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UNITED STATES DISTRICT COURT


DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA
CRIM. NO. 13-10238-DPW

v.

DIAS KADYRBAYEV


DEFENDANT DIAS KADYRBAYEVS POST-SUPPRESSION HEARING
MEMORANDUM OF LAW WITH PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW



INTRODUCTION

[I]t is under the pressing exigencies of crisis, that there is
the greatest temptation to dispense with fundamental
constitutional guarantees which, it is feared, will inhibit
governmental action Kennedy v. Mendoza-Martinez, 372
U.S. 144, 164-65(2004)

Notwithstanding that the Supreme Court has never wavered from its position that
the forcible removal of a person from his home to transport him to a police station for
interrogation requires probable cause, the Government now asks this Court to rule that in
this case, the FBIs tactical removal of Dias Kadyrbayev was permissible because they
had reasonable suspicion to believe that Dzhohkar Tsarnaev might be in that house. The
Government also asks this Court to rule against Supreme Court and First Circuit law, and
hold that the arrest of a person within his home can be justified on exigent circumstances,
but again, premised only on reasonable suspicion that a terrorist was inside the home.
In truth, this case demands a more careful and measured approach because of the
temptation to invoke exceptions to the rule of law to justify more aggressive government
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intrusions. The exceptions permitted here become the rule of law tomorrow. The
Government clearly believes that the gravity of a terror investigation permits it to
dispense with probable cause, even for the most intrusive Fourth Amendment seizures
and searches, and that its burden of proof in a suppression hearing will be lessened by the
exigencies of the war on terror. Respectfully, they are wrong.
They are also incorrect with regard to the law on consent, and waiver, and the
Government failed to adduce sufficient facts to carry the burden of persuasion that was
on the Government, at all times, to meet. Finally, the Governments own evidence
demonstrates that the Governments arrest of Dias Kadyrbayev on suspicion of being
present in the United States in violation of his student status was a ruse to delay his
presentment and provide additional time to build their criminal case, a due process
violation recognized by the courts as the basis for suppression of the statement therein
obtained.

REQUEST FOR ORAL ARGUMENT PURSUANT TO RULE 7.1(D)

Oral argument is requested to address issues raised herein.

PROPOSED FINDINGS OF FACTS
Background
1. On April 15, 2013, at approximately 2:49, a terrorist attack in Boston resulted in
the deaths of three people and catastrophic injuries to scores of other bystanders at
the Boston Marathon. All members of the FBIs Joint Terrorism Task Force were
activated and participated in the subsequent investigation. 1:146; 159 (Walker).
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2. Dias Kadyrbayev (Dias) a foreign student attending UMass-Dartmouth through
the Navitas Program, was nineteen years old. He had been born and raised in
Kazakhstan, and spoke Russian as his primary language, then Kazakh, then
English. 4:187-88 (Dias); 2:172 (Azad); 2:19 (Walker).
The Arrest at 69 A Carriage Drive
3. On the morning of April 19, 2013, Dias Kadyrbayev spoke to friends, Vova, and
Sagr, who told him that law enforcement wanted to speak to him about his friend,
Dzhohkar Tsarnaev. 4:216-17 (Kadyrbayev). During the former of the two
conversations, around noon, Dias learned that law enforcement was actually at his
friends home as they spoke. Dias asked Vova to put the law enforcement agent
on the phone, and Dias identified himself and provided his address so that agents
could come talk to him. 4:216-217 (Kadyrbayev).
4. Dias remained in the apartment with his girlfriend, Bayan Kumiskali, and his
roommate, Azamat Tazahayakov expecting police to arrive within minutes. 4:218
(Kadyrbayev).
5. Shortly after noon, the JTTF team assembled for purposes of the Marathon
bombing investigation set up a perimeter of JTTF members from the Boston
police department to surround and conduct surveillance of the apartment at 69 A
Carriage Drive. 1:101 (Walker). Dias, his roommate, Azamat Tazhayakov, and
Bayan Kumiskali became aware of the presence of these vehicles, presuming that
they were law enforcement around three p.m. 4:217-218 (Kadyrbayev).
6. Over the next few hours, police made no contact by phone or otherwise with the
occupants. 4:217-218 (Kadyrbayev).
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7. Close to five p.m. Dias and his girlfriend, Bayan, noticed that the apartment was
now completely surrounded by what appeared to be heavily armed SWAT team
members and other law enforcement officers. There were more cars, and a tactical
vehicle. 4: 219 (Kadyrbayev)
8. Special Agent John Walker testified that law enforcement had targeted the 69
Carriage Drive apartment as a possible location for Jahar Tsarnaev that morning.
Tsarnaev was known to law enforcement that morning as the second suspect in
the Marathon bombing and the firefight with police late the evening before, in
which Tamerlan was left dead.
9. Law enforcement obtained information that Tsarnaev had four cellphones
subscribed to him, and that the address used for the bill was 69 Carriage Drive,
very early that morning, possibly around 6.a.m. 1:95,147 (Walker). The FBI then
gathered every bit of data and toll records from AT&T. 1:149 (Walker). There
was no evidence that Tsarnaev received any other mail at that address, nor that he
stayed in the apartment or used it as a residence. Further, Walker does not believe
that Dias name was linked to any of the phones. (1:149).
10. One of the phones subscribed to Tsarnaev showed connectivity with Dzhohkar
Tsarnaev a few hours before the bombing on April 15. That same phone allegedly
transmitted a message to Russia, which had bounced off a tower a mile from the
UMass Dartmouth Campus at around 10:20 a.m. Friday morning. 1: 96-97
(Walker). There is no testimony, nor any evidence, that this phone had any
connectivity then, or at any other time, with Tamerlan Tsarnaev or any other
members of that family.
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11. Agent Walker later mapped it out after the fact that the location of the cell
tower from the defendants apartments as about 900 meters away. 1:97, L. 20-22
(Walker).
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12. Massachusetts State Police provided information to the FBI that on April 17 and
April 18 three Skype calls were made between Dzhohkar and Tamerlan Tsarnaev
from an Internet protocol address resolving to Dias Kadyrbayev at 69 A Carriage
Drive. 1:100, L. 13-19 (Walker).
13. The FBI also learned that at least one of the phones, that ending with suffix 9049,
was emitting a signal from the 69 Carriage Drive Apartment building. This was
not the phone which the FBI had determined displayed connectivity with
Tamerlan Tsarnaev. (1:95-96).
14. On this basis, the FBI set up a perimeter around apartment in the early afternoon.
1:101, L. 3-20 (Walker). The first surveillance was set up shortly before noon.
1:162, L 19 (Walker). The purpose of the perimeter was to ensure that Tsarnaev
did not flee the area, and that the people within the apartment did not leave
without the FBI having an opportunity to speak with them. 1:163, L. 19-24
(Walker).
15. There was no evidence adduced at the hearing corroborating the suspicion that
Tsarnaev was presently in the apartment on April 19 beyond the signal of one of
the four phones subscribed to him. That phone was not the phone which had
contact with Tamerlan Tsarnaev, nor with any other Tsarnaev family member.

