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In Rogers, the court determined that, without more, the detectives' request that the plaintiff accompany them back to the station house, the setting of the police station and the interrogation room were not so coercive as to preclude a reasonable person from feeling free to leave.
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No. 99 Cr. 710 (CM)
January 27, 2000
Karl Metzner, Esq., Assistant United States Attorney Southern District of New York of White Plains.
The Legal Aid Society, Federal Defender Division, Paul E. Davison, Esq. of White Plains, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING HEARING ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE (CONFESSION)
Eric Rogers was indicted on July 14, 1999 under the Hobbs Act for robbery and conspiracy to commit robbery under 18 U.S.C. § 1951(b)(1), brandishing a firearm during a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii), and for the discharge of a firearm by his co-conspirator during a crime of violence under 18 U.S.C. § 924(c)(1)(A)(iii). The charges arise out of the robbery of a bar at 401 Walnut Street in Yonkers, New York, and the murder (by shooting) of Gregory Hart, one of the bar's patrons. The defense has moved to suppress Rogers' confession, given on July 17, 1998, on the ground that it was obtained in violation of his Fourth, Fifth and Sixth Amendment rights.
A complicating factor is that this indictment is not Rogers' first in connection with this incident. Rogers was previously indicted by a grand jury of Westchester County on a charge of Murder in the Second Degree. After a lengthy suppression hearing, The Hon. Kenneth Lange of Westchester County Court suppressed Rogers' confession, on two grounds. First, he found that Rogers was in custody before the Yonkers Police had probable cause to arrest him. Second, he found that Rogers was not Mirandized for many hours after he was in custody and prior to the arrival of a Westchester County District Attorney, so that the confession (which was obtained prior to his first being Mirandized) was procured in violation of the Fifth Amendment.
The defense originally moved before this Court to suppress the confession and dismiss the indictment on the ground that Judge Lange's determination was entitled to preclusive effect. That, of course, is not the law. Federal courts have, not only the right, but the duty, to make an independent assessment of the evidence and to make their own determination on suppression issues. See Miller v. Fenton, 474 U.S. 104, 109 (1985) ("the ultimate issue of `voluntariness' is a legal question requiring independent federal determination"). It was thus incumbent on me to hold my own hearing, which I did, on December 6 and 7, 1999. Following the hearing, the parties briefed the constitutional issues raised by the evidence — evidence that, for the most part, was undisputed, and that the defense urged me to view most favorably to the Government, at least in the first instance.
After due consideration, I find that Rogers's Fifth and Sixth Amendment rights were not violated, but that he was illegally seized in violation of the Fourth Amendment during his interrogation at the Yonkers Police Department, and that his confession must therefore be suppressed.
Findings of Fact
The following represent the Court's findings of fact, based on the evidence credited by the Court.
The Murder
On January 16, 1998, at approximately 2 a.m., two masked men entered "The Sanitarium," a bar at 401 Walnut Street in Yonkers (also known as "The 401 Club"). The taller man remained at the door while the shorter entered the premises and strode to the far end of the bar. He demanded that the barmaid empty her cash register and that all the patrons place their wallets on the bar. One patron, Gregory Hart, rose from his chair. The shorter robber shot him in the chest. The two men took the money and ran from the bar. Hart died on the operating table at Jacoby Hospital some hours later.
The Chase
Police responding to the scene were advised by Jose Martinez, a patron who was outside the bar retrieving his wallet when the shooting occurred, that two men had run from the bar and proceeded north on Walnut, then turned West toward the New York State Aqueduct that bridges Nepperhan Avenue. A trained dog followed a scent over the Aqueduct, down an embankment and back across Nepperhan Avenue (a four-lane thoroughfare), through Stefanik Park and a vacant lot, to 354 Nepperhan, the site of the Whitney Young Housing Project. The dog lost the scent inside the ground floor of 354 Nepperhan, at a door near the entrance, which the officers mistakenly believed led to a storage area. Later-arriving detectives tried this door and found that it was actually a "security door" that led outside, to the plaza between 354 Nepperhan and its sister building, 358 Nepperhan. The doorman, who was found sleeping, claimed that no one had entered the project during the night hours. Officers canvassed the buildings the following day but obtained no information. During the canvas of 358, a Yonkers detective, Joseph Pietropaolo, knocked on the door of Apartment 7-J. A young black male named Eric Rogers answered, but said he had no information about the events at 401 Walnut.
The Leads
Over the course of the next six months, Yonkers detectives pursued numerous leads, most of them based on street rumor from informants untested for reliability.
A Mark Raines advised Detectives Patricia Yasinski and James McAuley, who were heading the investigation, that he had been on Walnut the night of January 16 and saw a young male run past him and on past 358 Nepperhan. This was not the direction in which Martinez indicated the robbers had fled, nor was it the direction followed by the dogs. It did, however, afford a more direct route to the Whitney Young Houses. Raines also said that he heard that the robbers lived in Mulford Gardens.
A black female informant told police that, while she was waiting for a cab, she overheard a conversation among a group of black males, who were complaining about the extra police presence in the area in the wake of the robbery/murder. One member of the group said that "the three" were "stupid," that "there was not enough money to split," and that "the dog lost the scent when Eric went over the railing." The unidentified participants in this conversation (the informant assumed them to be drug dealers from the tenor of their conversation) did not assign a surname to Eric, but they did mention someone named Box, who was known to the police as Dion Thomas. After looking into the matter, however, the police concluded that Box was not involved in the 401 Walnut job.
