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United States of America v. Javon Johnson


November 14, 2012


The opinion of the court was delivered by: Judge John W. Darrah


Before the Court is Defendant's Motion to Suppress. Defendant is charged in seven counts of the superseding indictment with violations of 21 U.S.C. §§ 841(a)(1), 843(b), and 846. Defendant seeks to suppress two categories of statements made by Defendant to a Drug Enforcement Agency ("DEA") Agent on June 21, 2011: (1) a pre-Miranda statement made by Defendant, after Defendant's arrest, while Defendant was held in the DEA Agent's vehicle, and (2) post-Miranda statements made by Defendant to the DEA Agent at a Chicago Police Department ("CPD") facility during questioning. An evidentiary hearing was held on August 28, 2012, and the parties thereafter submitted position papers. At the evidentiary hearing, DEA Agent Patrick Bagley and Assistant U.S. Attorney Sheri Mecklenburg provided testimony.


The following is based on the evidence presented at the suppression hearing and from the parties' written submissions. On June 16, 2011, Magistrate Judge Mason approved a criminal complaint, charging Defendant, among others, with violations of the Controlled Substances Act, 21 U.S.C. § 801 et seq. (Dkt. No. 2, United States v. Acevedo-Fitz et al., No. 11-cr-416.) On June 17, 2011, Magistrate Judge Mason issued a warrant for Defendant's arrest. (Id., Dkt. No. 4.) On June 21, 2011, CPD arrested Defendant at his sister's home at 11242 S. Homewood in Chicago, Illinois, and advised Agent Bagley of Defendant's arrest. Subsequently, Agent Bagley arrived at the scene. Agent Bagley showed Defendant a copy of the arrest warrant. Defendant was placed in the rear seat of Agent Bagley's vehicle; Agent Bagley was seated in the driver's seat. Agent Bagley testified that he did not subsequently ask Defendant any questions in the vehicle. Agent Bagley also testified that he did not advise Defendant of his Miranda rights because he did not intend on asking Defendant any questions.

At the time of the arrest, Defendant asked why he was being arrested, and Agent Bagley said he did not know and only knew that he had a warrant for Defendant's arrest. However, when Defendant was placed in the police vehicle, Agent Bagley inserted a CD into the vehicle's CD player; the CD contained the recordings of five intercepted telephone calls between Defendant and another individual. In the recorded phone calls, Defendant and a co-conspirator can be heard discussing arrangements for drug deals. Agent Bagley testified that Defendant, after hearing the recording, unprompted, stated: "I shouldn't have fucked with that motherfucker. He's the police." Agent Bagley testified that he did not respond to Defendant's comment or ask Defendant any questions.

At some point, Task Force Officer John Mannino entered Agent Bagley's vehicle. Agent Bagley and Task Force Officer John Mannino transported Defendant to the CPD facility located at 1011 S. Homan Avenue, Chicago, Illinois. Neither Agent Bagley nor Officer Mannino asked Defendant any questions during the ride to the facility. After Defendant was processed, Agent Bagley provided Defendant with a pre-printed Advice of Rights and Waiver form, containing Defendant's Miranda rights. Defendant signed the form.

At the police station, Agent Bagley replayed the CD for Defendant at Defendant's request. After hearing the CD, Defendant responded that he may have information about homicides that could relate to the Government's investigation. Agent Bagley testified that he also asked Defendant to identify the other individual speaking on the CD, interviewed Defendant regarding items found during Defendant's arrest at his sister's home, and asked Defendant to identify an individual in a photo booklet. Defendant identified the individual as "Gambino" and added, "That's my guy." The interview concluded when Defendant said he did not want to answer any further questions.


As the Seventh Circuit recently explained, statements by a defendant must be preceded by the Miranda warnings if they are the product of a custodial interrogation:

Miranda held that the government may not use statements stemming from the custodial interrogation of a defendant unless the government has utilized procedural safeguards effective to secure the privilege against self-incrimination. . . . The privilege against self-incrimination is not imperiled by every conversation with the government. Instead, the concern in Miranda was with the inherently coercive nature of custodial interrogation. Accordingly, a suspect must be both in custody and subjected to interrogation before Miranda warnings are required.

