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December 5, 1994


The opinion of the court was delivered by: BRIAN BARNETT DUFF

 This case comes before this court on a motion to suppress oral admissions and a written confession by the defendant, Bernard Watson. For the reasons stated below, this court grants the motion to suppress because of a Miranda violation.


 Bernard Watson is before this court for his alleged involvement in the armed robbery of a federal armored truck on September 8, 1992 in Chicago. Watson was indicted based upon three counts: conspiracy to commit robbery in violation of 18 U.S.C. § 1951, knowingly using and carrying a firearm in relation to a crime of violence in contravention of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2, and interfering with the Federal Bureau of Investigation's investigation of the case in violation of 18 U.S.C. § 111.

 After suspecting Watson's involvement in the crime, two law enforcement officers went to Watson's home more than one year after the robbery. He accompanied them to a police station. At some time during the 8 hours that Watson spent in the presence of the officers, he allegedly made certain admissions and signed a written statement confessing his role in the armed robbery. Watson left the agents that day but was arrested several days later for his alleged participation in the armed robbery.

 The defendant has moved to suppress admissions made on September 16, 1993 at the crime scene as well as his signed confession. The court held a hearing on this motion to suppress over the course of three days, on March 4, March 7 and March 11, 1994. During the hearing, five witnesses testified: Police Officer Ronald Branum, FBI Special Agent Ronald Hosko, Anthony Daniels, Steve Watson, and the defendant, Bernard Watson.


 The court has heard the evidence and has considered the testimony, exhibits, and arguments of counsel. Now fully advised in this matter, the court initially finds the following facts.

 1. Following the robbery of a federal armored truck on September 8, 1992 in Chicago, law enforcement agents began an investigation. During the course of the investigation, the police arrested one of the guards, Randy Ball, who was in the armored car on the day of the robbery. (Tr. 8)

 2. Randy Ball told the police that a man by the name of "Juice" was involved in the robbery. (Id.) Ball also gave the police the pager telephone number of the person named "Juice".

 3. The police subpoenaed telephone records and learned that the telephone number that Ball had given them belonged to Juice Watson who lived at 8522 South Damen in Chicago. (Tr. 71). The police called the pager number and Bernard Watson identified himself. (Tr. 8).

 4. A criminal history record revealed that Bernard Watson had been arrested in a vehicle approximately one week after the robbery. (Tr. 8, 72). The police recovered from that vehicle $ 4,500, a marijuana cigarette, and a cellular telephone. (Tr. 8).

 5. The police learned that the vehicle had been purchased one week after the robbery. (Tr. 9). They also discovered that Bernard Watson purchased with cash on the day of the robbery the cellular telephone that the police recovered from the vehicle. Prior to September 16, 1993, the police also learned that numerous local calls were made from the cellular phone on the day of the robbery. (Tr. 9).

 6. Sometime before September 16, 1993, the police went to Bernard Watson's home and took a photograph of him as he stood in the doorway of his house. (Tr. at 160).

 7. Officer Ronald Branum and Agent Ronald Hosko went to Bernard Watson's home at approximately 7:00 A.M. on September 16, 1993 without first seeking either an arrest warrant or a search warrant (Tr. 31, 112). The officers considered Bernard Watson a suspect in the robbery. (Tr. 8, 110).

 8. When the officers arrived at Bernard Watson's home, they told him that they wanted to talk to him in private at the police station. (Tr. 11, 73). Bernard Watson told the officers that first he wanted to put some clothes on since at the time he was dressed in a bathrobe. (Tr. 153, 73, 11). He dressed.

 9. Before leaving the house, Bernard Watson called his office to tell them that he would be late for work. (Tr. 11, 76-77).

 10. The officer and agent drove Bernard Watson to a nearby police station. Neither Officer Branum nor Agent Hosko were affiliated with that station house. While on the way to the police station, Bernard Watson asked the officers if he was under arrest and they told him he was not. (Tr. 13, 80).

 11. At the police station, Officer Branum and Agent Hosko questioned Bernard Watson about the robbery for approximately an hour and a half. (Tr. 15, 38). There was no tape or record by a court reporter of what Bernard Watson said at the police station. (Tr. 46).