A Kenny Whitney, who drove the female informant to the police station in the hope of a reward, told police that Helen Rogers, who lived at 358 Nepperhan, had a son named Eric. YPD detectives had an outstanding warrant for this Eric Rogers; indeed, after the murder, they had conducted a warrant sweep of the Whitney Young Houses, but failed to locate Rogers. On the pretext of checking out that warrant yet again, Yasinski and McAuley went to the building to try to locate him. They spoke to his foster mother, who lived in Apartment 7-J — the very apartment where Detective Pietropaolo had met an Eric Rogers during his initial building canvas on January 16. Mrs. Rogers advised the detectives that the warrant squad had already paid her a visit, but said that she had not seen her son for several months. She also told the Detectives that Eric had missed both the wake and the funeral of his foster brother. She did, however, suggest that the detectives try another foster brother's apartment at 401 Van Cortland Park Avenue, where Eric had been known to stay. A visit to that location proved fruitless.
An Adam Liman, a homeless person, told police that he had been approached by someone named Ralph, who was a security guard at the Whitney Young Houses, about participating in a robbery. Adam at first agreed, and actually went with Ralph to a bar called the Harp and Eagle, which Ralph rejected as a possible robbery site because too many people were present. Adam got cold feet on their way to the 401 Club, which Ralph proposed as an alternate site for a robbery. Ralph turned out to be one Ralph Walker, who had already been arrested for a bar robbery in Elmsford. Liman was reluctant to talk to police and changed his story after arriving at the police station. There was no testimony that Liman mentioned any name other than "Ralph," or that he implicated any third person in the events of that evening.
On July 16, Detective McAuley was told by Detective Sergeant Frank LoCascio that someone named Andre Anthon, who had been arrested in Manhattan, told detectives of the New York City Police Department that a male with a large scar named Eric, who attended Roosevelt High School and played on the state championship football team, had been a participant in the 401 Walnut homicide. According to Anthon, the robbery took place in the spring, $2,000 was taken, and the bartender was shot — all erroneous details. The record contains no other evidence attesting to Anthon's reliability as an informant. Nonetheless, this report whetted the Yonkers Detectives' appetite to talk to Eric Rogers, in whom they had remained interested for many months.
The Defendant
Eric Rogers is a five foot ten inch black male. He attended Roosevelt High School in Yonkers. He has a large scar on his face.
In September 1997, Rogers pled guilty to several misdemeanors in Yonkers City Court. He was scheduled to be sentenced on January 9, 1998. At his plea, Rogers was promised probation if he continuously participated in a drug program between the date of his plea and the date of his sentence. Shortly before his sentence date, Probation was advised that Rogers had failed to appear at his drug program. Rogers did not appear on the sentence date, and a bench warrant issued.
As noted above, Yonkers detectives encountered Eric Rogers twice during the early weeks of their investigation. When Detective Pietropaolo knocked on the door of Apartment 7-J at 358 Nepperhan the morning after the murder, he spoke to a young black male who identified himself as Eric Rogers. A few weeks later, after hearing the name "Eric" from the female informant, YPD detectives went to that same apartment and spoke to Eric's foster mother, Helen. They wanted to talk to Eric, but could not locate him.
In May, YPD detectives, still armed with the warrant, again spoke to Eric's mother. She told them that she had reason to believe her son was under arrest in Orangeburg, South Carolina. YPD representatives contacted their counterparts in Orangeburg, who advised them that Eric was in custody on a simple drug possession charge. They further advised YPD that he had been using the name "Corey Robinson." When the South Carolina police confronted "Robinson" with his true identity, Roberts allegedly responded, "What's the matter? You all act like I killed someone."
The Government attaches great significance to this remark in its analysis of probable cause. The Court does not.
YPD arranged for Rogers to be extradited to New York on the outstanding warrant, and kept track of him while he was imprisoned in the Westchester County Jail at Valhalla, New York. The Detectives learned that he was to be released on the morning of July 17. Although Detective Yasinski, the lead detective on the Hart murder, was scheduled to be on vacation that day, she arranged for Detective McAuley, her partner, and several other YPD detectives to be present at Valhalla on July 17. They planned to intercept Rogers when he left jail and try to question him about the crime.
The Interrogation
On July 17, 1998, three YPD detectives who had spent time on the case — McAuley, Pietropaolo, and John D'Alessandro — went to Valhalla. They planned to speak with Rogers only if he was willing to accompany them. However, they took two cars, in anticipation that they would be successful in persuading Rogers to return to Yonkers with them. All three of these officers testified that they did not believe they had probable cause to arrest Rogers at that point. According to Pietropaolo, McAuley said that he had cleared their plan with the Westchester District Attorney's office before going to the jail.
Sergeant William Pudney of the Corrections Department's Special Investigations Unit met the detectives and pointed out where Rogers would be emerging from the facility. McAuley and D'Alessandro stationed themselves by the bus stop just outside the gate, while Pietropaolo waited in the parking lot with Pudney 20 to 30 feet away. When Rogers came out, McAuley drove just past him and the two detectives got out of their unmarked car. Both were in plain clothes. While both were armed, neither's gun was visible.
McAuley asked if he was speaking to Eric Rogers and identified himself and D'Alessandro as Yonkers Police detectives. He asked if Rogers would accompany them to the police station, as they wished to talk to him about "a matter." Rogers asked what they wanted to discuss. McAuley said he would prefer to talk about it at the station. Rogers agreed to go and got into the car. It is not clear whether Rogers or D'Alessandro opened the door of the car so Rogers could enter, but it is of no moment to the Court's analysis, as no guns were drawn and Rogers was neither cuffed nor forced to enter the vehicle.
The two Detectives signaled Pietropaolo, and the two unmarked cars made their way to the Cacase Justice Center in Yonkers, where the detectives had their squad room. During the ride, the Detectives did not question Rogers, but made small talk; Rogers did ask again what this was about, but did not pursue the subject after McAuley told him they would talk at the station.