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The Government presents the information that the tower distance was within 900 meters of the apartment
complex as information possessed by law enforcement at the time the decision was made to enter the
apartment when in fact, the evidence does not support this conclusion. Similarly, the Government posits
that Tsarnaev received mail at the 69 Carriage Street address when in fact, the only evidence is that the AT
& T bill for these four phones was sent to this address.
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(1:95-96). Surveillance, which had begun before noon and continued throughout
the day, did not confirm his presence.
16. One phone was significant to Agent Walker immediately because it showed
significant connectivity with Tamerlan Tsarnaev, especially around the time of
the bombings. 1:95, L. 18-22 (Walker). This was not the phone (identified as
phone 2) emitting from the apartment, nor connected to the area of the Carriage
Drive Apartments by the use of the cell tower within a mile of that apartment,
however. 1:95; L.23-25 (Walker).
17. Prior to receiving the information regarding the presence of a phone subscribed to
Tsarnaev located and active within the apartment, the FBI has similar information
suggesting that another of the phones subscribed to Tsarnaev was active at two
locations about a quarter of a mile away within the entire apartment complex.
1:109, 24-25; 1:110, L 1-7 (Walker).
18. The FBIs investigation did not uncover any other evidence, at least none that was
adduced at the hearing, which further connected Dias Kadyrbayev to any criminal
activity. Witnesses interviewed that morning confirmed that the two were friends,
and that Tsarnaev visited the Carriage Drive apartment. 1:99, L. 4-9 (Walker). As
early as 9 a.m. that morning, that the State Department had identified Dias
through a logical Internet search and suggested that he was closely associated
with Tsarnaev; they also informed Agent Walker that a photo of the two of them
had been removed from the internet at some point. 1:99-100 (Walker).
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19. The FBI also knew at this time that Dias lived at the 69A Carriage Drive
apartment with someone called Azamat, and that they two were Kazakhstan
nationals. 1:98, L. 22-24 (Walker).
20. SA Walker did not attempt to obtain a warrant to search the apartment 1;155, L.
25; 1:156, L. 6-17 (Walker), though there was certainly hours from the time the
FBI first made the connection between the apartment address and phones
subscribed to Tsarnaev (6 am); the use of one of the phones to send a message to
Russia that day (information received at noon); and the confirmation that one of
the subscribed phones was active inside the apartment and that Tsarnaev was
friendly with Dias Kadyrbayev, a resident of the 69 A apartment. (by 1:00 pm). 1:
153 (Walker; infra).
21. The Government adduced no evidence that the FBI had an arrest warrant for
Tsarnaev or that one had been sought. The first surveillance had started shortly
before noon. 1:162, L. 19 (Walker). No testimony was offered to explain why,
when law enforcement made contact with Dias around noon, no effort was made
to speak to him or to have him exit the apartment on request.
22. SA Walker testified that the FBI Director made the decision to execute an exigent
warrantless search. 1:102, L 21-25 (Walker). There was no evidence indicating,
beyond the FBIs belief that Tsarnaev was in the apartment, that the apartment
contained bombs or bomb making material produced at the hearing. Despite the
claims of exigency, based on a danger to the surrounding neighbors and the public
from both the presence of a felon and the possibility of bombs or explosives on
the premises, there was no effort to move or evacuate the neighbors around 69 A
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Carriage Drive or the surrounding buildings. 1:164, L. 11-19 (Walker) even
though the apartment building itself had two apartments on each floor, and was
located within a good sized apartment complex that was heavily populated. 1:165
(Walker).
23. HRT and Agent Walker briefed at the library at Dartmouth, and HRT briefed with
local SWAT teams that integrated into their team to take perimeter duty, before
Walker and HRT deployed to the apartment complex shortly before 5 p.m. 1:104.
L. 12-18 (Walker).
24. In addition to HRT members, the Massachusetts State Police SWAT team (or the
MSP STOP team) was at 69 Carriage Drive, as well as law enforcement agents
who were part of the local JTTF. 2:5 (Walker). There were approximately 50 or
60 or even more tactical operators, and on the periphery, additional uniformed
police officers from New Bedford, and ranking officers from the Rhode Island
State Police. 2:6, L. 1-11; 1:166, L. 6-9 (Walker).
25. Photographs, introduced into evidence, establish that HRT members were clad in
military style uniforms, with ballistic helmets, night vision goggles, and long arm
semi-automatic weapons. (Exhibits 2A, B, C).
26. The JTTF team assembled in force outside that day was wearing clothing
identifying them as law enforcement: either a police uniform, SWAT uniform, the
HRT camouflage, or jackets bearing FBI or other agency insignia. All were
armed, and weapons were pointed at the apartment and the occupants inside.
Exhibits 2A, B, C; 2:6, 32-33 (Walker); 4:218-19 (Kadyrbayev).
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27. The HRT team focused laser-scoped long weapons on the occupants inside the
apartment which meant that a laser beam would appear on the target. 2:10
(Walker); 4:219-20 (Kadyrbayev). Dias and Bayan saw these red laser dots
appear on their heads and torsos, indicating that they might be shot at any moment
within the apartment. 4:219-220 (Kadyrbayev). Dias was terrified, Bayan was
crying. 2:220 (Kadyrbayev; Affidavit).
28. Within the apartment, Dias and Azamat put up their arms. 4:219-220,
(Kadyrbayev). HRT used a loudspeaker to demand that Jahar Tsarnaev exit, and
then, ordered the occupants to exit. 2:14 (Walker); 4:220 (Kadyrbayev). Dias was
ordered to come out slowly, to take off his shirt and lower his pants, and to walk
backwards with his hands on top of his head, before kneeling, all standard
operating procedure for the HRT team call out. 2:14-15 (Walker); 4:220-22
(Kadyrbayev).
29. Dias was then handcuffed with plastic flexi cuffs behind his back. 4:221-222
(Kadyrbayev). He remained shirtless from that point on, from 5 pm that
afternoon until nearly twelve hours later, when Walker returned Dias to the
apartment, and he pointed out the shirt still lying in the grass outside the
apartment. 2:16 (Walker).
30. It is not standard procedure to have a witness invited to assist law enforcement
to remain shirtless for twelve hours, and the only other time one of the
Government witness recalled such an instance involved an interview conducted
in a persons home. 2:175 (Azad); 3:45 (Schiliro).
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31. Dias, Bayan and Azamat were placed separately in the back of three different
police cars. Dias was still cuffed behind his back. The men were still shirtless.
2:20, L. 6-11 (Walker); 4:224 (Kadyrbayev).
32. Arrestees are normally not placed in vehicles with their hands cuffed in the back,
as this particular method of securing a person is painful when in a seated position.
2:206, L. 3-7; 208 (Kelly).
33. There was no testimony that anyone told Dias that he was not under arrest.
34. Agent Walker went from car to car and questioned the three, without first
Mirandizing them, at approximately 5:15 for Bayan, 5:20 for Azamat, and 5:25
for Dias. 2:20, L. 16-22 (Walker); 4:224-226 (Kadyrbayev).
35. Dias testified, consistent with his affidavit, that Agent Walker scared him when he
approached Dias in the back of the car and began questioning him without
Miranda, using profanity and speaking with great intensity. 4:225; (Motion to
Suppress, Affidavit). Agent Walker confirmed that he spoke in a very firm voice,
and was stern although he does not recall using profanity.(1:115; 2:71, Walker).
He told Dias that his friends life was over but that his did not need to be, or
something to that effect. 1:115; 2:71 (Walker). He demanded to know where
Jahar was. (Id.). He asked Dias whether there was anything that would present a
danger like a bomb or explosives to his men, who were entering the apartment.
Dias told him that there were none, that Tsarnaev was not there and that he did
not know where he was. 1:114 (Walker). Agent Walker perceived these
statements as credible. (Id.).
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36. By 6 p.m. HRT had confirmed that Tsarnaev was not there. 1:119 (Walker).
Walker wanted to continue talking with Dias, and he suggested that they relocate
to MSP barracks, citing at the hearing the desire for a more discreet comfortable
setting because there was a gathering crowd of media. 1:119 (Walker). He did not
testify that safety concerns dictated the relocation, nor did he testify that in
suggesting to Dias that they should talk at MSP barracks, he took care to tell Dias
that the move was premised on safety concerns and that Dias was not under arrest.
Rather, Walker testified that he believed that Dias would prefer not to remain in
that location as press were appearing and there was a large crowd of people
gathering and that all three students seemed eager to agree. 1:119. Walker
testified that had Dias not consented to the transport he would have gotten
authorization to arrest him for illegal presence because he wanted to talk to him.
1:40-41 (Walker).
37. Dias was never asked whether he would be willing to go to a discreet and
comfortable location to answer more questions. 5:12 (Kadyrbayev).
38. Dias was not told that he was not under arrest. He was still cuffed, quite
uncomfortably, with very tight flexi cuffs behind him, and he was still in the back
of the car where he had been placed when Walker suggested that they go to
another location, which is the police barracks. (Infra; Walker).
39. There is no evidence that Dias was offered the opportunity to make a phone call
to alert family or friends where he is going, or to arrange transportation. There is
no evidence that he was offered, or given the opportunity, to leave the car to
retrieve his shirt, nor was one provided to him from the apartment. Walker
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testified that Dias was not charged, was just a source of information, a witness,
and that at all times he was free to leave, despite being cuffed, shirtless, in the
back of a car guarded by an armed officer. 1:38-40 (Walker).
40. Walker was ware when questioning the boys after the extraction that they are
cuffed 2:20 (Walker) and confirmed that Dias was cuffed and shirtless when he
asked him to go to a more comfortable, discreet setting. 2:26 (Walker). Dias was
then moved to marked police car, with a shield separating front and back, and
with rear doors that do not open from inside. 2:27 (Walker): 4:227-28
(Kadyrbayev). The transport to MSP Barracks began around 6:20, over an hour
and half after the occupants were ordered out of their home. 2:28 (Walker); 4:227-
28(Kadyrbayev).
41. En route to the police barracks, the car was turned around at Agent Walkers
direction so that he could obtain consent from Dias to search the apartment. 4:228
(Kadyrbayev).
42. Dias was still inside the police car, in the rear seat, cuffed when Walker
approached to obtain consent. 2:34 (Walker). Walker did not remove him from
the car, nor did he remove his cuffs. 4:229 (Kadyrbayev); 2:34 (Walker).
43. In fact, the cuffs were not removed until after Dias had agreed to the search, and
only then because Walker needed Dias to sign the form. 2:35. 79 (Walker).
Walker clarified to the Court that he could not recall a discussion about New
Bedfords safety protocols for transport, but that it was clear to him, based on
what the officer had just witnessed, that the New Bedford police officer would
have objected to transporting someone who had just been pulled out of a house by
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HRT, so he simply acquiesced to the handcuffs. 2:81 (Walker). Walker never
questioned or objected to the use of cuffs when he initially asked Dias if he would
agree to the relocation, or when Dias was put in the car for transport still cuffed.
Walker also knew Dias had been in restraints from the time HRT called him out
of the house, and that Dias was going to be transported in cuffs to MSP barracks
and did not then object or discuss the use of restraints with any officer. 2:89
(Walker).
44. Walker did not Mirandize Dias, nor did he tell Dias that he was not under arrest
before asking for consent. SA Walker produced an FBI consent to search form
and read it to Dias. 2: 34-35.
45. SA Walker provided Dias with the FBI search consent to search form to read and
told him that they needed to check his apartment for safety, because Jahar may
have left dangerous items. 4:230-231 (Kadyrbayev).
46. Dias again acceded believing that he did not have any choice. He just wanted to
sign after his experience with Walker outside his house and his scary attitude.
He could not sign the document, however, because he was still cuffed behind his
back. 4:231 (Kadyrbayev).
47. The plastic flexi cuffs had to be cut. Agent Walker did not possess anything
which could be used to cut the flexi cuffs, and had to search for something sharp
before cutting off the cuffs while Dias remained in the back seat. 4:229
(Kadyrbayev); 2:35 (Walker).
48. Dias heard the officer ask Walker, Hes not under arrest so Im not going to cuff
him right? Dias didnt hear what Walker said but the officer then put cuffs back
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on in front and Dias proceeded to MSP barracks cuffed in front. 4:232-233
(Kadyrbayev).
49. At the barracks, Dias, still in cuffs, remained in the back of the car in the parking
lot for over two hours. 4:234 (Kadyrbayev).
50. Dias was cold, clad only in shorts, and asked the police officer in the front of the
car to turn up the heat. 4:236-237 (Kadyrbayev).
51. While waiting in the vehicle, Dias learned from the radio that police had finally
located Jahar in Watertown. He asked the police officer up front whether he
would be released now that they found Jahar. The officer told him that he did not
know. 4:234-235 (Kadyrbayev); 2:18, 35, 50 (Schiliro).
52. Dias did not believe he could just leave after what happened at the house with the
guns and intense questioning, and he never asked to leave because it was clear he
couldnt. 4:236 (Kadyrbayev).
53. Finally, Dias was removed from the car and escorted into the building by multiple
law enforcement officers. His cuffs were still on. 4:237 (Kadyrbayev).
54. At the point that he is led into police barracks, Dias had been in custody for four
hours.
55. The cuffs were not removed until Dias was inside the building. He held up arms
up to have them taken off but was told he had to wait and they came off only after
he was secured in a room beyond the public area. Agents asked if he needed to go
to the bathroom. 4:237-238 (Kadyrbayev).
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56. Dias was not permitted to use the bathroom on his own. He was led to the
bathroom door, which Agent Schiliro kept propped open once Dias was inside.
4:239 (Kadyrbayev); 3:40 (Schiliro).
57. When he was finished, Dias was then escorted to the interior of police barracks,
through a secure door that required an officer inside the reception area to first
buzz open. The testimony was unclear whether this door was locked from both the
inside and outside requiring a buzzer for egress and ingress. 3:38 (Schiliro); 2:165
(Azad)
The Waiver Massachusetts State Police Barracks
58. Agent Azad testified that he told Dias that they wanted to speak to him, that he
wasnt under arrest, and that he would need to sign a form for them. (2:128).
59. That form, (Exhibit 4, 2:129) appears to be a standard FBI form, and it bears
signatures and times indicating that the form was presented at 9:08 p.m. and
signed at 9:14 p.m..
60. Agent Schiliro read from start to finish, without stopping after each right. (2:130;
3:22, L.21-24) He did not explain each right or confirm after reading each right
that Dias understood. (Id.)
61. Agent Azad testified that he also provided some ground rules to Dias that
would go along with the interview should Dias sign the waiver; it was not clear
whether this preceded or followed Agent Schiliros reading. (2:130).
62. Dias asked if he needed a lawyer. (3:22, L.24; 3:44, L. 22; 3:45, L. 7-8.)(4:240).
He was told that he was not under arrest that he was just helping out and that he
did not need a lawyer. 2:240-1 (Kadyrbayev).
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63. Agent Azad testified that he would not be able to give him any legal advice.
2:130 (Azad).
64. Agent Schiliro did not ask Dias if he understood the rights. (3:23).
65. Agent Schiliro testified after he gave Dias the form, Dias appeared to read the
form, and that he agreed to speak and signed the Advice of Rights (3:23). He did
not confirm that Dias had in fact read each right, nor did he ask Dias if he
understood his rights then. (3:45). He only asked Dias again, if he had any
questions. (Id.).
66. Dias did not understand that he had the right to refuse to speak with the Agents
and was never informed of this right. 5:15 (Kadyrbayev).
67. Dias conversed with the agents in English. Dias English proficiency level was
Low Intermediate on the ACTFL Proficiency Guidelines at the time of the
interrogation. 4:24 (Pavlenko). This corresponds generally to Dias combined
score on his IELTS testing was 5.5, indicating that he should not have been
enrolled in any academic or linguistically demanding language classes, and which
qualified him only for low level ESL, or English as a Second Language classes,
and would have precluded him from performing in an academic setting where
only English was spoken. 4:17, 19 (Pavlenko).
68. Someone at the Intermediate level of proficiency would be able to participate in a
wide range of conversational exchanges, and exchange information on topics that
are familiar, using high frequency words and relatively simple structures. (4:25).
Low Intermediate users can appear proficient, especially if they are younger
individuals using colloquial English. 4:25 (Pavlenko).
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69. The Advice of Rights form corresponds in structural and lexical complexity to
Distinguished on the ACTFL Guidelines. 4:33 (Pavlenko). A Distinguished
level of proficiency enables a person to process information that is dense, highly
abstract, contains low-frequency words, and relies on cultural knowledge and
framework. (4:34).
70. Dias did not have the necessary level of language proficiency to understand the
Miranda warning; his proficiency was level Low Intermediate and the level of
proficiency required to comprehend the Advice of Rights is Distinguished.
(4:34-35).
71.The agents encountered objective evidence of Dias proficiency level. Dias had
trouble with certain words, and could not find the words for certain things in his
conversation with agents. (2:181). Agent Azad would, at times, try and work
around Dias lack of ability to communicate certain words, and would suggest
words to him. (2:181).
72.When attempting to work around these difficulties, Dias used drawings, and hand
gestures, and noises, such as when describing fireworks. 2:185, 186, 189 (Azad).
(Id). Words like dumpster, fireworks and fuse could have been examples of
words Azad or Schiliro used in the 302 after discussion with Dias about what he
meant, as opposed to repeating words that Dias himself used. 2:190 (Azad).
73.During the interrogation, Dias mentioned that he was cold because he was still
shirtless, but none was provided. 4:242 (Kadyrbayev). Dias was also exhausted
from lack of sleep, and visibly nodded off putting his head on the table and later
asking if he could sleep. 2:175 (Azad).
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74.Dias repeatedly asked if he could see Bayan, but was refused to see or speak with
her.
75.Dias had no phone, wallet, or any means to independently leave the barracks.
2:86 (Walker).
76.Dias did not believe that he could leave as he was closely monitored at all times,
and could not leave the room. 4:254 (Kadyrbayev).
77.Dias was questioned from roughly 9:14 pm until shortly after midnight.
78.According to Azad, the interview lasted approximately three-and-a-half (3 )
hours after the advisement process and concluded around 12:30a.m., whereas
Dias recalls the interview concluding closer to 1:00a.m., which Agent Schiliro
does not dispute. 2:135, 139 (Azad); 3:23-24 (Schiliro); 4:251 (Kadyrbayev).
During the interview, after being advised of safety concerns by the agents,
Kadyrbayev consented to the search of his vehicle, a BMW, his Macbook Air
laptop, and an external hard drive. See Exs. 5 & 6; 2:134, 137-138 (Azad); 4:250
(Kadyrbayev); 3:26-27 (Schiliro).
79.During this interrogation, Dias was presented with and asked to sign a consent
form for a search of his computer and car; again, he was told that agents had to
make sure that Jahar did not leave anything dangerous behind.
80.Even after the interrogation, Dias was not permitted to leave. Agents were
searching for the backpack. When agents returned, Walker decided that he had to
release Dias even though he had probable cause for arrest for obstruction because
he had not yet heard back from the prosecutors and he did not want to expose his
agents. 2:82 (Walker).
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19

