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United States District Court, Northern District of Illinois, Eastern Division

May 22, 2003


The opinion of the court was delivered by: Joan Humphrey Lefkow, United States District Judge


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.

B. Findings of Fact

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 credible in that (a) defendant did not rebut it, and (b) it is not likely that a police officer would insert such a statement. If defendant added information, he had to have known that the information was not contained within the statement as written by Sergeant Knapp.

2. Neither the approximate 24-hour duration of the detention nor events that occurred during the period of detention caused defendant's understanding to be compromised.
The testimony that the inventory took several hours is credible in light of the volume of items seized as reflected on the return of warrant inventory, which explains (if not justifies) why defendant was held in the lock-up approximately 18 hours. Where defendant did not complain to his custodian about the cold or ask for another blanket, his implication that someone purposely caused the lockup cell to be excessively cold is not credible. The officers' testimony that the thermostat is locked and inaccessible to them is unrebutted and credible. There is no evidence of either physical or psychological harm being inflicted on defendant while he was in custody.

3. Defendant understood his right to counsel and knowingly signed a written waiver of the right.
Defendant's testimony that he repeatedly demanded to speak with an attorney is not credible. Although the court does not discount the possibility that he might have at some time made such a request, that he made a request during the interrogation is not credible. This finding is based on the facts, as found above, that defendant read and understood the acknowledgment of his right to counsel before he signed it. He did not ask Knapp why Knapp insisted he had to wait to talk to a lawyer when the statement said he could talk to one before he signed the statement. There is no evidence that once defendant was given authorization to call a lawyer at approximately 1:00 p.m. on May 4 he, in fact, made an effort to call a lawyer. Together, the facts point to a lack of credibility in defendant's testimony that he vehemently demanded a lawyer or demanded a lawyer at all.

4. Sergeant Knapp more probably than not advised defendant that if he signed and cooperated, the prosecution would likely be more favorable to him.
The court has heard sufficient numbers of defendants testify to such representations that it is confident that such statements are routinely made by interrogating officers. Defendant's testimony was more credible than the officers' testimony in that it was consistent with his conduct to go ahead and sign the statement, and because the officers interview many suspects they are less likely to remember a particular conversation such as this.

C. Conclusions of Law

1. Defendant knowingly and intelligently waived his right to counsel.

As set out in the March 20 Opinion, to determine whether a defendant's waiver of counsel is voluntary, the court is to examine the totality of the circumstances:

Courts typically look at such factors as defendant's background and conduct, the duration and conditions of detention, the mental and physical condition of the defendant, the attitude of the police, and whether the police utilized psychological or physical coercion.
United States v. Jackson, 300 F.3d 740, 748 (7th Cir. 2002). The totality of the circumstances, as described in the above-recited findings of fact, points to the conclusion that none of the factors identified above interfered with defendant's understanding when he waived his right to counsel.

2. Defendant's will was not overborne so that, even though he understood his rights, his waiver was involuntary as a matter of law.
As stated in Smith v. Duckworth, 856 F.2d 909, 911-12 (7th Cir. 1988), "Once it is clear that a defendant has made a knowing and voluntary waiver of his or her Miranda rights, the issue then becomes whether the confession itself was voluntary." The test for a voluntary confession is "whether the defendant's will was overborne at the time he confessed." United States v. Montgomery, 14 F.3d 1189, 1194 (7th Cir. 1994). For a confession to be involuntary there must have been coercive police conduct "causally related to the confession." Colorado v. Connelly, 479 U.S. 157, 164 (1986).

Here, defendant was in custody approximately 24 hours before he signed the statement. He principally rests on assurances made to him that Sergeant Knapp advised him it would likely go better for him if he signed the statement, in that the charge could be more severe if he did not. These assurances, however, do not constitute coercion. See United States v. Ramirez, 112 F.3d 849, 853 (7th Cir. 1997) ("Merely pointing out, what is anyway obvious, that cooperation with the police can result in a reduced sentence or other concessions down the road is not a promise and is not calculated to prevent the suspect from rationally considering whether or not to speak."). Other than these assurances, there is no evidence that any threats or promises, or other assurances were made to defendant. There is no evidence of physical force or abusive language at or near the time the statement was signed. In fact, defendant described Sergeant Knapp's demeanor as "nice." The totality of the circumstances points to the conclusion that defendant's will was not overborne by coercive conduct of the investigating officers.

For this reason, the motion to suppress defendant's confession is denied [#27].

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