 12. Officer Branum and Agent Hosko and Bernard Watson left the police station and drove to the scene of the robbery in the agents' car. The officers continued to question Bernard Watson about the robbery during the car ride. (Tr. 88).

 13. After visiting the scene of the crime, the officer and agent drove Bernard Watson to the Dirksen Building to continue questioning him about the robbery. In the Dirksen Building Bernard Watson signed a written statement purporting to describe his involvement in the robbery. Watson also signed a Waiver of Rights Form. While in the building, Bernard Watson called his girlfriend and, in the presence of one officer, told her that he expected to be home soon. (Tr. 168, 217).

 14. At the Dirksen Building, Bernard Watson spoke with Agent Hosko and the Assistant United States Attorney on the case regarding his cooperation and Watson signed a cooperation agreement. (Tr. 96).

 15. The government did not charge Bernard Watson for any crime on September 16, 1993.

 16. Bernard Watson left the Dirksen Building on September 16, 1993. Officer Branum and Agent Hosko drove him home at approximately 3 p.m. (Tr. 24, 168).

 17. Several days later, the police arrested Bernard Watson for his alleged role in the 1992 robbery. (Tr. at 25).


 While the facts of this case are fairly straightforward, we find the legal issues embodied in this motion to be labyrinthine and important. The issues presented here involve the convergence of the Fourth, Fifth and Sixth Amendments of the United States Constitution and the prophylactic rule established by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Events at the hearing on the motion to suppress also raised important issues concerning the impact of the actions of the Assistant United States Attorneys on the credibility of their witnesses. This opinion examines each of these issues in turn.


 In a motion to suppress evidence seized pursuant to an alleged violation of the Fourth Amendment, the allocation of the burden of proof depends upon whether or not a warrant was issued. In federal courts, "if the search or seizure was effected pursuant to a warrant, the defendant bears the burden of proving its illegality; if the police acted without a warrant, the prosecution bears the burden of establishing legality." United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985). See also 3 LaFave, Search and Seizure § 11.2(b), at 218 (2nd Ed. 1987). The Seventh Circuit explained this warrant-no warrant dichotomy:

Where the police have acted pursuant to a warrant, the independent determination of probable cause by a magistrate gives rise to a presumption that the arrest or search was legal. But where the police have acted without a warrant, the legality of their action will not be presumed. The dichotomy may be explained, in part, by the often stated preference that searches and seizures be effected pursuant to warrants. Those seeking to invoke an exception to the warrant requirement bear the burden of establishing that the circumstances required dispensing with that requirement. Longmire, 761 F.2d at 417.

 In this case, the officers did not secure an arrest or search warrant before going to Bernard Watson's home on September 16, 1993. Consequently, the government has the burden of establishing the legality of its actions.

 The defendant brings this motion to suppress incriminating oral statements he allegedly made and a written confession that he signed on September 16, 1993 concerning the robbery of an armored car. The defendant alleges that the police violated his constitutional rights protected by the Fourth and Fourteenth Amendments of the United States Constitution and by the Illinois Constitution. The defendant argues that the entry of the police and the arrest of Watson in his home, absent exigent circumstances or consent, violated Watson's rights protected by the Fourth and Fourteenth Amendments and established in Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980) and its progeny. (Defendant's Petition at P 14). Consequently, Watson argues that subsequent oral and written inculpatory statements should be suppressed as the "fruit of the poisonous tree" pursuant to Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Id. at P 15.

 The government contends that there was no Payton violation because Mr. Watson consented to the police's entry into his home and there was no arrest on September 16, 1993. (Government's Consolidated Br. at 11). The government also claims that the existence of probable cause to arrest Watson and the reading of Miranda warnings to Watson prior to his signing of confession cure earlier defects, including the patently clear need for an arrest warrant, pursuant to New York v. Harris, 495 U.S. 14, 109 L. Ed. 2d 13, 110 S. Ct. 1640 (1990), and Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985). Id. See also Government's Supplemental Br. at 2-3.

 The Fourth Amendment protects the right of the people to be secure in their persons and property against unreasonable searches and seizures by the government. U.S. Constitution, Amendment IV. The United States Supreme Court has long held that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court for the Eastern District of Michigan, et al., 407 U.S. 297, 313, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972). The language of the Fourth Amendment makes clear that at the core of this constitutional mandate is the "right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 5 L. Ed. 2d 734, 81 S. Ct. 679 (1961).