81.After more than six (6) hours in custody, during which the agents were trying to
obtain permission to charge the defendants. 2:58-59, (Walker). Azamat remarked
to Walker that he feels like they are being held against their will. 1:133, (Walker).
The defendants were driven home around 5:00a.m. 2:74 (Walker); 4:258
(Kadyrbayev).
82.Dias was transported back to his apartment around 4:30 am.
83.He was not cuffed.
84.Dias had been in custody for almost twelve hours at this point.
85.Agents returned him to the apartment and went inside to conduct a safety
check.
86.While in the apartment, agents retrieved an ashtray and hat.
The Government Returns to Carriage Drive with Immigration Agents
87.After Dias was returned, surveillance of the home was set up by the FBI.
88.HSI and the FBI were aware that Dias was out of status. As a nonimmigrant here
on a student visa, he was required to maintain his status as a student. HSI agent
Valentine was told that he did not need to address Dias possible overstay on the
afternoon of Friday, April 18, because it was all set, just do what youre doing.
3:208 (Valentine). The next day, on the morning of the 20
th
, HSI agents were
notified to convene for purposes of arresting Dias. Id; 2:202 (Kelly).
89.Agent Walker had been instructed to meet up with the agents and the FBI
surveillance team. 2:64 (Walker). He advised his supervisor that surveillance had
observed two males leaving the apartment, and that MST (FBI surveillance)
would put them in place and would arrest them in the region. (2:66); FBI and
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20