U.S. v. Ambrose, 668 F.3d 943, 954 (7th Cir. 2012) (Ambrose).

Defendant's Pre-Miranda Statement

The Government concedes that Defendant was in custody following his arrest at his sister's residence. (Gov't's Br. at 3.)

Defendant moves to suppress the statement he made to Agent Bagley after Agent Bagley played a recording of telephone calls in Defendant's presence while Defendant was held in Agent Bagley's vehicle. Defendant argues Agent Bagley's conduct was the functional equivalent of interrogation but that Bagley failed to advise Defendant of his right against self-incrimination, as required by Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda). The Government disputes that Defendant was subject to an interrogation or the functional equivalent of an interrogation when Agent Bagley played the recorded telephone calls for Defendant. However, the authority upon which the Government relies is distinguishable from Defendant's arrest.

United States v. Vallar, 653 F.3d 271 (7th Cir. 2012) (Vallar), a case relied upon by the Government, presented similar circumstances to those at issue here. The defendant in Vallar was arrested at his home and transported to the Dirksen United States Courthouse in Chicago, Illinois; he was not advised of his Miranda rights. U.S. v. Vallar, No. 05 CR 472, 2006 WL 1156739, at *1 (N.D. Ill. Apr. 27, 2006). After arriving at the Dirksen Courthouse, and before defendant was questioned, agents played five or six audio tapes of intercepted calls in the presence of defendant. Id. The defendant was then read his Miranda warnings, and the defendant signed an advice-of-rights form. The defendant argued that the playing of the recordings was likely to elicit an incriminating response and were thus an impermissible interrogation because the defendant had not received his Miranda warnings. Vallar, 653 F.3d at 286.

The Seventh Circuit held that "[m]erely apprising Vallar of the evidence against him by playing tapes implicating him in the conspiracy did not constitute interrogation." Id. at 285. In the next sentence, however, the Seventh Circuit explained, "But more critical to our analysis is the fact that [defendant] made no statement in response to the tapes before he received and waived his Miranda rights." Id. By contrast, in this case, Defendant did make the disputed statement before he was given Miranda rights. In United States v. Peterson, 414 F.3d 825, 827-28 (7th Cir. 2005), the Seventh Circuit rejected the defendant's argument that his confession violated Miranda where officers gave defendant a long speech, laying out the evidence against him, without previously administering the Miranda warning. After laying out the evidence, the officers then administered the Miranda warning, obtained waivers, and secured the defendant's confession. Id. at 827-28. The Seventh Circuit noted that the problem with defendant's argument "is that none of his own statements preceded the warnings." Id. at 828 (emphasis added). Therefore, the holding in Ambrose does not preclude a finding here that the Defendant was subject to the equivalent of an interrogation when he was in Agent Bagley's vehicle. See Ambrose, 668 F.3d at 956.