 In the landmark decision of Payton v. New York, supra, the Supreme Court held that the Fourth Amendment proscribes the police from making warrantless and non-consensual entry into a home to make a routine felony arrest absent exigent circumstances. Prior to Payton, New York and other states authorized police officers to enter a private residence without a warrant and with force, if necessary, to make routine felony arrests. The Supreme Court in Payton held that "the Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home--a zone that finds its roots in clear and specific constitutional terms: 'The right of the people to be secure in their . . . houses . . . shall not be violated.'" 445 U.S. at 589.

 In Payton, the police broke into the defendants' homes without search or arrest warrants to arrest them for murder and robbery. Once inside, the police seized weapons, narcotics and other incriminatory paraphernalia and used them against the defendants at his trial. The United States Supreme Court overturned the convictions because the police had failed to secure arrest warrants and there were no exigent circumstances nor consent given for the entries and seizures of persons and property. The Payton Court distinguished between warrantless searches and seizures inside a home and warrantless searches and seizures in public places. The Court found the former presumptively unreasonable and the latter valid. Id. at 586-87.

 We hold that the Payton doctrine does not require this court to suppress the defendant's incriminating statements under the Fourth Amendment. Although Payton and Watson share some similarities, the differences are significant. As in Payton, the police in Watson failed to obtain arrest or search warrants before entering the defendant's home. In addition, in Payton and Watson there were no exigent circumstances to justify warrantless entries into houses.

 An important difference between Payton and Watson concerns the place in which the challenged evidence was seized. In Payton, the police searched and seized incriminating evidence found inside the defendants' homes. In Watson, the challenged evidence was obtained outside of the defendant's house; Watson reportedly made incriminating statements while at a police station and at the crime scene and he signed a confession in the Dirksen Building. The Court in Payton made clear that a person's home was the "zone of privacy" that deserved utmost protection from unreasonable searches and seizures by the government. Id. at 589.

 Even if we assume arguendo that the police in Watson, as in Payton, entered the defendant's home absent consent to make a routine felony arrest *fn1" the Payton doctrine would not dictate the suppression of evidence here under the Fourth Amendment. To explain why this is so, the court now turns to the United States Supreme Court's decision in New York v. Harris. Supra. In that case, the police violated Payton by entering Harris' home without consent or a warrant to arrest him for murder. The trial court suppressed incriminating statements Harris made in his home but admitted a statement Harris made at a police station. 495 U.S. at 16. Harris was convicted and the intermediate appellate court affirmed.

 The New York Court of Appeals reversed the lower courts in Harris. The Court of Appeals accepted the trial court's findings that there was no consent to enter Harris' home and the police had probable cause to arrest the defendant. The Court of Appeals, however, held that under Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975), and its progeny, the statement Harris made at the police station was inadmissible fruit of an illegal arrest made in violation of Payton. 495 U.S. at 16.

 The United States Supreme Court reversed the New York Court of Appeals. The Supreme Court in Harris held that although the warrantless arrest of Harris in his home violated Payton and the Fourth Amendment, the Constitution did not require suppressing the statement made outside of the home. Id. at 21. The Court stated that the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime." Id. at 17. The Court explained that the Payton rationale would not be served by suppressing inculpatory statements made outside of the home:

The warrant requirement for an arrest in the home is imposed to protect the home, and anything incriminating the police gathered from arresting Harris in his home, rather than elsewhere, has been excluded, as it should have been; the purpose of the rule has thereby been vindicated. We are not required by the Constitution to go further and suppress statements later made by Harris in order to deter police from violating Payton. . . If we did suppress the statements like Harris', moreover, the incremental deterrent value would be minimal. Id. at 20.

 The Supreme Court determined nonetheless that Harris' detention outside his home following the illegal arrest was lawful. The Court held that its reasoning in Payton did not suggest that "an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house." Id. at 18. The Court found that Harris' statement taken at the police station was not the product of an unlawful detention because the police had probable cause to arrest him.