HSI were fully integrated. 2:66 (Walker).
90.HSI Agents met at the JFK building, and then later, convened at a local Dunkin
Donuts for an overview of how the arrest would be effected, a meeting at which
Agent Walker was present. 2:64 (Walker). Walker also communicated with his
supervisor regarding his presence at the arrest planned for later that day that It
will be fine because theyll probably think that Im just there for a follow-up from
yesterdays interview. (2:66).
91.Agent Valentine obtained consent to enter by asking an occupant who came to the
back door if he could come in because of the presence of media. (2:210).
Whoever that was let Valentine in and he asked if they would permit his people
out front in as well because agents just had to ask some questions. (2:211).
92.The HSI agents were wore jackets and/or bullet proof vests with police markings,
and carried guns and cuffs. 2:200 (Kelly); 2:218 (Wiroll). Agents knew that Dias
was alleged to be an associate of Tsarnaev. (Id.).
93.Dias, Azamat, Bayan and Dias mother were all told to sit on the couch. 2:203
(Kelly); 2:213 (Valentine). They were not permitted to get up to obtain I
dentification but instructed to tell agents where to find the necessary documents.
94.Before Dias could be arrested, HSI agents had to confirm whether or not they
were in status. Even if SEVIS states that the person is not in status, it is possible
that the persons situation has changed, that the person has filed for a petition or
has some other legal basis for remaining in the country. 2:204 (Kelly). HSI agents
do not arrest on first encounter, because it is not certain that there is a basis for
arrest until there are follow up questions and checks to confirm the SEVIS status.
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21

2:204 (Kelly); 2:209 (Valentine)
95.Dias was arrested administratively after about forty minutes and placed in
shackles before being transported. 2:215 (Valentine); 3:59 (Wiroll). No one told
Dias that he was under arrest, only that he had to come back and sort out his status.
2:216 (Valentine); 3:61,78 (Wiroll)
96.Dias was therefore surprised he was handcuffed. (Id.). Wiroll told him cuffs were
necessary for transport, but he was cuffed in front, with shackles, because back-
cuffing is extremely uncomfortable and not appropriate if someone is being
seated. 2:215 (Valentine); 2:208 (Kelly); 3:61 (Wiroll).
97.The administrative arrest warrant was issued at 10:00 p.m., that night, after Dias
had been transported to HSI offices.
98.Wiroll placed Dias in a room and started paperwork. He had not processed Dias
when FBI agents were provided access to Dias around or shortly after 5:00 p.m..
(3:62).
99.Azad and FBI Agent Timothy Quinn (Quinn) interviewed Dias again at the Tip
ONeil Federal Building on April 20, 2013, 2:151 (Azad); 3:62 (Wiroll). During
that interview, Azad handed Dias the form, indicated it was the same one as
yesterday, 4:271 (Kadyrbayev), and then Quinn reviewed the Miranda advisement
form and it was signed at 19:11. 2:152-153, (Azad); 3:8 (Quinn); 4:273
(Kadyrbayev). Prior to reviewing the form, however, Dias again asked if he
needed a lawyer and, again, Azad told Dias that he was not in their custody.
4:272, (Kadyrbayev). Dias was interviewed for 30-40 minutes. 4:273
(Kadyrbayev).
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100.Wiroll himself did not speak with Dias until shortly after midnight the following
day. (3:63).
101.During the interview, the consulate officer was present. 3:63 (Wiroll).
102.Wiroll began the meeting with reading a Miranda card as well as the advice of
rights in the Notice to Appear. (3:66).
103.Wiroll testified that the counsulate officer, Yerlan Kubahev, translated
immigration documents for Dias in his native language. 3:74 (Wiroll, Exhibit 9).
The Consulate official translated documents, and provided Russian interpretation
to Dias. 3:75 (Wiroll).
104.During their interactions, HIS agents utilized a translator on two separate
occasions. First, on April 20
th
, the Consular official translated and again when the
documents were re-served on April 23
rd
in Dias native Russian language. 3:75
92, (Wiroll); 4:274-275 (Kadyrbayev).
105.Agent Wiroll had been given two pages of a draft 302 by the FBI agents from
the previous days interview of Dias. (3:80-81). Wiroll admitted that in the six
years he had been at HSI, picking up students for potential violations, this was the
first time FBI shared information in this fashion; it was not the usual practice.
(3:81-82). His job with regard to this arrest was to confirm that there was a
violation of the F1 Student visa. (3:83 Wiroll). The information in the draft 302
had nothing to do with a student visa violation. (3:82-83). According to him, the
information from the draft 302 was nevertheless included on the Notice to Appear
as background information about how I encountered the individual and how
they are out of status. (3:83).
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PROPOSED CONCLUSIONS OF LAW:
FIRST PROPOSED CONCLUSION
DIAS KADYRBAYEV WAS ILLEGALLY ARRESTED ON
APRIL 19, 2013, AND THE SEARCH OF HIS HOME WAS SIMILARLY
UNSUPPORTED BY PROBABLE CAUSE, OR TRUE EXIGENT
CIRCUMSTANCES

The Government asks this Court to do what the Supreme Court has never done,
which is to apply the less onerous reasonable suspicion standard of Terry v. Ohio, 392
U.S. 1 (1968) to the warrantless entry of a home to conduct a search and to seize Dias
Kadyrbayev without probable cause. It does so, perhaps believing that the significance of
the crimes being investigated unburdens them of the Fourth Amendments requirements,
even when the intrusion is made in the home. However, the forcible removal of a person
from his home, and the transportation of this person for interrogation at a police station,
by definition is not the kind of minimal intrusion that Terrys balancing test
contemplates, and such seizures and searches within the home must rest on probable
cause.
Indeed, the Governments argument has been made, and rejected, by the Supreme
Court on multiple occasions. See, e.g. Dunaway v. New York, 442 U.S. 200, 212 (1979)
(rejecting application of Terry and reasonable suspicion standard to removal of suspect
from a residence for transport to a police station for questioning, and requiring probable
cause); Hayes v. Florida, 470 U.S. 813, 817 (1985) ( recognizing that forcible removal of
a person from his home, for transport to a police station for even a brief investigatory
detention requires probable cause, not reasonable suspicion); Kaupp v. Texas, 538 U.S.
626, 630 (2003) (forcible removal of 17 year old suspect from his home, without
probable cause or warrant, for interrogation at a police station violated the Fourth
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24

Amendment). As the Supreme Court observed in Kaupp, [a]lthough certain seizures
may be justified on something less than probable cause, see, e.g., Terry v. Ohio.we
have never sustained against Fourth Amendment challenge the involuntary removal
of a suspect from his home to a police station and his detention there for investigative
purposesabsent probable cause or judicial authorization. Id. at 630, quoting Hayes,
supra, 470 at 815 (emphasis added).
A. The Search and Seizure Occurred In the Home, not Outside, and was One
Continuous Fourth Amendment Violation