At about 1000 hours, or about 20 minutes after they left Valhalla, the Detectives pulled up to Cacase. Rogers got out of the car under his own steam, although it is again not clear if he opened the door from the inside (McAuley insists that the child safety locks in the Ford Tauruses used by YPD detectives were disabled) or if D'Alessandro opened the door for him. Again, it is of no moment. McAuley and D'Alessandro took Rogers in the back door, by the entrance to the Courts and in the back door of the police station, rather than via the front door and through the waiting area. To a member of the public, no significant distinction between entering by the front or back door would be immediately apparent, since both areas were secure: one who entered via the front had to be buzzed into a waiting area, while one who came in the back confronted a metal detector.
Rogers was escorted around the detector and into the station, where he was taken to an interior room adjacent to the squad room for questioning. The interview room was constructed in 1990, according to a sworn statement made by the building's Superintendent. The door to the room has a mortice lock that meets fire code standards, which means it could be locked only from the outside, not from the inside.
Rogers had in his possession some notebooks and a text book that he had carried with him from Valhalla. McAuley removed them from the room, telling Rogers he was putting it in the other room while they talked. That is in fact what McAuley did. There is no evidence whatever that any officers searched Rogers' personal effects while they were out of his sight. However, Rogers could not see what happened to his property.
The three Detectives decided that McAuley would try talking to Rogers first, since it was his and his partner's case, even though McAuley was by far the least experienced detective working on the matter (he had gotten his gold shield only 15 months before). Through the two-way mirror at one end, D'Alessandro and Pietropaolo could observe what was going on inside; they could hear the conversation as well.
McAuley went into the interrogation room at about 1015 hours. He delivered Miranda warnings, which he read from a small card (UF-76). D'Alessandro and Pietropaolo watched and listened as he did it. McAuley delivered the warnings in a low-key, conversational tone of voice so as not to call any particular attention to them. He did not ask Rogers to initial the card, although he has done so on prior occasions, and he did not ask Rogers to sign a form containing the Miranda warnings (McAuley denied that such forms were available at the Detective Division). Nor did he ask if Rogers wanted to videotape the interview, although equipment for doing so was available. Rogers said he was amenable to talking. The interview began.
McAuley asked Rogers if he knew anything about the 401 Walnut job. Rogers said he did not. McAuley then told Rogers that the police had reason to believe he had been involved. Rogers protested, "You've got the wrong guy." When asked about his sudden disappearance from the area and his use of an alias in South Carolina, Rogers said he left because his brother was murdered (contradicting his mother, he claimed to have attended the wake, but said he was too distraught to go to the funeral). Rogers persisted in his denials, and after about 30-45 minutes, McAuley gave up and turned the questioning over to the more experienced D'Alessandro.
D'Alessandro came into the room at about 1100 hours. After discussing the murder of Rogers' brother and his problems in South Carolina, the Detective said, "We have you here because we have some information that you are involved with this case." Rogers denied involvement and claimed to have been in Atlanta with friends who were members of a rap band. D'Alessandro replied, "That's great, tell me who they are, I can call them up and straighten this whole thing out while you're here." Rogers said, "Forget about it." D'Alessandro asked where Rogers had really been; he told Rogers that YPD had "information" that he was involved. Rogers again denied any involvement. D'Alessandro persisted. He did not talk non-stop; there were periods of silence between exchanges — sometimes a couple of minutes, sometimes longer. However, D'Alessandro repeatedly stated that he had information that Rogers was involved, and while on the stand, freely admitted that he left Rogers with the impression that he did not believe Rogers' repeated denials.
D'Alessandro was with Rogers for about 75-90 minutes (including about 30 minutes of small talk) before the conversation took the turn for which the detectives had been hoping. The Detective said, "Maybe your involvement is innocent, maybe you can help me out here." After a long period of silence, during which Rogers' knees were shaking, he agreed to tell D'Alessandro what he knew. Rogers said he had been hanging out at the car wash behind 354 Nepperhan when Ralph approached him about going to see some girls at the 401 Club. Rogers agreed to accompany him, but sensed that something was amiss when they entered the bar, as the patrons were exclusively men. At that point, Ralph pulled out a mask, put it over his head, pulled out a gun, and demanded that the patrons put their wallets on the bar. Ralph then shot one of the patrons, whereupon Rogers panicked and ran away from the bar and down Walnut Street. When asked why Ralph shot the patron, Rogers said the guy was coming after him (Ralph). Rogers described the victim as a white male. At D'Alessandro's request, Rogers drew a sketch of where everyone was. D'Alessandro asked Rogers several other questions in order to elicit details that would confirm his presence at the scene — what did the bartender look like (a white woman), what the weather was like (raining), what were they wearing (did not recall). By the end of D'Alessandro's session with him, Rogers had clearly placed himself at the scene and implicated himself in the robbery. From that moment, the police indisputably had probable cause to arrest him.
D'Alessandro asked if Rogers would write out his statement. Again, Rogers agreed. D'Alessandro took the statement and left the room to make copies. By the time he returned, Rogers had obviously thought better of the situation; he grabbed the original, and began eating it. D'Alessandro and he tussled for control of the statement. McAuley and Pietropaolo, who were in the viewing room, entered to help subdue Rogers. D'Alessandro told Rogers that he had already made copies of the statement, so Rogers should just spit it out. Rogers did so. D'Alessandro left the room with the half-eaten statement, and McAuley cuffed Rogers to be sure he had calmed down. When D'Alessandro came back, he said that he would like to take the cuffs off, but he wanted to be sure Rogers was not going to do anything crazy. Rogers was calm by this point, and D'Alessandro removed the cuffs. Rogers was cuffed for at most a couple of minutes.
