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UNITED STATES v. DURAN

March 15, 1995

UNITED STATES OF AMERICA
v.
FRANCISCO MARTIN DURAN, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court are the Defendant's Motion to Suppress Statements and the Government's Opposition thereto. The Court held a hearing on said Motion on March 14, 1995. Upon careful consideration of the pleadings, the oral argument of counsel, the relevant law, and the entire record herein, the Court finds that the Defendant's Motion to Suppress Statements shall be granted in part, and denied in part, as hereinafter provided.

 BACKGROUND1

 On October 29, 1994 at approximately 3:00 p.m., the Defendant allegedly fired numerous rounds of ammunition from a Norinco SKS semiautomatic weapon in the vicinity of the White House. A tourist tackled the Defendant as he tried to reload his weapon. Officers from the United States Secret Service then subdued the Defendant and arrested him. The Secret Service recovered the Norinco SKS semiautomatic weapon from the Defendant.

 On the scene after the Defendant was subdued, one of the civilians who tackled the Defendant thanked Secret Service Officer Carl Persons for not firing his service weapon while the civilians attempted to wrestle the Defendant to the ground. Apparently in response to this conversation between the officer and the civilian, the Defendant interjected that he wished the Secret Service officers had shot him.

 At approximately 3:20 p.m., after the Defendant was taken to a nearby guard house on the White House grounds, Secret Service Special Agent Mark Marek orally advised him of his Miranda rights. The Defendant indicated that he understood those rights and did not make any statements. Later, at approximately 6:45 p.m., Special Agent Ramirez again advised the Defendant of his Miranda rights, and the Defendant signed a "Warning of Rights" form and indicated his desire for an attorney.

 DISCUSSION

 The Defendant requests that the Court suppress the statement made to Officer Persons to the effect that he wished the Secret Service Officers had shot him, as well as the statements the Defendant made to Special Agent John Barry. As grounds therefor, the Defendant argues that the statement to Officer Persons was both involuntary and made in response to a custodial interrogation before any Miranda warnings were given. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). With respect to the statements made to Special Agent John Barry, the Defendant asserts that the same must be suppressed because all questioning should have ceased after he invoked his rights, including the right to counsel, and because the statements were made involuntarily. Moreover, the Defendant argues that any use of his statement indicating his desire to speak to a lawyer would amount to an impermissible comment on his constitutional right to counsel.

 In Opposition, the Government contends that Miranda does not require suppression of the Defendant's statement to Officer Persons and others on the scene, as it was spontaneously made and not the result of a custodial interrogation. The Government concedes that the statements made to Special Agent Barry "may technically run afoul of Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981)," which precludes government agents from reinitiating a conversation with a suspect once he has invoked the right to counsel, but states that the Government may seek to introduce these statements f or impeachment purposes in the event the Defendant testifies. Opposition at 3-4. Finally, the Government argues that the Defendant's statements to Special Agent Barry, along with his statement to Agent Persons, were voluntarily made such that admission of the same would be consistent with due process.

 
A. BECAUSE THE DEFENDANT'S STATEMENT TO OFFICER PERSONS WAS NOT MADE IN RESPONSE TO POLICE INTERROGATION, THE DEFENDANT'S REQUEST TO SUPPRESS THAT STATEMENT IS DENIED

 For Miranda to apply, a suspect must be in custody and subject to interrogation. See Miranda, 384 U.S. at 444. In Rhode Island v. Innis, 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980), the Supreme Court defined custodial interrogation as "express questioning or its functional equivalent," including those "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." Accordingly, "volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by [Miranda]." Miranda, 384 U.S. at 478. Here, while it is undisputed that the Defendant was in custody at the time he made the statement to Officer Persons that he wished the Secret Service Officers had shot him, the Court cannot find that the Defendant was interrogated, and Miranda does not apply. See Opposition at 4.

 While the Defendant agrees with these principles, he asserts that his "statement that he wished Officer Persons would have shot him occurred in response to Officer Persons' conversation with a civilian witness," and should therefore be suppressed as involuntarily made. Motion at 10. This representation, however, supports just the opposite conclusion, namely, that his statement was not the result of an interrogation but, rather, a voluntary, spontaneous response to the civilian's comment expressing appreciation that Officer Persons did not fire his weapon. Moreover, the Defendant's general assertion that "many agents arrived in front of the White House to arrest Mr. Duran, then immediately asked questions of him (such as his identity)" does not alter the analysis, where there is no allegation of express questioning of the Defendant that led to the statement. Motion at 10. Indeed, the Government cites to a string of cases where various courts, including the Supreme Court and the Court of Appeals for this Circuit, found no interrogation under circumstances much more suspect than those at bar. Opposition at 5-7. See, e.g., Innis, 446 U.S. at 303 (no interrogation where defendant volunteered to locate a hidden gun after overhearing police officers discussing among themselves the risk that a handicapped child might find the weapon); United States v. Samuels, 290 U.S. App. D.C. 391, 938 F.2d 210, 214 (D.C. Cir. 1991) (no interrogation where officers could not have reasonably expected defendant to confess upon seeing the officers in possession of a photograph of his son); United States v. Hackley, 204 U.S. App. D.C. 221, 636 F.2d 493, 498 (D.C. Cir. 1980) (officer's question to defendant of "what he was going to do" with respect to the robbery did not constitute interrogation). Accordingly, the Court finds that, because the Defendant's statement to Officer Persons was not made in response to police interrogation, the Defendant's request to suppress that statement shall be denied.

 
B. THE STATEMENTS MADE TO SPECIAL AGENT BARRY AFTER THE DEFENDANT INVOKED HIS MIRANDA ...

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