In an attempt to avoid the inevitable conclusion that forcible removal from the
home for interrogation can never rest on reasonable suspicion, the Governments Brief
and Argument focuses on the stop outside the Carriage Drive apartment, after Dias and
the others emerge from their apartment at gunpoint, surrounded by heavily armed tactical
operators. It does so because a warrantless search and seizure in the house requires the
Government to demonstrate probable cause. Payton v. New York, 455 U.S. 573 (1980)
(searches and seizures in home require probable cause). This it cannot do.
The Government concedes that at the time of the call-out, there was only
reasonable suspicion, as the record does not support a finding of probable cause to
believe that Tsarnaev was located within the home at that time, or to believe that Dias
Kadyrbayev had committed a felony. The Government has further asserted during the
hearing that the FBI always possessed probable cause to arrest Dias because his student
visa had been canceled, arguing that illegal presence was a basis for arrest, perhaps
hoping for the inference that his status would also provide a basis for entering the home.
Even assuming law enforcement had confirmed that Dias was out of status at that
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point, illegal presence is not a crime as the Supreme Court itself has recently held.
Arizona v. United States, __ U.S.__, 132 S.Ct. 2492, 2505 (2012), citing, INS v. Lopez-
Mendoza, 468 U.S. 1032 (1984); see also, Martinez-Medina v. Holder, 673 F.3d 1029,
1036 (9th Cir. 2011) (Nor is there any other federal criminal statute making unlawful
presence in the United States, alone, a federal crime...) Gonzales v. City of Peoria, 722
F.2d 468, 476-77 (9th Cir. 1983) (illegal presence is only a civil violation.), overruled
on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037(9th Cir.1999). In fact,
the Supreme Court seems to have obviated the Governments argument that Dias student
visa problems authorized the police to search his home, or to arrest him, observing in
Arizona that if the police stop someone based on nothing more than possible
removability, the usual predicate for an arrest, meaning probable cause, is absent. Id.; see
also, Ortega-Melendres v. Arpaio, 836 F.Supp.2d 959, 973(D.Ariz. 2011) (actual
knowledge...that an alien is illegally present is not sufficient to form a reasonable belief
that he has violated federal criminal immigration law).
The issue before the Court is thus not whether Dias detention constitutes a
permissible investigatory stop because by definition, it is only[w]hen the nature and
extent of the detention are minimally intrusive of the individuals Fourth Amendment
interests, [that] the opposing law enforcement interests can support a seizure based on
less than probable cause. United States v. Place, 462 U.S. 696, 703 (1983) (emphasis
added), citing Terry v. Ohio, 392 U.S. at 34. Dias forcible extraction from his home,
the circumstances of his detention at the scene and his transport to police barracks for
questioning is far from a minimal intrusion. The Terry calculus, which takes into
account both the nature of the privacy interest and its quality, simply cannot be applied
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where police have made a warrantless entry and seized a person in his home where a
societally sanctioned expectations of privacy are at their strongest. See Lalonde v. Cty
of Riverside, 204 F.3d 947 (9th Cir. 2000) citing Arizona v. Hicks, 480 U.S. 321, 327-
328 (1987) (holding that probable cause is necessary for dwelling place searches as well
as seizures where officer within home searched stereo in plain view after lawful exigent
entry). Understandably, the Supreme Court has defined a minimally intrusive seizure as
one that occurs in public, and is brief. United States v. Winsor, 846 F.2d 1569, (9th
Cir.1988), citing Terry v. Ohio, supra; United States v. Hensley, 469 U.S. 221, 229
(1985).
The Governments position is that the search here was HRTs warrantless
sweep of the home after Dias was called out, and that the seizure occurred when he was
taken into custody, is not supported by the facts or law. Rather, the Fourth Amendment
inquiry begins when the HRT/JTTF team assembles outside the apartment building. The
search is the HRT call-out which compelled the occupants to reveal their presence and
identity. The seizure is the moment that Dias submitted to the show of authority and force
of the tactical team assembled outside and targeted him inside with laser scoped rifles.
See California v. Hodari, 499 U.S. 621, 626 (1981) (arrest requires either physical force
or a submission to authority); United States v. Smith, 423 F.3d 25, 28 (1st Cir. 2005)
(acknowledging that seizure can occur without physical restraint where coercion requires
compliance). Under the circumstances presented here, a reasonable person would not
feel free to leave, decline the officers requests, or otherwise terminate the
encounter. Florida v. Bostick, 501 U.S. 429, 435 (1991), quoting Michigan v.
Chesternut, 486 U.S. 567, 574 (1988).
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If there could be any doubts, a summary of the facts will dispel them. Agent
Walker confirmed that a large tactical force of over fifty HRT and SWAT team members
along with additional local and state police officers and FBI agents established a
perimeter surrounding Dias apartment, hardening the soft perimeter in place since
sometime around noon that day. These operators were outfitted in tactical gear, which
included ballistic helmets, night vision goggles, bullet proof vests and semi-automatic
long arm weapons. (2:6, Walker); (4:220, Kadyrbayev). Exhibits 2A, B, and C
confirmed the visual appearance of the SWAT/HRT members, described by Dias in his
affidavit and later by Agent Walker. (1:166, 2:32, Walker; 4:219-20, Kadyrbayev). In
addition to the presence of multiple armed law enforcement officers and the tactical
force, there were numerous police vehicles, unmarked SUVs, and an armored tactical
vehicle outside the apartment building. (1:166, 2:6, Walker). There was no possibility of
egress or flight.
In addition to this display of authority, the occupants of the apartment building
also faced another significant threat. The tactical team aimed the laser scopes on their
rifles at Dias and Bayan inside the apartment, which resulted in visible red laser dots
appearing where the weapon is pointed. (2:11, Walker; 4:220, Kadyrbayev). Just as these
red laser dots were apparent to the operators outside the apartment, they were also
apparent to the occupants, who observed the dots on each others heads and torsos. (Id).
Aware that they were being targeted, and that the laser sighting was the equivalent of
being in the crosshairs of a semi-automatic weapon within their own home, Dias was
justifiably terrified and afraid to move. Bayan began to cry. Azamat, and then Dias and
Bayan put their hands in the air.(4:219-20, Kadybayev). The tactical operators outside
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28

screamed at the occupants to keep still and not to move; Dias was afraid that they might
shoot at any moment, as it was raining and dark that day, so he tried to be still. (4:220,
Kadyrbayev).
The operators ordered Jahar out of the apartment, with words to the effect that he
was surrounded, and to exit and no one would get hurt. (2:12, Walker; 4:221-22,
Kadyrbayev). Then the operators ordered out the occupants using a bullhorn, or
loudspeaker one by one. ( Id.; 1:221, Kadyrbayev; 2:14,Walker). They complied,
following each and every instruction. Dias feared that at any moment, he could be shot.
(4:220, Kadyrbayev). Dias testified that he was forced to take his shirt off, drop his
pants, and he was brought to the ground on his knees so that he could be cuffed, as
questions were shouted at him. (4:222-23, Kadyrbayev).
The terrifying display of overwhelming force outside the apartment, the targeting
of its occupants, and the command to exit over a loudspeaker would compel any
reasonable person, in similar circumstances, to believe that he was not at liberty to
disregard the police. United States v. Mendenhall, 446 U.S. 544, 554 (1980) (citing, as
examples, the threatening presence of several officers, the display of a weapon by an
officer, some physical touching of the citizen or the use of language or tone of voice
indicating that compliance with the officers request might be compelled.). It does not
matter that HRT had not yet crossed the threshold of the apartment; forcing the lawful
residents of a home to leave, under threat of laser directed, high-powered rifles and an
overwhelming show of force, is the equivalent of a forcible entry by the officers
themselves.
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Indeed, as a practical matter, Dias was already under arrest when he emerged
from his home in submission to the show of force and the verbal commands of the
tactical team. United States v. Morgan, 743 F.2d 1158, 1164, quoting Florida v. Royer,
460 U.S. 491, 503 (1983) (rejecting description of encounter between defendant and
police as investigatory stop where nine police officers and several patrol cars
surrounded his residence in the dark, blocked his car and ordered him out on bullhorn);
see also, Sharrar v. Felsing, 128 F.3d 810, 819-20 (3d Cir. 1997) ([W]hen a SWAT team
surrounds a residence with machine guns pointed at the windows and the persons inside
are ordered to leave the house backwards with their hands raised, an arrest has
undoubtedly occurred.), abrogated on other grounds by Curley v. Klem, 499 F.3d 199
(3d Cir. 2007); United States v. Saari, 272 F.3d 804, 808-09 ( 6th Cir. 2001) (defendant
under arrest from the inception of his encounter with police officers where multiple
armed officers positioned themselves in front of the only exit from the apartment with
guns drawn, knocked and announced their presence, and ordered him outside when he
opened the door); United States v. Al-Azzaway, 784 F.2d 890, 893 (9th Cir. 1985)
(defendant arrested where officers surrounded trailer with weapons drawn and ordered
through a bullhorn to leave and drop to his knees); United States v. Maez, 872 F.2d 1444,
1450-2 (10th Cir. 1989) (Presence of ten officers, drawn weapons of SWAT team
surrounding the residence, use of loudspeakers ordering occupants out constituted
invasion of privacy interest in home and resulted in arrest).
This was, pure and simple, a warrantless search and arrest within the home,
without probable cause, trespassing the most basic and longstanding rule of the Supreme
Court with regard to the Fourth Amendment and the home.
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B. The Government Failed to Demonstrate Exigent Circumstances Where It
Has Not Proven the Necessary Probable Cause