D'Alessandro started questioning the Defendant again, saying Rogers might as well tell the whole truth, since he had placed himself at the scene. Rogers insisted that the story as he told it was true, except that he (Rogers) knew that they were going to 401 Walnut to do a robbery. Rogers tried to steer the conversation to other matters; he said he wanted to do a deal and claimed to have information about two other homicides. D'Alessandro explained that only the District Attorney, not a police officer, could do deals. Rogers refused D'Alessandro's request that he give a further written statement, stating that he would put nothing else in writing without trying to make a deal with the DA. Rogers tried to recant his earlier account, and when D'Alessandro ticked off the details that only someone present at the scene would have known, the Defendant came up with explanations (for example, he said he knew the bartender was a woman because it was a gay bar and she had been working there for years — in fact, it was her first night on the job). As D'Alessandro pressed him, Rogers announced that he had been tricked. He said he did not trust D'Alessandro and wanted to talk to someone else.
Pietropaolo took over the questioning. The Detective asked Rogers about the 401 Walnut job, and Rogers denied being there. He claimed to have been drinking with friends, but would not give the Detective their names. Pietropaolo said, "Eric, I know you were there, I know Ralph Walker came up to you to do a robbery, not to see any girls." Rogers nodded and said that Walker had given him the mask and a gun. This time, he said that he heard a shot as they were going in, and that he immediately ran out of the bar, down Walnut, across the foot bridge and into the project. Pietropaolo, not wanting to push for any more information, asked Rogers if he wanted something to eat, ordered him a McDonald's Quarter Pounder with fries and a Coke, and took him to the bathroom. When the food came, Rogers was left alone to eat. When Pietropaolo returned to the interrogation room, he asked for a written statement. Rogers got upset, refused and started to recant his admission about having a gun.
At that point, Lieutenant Thomas LaGala, Major Case Coordinator for the Yonkers Detective Division, came in. Pietropaolo said, "Eric, this guy is the boss, he's in charge, this is your last chance. Do you want to give us a videotaped statement? Do you want to talk to the DA?" Rogers said he wanted to talk to the DA and would make a tape. LaGala then said, "Before you do, I need to know exactly what happened." This time, Rogers told the detectives that Ralph had approached him to do a robbery. Ralph handed Rogers a mask and a gun and told him to stand guard by the door. Ralph went to the end of the bar and shot Hart. Rogers got scared and ran out the door and down Walnut toward the footbridge and the project. He threw the gun into the Saw Mill Creek. At this point LaGala left and Pietropaolo set up the videotape machine for Rogers' statement to Assistant District Attorney Julia Cornacchio.
The videotape rolled at about 6:10 p.m. Rogers told exactly the same story. He added some new details: Several days later, Ralph accosted Rogers, pulled a gun on him and threatened to kill Rogers and his family if Rogers went to the police. Rogers stayed with his mother for a week or two, then left when he heard on the street that Ralph was looking for him. Shortly after, Rogers' brother was shot and killed in the Bronx. Rogers attended the wake, but not the funeral, instead fleeing to South Carolina, where he used an acquaintance's name as an alias and lived with an aunt. While the tape was running, Rogers was handed a photo array and correctly identified Ralph Walker.
Rogers was properly Mirandized by ADA Cornacchio at the outset of the videotaped interview. The ADA asked Rogers if he had been asked the Miranda questions earlier in the day. He said no. She dropped the subject.
Neither D'Alessandro nor Pietropaolo Mirandized Rogers.
At no point on July 17, 1998 was Rogers told that he was free to leave the police station. At no point was he told that he was not free to leave.
Rogers' Testimony
Eric Rogers did not testify at the hearing before me. However, he did testify at the suppression hearing before The Hon. Kenneth Lange in Westchester County Court. At the behest of the defense, I have reviewed that testimony. I find it no more credible than Judge Lange did. It is replete with such obvious falsehoods — for example, his claim that the detectives threatened to mace him while they were all in a room so small that they, too, would have been affected, or his contention that the detectives locked the door from the inside while they were interviewing him — that I decline to credit it entirely under the doctrine of falsus in unum, falsus in omnium.
Conclusions of Law
(1) Fifth and Sixth Amendment Claims
In his videotaped interview, Rogers answered "no" when asked by Assistant District Attorney Cornaccio whether he was read his Miranda rights that day. Detective McAuley, however, testified that he read Rogers the Miranda warnings from a UF-76 card at approximately 10:15 a.m. on July 17, and delivered the warnings in a calm, conversational tone of voice. Detectives D'Alessandro, Pietropaulo, and LoCascio each testified that they observed McAuley giving the warnings from the monitor room. I credit the Detectives' testimony and find that Rogers was duly Mirandized upon his arrival at the Yonkers police station. There was no legal requirement that he be re-advised of his rights at any time during his questioning. I therefore reject Rogers' contention that his confession must be suppressed on Miranda grounds.
Nor was there any Sixth Amendment violation in this case. As a general matter, an accused who has been given Miranda warnings is "sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequence of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one." Patterson v. Illinois, 487 U.S. 285, 296 (1988). Rogers thus waived his Sixth Amendment right to counsel when he agreed to speak with McAuley after being Mirandized.
(2) Fourth Amendment Seizure
This leaves Rogers' argument that he was seized without probable cause at some point before he made his first incriminating statement.
The Government first argues that probable cause to arrest Rogers existed on the morning of July 17, 1998, when Rogers was released from the Westchester County Jail. A warrantless arrest is permissible when there is "probable cause to believe that an offense has been committed or is being committed." See United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987). Probable cause exists "if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution" in concluding that the defendant has committed an offense. See United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990).
