was denied counsel even before he entered the interrogation room with the two Secret Service agents. The defendant testified that he requested a lawyer before the Secret Service agents arrived at the station house. According to the defendant, the police not only told him that no attorney was available, but also responded that he could consult with someone from the "federal building." This testimony was not contradicted at the hearing. The fact that the defendant related more than a simple request for and denial of counsel suggests that defendant's allegations are credible. Furthermore, the statement the defendant attributes to the police -- that no counsel was available but that he could speak with someone from the "federal building" -- is not an improbable response by police who have in custody a confused, ill-educated and uncounselled suspect.
The court, therefore, finds that the confession occurred after defendant had requested and been denied counsel. Consequently, evidence of the confession must be suppressed.
There is a further reason for suppressing the confession in this case. The interrogation tactics of the Secret Service agents, considered with this youthful defendant's apparent mental deficiency, require the conclusion that the defendant did not voluntarily waive the rights secured by Miranda v. Arizona.
Under the Constitution a suspect is guaranteed the rights to remain silent and to the assistance of counsel during in-custody interrogation, and evidence obtained in violation of these rights is inadmissible in a subsequent criminal prosecution.
Of course, the suspect may waive his rights, provided the waiver is voluntary, knowing and intelligent.
A "heavy burden"
rests on the Government to demonstrate the voluntariness of the waiver.
Where, as in the present case, agents confront the suspect for the sole purpose of securing a confession, the court must carefully examine the purported waiver.
The "totality of the circumstances" must be considered,
including any coercive tactics used in the interrogation process
and the age, intelligence and experience of the defendant.
The interrogation in the present case lasted for one and one-half hours while two agents alternately fired questions at the defendant, a person of restricted mental ability. Early in the interrogation the defendant was forced to strip and stand naked before his interrogators as the questioning proceeded. At the hearing on the motion to suppress, the agents were unable to explain satisfactorily the purpose behind the strip search of this young defendant. The first agent testified that a strip search is conducted on a hostile or possibly dangerous suspect to protect the interrogating agent against hidden weapons. When asked how defendant evidenced hostility, he replied, "[The] police officers advised us that he had . . . not been cooperative to the security guard . . . and that he wasn't saying anything to them."
The second agent testified that defendant was not hostile. He further testified that the type of weapon uncovered in a strip search does not present any danger to the agents in the interrogation room. Rather, according to the second agent, the purpose of a strip search is to insure that a suspect is unarmed before delivering him to other authorities, and consequently a strip search is conducted at the conclusion of an interrogation.
Since the strip search in this case occurred at the outset of the interrogation, the only reasonable conclusion is that the agents conducted the strip search to humiliate the defendant into confessing against his will. While in certain circumstances a strip search may be reasonable and indeed necessary, this court cannot countenance such a procedure when its sole purpose is to break down resistance by humiliating and personally degrading an individual in police custody.
In addition to subjecting the defendant to a strip search, the agents made the defendant aware of the maximum penalty for the alleged offense and of the likelihood of his release on low bail if he cooperated. The defendant testified that this information was conveyed in the form of threats, that he thought the agents were "making a deal," and that the agents said "not to worry about nothing" if he confessed.
A promise of leniency or threat of additional prosecution is a recognized form of psychological coercion,
and a court must carefully scrutinize a purported waiver of constitutional rights by a youthful and mentally deficient defendant.
In this case, defendant's age and limited mental ability suggest that the defendant would be particularly susceptible to psychological coercion in the form of threats and promises of leniency.
In view of the "totality of the circumstances," the court has concluded that the Government has not established by a preponderance of the evidence that defendant voluntarily, knowingly and intelligently waived his rights to remain silent and to the assistance of counsel. It is, therefore, this 7th day of February, 1973,
Ordered that defendant's motion to suppress evidence of the confession be, and it hereby is, granted.