The Government describes Dias extraction as a summoning from the apartment,
and addresses only the physical search of the apartment after Dias is in custody outside,
asserting that the warrantless search was justified under the exigent circumstances. The
Government does not assert that there was probable cause, conceding that the extraction
and search was premised only on reasonable suspicion that Dzhokhar Tsarnaev was there.
Even with an arrest warrant for Tsarnaev, the Government would have needed probable
cause to believe that he was in the house, because it was not his residence, as well as
either a search warrant for the house, or exigent circumstances. United States v. Steagald,
457 U.S. 204, 123 (1981). Here, the Government had no arrest warrant, no search
warrant for the 69 A Carriage Drive residence, and most importantly, produced no
evidence at the hearing to establish that probable cause existed that Tsarnaev was present,
that bombs or other dangerous materials were present, or that the occupants were engaged
in the commission of a felony.
Clearly, warrantless searches and seizures inside a home are presumptively
unreasonable, see Payton, supra, 445 U.S. at 586, and thus the Government must
demonstrate the existence of probable cause, and some exception to the warrant
requirement. One without the other will not permit the intrusion into the home. Probable
cause, alone, is not sufficient to search or seize within the home. Even where there is
probable cause to believe that evidence of a crime, or in this case, a person, will be found
within a private dwelling, the constitutional protections afforded to an individuals
privacy interest in his own home outweighs the governments interest in crime
prevention. United States v. Samboy, 433 F.3d ,153, 158 (1
st
Cir.2005), citing, Payton,
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supra, at 588-89. Similarly, the Government cannot rely on exigent circumstances to
justify a warrantless search or seizure within the home, without demonstrating probable
cause as well. See United States v. DAndrea, 648 F.3d 1. 11 (1st Cir.)(exigent
circumstances is an exception to the warrant, not probable cause requirement. ) citing
Brigham City v. Stuart, 547 U.S. 398, 403 (2006); United States v. Wilson, 36 F.3d 205,
2908 (1st Cir. 1994).
To cross the apartments threshold, [the agents] needed (1) probable cause to
believe that contraband or evidence would be found inside, and (2) exigent circumstances
justifying an exception to the warrant requirement, allowing him to enter without first
obtaining a warrant. Wilson, supra, 36 F.3d at 208; see also, Kirk v. Louisiana, 536
U.S. 635, 636 (2002) (warrantless entry unlawful unless both probable cause and exigent
circumstances exist); United States v. Tibolt, 72 F.2d 965, 969 (1st Cir. 1995) (holding
warrantless entries of private residences barred in the absence of exigent circumstances
and probable cause), citing United States v. Curzi, 867 F.2d 36, 41 (1st Cir. 1989). The
Government bears the burden of proving exigent circumstances. United States v.
Baldacchino, 762 F.2d 170, 176 (1st Cir.1985).
Exigent circumstances does not redeem the Fourth Amendment violation that began
here inside the home when HRT commands the residents to exit a private dwelling
because the Government did not demonstrate probable cause. The Governments only
asserted basis for probable cause adduced at the hearing was Dias alleged illegal
presence by way of his student visa problems, which is a civil, not criminal, violation
that would not provide probable cause for an arrest on criminal charges, or, in this case,
the probable cause necessary to make a warrantless arrest and search within the home.
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Arizona v. United States, supra, 132 S.Ct. at 2505.
As for the warrantless entry and search of the home after Dias was detained
outside, the police had only a suspicion that Tsarnaev was in that home, as the
Government again concedes. This suspicion was not confirmed by the surveillance that
spanned well over five hours. No one saw Tsarnaev flee into the home, and police did
not chase him into that residence in hot pursuit. United States v. Santana, 427 U.S. 38, 42
(1976)(recognizing the right of police, who had probable cause to believe that an armed
robber entered a house a few minutes before, to make a warrantless entry to arrest the
robber and search for weapons under exigent circumstances exception). Their
suspicion of his presence instead rested on the information they had begun gathering as
early as 10 a.m., and collated by 1 p.m. that afternoon about the cellphones, the
friendship between Dias and Jahar, and Jahars visits to the apartment.
Notably, Agent Walker and his team were simultaneously in possession of
information that undercut the inference that Tsarnaev was in that location at that time.
First, surveillance of the apartment from noon on had not confirmed Tsarnaevs presence
or any other suspicious activity. Dias was aware that police wanted to speak to him about
Tsarnaev, and had given police his address earlier that afternoon. (4:216-17,
Kadyrbayev). No one attempted to flee, or leave the apartment. Although one of the
phones subscribed to Tsarnaev was emitting a signal from the house, it was not the phone
that had substantial communication with Tamerlan Tsarnaev immediately before the
bombing, and its connectivity with Jahar was hours before the bombing. (1:95-6 Walker)
Moreover, although the FBI had obtained every piece of data available regarding the
phones, the Government adduced no evidence that this phone had connectivity with
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Tamerlan at any point, nor did they demonstrate that this phone showed connectivity with
Tamerlans wife sister, or parents, which one would expect if the phone were in fact a
phone used by Jahar (1:149, Walker).
The Government also failed to present evidence that gave rise to the suspicion
that there were bombs, bomb making materials, or anything dangerous within the home.
Agent Walker did not provide any specific, articulable facts establishing the basis for
such a suspicion. Indeed, the belief that such items might be within the home was
premised solely on the belief that Tsarnaev was in the home, (1:102, Walker). And as
there was no probable cause for this belief, there was no probable cause that would justify
a search of the apartment on the basis that there were bombs, guns or other dangers that
put police, the residents and the public in immediate danger.
C. The Government Failed to Demonstrate True Exigence
Exigency involves a compelling necessity for immediate action as w[ould] not
brook the delay of obtaining a warrant. United States v. Wilson, 36 F.3d at 209.
(citation omitted). In the Hearing, the Government thus had the burden of demonstrating
the existence of the compelling necessity for immediate action. They did not.
When the Director of the FBI gave authorization at 4:39 p.m. for an exigent
search, it was on the basis of the same information possessed at 1 pm; no new
information or development created an exigency at that time for immediate action. Many
hours had passed from the time the FBI developed the information and set up a perimeter.
There was ample time to present the information to a neutral and detached magistrate to
obtain a search warrant as AUSAs were assigned to the JTTF and the entire system was
on alert and available. Notably, that very afternoon, the Government secured warrants
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for the search of the Tsarnaev brothers social media accounts to search the two cars
associated with the family, and the Tsarnaev home
2
.
Walker testified that HRT had been flown up specifically for the investigation,
and that he met with HRT and other participants in the JTTF off site to develop a plan of
assault and coordinate the outer perimeter of local police who had created a soft
perimeter early that day. Although he stated that the continued presence of Jahar would
present a danger to neighbors, the agents had not confirmed that he was in fact, present,
nor had any attempt been made to evacuate or clear the surrounding apartments or any
occupants over the course of the afternoon. Further, agents had the opportunity to speak
with Dias at noon, when he identified himself, and gave his location and phone number,
to the officer interviewing his friends, which itself would have alerted Tsarnaev, had he
been there, to the interest of the police in Dias and the probability the FBI would be
coming to the apartment. It would be more likely at this point that there would be a
danger presented, because Tsarnaev would likely flee, knowing the FBI was coming to
him. Thus there was no urgency to the Governments actions five hours later. See
United States v. Curzi, supra. Here, there was a span of hours before the exigent search
was authorized. Agent Walker and his team met off site to plan the raid, and assign
positions and discuss the logistics.
The legitimacy of law enforcements desire to neutralize a roaming threat to the
security of the citizens of Boston who had already killed multiple people and engaged
police in a firefight is not questioned, nor is the dedication of those seeking to protect and
serve. The burden of proof, however, of justifying an intrusive search without a warrant
rested on the Government, and in this respect the Government did not adduce sufficient

2
Tsarnaev filed Document #303, 1:13-cr-10200-GAO; warrants under seal
Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 34 of 68
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proof either of probable cause or imminent danger. The Courts decision that under the
facts in this case, the burden to demonstrate exigent circumstances has not been met will
not and cannot create a slippery slope that will hinder police action in response to a
similar situation in the future. The Governments position has been that the Court may
find that the probable cause and exigency prongs of the exigent circumstances doctrine
are satisfied merely upon a showing that the FBI had reasonable suspicion to believe that
Tsarnaev was in the Carriage Drive Apartment. In fact, the Fourth Amendments
protection of the home requires much more than this, and in this case, the Governments
concession that there was only reasonable suspicion, combined with an objective absence
of probable cause on the record the Government, compels this Court to suppress all
statements and evidence derived from the illegal search and seizure that resulted from the
call out.
SECOND PROPOSED CONCLUSION

DIAS KADYRBAYEVS DETENTION CONSTITUTED
A DE FACTO INVESTIGATORY ARRREST

Assuming for purpose of argument that this Court accepts the Governments
factual and legal positions with regard to the search and seizure within the home, the
Court is left to determine whether the detention outside the home was a proper
investigatory stop. Even under the Governments investigatory detention after
compelled extraction from the home gloss of the Fourth Amendment and the probable
cause requirement, the circumstances of Dias detention outside the apartment, and his
transport to the police barracks, nevertheless transcended the boundaries of any
reasonable investigatory detention under Terry.
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36