Rogers asks me to dismiss this contention because each Detective who drove to Valhalla — McAuley, D'Alessandro and Pietropaulo — testified that he did not believe probable cause to arrest Rogers existed when they drove to Valhalla on the morning of July 17. But as the Government correctly responds, the existence of probable cause is to be determined on an objective basis, without regard to the perceptions of police. See Ornelas v. United States, 517 U.S. 690, 696 (1996). So while the three Detectives — who together had over 30 years of police experience — may well have had reason to hold their views (see footnote 2, infra), their subjective belief is irrelevant to the analysis. Rather, the proper focus is whether the "reasonably trustworthy" information that had been provided to the Yonkers Police before the morning of July 17, 1998 would have led a reasonable officer to believe that Rogers was involved in the 401 Walnut robbery/homicide.
Until July 16, the day before Rogers was questioned, the information available to the Detectives consisted of the following: on the night of the murder, eyewitnesses described the man at the door of the bar as a black male in his early twenties, five feet ten inches to six feet tall; a trained police dog tracked a scent from the crime scene to 354 Nepperhan, one of the two buildings that make up the Whitney Young Housing Project; Rogers was present later that morning in 358 Nepperhan, the other building in the Young Project; an unidentified black female informant told police that she overheard three black males discussing the heightened police presence in the area of the murder and heard one of them state that "the dog lost the scent when Eric went over the railing;" Rogers had missed his brother's funeral and left the New York area at some unknown time after the murder; and Rogers was using the assumed name "Corey Robinson" in South Carolina. (As noted in my findings of fact, I do not view Rogers' statement "You all act like I killed someone" to South Carolina police as consequential to the probable cause determination.)
Even taken together, this information falls far short of connecting Rogers with the crime. There are numerous young black men of Rogers' approximate height in South Yonkers. The female informant who brought the name "Eric" to YPD's attention also gave them the name "Box," which failed to pan out. Rogers' departure from the area and his use of an alias might be troubling in other circumstances, but there was a bench warrant for Rogers outstanding at the time he left New York, and he knew that his failure to obtain drug treatment meant that he was going to jail. Thus, Rogers' disappearance from Yonkers might have meant nothing more than that he was trying to avoid execution of a warrant that would land him in jail. "[I]n determining probable cause, facts relied upon must not be susceptible to innocent or ambiguous explanation." Wu v. City of New York, 934 F. Supp. 581, 586 (S.D.N.Y. 1996) (quotations omitted). See also United States v. Fisher, 702 F.2d 372, 375-77 (2d Cir. 1983).
The day before Rogers was questioned, YPD received a tip from an arrestee in Manhattan that a male with a large scar named Eric who attended Roosevelt High School and played on the state championship football team — all of which accurately described Rogers — had participated in the Walnut Street robbery. The arrestee went on, however, to state that the robbery had taken place in the spring, that $2,000 was taken, and that the bartender was shot, all of which were false. The reliability of an informant's tip for Fourth Amendment purposes is to be evaluated under the totality of the circumstances, including, but not limited to, the basis of the information relayed and the veracity of the informant's report. See Illinois v. Gates, 462 U.S. 213, 238 (1983). In this case, there is no evidence as to the basis for Anthon's "knowledge" about Rogers' involvement in the 401 Walnut crimes. And the amount of inaccurate information Anthon gave about the robbery undermines any inference that he was a reliable informant.
In light of the foregoing, the Government's assertion that the various pieces of information led them "inexorably" to Rogers is a considerable overstatement. (Govt. Br. at 24.) It certainly led "inexorably" to their wanting to question him. But the experienced and candid YPD Detectives who testified before me were correct — what they knew would not have supported an arrest on the morning of July 17. I therefore conclude that there was no probable cause to arrest Rogers until he implicated himself in the crime, which occurred about 90 minutes into Detective D'Alessandro's questioning, or at about 1230 hours on July 17, 1998.
New York, as a matter of State constitutional law, has expressly rejected the Gates standard for assessing informants' tips as insufficient, and continues to adhere to the two-pronged test established by Aguilar v. Texas, 378 U.S. 108 (1963) and Spinelli v. United States, 393 U.S. 410 (1969), which requires a showing of both the veracity of the information conveyed and the reliability of the source. See People v. Bigelow, 66 N.Y.2d 417, 424-426 (N.Y. 1985). Gates eliminated the requirement that both of those prongs be satisfied, and determined them instead to be non-determinative factors that are to be considered among the totality of circumstances. See Gates, 462 U.S. at 238.
Since Rogers makes his motion to suppress under the Fourth Amendment, the Gates test applies. As the Yonkers Detectives were State officers, however, they were subject to the New York Constitution, and thus bound by the Aguilar/Spinelli test when they assessed the presence or absence of probable cause. Under Aguilar/Spinelli, the conclusion that Anthon's tip was inadequate to support probable cause is mandated; the demonstrated inaccuracy of the information provided by Anthon and the utter absence of any showing as to Anthon's reliability as an informant means that Anthon's tip could not be relied upon to provide probable cause under New York law. Even applying the Gates "totality of the circumstances" test, however, the standard for probable cause is not satisfied, as there are no countervailing circumstances on the record before me to compensate for the failure to demonstrate either Anton's reliability or the basis for his information.
The Government next argues that Rogers was not in custody before he made his incriminating statement to the Detectives. Rogers claims that he was.
