The opinion of the court was delivered by: Joan Humphrey Lefkow, United States District Judge
RULING ON MOTION TO SUPPRESS
On May 19, 2002, this court held an evidentiary hearing on the questions whether defendant, Mamoun Arman, knowingly and voluntarily waived his right to counsel and whether his confession should be suppressed because his will to resist was overborne as a result of coercive police conduct.
A. Summary of Relevant Evidence
The background facts are set out in this court's Memorandum Opinion and Order of March 20, 2002 (the "March 20 Opinion"), and are not repeated but are incorporated insofar as they are undisputed.
At the evidentiary hearing, defendant testified as follows: During late morning on Friday, May 3, 2002, police officers later identified as including Officer Arthur Quinlan ("Officer Quinlan") of the Markham Police Department entered his business establishment, Rose Imports*fn1 located at 3130 West Montrose Avenue in Chicago, to execute a search warrant. Once the officers' purpose was announced, defendant said, "I want to talk to my lawyer before you search. . . ." (Tr. 11.) The officer(s) refused and promptly put defendant in handcuffs and made him sit in a chair. The officers proceeded to search the store and office areas. Twenty minutes after being handcuffed, defendant again requested an opportunity to talk with his lawyer and was again rebuffed, in fact told to sit down, shut up, and not move. The search continued for approximately three hours and, but for a bathroom visit, defendant remained in the chair throughout. The officers confiscated a large quantity of suspected counterfeit merchandise, papers and cash, to the point that defendant could no longer operate his business. Eventually, defendant, after having been told that he would be taken to a police station, again requested to call a lawyer, who would have been defense counsel, Glenn Seiden.
The officers drove defendant to the Markham police station, arriving at approximately 5:00 p.m. Defendant was directly placed in a cell in the lockup where he remained until noon the following day. He was removed from the cell by Sergeant Jim Knapp ("Sergeant Knapp"), who took him to an office where he talked to defendant. During this conversation, defendant told Sergeant Knapp that he wanted to talk to a lawyer but Knapp said, "Not now." Sergeant Knapp wrote a handwritten statement and directed defendant to sign it. Sergeant Knapp told defendant that if he signed the statement and if he worked with them, the charges would be "small" and if he did not sign he was "going to be in bigger problems and maybe even in jail for long time." (Tr. 19.)
The statement recites in typeface that defendant knows that he does not have to give the statement unless he wishes to do so, that the statement can be used against him, that he has a right to have an attorney present when he makes a statement, that he can have appointed counsel if needed, that no threats or force have been used against him, that no promises have been made, and that the statement is given of his own free will. Thereafter, the statement bears further representation, in Sergeant Knapp's handwriting, that defendant has been advised of his rights, knows he does not have to give the statement, and no promises have been made to him. Thereafter follows the incriminating statements which are the object of the motion. At the end of the statement, the document recites, in typeface, that defendant has read the statement, that it is true and accurate, and that he has initialed any corrections (of which there were several). Defendant signed the statement and it was witnessed by Sergeant Knapp and Officer Quinlan.
Despite all these recitations, defendant did not read the statement before he signed it. He did not read it because he was "very scared and shocked" and he thought it was "just routine or something . . . you need to do." (Tr. at 22.) Sergeant Knapp told him, "After you sign, we[`ll] let you talk to your lawyer." (Id.) After defendant signed the statement, Sergeant Knapp told him he could call a lawyer (id.), but Arman did not do so because it was midnight. (The statement, however, recites that it was 12:40 p.m., which is consistent with the less-than-one-hour time period Sergeant Knapp estimated for the interview, which testimony was not rebutted by defendant).
On cross-examination, defendant added the following information: Officers swore at him during the search ("used the `F' word") and shoved him into the chair. Defendant was not at any time physically harmed. Defendant also asked for an attorney while he was in the lockup. He added that the cell was very cold and although he started out with two blankets, someone took one from him and he was "freezing" cold when he was removed from the cell. He signed the statement because the officer put it in a "nice way[,]" indicating that if he cooperated with the police, the charge would be small, admitting that "[he] signed it because [he was] trying to cooperate and help them with the watches." (Tr. at 36.) On rebuttal, defendant testified that at an unspecified time he also asked to call his wife.
Other evidence elicited is that defendant remained at the Markham police station (presumably in the lockup) until 1:55 a.m. on Sunday, May 6, when he was transported to the court house for a bond hearing. Officer Quinlan testified that during the search, defendant was "a little irate" and Quinlan put him in handcuffs only after defendant disobeyed three orders to stay in a chair. Sergeant Knapp and Officer Quinlan explained that defendant was held for 24 hours before being questioned because they needed to complete the inventory of the search before Sergeant Knapp interviewed defendant. Both officers testified that they did not cause the temperature to be lowered in the cell. Both officers confirmed that Sergeant Knapp read defendant "his rights" at the outset of the interview. Both testified that they did not make assurances of any kind to defendant at any time. Both testified that defendant read the statement aloud. Sergeant Knapp testified that he advised defendant that he could make corrections to the statement and defendant requested to add a final sentence, "I'm not going to sell these items in my store any further." Defendant did not repudiate this testimony on rebuttal.
The court having considered and weighed the evidence and assessed the credibility of the witnesses, enters the following findings of fact.
1. Defendant read the statement before he signed it.
The weight of the evidence is that defendant is an individual of lively intelligence who reads and writes in the English language, which is not his native language. Although his choice of words and sentence structure reflect some lack of fluency, plainly he understood the conversations at issue and was able to express himself fully and adequately during the May 4-6 time period. In addition to the lack of evidence of inability to understand, this finding is supported further by defendant's testimony at the hearing, which reflected appropriate, rapid responses to all questions asked. Although defendant testified that he did not understand the meaning of "truthful," "accurate," and "correct," this testimony was effectively impeached by circumstantial evidence (an e-mail bearing his name as author, seized in the search) that defendant had himself appropriately used the word "correct." Defendant has not shown a failure to understand what was happening. Further, Sergeant Knapp's testimony that defendant asked that the last sentence be added is ...