While no scientifically precise formula can determine whether a Terry stop
rises to the level of a formal arrest, United States v. Trueber, 238 F.3d 79, 93 (1st Cir.
2001) (internal quotation marks omitted), the Courts ultimate inquiry is whether there
was a formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest. Thompson v. Keohane, 516 U.S. 99, 112 (1995) (internal quotation marks
omitted).
It is true, as the Government asserts repeatedly, that neither handcuffing nor other
restraints will automatically convert a Terry stop into a de facto arrest. United States v.
Quinn, 815 F.2d 153, n.2 (1
st
Cir. 1987). Similarly, the use of weapons, without more,
will not automatically elevate a stop to a de facto arrest. United States v. Trullo, 809 F.2d
108, 113 (1st Cir.), cert. denied, 482 U.S. 916 (1987). In this case, however, we are not
talking about the use of weapons and handcuffs, without more. The something more here
is the use of a variety of coercive measures, for a significant time period, and in a manner
that is simply not indicative of a minimal intrusion. The cases the Government cites in
support of the claim that the intrusive protective measures utilized to detain Dias
amounted to nothing more than an investigatory stop are not persuasive because none
evidence the confluence of highly intrusive and coercive elements here, for the period of
time that these measures were put in place.
This was not a brief stop, nor was the intrusion into Dias liberty interests
minimal or limited. Dunaway, 443 U.S. at 210-11 (distinguishing the de minimis
intrusions of Terry stop). First, forcible removal from the home that signals the
detention was not in a public place, and Dias relocation to a police station was not a
removal to a neutral location for purposes of safety; it was a police barracks, and the
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37

purpose was to interrogate him. Dunaway, supra; Kaupp, supra. Second, the use of
protective measures here, even if reasonable, were not temporary, or brief in duration.
See United States v. Rabbia, 699 F.3d 85 (1st Cir. 2012) (officer who drew his weapon as
he approached drug suspect seated in car with lower half of body hidden alone, and used
cuffs only temporarily to effect a weapons frisk, did not convert Terry stop into an
arrest); United States v. Meadows (officers use of cuffs to conduct Terry stop where he
had reasonable concerns for safety coupled with short duration of investigatory stop
five minutesprecluded finding of arrest). While United States v. Sharpe, 470 U.S.
675, 685-86 (1985), expresses the Courts reluctance to put in place an artificial time
limit on what is a reasonable detention, its determination that the ninety minute detention
in Place is a patently unreasonable detention ([t]he length of the detention of
respondents luggage alone precludes the conclusion that the seizure was reasonable)
remains the law. United States v. Place, 462 U.S. 696, 709-710 (1983). More
importantly, the duration cases cited by the Government as proof that a lengthy
detention does not require a finding of arrest do not involve a detention of this length
under such coercive conditions, and without anything to ameliorate a suspects
reasonable conclusion that he is, in fact, not free to go.
The Governments claim that the intrusions of Dias liberty were justified by the
need for officer safety, and reasonable because the FBI were investigating a serious
crime, also falls short. By the time Dias was placed into the police unit, HRT had already
confirmed that he was not armed: they forced him to remove his shirt, to lower his pants,
and then thoroughly frisked him and cuffed him before placing him in a police vehicle.
Any reasonable suspicion that he might have been armed when he came out of the
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38

apartment was thus extinguished even before he was placed in the vehicle. See United
States v. Mohammed, 630 F.3d 1 (1st Cir. 2010) (use of cuffs and drawn weapons to
effect Terry weapons frisk of shooting suspect did not constitute arrest where measures
warranted by suspicion involved in shooting and defendant detained briefly before gun
found). Nevertheless, Dias was kept, shirtless, cuffed and secured in a police vehicle by
heavily armed agents when SA Walker questioned him, and thereafter, even after the
investigatory questions had ceased and no additional information supporting probable
cause of a criminal violation was to be had. The only time the cuffs were removed, albeit
temporarily, was when Dias signed the Consent to Search form. Once that was done, the
cuffs were once again put back on.
The reasonableness test applicable in a Terry stop analysis is irrelevant because
that test presupposes that the seizure under scrutiny was, on the whole, a less intrusive
measure than an actual arrest. United States v. Acosta-Colon, supra, 157 F.3d at 14,
citing United States v. Quinn, 815 F.2d at 156. The Government brushes away the
extremely intrusive and coercive measures to effect and maintain the detention on the
proposition that the use of these protective measures to effect the purposes of the
intrusion, which was, at that time, the determination of whether Tsarnaev (or any other
danger) was present in the house, was reasonable. Yet the Government concedes that by
approximately 6 pm, HRT had confirmed what Dias, Bayan, and Azamat had told SA
Walker in response to his interrogations of each, conducted from 5:05 until roughly 5:25,
namely, that Tsarnaev was not in the Carriage Drive apartment and neither were there
any bombs or other dangers. The interrogation produced no other additional information
which supplied the basis for further detention of Dias on the grounds that he had
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39

committed a criminal offense. As Agent Walker testified, he believed that Dias could
provide additional information about Tsarnaev, and that the FBI was very interested in
obtaining this information. He did not provide any facts supporting a reasonable
suspicion warranting continued detention. What the court is left with is SA Walkers
desire to interrogate Dias.
Dias had been in custody, cuffed in a police vehicle, guarded by an armed officer,
and isolated from his friends after having been forcibly removed from his home by a
tactical force, for an hour. During this time, no one explained to Dias that he was not
under arrest. He was not told that his detention in the back of a police cruiser in cuffs was
solely for safety purposes, that the cuffs were temporary, or that he was not under arrest.
Further, since the Courts analysis is an objective one, the agents subjective reasons for
utilizing the cuffs is irrelevant. Kaupp, 538 U. S. at 632(further citation omitted).
The legitimacy of his continued detention, then, turns on the Governments claim
that Dias consented to his removal and transportation to police barracks for interrogation,
as relocation for purposes of interrogation at a police station is the very factual scenario
which the Supreme Court has repeatedly stressed can never constitute a reasonable Terry
detention, and requires probable cause. See Kaupp, supra; Dunaway, supra, and Hayes,
supra.
3
Here, there was no consent, only compliance.
Dias ability to provide consent, in the true meaning of the word, cannot be
divorced from the events that led to his finding himself cuffed and in the back of a police

3
This court, in Shah v. Czellecz, cited First Circuit case law that interprets the Supreme Court case law to
permit relocation in very circumscribed circumstances. 2010 WL 5376362 (D.Mass. Dec. 12, 2010).
citing Acosta-Colon, supra; United States v. Le, 377 F.Supp. 2d 245, 255 (D. Me. 2005). In Shah, the
defendant was relocated from a public space, not his home, to a station for fingerprinting not questioning,
and under different, less coercive circumstances than those presented here. Notwithstanding the First
Circuits position on removal, the Supreme Court has specifically addressed removal from a suspects
residence for purposes of interrogation and held that it requires probable cause.
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40

car being asked to agree to continue the conversation elsewhere. Even if this Court does
not find that his initial removal was an illegal arrest made without probable cause, it is
respectfully submitted that the Court cannot conclude that Dias consented to being taken
to police barracks for questioning under the coercive circumstances present.
Dias was never informed that he was free to go nor was it at all conceivable
that had he declined to speak with Agent Walker or any of the other agents, or to go to
the barracks, he would have simply been permitted to go on his way. See Kaupp,538
U.S. at 631-2; Dunaway, supra, 442 U.S. at 207 (where suspect told he was not under
arrest, he was also never told he was free to go, and would have been physically
restrained if he had refused to accompany the officers or had tried to escape their
custody.). More to the point, no reasonable person would believe that he was free to
decline Walkers invitation, a request delivered to the cuffed recipient in the back of a
guarded car, surrounded by a massive tactical force, after a forcible removal from ones
home under threat of semi-automatic weapons that visibly targeted the heads and torsos
of everyone in that apartment.
The Governments burden of proving that consent was freely and voluntarily
given cannot be discharged by showing no more than acquiescence to a claim of lawful
authority) Kaupp, 538 U.S. at 631, citing Royer, 460 U.S. at 497. (footnotes omitted).
When Agent Walker requests whether Dias will agree to talk to him further in a more
comfortable location, Dias is still in cuffs, seated in the back of a guarded vehicle,
shirtless, and isolated from his friends.
The benefit of conducting an interrogation in private does not shed any light on
whether Dias consent to the removal was voluntary, an act of free will, or anything more
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41

than a submission to authority. Other facts, however, do. Nothing distinguishes this case
from that presented to Kaupp, where the Court dismissed the notion that a young mans
okay was consent under the circumstances present there---three police appeared in his
bedroom at night and stated we need to go and talk ---except perhaps that the factors
supporting the conclusion that Dias agreement was not a product of free will are
stunningly more convincing. 538 U.S. at 528, 531. The search of the apartment
corroborated what Dias had told Walker: Tsarnaev was not there. SA Walker did not
then explain to Dias that he was free to go, nor did he clarify that Dias was not under
arrest. He did not remove the cuffs, permit Dias to exit the car, or otherwise indicate that
Dias could simply go back home, nor had he released, to Dias knowledge, Bayan or
Azamat. Walker did not, in obtaining this consent, inform Dias that he could meet them
at the location, secure a ride with friends, or even that he could dress or gather his
personal belongings. In fact, no one even grabbed a shirt for Dias, the voluntary
witness, to put on for his consensual interview.
Although Walker testified that at this time, he was not aware of and did not
consider whether any police regulations or otherwise required cuffing for transport
4
, the
subjective reasons for the use of such cuffs, such as for officer safety, or because of
regulation, does not operate to ameliorate the coercive effect of those cuffs from the
perspective of the person wearing them. The Supreme Courts dismissal of this type of
rationale in Kaupp makes this clear:
Nor is it significant, as the state court thought, that the sheriff's
department "routinely" transported individuals, including Kaupp on
one prior occasion, while handcuffed for safety of the officers, or