A seizure by police for Fourth Amendment purposes occurs only if, under the circumstances, "a reasonable person would have believed that he was not free to leave." See United States v. Mendenhall, 446 U.S. 544, 554 (1980). The courts have set forth a non-exclusive list of factors suggesting that a seizure has occurred, including: the threatening presence of police officers; the display of a weapon; physical contact by the officer; language indicating that compliance with the officer is compulsory; prolonged retention of a person's belongings; and a request by an officer to accompany him or her to the police station or a police room. See Gardiner v. Incorporated Village of Endicott, 50 F.3d 151, 155 (2d Cir. 1995) (citation omitted). No single factor determines the inquiry, see United States v. Torres, 949 F.2d 606, 609 (2d Cir. 1991); rather, the court must base its conclusion on the totality of the circumstances surrounding the encounter. See United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992)
Rogers argues first that the Detectives' request to accompany them back to the station house in Yonkers points toward a seizure. He notes that the Detectives made contact with Rogers just after he had been released from prison, which Rogers describes as "an environment where uncritical submission to authority is, of course, compulsory" (Def. Br. at 6). Rogers next points out that he was not in a position to retreat back into the jail if he wished to avoid the Detectives' overtures. He also observes that the white Detectives knew that Rogers was young and black. Of course, to the extent that this last fact cited by Rogers is based upon the officers' subjective knowledge, it is not relevant to the seizure analysis, as the "free to leave" test is an objective one, which, as Rogers concedes, "does not turn on the unarticulated perceptions of either the defendant or the police." (Def. Br. at 5) (citing Glover, 957 F.2d at 1008).
I find that Rogers was not seized at Valhalla. When McAuley and D'Alessandro approached Rogers outside the prison gate, they were in plain clothes. Though both were armed, neither's gun was visible, as the Detectives were wearing "pancake" holsters under their clothing, which concealed the bulge from their firearms that would otherwise have been apparent. McAuley identified himself and D'Alessandro and asked Rogers to accompany them to the station to discuss a certain matter. Rogers asked what the matter was about. McAuley answered that he would prefer to discuss it at the station; nonetheless, Rogers agreed to go. At no point prior to or during the conversation did D'Alessandro touch Rogers or tell him that he was not free to leave. Though it is unclear whether Rogers opened the door or D'Alessandro did so for him, Rogers got into the car on his own. The Detectives did not draw or otherwise display their weapons, and Rogers was neither cuffed nor forced to enter the vehicle. Nor is there any indication that Rogers was confined once inside the car: to the contrary, McAuley testified that the child safety locks in the car had been disabled.
I also reject Rogers' argument that the fact that he was approached as he was being released from jail rendered him particularly susceptible to coercion. Nothing about the encounter would have suggested to a reasonable person in Rogers' position that he would be forced back inside the prison gate if he refused McAuley's request.
Rogers further contends that what he characterizes as the "threatening presence" of several officers — not only McAuley and D'Alessandro, but also Pietropaolo and Sergeant Pudney, who stood in the background — indicates coerciveness. I reject this contention. Pietropaolo stood with Sergeant Pudney outside another unmarked car 20 to 30 feet away from the gate. Like McAuley and D'Alessandro, Pietropaolo did not display his weapon. He did not address Rogers or engage in any act that could be described as a show of force. Rogers asserts that the mere presence of the "team" of detectives was tantamount to compulsion, on the theory that a reasonable person in Rogers' position could only have inferred that "the police considered this a significant encounter which warranted the deployment of two cars and four policemen." (Def. Br. at 9.) His reasoning is flawed. The mere presence of four officers (two of whom were positioned well in the background) — unaccompanied by any coercive tactics or objectively intimidating behavior — cannot reasonably be depicted as so overwhelming in itself as to have overborne Rogers' volition. And to the extent that Rogers is arguing that a manifestation by police of the "significance" of an investigative inquiry points to coercion, it would be difficult to envision any police-citizen encounter that would not cross the line into seizure. Police officers do not ordinarily solicit information from individuals with respect to investigative matters that they deem "insignificant."
The case Rogers analogizes to the present one, United States v. Ceballos, 812 F.2d 42 (2d Cir. 1987), is readily distinguishable. In that case, four federal agents, acting on a tip concerning the defendants' involvement in a counterfeiting scheme, arrived in two cars at the defendants' workplace. See id. at 44. After one of the agents displayed his badge to the supervisor and asked to speak with one of the defendants, the supervisor summoned that defendant. The agent asked "if it was possible if he could get off a little bit early and come with us." Id. The agent testified that he had "probably" displayed his badge to the defendant, and that the defendant "sensed the urgency" of the situation. Id. The supervisor, who was still present, told the defendant to go ahead. The agent then told the defendant that "we would wait until he got off work but if he could come now, it would be better all around." Id. Upon leaving the workplace, the defendant asked the agents if he could follow them in the company van, which he customarily used to commute to work, but the agents refused and accompanied him back to the office to return the keys. See id. at 45.
The Second Circuit found that a seizure had occurred by that point, taking into account that
the request to appear was made in person by law enforcement agents at [the defendant's] place of work and in a manner that the principal agent admits conveyed a strong sense of urgency and the impression that the agents did not intend to leave without [the defendant]. . . . The initial impression of obligation to accompany the agents was compounded by their denial of [his] request to follow them in the company van. Id. at 48.
In the present case, there was no one with authority over Rogers, like the supervisor in Ceballos, instructing him to "go ahead;" the Detectives, unlike the agent in Ceballos, did nothing to indicate that they would not leave or that they would prolong the encounter until Rogers acquiesced; the Detectives did not display their badges; D'Alessandro did not use any language comparable to "it would be better all around" intimating that non-compliance with his request would entail some sort of adverse consequence for Rogers; and at no point did Rogers ask if he could travel to Yonkers on his own. Thus, the Second Circuit's concern over the potential for coerciveness in a request to accompany law enforcement officers to an office or station house, so plainly borne out in Ceballos, does not warrant a finding of seizure based solely on the request to accompany in this case.