 The Supreme Court drew an important distinction between Brown v. Illinois, cited by the defendant here, and Harris. Brown "stand[s] for the familiar proposition that the indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality . . ." Harris, 495 U.S. at 18. *fn2" The Harris Court distinguished Brown and other similar cases based upon the doctrine of probable cause. In Brown, the challenged evidence was tainted because the police lacked probable cause to arrest the defendant. Id. at 19. In Harris, by contrast, the police had probable cause to arrest the defendant. The Harris Court concluded that the defendant's challenged statement was admissible because it was not an exploitation of the illegal entry into his home. Id.

 The facts and arguments presented in Watson and Harris are strikingly similar. Both cases involve Payton violations. The defendant's Fourth Amendment argument in Watson mirrors the argument that the New York Court of Appeals endorsed in Harris: the court should suppress incriminating evidence on the theory that such evidence was the fruit of a non-consensual entry into a home and illegal detention of the defendant in violation of Payton. (Defendant's Petition at P 14.) The United States Supreme Court, however, rejected this argument in Harris when it found that the police had probable cause to arrest the defendant outside of his home. This court, in turn, must reject the defendant's Fourth Amendment argument in the case at bar if we find that the police had probable cause to detain Mr. Watson.

 Probable cause to arrest or significantly restrain one's freedom comparable to an arrest exists if under the totality of circumstances it was reasonable for the officer to believe the suspect committed a crime. See U.S. v. Evans, 27 F.3d 1219, 1228 (1994).

 Before the police went to Bernard Watson's home on the morning of September 16, 1993, they had gathered the following information about the 1992 armored car robbery. The police had arrested one of the guards who had been on the truck the day of the robbery. That guard, Randy Ball, told the police that a man by the name of "Juice" was involved in the robbery. Randy Ball gave the police the pager number for "Juice." Subpoenaed telephone records indicated that the subscriber to that pager number was Juice Watson, who lived on South Damen in Chicago. The police confirmed that the Watson family lived at that address. The police also called the pager number. After a brief conversation, they learned that Bernard Watson was the person who returned the call. A criminal history check revealed that approximately one week after the robbery, Bernard Watson had been arrested for some reason not indicated in the record. Upon arrest, the police recovered from a vehicle purchased within a week after the robbery $ 4,500 and a cellular phone. The police learned that the cellular phone had been purchased the day of the robbery and calls were made that day in Chicago. We believe the record as a whole supports the finding of probable cause here.

 In light of Harris, this court will not suppress the defendant's inculpatory oral and written statements under the Fourth Amendment. Even though the police violated Payton here, they had probable cause to detain Bernard Watson to the degree associated with an arrest on September 16, 1993. Therefore, the incriminating statements that Watson made outside of his home are admissible under the Fourth Amendment.

 Next we turn to Miranda and the Fifth Amendment to determine whether the defendant's statements are admissible.


 The Fifth Amendment of the United States Constitution protects individuals in criminal cases from governmental coercion that elicits self-incriminating statements. U.S. Constitution, Amendment V. To guard against abridgement of people's Fifth Amendment rights, the United States Supreme Court in Miranda v. Arizona established a prophylactic rule requiring the government to issue specific warnings to individuals subject to custodial interrogation. Moran v. Burbine, 475 U.S. 412, 420, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986). The Court explained that custodial interrogation means questioning initiated by the government after a person is in custody or otherwise significantly deprived of his freedom. 384 U.S. at 444.

 The Supreme Court has acknowledged that certain custodial interrogations by their very nature are inherently coercive. See New York v. Quarles, 467 U.S. 649, 654, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984). Custodial interrogation generates enormous pressure on the person being questioned to speak when under other circumstances he would not do so freely. 384 U.S. at 467. Miranda requires the suppression, from the prosecution's case in chief, statements made during custodial interrogation when the government fails to inform the suspect of his rights articulated by the Miranda Court. Id. at 479.

 The Supreme Court explained the relationship between Miranda and the Fifth Amendment:

The Miranda exclusionary rule . . . serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm. Oregon v. Elstad, 470 U.S. 298, 306-07, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985)(emphasis in original).

 Stated simply, Miranda warnings are "not themselves rights protected by the Constitution but were instead measures to insure that the [suspect's] right against compulsory self-incrimination was protected." Michigan v. Tucker, 417 U.S. 433, 444, 41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974).

