The opinion of the court was delivered by: Stiehl, District Judge:
Before the Court is defendant Richon Sayles' motion to suppress the
video (and audio) recorded statement he made on January 5, 2011, to
Special Agent Michael E. Rehg ("S/A Rehg") (Doc. 27).*fn1
The Court held a hearing on January 13, 2012, at which both
the defendant and the government stated that they had no evidence to
present to the Court beyond the previously submitted motion (Doc. 27),
and response thereto (Doc. 29), which included a copy of the DVD
recording of defendant's statement. At the hearing, the Court gave the
parties ten (10) days to submit supplemental briefs, if they so
desired, for the Court to consider before ruling on defendant's
motion. Neither party submitted additional briefs.
Defendant Richon Sayles was charged by a grand jury with: Count (1) distribution of 28 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii); Counts (2-4) distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C); and Count (5) possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C).
According to defendant, on January 5, 2011, S/A Rehg conducted a video-recorded interview with defendant, after he had been informed he was under arrest. Defendant asserts that during the interview, S/A Rehg started to read defendant his Miranda rights, but was interrupted by the defendant when he stated he had used PCP that morning. Defendant claims that S/A Rehg then started questioning defendant about his drug use, never completed the Miranda warnings, and proceeded to question defendant. Defendant asserts that he never waived his rights, and asks this Court to suppress the statement made on January 5, 2011, because it was not voluntary and was made in violation of his constitutional rights.
In its response to defendant's motion to suppress, the government asserts that defendant was read the full Miranda warnings and he stated that he understood, and therefore, there was no Miranda violation. The government asserts that on the date the recorded interview was conducted by S/A Rehg, DEA agents had arranged a controlled purchase of crack cocaine involving the defendant and a confidential informant. That day, prior to the purchase, DEA Agents surveilled defendant's known residence, watched him leave his known residence and drive directly to the location of the controlled purchase, and arrested him immediately thereafter. Defendant was then taken to the DEA office where he participated in the video-recorded interview.
The government submitted the recorded interview to the Court, and directs the Court's attention to the four minute mark, at which time S/A Rehg read full Miranda rights to defendant. At this point, defendant stated that he had smoked PCP earlier that day and was high. At the five minute mark, S/A Rehg asked the defendant if he understood his rights, and defendant answered affirmatively. The defendant then told S/A Rehg that prior to his arrest he had been driving around East St. Louis, stopped and bought PCP, and smoked it. The government asserts, however, that defendant's statement is contradicted by the observations of the agents. The unrefuted evidence in the record is that on the morning in question, agents observed defendant leaving his known residence to travel to the location of the controlled purchase, during which he made no other stops, and therefore the government asserts that defendant's claim that he had gone out and bought and smoked PCP is not credible.
The government next directs the Court's attention to the thirty-one minute mark of the recording, at which point S/A Rehg asked the defendant if he remembered that he had been read his Miranda rights, and whether he fully understood those rights, to which defendant responded affirmatively to both questions. Based upon these facts and the recording submitted to the Court, the government asserts that defendant was read his full Miranda rights, and defendant's statement was not otherwise involuntary or coerced. The government further asserts that even if the statement is suppressed, it should be admissible for impeachment purposes.*fn2
The three issues before the Court, therefore, are: (1) whether defendant received complete Miranda warnings; (2) whether defendant waived his Miranda rights; and (3) whether defendant's recorded statement was voluntary.
According to Miranda v. Arizona, 384 U.S. 436, 444 (1966): [p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. "A waiver can be either express or implied, . . . and is involuntary if the will of the defendant 'was overborne in such a way as to render his confession a product of coercion'" United States v. Upton, 512 F.3d 394, 399 (7th Cir. 2008), quoting Spano v. New York, 360 U.S. 315, 320-21 (1959) (internal citation omitted). Voluntariness of a waiver of Miranda rights is evaluated by considering the totality of the circumstances. See Upton, 512 F.3d at 399. In determining whether coercion occurred, the Court can consider "things like 'the defendant's age, education, intelligence level, and mental state; the length of the defendant's detention, the nature of the interrogations; the inclusion of advice about constitutional rights; and the use of physical punishment, including deprivation of food or sleep.'" United States v. Carson, 582 F.3d 827, 833 (7th Cir. 2009) quoting United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001). "Narcotics, alcohol, and fatigue also may be considerations in a particular case." United States v. Vallar, 635 F.3d 271, 282 (7th Cir. 2011).
The Seventh Circuit has upheld a voluntary waiver where a defendant refused to sign an acknowledgment form after he was read his rights, but where the defendant told officers that he understood his rights and, freely discussed allegations against him, and after giving a statement, asked for an attorney. See Upton, 512 F.3d at 399. The Court concluded that the defendant "understood what the officers had told him, but cooperated nonetheless, waiving his Miranda rights." Id.
Upon careful review of the video recording of defendant's interview with S/A Rehg, the Court FINDS that defendant was given full Miranda warnings. The video recording shows S/A Rehg explaining to defendant that he is a DEA agent, that defendant had been arrested, and then explaining to defendant that he has a right to remain silent, that anything he says can be used against him in Court, that he has a right to talk to a lawyer before any questions are asked of him, and has a right to have a lawyer with him during questioning, if he can't afford a lawyer, one will be appointed for him before he is asked any questions if he desires. After listening to his rights, defendant confirmed that he reads, writes, and understands English, but then stated that he was high from smoking PCP. Although defendant made this statement, he also confirmed to S/A Rehg that he understood what S/A Rehg was saying to him. S/A Rehg then told defendant to ask him if there was anything that defendant did not understand. Defendant ...