Rogers next contends that, even if he was not in custody when he was brought back to Yonkers, a reasonable person would not have felt free to leave the interrogation at the station house under the circumstances presented. For the reasons stated below, I, like Judge Lange before me, am forced to agree.
Rogers argues first that the setting of the interrogation indicates that he was in custody. Specifically, he asserts that a reasonable person would not have felt free to leave after being escorted by Detectives past uniformed security guards and through metal detectors, into the Detectives Division through a locked, unattended rear entrance, and down a series of corridors leading to the interview room. He also asserts that the nature of the interrogation room — small, empty of distractions, and away from an exit door — conveyed the message that he was not free to leave.
In the context of determining whether an individual is in custody under the Fifth Amendment, the courts have long recognized that the setting of a police station or a police interrogation room, without more, is not so coercive as to preclude a reasonable person from feeling free to leave. See Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (noting that Miranda warnings need not be imposed "simply because the questioning takes place in the station house); United States v. Kirsteins, 906 F.2d 919, 924 (2d Cir. 1990) (citing Mathiason for the proposition that "a police station is not so coercive an environment as to establish, without more, custodial restriction of freedom"). Although both of those cases involved defendants who were ultimately permitted to leave the station after questioning, there is nothing in the present case to indicate that the physical layout of the station or demeanor of the officers as they took Rogers inside of the Yonkers station house was in any way beyond the routine or otherwise coercive. The location of the interrogation room within the station, like the features of the room itself, were in all respects unremarkable, and would not, in themselves, have suggested to a reasonable person that he could leave. Nor does the fact that Rogers was escorted through the back door past security indicate otherwise: a reasonable person visiting a police station would find nothing out of the ordinary in bypassing security when in the company of officers who work there — especially if that person had just emerged from jail and could not possibly be armed.
Second, Rogers contends that the removal of his books and papers by Detective McAuley for the duration of the interrogation supports a finding that he was seized. There are a number of cases holding that prolonged detention of personal belongings is a factor pointing to seizure. See, e.g., Florida v. Royer, 460 U.S. 491 (1983); Mendenhall, 446 U.S. 544; Glover, 957 F.2d 1004; United States v. Lee, 916 F.2d 814 (2d Cir. 1990). The Government responds that those cases limit that rule to belongings that "a person would expect to keep with them at all times" — namely, travel documents, such as airplane tickets or personal identification. (Govt. Br. at 21.) But as Rogers correctly points out, the case law contains no such restriction. Indeed, the case the Government cites to support its proposition, Brown v. City of Oneonta, 195 F.3d 111 (2d Cir. 1999), quotes the Supreme Court's observation in Mendenhall that the factors indicating seizure include "prolonged retention of a person's personal effects, such as airplane tickets or identification" (emphasis added). See Brown, 195 F.3d at 122. The Government asks me to read the Supreme Court's illustration as an exclusive listing of personal effects. While several cases have relied on the removal of travel documents or identification in finding custody, on the rationale that a reasonable person would not feel free to resume travel when his airline ticket or driver's license has been taken — see, e.g., Royer, 460 U.S. at 503 — none of them suggests that the detention of other personal effects could not point to seizure.
By the same token, I cannot conclude that Rogers would not have felt free to leave the interrogation solely on the basis of McAuley's removal of his books. McAuley told Rogers that he was putting his books in another room while they talked. He neither said nor did anything to suggest that Rogers could not refuse or ask for them back. Notably, at the point when McAuley removed Rogers' books from the interrogation room, none of the detectives had yet communicated his belief that Rogers was involved in the 401 Walnut murder. This case is therefore unlike Royer, where the Supreme Court found an impermissible seizure to have occurred after DEA agents, having taken the defendant's airline ticket and driver's license, told the defendant that they suspected him of trafficking narcotics. They then asked him to accompany them to a small room in the airport and open his suitcase, without having returned his ticket or license. See Royer, 460 U.S. at 502-07.
I also reject Rogers' argument that the level of coerciveness was heightened because he held a greater privacy interest in his books and notes than individuals have in their airline tickets or driver's licenses, which contain information that is inherently non-private. Again, Rogers was not inhibited from holding on to his effects or asking for them back if he wished to ensure their privacy.
Third, Rogers contends that the Detectives' failure to tell him that he was free to leave points toward seizure, particularly in view of the fact that McAuley gave Rogers Miranda warnings at the beginning of the interrogation. Of course, for Fifth Amendment purposes, the mere giving of Miranda warnings at the outset of questioning does not transform the interrogation into an arrest. See Booker v. Ward, 94 F.3d 1052, 1058 (7th Cir. 1996). Rogers attempts to distinguish Booker by arguing that the suspect in that case was told that he was not being held and was free to leave. However, Booker was never told any such thing by the interrogating detectives. See id. at 1055. While Miranda warnings are only required prior to a custodial interrogation, police officers routinely give them in order to avoid any possible challenge if a confession is obtained. The mere fact that Rogers was Mirandized does not mean that he was in custody.
This is not to say that all the factors I have just discussed are irrelevant to the Fourth Amendment analysis. They are simply not dispositive in and of themselves. They become relevant when they are considered together and in conjunction with yet another factor — the prolonged, accusatory questioning engaged in by McAuley and D'Alessandro.
Rogers argues that a reasonable person would not have felt free to leave in the middle of an interrogation that lasted for over two hours, during which McAuley and D'Alessandro repeatedly told Rogers that they believed he was a participant in the Walnut Street robbery and homicide. It has long been the rule, in this circuit and elsewhere, that questioning of a suspect that is prolonged and accusatory in nature suggests the occurrence of a seizure. See United States v. Little, 60 F.3d 708, 712-13 (10th Cir. 1995); United States v. Mire, 51 F.3d 349, 353 (2d Cir. 1995) (citing United States v. Price, 599 F.2d 494, 502 (2d Cir. 1979)). This case perfectly illustrates that rule.
