US v. Lynch, Crim. No. 92-30-01-M.

• Decision Date: 02 February 1993
• Docket Number: Crim. No. 92-30-01-M.
• Citation: 813 F. Supp. 911
• Parties: UNITED STATES of America v. Shawn E. LYNCH.
• Court: U.S. District Court — District of New Hampshire

813 F. Supp. 911

UNITED STATES of America v. Shawn E. LYNCH.

Crim. No. 92-30-01-M.

United States District Court, D. New Hampshire.

February 2, 1993.

Nancy Hart, Asst. U.S. Atty., Concord, NH, for plaintiff.

Walter H. Underhill, Boston, MA, for defendant.

MEMORANDUM OPINION ON DEFENDANT'S MOTION TO SUPPRESS

McAULIFFE, District Judge.

Defendant seeks to exclude evidence of certain statements he made while being transported from a temporary detention facility to his arraignment. His motion to suppress asserts that these statements were obtained by the government in violation of his Fifth Amendment rights against self-incrimination. A review of the pertinent facts is in order.

Relevant Facts

During the evening of June 9, 1992, Special Agents Cronin and Coughlin, of the Bureau of Alcohol, Tobacco and Firearms, began searching East Boston for Defendant Lynch in order to execute a warrant for his arrest. Boston police officers assisted in the search. Defendant had been indicted by a federal grand jury as a felon in unlawful possession of a firearm. The charge arose from an alleged theft of an AR-15 semiautomatic rifle from Riley's Sport Shop in Hooksett, New Hampshire, on December 22, 1991.¹

After unsuccessfully checking a few places, the Agents returned to an East Boston police station, and then to their own offices. A short time later Boston police called to tell them that the defendant, responding to messages left with his family, had just reported to the station. Special Agents Cronin and Coughlin returned.

When they arrived, they observed the local police properly warning defendant of his Miranda² rights to counsel, to remain silent, and to refrain from incriminating himself. While the federal Agents did not actually participate in that process, Special Agent Cronin did interject a reiteration of the warnings, and told defendant that he was actually being arrested by them, as federal agents, in connection with their responsibility to enforce federal firearms laws. Special Agent Cronin also told defendant what he might expect in the immediate future. That is, that he would be transported that evening from Boston to a detention facility in Brookline, Massachusetts, where he would be held overnight, and then transported on the morning of June 10, 1992, to the federal courthouse in Boston for arraignment. Neither Agent Cronin nor Agent Coughlin had any intention of interrogating defendant at that time, and did not ask any questions.

Defendant was taken to the Brookline detention facility, where he was held overnight. At approximately 9:00 a.m. the next morning, Agents Coughlin and Cronin arrived at the facility. After obtaining permission to use local equipment, they took defendant's fingerprints, photographed him, and filled out various administrative forms. At that point, Agent Coughlin again advised defendant of his Miranda rights, employing ATF Rights Warning Form # 3200.4 as a guide.³ Agent Coughlin read each enumerated right from the form verbatim and, after reading each statement, asked defendant if he understood that specific right, and, if so, to explain to Agent Coughlin, in his own words, what he thought it meant. Defendant understood his rights and demonstrated an ability to articulate what they meant in his own words.

After completing the warning, Special Agent Coughlin asked defendant to sign the form at a place indicating that he had read his rights, that they had been read to him, and that he understood them. Defendant signed the form.

Special Agent Coughlin then explained the rights waiver portion of the form, telling defendant that if he signed that portion, it would mean that he was willing to waive his rights and talk about the offense charged. According to Agents Coughlin and Cronin, defendant "stumbled over his words," and appeared somewhat apologetic, communicating in effect, that while he did not wish the Agents to think him uncooperative or a "wise guy," he did not wish to waive his rights and did not wish to make any statements. Special Agent Cronin told defendant that if he were undecided there was no need for him to talk, there would be plenty of time later, and that his unwillingness to talk at that time would not be construed as lack of cooperation. Defendant declined to execute the waiver portion of the form.

Agent Cronin testified that defendant's stumbling over his words and other actions were treated as his being "not willing to talk to me." No interrogation occurred; no questions, other than routine ones incidental to the custodial relationship, were asked.