 Miranda does not apply in all coercive situations. Anytime the police interview someone suspected of having committed a crime the atmosphere may be coercive. The Supreme Court has stated that "police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect." Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977). Miranda rights are triggered when the government significantly restricts an individual's freedom as to render him "in custody" and subjects the person to interrogation. Id. Determining custody, however, is a slippery task. Elstad, supra, 470 U.S. at 309.


 Recently the United States Supreme Court explained the custody standard pursuant to Miranda. Stansbury v. California, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994). Although a court must examine all the circumstances surrounding an interrogation, the ultimate inquiry is whether the police formally arrested the suspect or restrained his movement to the degree normally associated with a formal arrest. Id. at 1529. See also California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983); Mathiason, supra, 429 U.S. at 495. The Court in Stansbury stated that the "in custody" determination depends upon the objective circumstances of the interrogation not the subjective views of the interrogating officers or the person being questioned. 114 S. Ct. at 1529:

Under Miranda "[a] policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time;" rather, "the only relevant inquiry is how a reasonable man in the suspect's shoes would have understood his situation. Id. quoting Berkemer v. McCarty, 468 U.S. 420, 442, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984).

 The Stansbury Court held that an officer's knowledge or beliefs if conveyed to the suspect bear on the custody issue only in so far as the effect those statements may have on how a reasonable person in the suspect's position would gauge the breadth of his freedom. 114 S. Ct. at 1530. The Court reiterated its long-held conclusion that "any inquiry into whether the interrogating officers have focused their suspicions upon the individual being questioned (assuming those suspicions remain undisclosed) is not relevant for the purposes of Miranda. Id.

 This court's analysis of Miranda as applied to the instant case must focus on whether at the time Bernard Watson made the incriminating oral and written statements, the police had restrained his freedom to the degree associated with a formal arrest. This inquiry is required because the police had not formally arrested Bernard Watson prior to or during their questioning of him on September 16, 1993 for the armed robbery. This court's analysis must be determined from the perspective of how a reasonable person in Bernard Watson's position would have understood his situation. See Stansbury, supra, 114 S. Ct. at 1529. The Seventh Circuit recently reiterated an earlier holding on this issue:

"In determining whether the accused was subjected to custodial interrogation, a reviewing court should consider the totality of the circumstances. The accused's freedom to leave the scene and the purpose, place and length of interrogation are all relevant factors in making this determination. U.S. v. Jones, 21 F.3d 165, 170 (7th Cir. 1994), quoting U.S. v. Hocking, 860 F.2d 769, 773 (7th Cir. 1988).

 This court found the defense witnesses credible. The two defense witnesses who were in the house when the officer and agent arrived on September 16, 1993 maintained high credibility under effective direct examination and vigorous cross examination. The testimony of Steve Watson and Anthony Daniels quite clearly did not sound rehearsed and their answers were straightforward and consistent. These witnesses came across as responsible, intelligent and candid.

 After reviewing the entire record, we additionally find the following facts:

 1. When Officer Branum and Agent Hosko arrived at the Watson home on September 16, 1993, they knocked on the door and a man answered the door. The officers identified themselves as the police and that they wanted to talk to Bernard Watson. The man closed the door.

 2. Within a few minutes, Bernard Watson opened the front door. The officers again identified themselves and informed Bernard Watson that they wanted to talk to him in private. They entered the home. The police told Bernard Watson that they wanted him to accompany them to the police station.

 3. Bernard Watson told the officers that he wanted to get dressed. He left the officers in the living room and he walked to his bedroom to change clothes.

 4. Without invitation, the officers followed Bernard Watson to his bedroom. One officer entered Watson's bedroom after Watson while the other officer stood in the doorway. The only two exits from Bernard Watson's bedroom were through the doorway and out the window. The officer in Bernard Watson's bedroom looked around the room and in Watson's closet. While this occurred, one of Bernard Watson's two roommates stood in the hallway and listened to the events in Bernard Watson's room.

 5. At some point while the officers were in the house, Bernard Watson went into the bathroom. Officer Branum followed Watson to the bathroom door and watched Watson through the open door. Bernard Watson closed the bathroom door so he could wash up and the officer opened the door and stood in the doorway.

 6. Bernard Watson asked the officers if they could talk to him at his house rather than at the police station. As Bernard Watson and the other two defense witnesses testified, at least one officer said "you're either going to come easy or you're going to ...

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