Shortly after beginning the interrogation, McAuley told Rogers that the police had reason to believe Rogers had been involved. Despite Rogers' several denials, McAuley repeated this accusation a number of times over the course of the next 30-45 minutes. D'Alessandro, who took over questioning Rogers for the next hour and a half, told Rogers, "We have you here because we have some information that you are involved with this case." After Rogers abandoned his alibi that he had been in Atlanta with friends, D'Alessandro again reminded Rogers that YPD knew he was involved. For the remainder of his time in the interrogation room, D'Alessandro repeatedly rejected Rogers' denials and stated that the police had information linking Rogers to the crime. Although D'Alessandro's tactic was punctuated by periods of silence, the Detective readily admitted that he left Rogers with the clear impression that the inquisitors did not believe Rogers' answers.
These repeated, accusatory statements from two interrogating officers over the course of more than two hours — when viewed in light of all the circumstances (i.e., that Rogers had been picked up as he walked out of jail, was taken to a police station and Mirandized, had his personal effects removed, and was never told that he was free to leave) — would, I find, lead a reasonable person to but one conclusion: that he could not hope to persuade the Detectives of his innocence; that criminal prosecution was highly probable, if not inevitable; and hence, that he would not be permitted to leave the police station.
It is significant in this regard that, while the facts of the two cases are distinguishable, the accusatory questioning that supported a finding of seizure in Little was far briefer and considerably less direct than the questioning in this case. In Little (as described in the first of two decisions by the Tenth Circuit in that case, hereinafter "Little I," 18 F.3d 1499 (10th Cir. 1994)), a DEA agent went to the train compartment of the defendant passenger, inquired about her destination, asked to see her train ticket and driver's license, and told her that he checked the train manifests for people who, like her, were traveling alone from California to the East on one-way tickets purchased with cash, because they sometimes carried drugs. See Little I, 18 F.3d at 1501. The agent then asked if she was carrying any drugs in her luggage, asked for and was refused her consent to search her bags, asked if she had packed them herself, and then told her that he was going to subject one of the bags to a dog sniff because he suspected it contained drugs. See id. at 1501-02. Only at the very end of this brief encounter did the agent directly accuse the defendant of criminal activity.
Here, Rogers was subjected to over two hours of interrogation, during which he was informed over and over by the officers questioning him that the police believed he was involved in a heinous crime. He had been given Miranda warnings at the beginning of the questioning, was kept in an interrogation room, and at no point was he informed that he was free to leave. Considering the totality of the circumstances, I find that Rogers was in custody at some point between the time McAuley started his questioning and the time Rogers made his first incriminatory statement.
The Government attempts to convince me that the Detectives' questioning did not give rise to a seizure by citing to an Eleventh Circuit case, Craig v. Singletary, 127 F.3d 1030 (11th Cir. 1997) (en banc). In that case, detectives working on a homicide case tracked down the defendant at the home of an acquaintance and asked him to come to the police station with them to answer some questions about the murder. See id. at 1032. Unlike the present case, the detectives in Craig specifically told the defendant that he was not under arrest. See id. The defendant agreed to go. Once inside the car, the defendant was given Miranda warnings twice, but was again told that he was not under arrest. See id. at 1041. He asked what the matter was all about, and one of the detectives falsely told him that his fingerprints had been found in the victim's car. See id. at 1032. After arriving at the station, the defendant told the detectives that he was familiar with the system, wanted to help, and would tell them everything he knew. See id. at 1033. He was then interrogated by one of the detectives, who told the defendant that "his story just did not jive." At that point the defendant offered to take a polygraph test, which he did twice. See id. During a break in one of the tests, the defendant was permitted to walk unescorted around the police station for 15 to 20 minutes. The police did not check on his whereabouts while he was walking around. See id. at 1033-34. Indeed, after the polygraph examination, the defendant "had the run of the building" while the detectives discussed the results of the tests. See id. at 1034. When the detectives told him that one of the tests indicated that he had lied, the defendant asked to speak to a narcotics detective with whom he had worked numerous times in the past. He was left alone in an office with an open door while the detectives located the narcotics detective. See id. The defendant then made incriminating statements to the narcotics detective. See id. The Eleventh Circuit determined that a reasonable person would have felt free to leave at any time up to receiving the results of the second polygraph test, by which time someone else had made a statement implicating the defendant. This, of course, created probable cause to arrest him that was independent of his inculpatory statement. See id. at 1042.
Craig is easily distinguishable from the present case. Rogers was never told that he was free to leave or that he was not under arrest. He was afforded no opportunity to leave the interrogation room during a two-hour period. He had no contact with others in the Yonkers Police Department. Most significantly, Rogers was subjected to far more than the (at most) four accusatory statements, spread out over an extended period of time, that were directed to the defendant in Craig. Moreover, at no point in Craig did the detectives indicate to the defendant that it was impossible for him to dissuade the detectives of his guilt. Given the considerable disparity between the facts of Craig and the facts before me, I am unpersuaded by its reasoning.
For the reasons discussed above, I am constrained to find that Rogers was in custody without probable cause, in violation of the Fourth Amendment, before he placed himself at 401 Walnut on the night of the murder. The Government concedes that the giving of Miranda warnings did not cure the Fourth Amendment violation that occurred during Rogers' interrogation. See Brown v. Illinois, 422 U.S. 590, 602 (1975). I therefore have no choice but to order that his confession be suppressed. See Dunaway v. New York, 442 U.S. 200, 218-19 (1979).
This constitutes the order and decision of the Court.