has no need for a lawyer, and would be precluded from having a lawyer or union representative present when questioned.

Following a brief discussion with Gonzalez and the others, Klausner spoke with each Defendant in order to make his own determination. These meetings resulted in the determination that Camacho and Trujillo were principals or involved officers and that Haynes, Sinclair, Veal and Watson were witness officers. Since Camacho and Trujillo were classified as involved officers, Klausner determined that Camacho and Trujillo would not be giving statements to the investigating Homicide officers. Klausner then informed Gonzalez of the status of each of the officers. Gonzales told him that each of the witness officers would be giving statements as they were required to do so, and that given their status as witness officers, Klausner could not counsel with them further.

Klausner gave different advice to the four officers who had been classified as witnesses than he gave to...