Upon completion of the Miranda warning procedure, Agents Cronin and Coughlin escorted defendant out of the detention facility to Agent Coughlin's car. Defendant was placed in the rear seat. Agent Coughlin drove. Agent Cronin took his own vehicle and, being familiar with the Boston area, led Agent Coughlin from Brookline to the federal courthouse.

Approximately two minutes after Agent Coughlin departed from the Brookline detention facility, defendant initiated an unprompted⁴ conversation. He asked the following question: "Does this have anything to do with the thing up in Alton, New Hampshire?"⁵ Special Agent Coughlin remained silent. A moment passed, whereupon defendant asked another unprompted question: "How do the feds know that I stole a gun?"

Special Agent Coughlin testified that at this point he did respond, by attempting to create the impression that a store surveillance camera had filmed defendant stealing the weapon at issue. Agent Coughlin testified that he said, "Well, security's really tight at Riley's Sport Shop." Agent Coughlin continued, telling defendant, "frequently there are more employees in the shop than customers and that no one could steal a gun without being detected." He concluded by saying, "You know, even bank robbers wear a mask." The implication was not true; no surveillance cameras captured defendant on film. Apparently, defendant's cousins had suggested to the authorities that he played a role in obtaining the weapon.

Agent Coughlin testified, and the Court finds, that he made up this ruse on the spur of the moment in order to "alleviate pressure on scared prosecution witnesses." He wanted the defendant to think that his arrest was based on store surveillance cameras filming him in the act of removing the weapon, rather than on his cousins' cooperation with authorities.

Defendant responded to the "ruse" by saying: "So, what you're telling me is they've got me on camera, right?" Agent Coughlin stopped defendant from making any further statements, telling him, "I am not going to discuss the investigation with you." Defendant remained silent for the rest of the trip, giving no further indication that he wished to discuss the subject matter under investigation or wished to waive the rights to silence and counsel which he had invoked not ten minutes or so earlier.

Applicable Law

The government seeks to introduce all three statements at trial, thereby establishing their "incriminating" character for purposes of deciding this suppression motion, Rhode Island v. Innis, 446 U.S. 291, 301 n. 5, 100 S.Ct. 1682, 1690 n. 5, 64 L.Ed.2d 297 (1980).

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court considered the circumstances under which police may conduct (or resume) custodial interrogation after a person has "expressed a desire to deal with the police only through counsel...." Id. at 484, 101 S.Ct. at 1884. The Court held that once someone has expressed such a desire, they may not be subjected "to further interrogation by the authorities until counsel has been made available ..., unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-85, 101 S.Ct. at 1884-85. Subsequently, in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), the Court elaborated on its holding in Edwards, writing:

Even if a conversation taking place after the accused has "expressed his desire to deal with the police only through counsel," is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.

Id. at 1044, 103 S.Ct. at 2834 (emphasis added).

Incriminating statements made by someone in police custody, may be admitted in evidence against him, over his objection, only if certain constitutionally—mandated tests are met. Here, the Court must determine:

(1) whether defendant's statements were the product of custodial interrogation. Miranda v. Arizona, 384 U.S. at 467-68, 86 S.Ct. at 1624; See also Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), (broadly defining the term "interrogation");

(2) if so, whether defendant was properly apprised of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966);

(3) if so, whether defendant invoked his right to submit to further custodial interrogation by the police only with counsel present. Edwards v. Arizona, 451 U.S. at 485, 101 S.Ct. at 1885; (4) if so, whether the defendant subsequently initiated the conversation with the police in which he made the incriminating statements; and

(5) if so, whether the defendant knowingly, intelligently, and voluntarily waived his Fifth Amendment right to have counsel present during the interrogation. Edwards v. Arizona, supra; Oregon v. Bradshaw, supra; Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977); Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410 (1986); United States v. Montgomery, 714 F.2d 201, 203 (1st Cir.1983).

The procedural safeguards fashioned in Miranda apply when a person is taken into police custody and he or she is subjected to "custodial interrogation":

We conclude that the Miranda safeguards come into play

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