As mentioned above, Defendant submits that the Miranda warnings are required not only prior to express questioning of an individual, but also prior to "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." United States v. Wysinger, 683 F.3d 784, 794 n. 6 (7th Cir. 2012) (quoting Rhode Island v. Innis, 446 U.S. 291, 300--01 (1980) (Innis)). An officer can "interrogate" an individual without asking a single question. United States v. Richardson, 657 F.3d 521, 525 (7th Cir. 2011) (quoting Innis, 446 U.S. 291, 300--01 (1980)). Here, Agent Bagley, after advising Defendant that he, Bagley, did not know why Defendant was arrested, unexpectedly played a CD, which contained extremely incriminating evidence against Defendant, Defendant's admissions in his own voice. Based on the circumstances set out above, Agent Bagley could reasonably expect to elicit an incriminating response from Defendant. While the Government refers to Innis in its response to Defendant's Motion, it argues that Agent Bagley's actions did not rise to the level of an interrogation. However, it relies on United States v. Johnson, which found that an officer's reading aloud of a search warrant was not intended to elicit an incriminating response. 680 F.3d 966, 977 (7th Cir. 2012). However, the facts in Johnson are also readily distinguishable from the circumstances regarding Defendant's interrogation. Here, Agent Bagley confronted Defendant with direct inculpatory evidence, without any prior warning that Defendant was not required to respond, by playing a recording of discussions between Defendant and a co-conspirator. Agent Bagley should have known his conduct regarding the use of the CD while Defendant was under arrest in the vehicle was reasonably likely to elicit an incriminating response from Defendant and was the functional equivalent of a pre-Miranda interrogation. The Seventh Circuit has "stated that, under Innis, the issue is whether a reasonable objective observer would believe the encounter was reasonably likely to elicit an incriminating response from the suspect and therefore constituted the functional equivalent of interrogation." Enoch v. Gramley, 70 F.3d 1490, 1500 (7th Cir. 1995).

The failure to administer a Miranda warning prior to Defendant's statement in the vehicle renders the statement inadmissible. Accordingly, Defendant's Motion to Suppress is granted as to any statement Defendant made while in Agent Bagley's vehicle, before arriving at the CPD facility.

Defendant's Statements after Receiving Miranda Warning Defendant further moves to suppress statements that Defendant made to Agent Bagley at the police facility after Defendant was advised of his Miranda rights, arguing that these statements are "fruit of the poisonous tree" under Wong Sun v. United States, 371 U.S. 471 (1963).*fn1 The Government argues that these statements were attenuated from the statement that Defendant made in Agent Bagley's vehicle after hearing the recording of telephone calls.

In Oregon v. Elstad, 470 U.S. 298 (1985) (Elstad), the "Supreme Court held . . . that the failure to administer Miranda warnings prior to the defendant's initial inculpatory statement did not require suppression of his subsequent Mirandized confession."

Stewart, 388 F.3d at 1087 (citing Elstad, 470 U.S. at 301)). The Supreme Court reconsidered the issue in Missouri v. Seibert, 542 U.S. 600 (2004) (Seibert), but issued a plurality opinion. Four Justices held that in cases involving pre- and post-Miranda interrogations, the post-warning statement is admissible only if the Miranda warning was "effective." Id. at 615. This determination depends on "the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." Id. at 615. Justice Kennedy concurred in the judgment only and stated he would consider such factors only if law enforcement officers deliberately employ a question-first strategy to circumvent Miranda. Id. at 622.

The Seibert factors weigh in favor of admission of Defendant's post-Miranda statements. In Seibert, before the defendant wasgiven the Miranda warnings, an officer interrogated defendant for 30 to 40 minutes and obtained a confession. Id. at 604. After taking a 20-minute break and advising defendant of her Miranda rights, the same officer referenced the defendant's prior confession and secured a second confession. A majority of the Justices concluded that the lower court correctly suppressed the defendant's preand post-warning confessions.

In this case, Defendant was not asked any questions regarding criminal activity until after he was advised of his Miranda rights.*fn2 Defendant made the first inculpatory statement in Agent Bagley's car; thereafter, he was transported to the Homan Square CPD facility and processed. More than an hour passed between the statement Defendant made in the car after listening to the CD and the second Mirandized interrogation. Moreover, the two statements made by Defendant occurred in different locations. The evidence showed the two interrogations were handled in distinct manners by Agent Bagley, as no questions were asked of Defendant in the first session. The only overlap between the two interrogations came from Defendant, who requested to listen to the CD recordings again during the second session. Therefore, Defendant's Miranda warning was effective. Because the statements Defendant made thereafter are admissible, Defendant's Motion to Suppress is denied as to these statements.


For the reasons set forth above, Defendant's Motion to Suppress [29] is granted in part and denied in part.

JOHN W. DARRAHUnited States District Court Judge

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