4
In point of fact, Walker was never concerned about a potential witness being restrained as he allowed
the original transport to occur with Dias cuffed. It was only after having Dias returned to the scene to
obtain a consent to search that the issue of cuffs arose.
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that Kaupp "did not resist the use of handcuffs or act in a manner
consistent with anything other than full cooperation."[ ] The test
is an objective one [ ] and stressing the officers' motivation of self-
protection does not speak to how their actions would reasonably be
understood. As for the lack of resistance [to the use of cuffs] failure
to struggle with a cohort of deputy sheriffs is not a waiver of Fourth
Amendment protection, which does not require the perversity of
resisting arrest or assaulting a police officer.

Kaupp, 538 U.S. at 632, citing Chesternut, supra, 486 U.S. at 574.

In short, nothing diminished the extremely coercive environment in which Dias
was asked for his consent and the events that followed only affirms that Dias was a
prisoner, and that consent was just compliance. As the Supreme Court wryly observed in
Kaupp, finding that Kaupps consent was no more than a submission to authority: if
reasonable doubt were possible on this point, ensuing events would resolve it: removal
from ones house in handcuffs on a January night with nothing on but underwear for a
trip to a crime scene on the way to an interview room at law enforcement headquarters.
538 U.S. at 632. Here the facts are not so dissimilar.
The coercive environment continued at the MSP barracks. Dias was not
immediately brought into barracks, but was kept restrained and guarded in the back of the
police car, in the parking lot, for almost two hours. Again, the reasons for the delay in
bringing him in, namely that Agent Schiliro was on his way and that the FBI was
shorthanded, is similarly irrelevant to the analysis, as the test is an objective one. Kaupp,
538 U.S. at 632, citing Chesternut, 486 U.S. at 574. Dias was not informed that of the
reasons for this delay, and objectively, it defies reason to presume that police would have
kept someone who was not under arrest confined, shirtless and in cuffs, in a car outside
police barracks simply because there was no room to put him in for the interview.
Someone who was not in custody and under arrest would simply be taken into the lobby,
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43

unrestrained, and asked to wait. If thought necessary, the New Bedford officer could
have sat with Dias in the lobby. Dias further testified that he asked the officer in the front
seat over and over whether he could leave, now that Jahar had been caught, and over and
over when they were going inside; the answer was only, we have to wait or I dont
know. (1:235-36).
Eventually Dias was escorted, still in cuffs, to the police barracks, and was led
inside to a room within the secure, non-public area of the barracks. Only then was he un-
cuffed. Although not physically restrained by cuffs, Dias was nonetheless still subject to
the officers custody and control. When Dias was asked if he had to use the bathroom, he
was not thereafter permitted to leave the secure area to go to the lobby to do so. Agents
accompanied him to the bathroom, and the door was propped open so that Agent Schiliro
could keep an eye on things. The fact that he was not permitted to go the bathroom
without monitoring would indicate to a reasonable person that he was not free to leave.
Dias was confined to a room in the barracks off a locked corridor as an officer
patrolled the hallway, from the time of his arrival, around 9 pm, until he was finally
driven home after four in the morning. During this time he was interrogated, and for
periods at time, left alone. He was not given anything to wear, even after asking. He was
not given the opportunity to speak to his girlfriend, or told he could call his mother, a
lawyer or his embassy, and after hours of interrogation, was left alone in the room, and
told to lie on the floor if he was tired. Nothing in the words or conduct of the agents
communicated that he was free to leave, or to make any decisions of his own. Unlike his
roommate, Dias did not have his phone.
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There is little doubt that the physical restraint, isolation, and limitation of
movement indicated that Dias Kadyrbayev was under arrest. See Florida v. Royer, at 499,
503 (finding that defendant was under arrest as a practical matter where he was removed
from public concourse area of airport, and taken to small room by officers who held his
plane ticket, ID, and luggage). In Royer, the defendants seizure began as a consensual
encounter between police, and did not involve the use of multiple armed law enforcement
agents. Id. Here, by contrast, there was nothing consensual about Dias first contact with
law enforcement. Dias was ordered from his apartment under threat of being shot if he
did not comply. He emerged to an overwhelming force of heavily armed law
enforcement. He was stripped and cuffed at gunpoint, placed in a car, detained for an
hour or more, then transported, still cuffed and restrained in the back of a police car, to
State Police Barracks where he again was detained in a tightly controlled environment
until his release the next morning. He was under arrest. See Dunaway v. New York,
supra, 442 U.S. at 212 (probable cause required to support arrest where defendant was
taken involuntarily to police station, placed in interrogation room and questioned under
conditions in which he was not free to go). Accordingly, the Court must suppress the
statements, as well as the consents to search, obtained as a result of the constitutional
violation

THIRD PROPOSED CONCLUSION
THE ILLEGAL ARREST TAINTS THE STATEMENTS
GIVEN BY DIAS ON APRIL 19

The illegal arrest not only taints the consent to search, but it also requires
suppression of the statements at the police barracks as the statements were the product of
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Dias continued illegal detention. The fact that Miranda warnings may have preceded the
statements does not win the day for the Government, even if this Court finds that the
advice and waiver were sufficient. As the Supreme Court held in Brown v. Illinois,
Miranda warnings, alone and per se, cannotalways break, for Fourth Amendment
purposes, the causal connection between the illegality and the confession. 422 U.S. at
603, see also, Taylor v. Alabama, 457 U.S. 687, 699 (1982) (O'CONNOR, J., dissenting)
(noting that, although Miranda warnings are an important factor, they are, standing
alone, insufficient.). Every other factor utilized in the taint analysis points to the
opposite conclusion. Because the Governments continued stance is that Dias Fourth
Amendment seizure was based on reasonable suspicion, not probable cause, his
statements at the police barracks must be suppressed unless the Government meets its
burden of persuasion and demonstrates an act of free will [sufficient] to purge the
primary taint of the unlawful invasion. Kaupp, supra, 538 U.S. at 633, citing Wong Sun
v. United States, 371 U.S. 471 (1963); Brown, supra, 422 U.S. at 604.
Under this analysis, the Court must suppress. The Miranda warnings given, even
if comprehended did not purge the taint where, as here, the purpose of the Fourth
Amendment violation was to detain Dias Kadyrbayev for purposes of custodial
interrogation. Temporally, the statement is the product of custodial interrogation that
followed the arrest, with no intervening factors such as a probable cause hearing to
dissipate that coercion. Dias was not released; there was no significant break in his
custody; and the circumstances warrant finding that the seizure, beginning in the
apartment, continued uninterrupted and as part of the Governments original attempt to
supersede the Fourth Amendment prohibition against removal of a suspect from his home
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without probable cause, for purposes of custodial interrogation. The Governments
flagrant disregard for the interests protected by the Fourth Amendment, as delineated by
the case law drawing the permissible contours of a Terry stop, require the Court to deny
them the bounty and suppress the consent searches and statement.

FOURTH PROPOSED CONCLUSION
DIAS STATEMENT ON APRIL 20 MUST BE SUPPRESSED ON DUE PROCESS
GROUNDS, BECAUSE THE IMMIGRATION ARREST WAS IMPROPERLY
USED AS A RUSE TO CONTINUE INTERROGATION FOR PURPOSES OF
INVESTIGATING THE CRIMINAL OFFENSE AND VIOLATED RULE 5a

The ordinary rule applicable to criminal arrests is that a defendant must be
brought before a magistrate without unnecessary delay. Fed. Rules. Crim. Proc. Rule
5(a)(1)(A). The Fourth Amendment further requires a fair and reliable determination of
probable cause as condition for any significant pretrial restraint of liberty a
determination that must be made by a judicial officer before or promptly after arrest.
Gerstein v. Pugh, 420 U.S. 103, 125 (1975). This constitutional requirement generally
requires that a defendant be brought before a magistrate within 48 hours of arrest.
County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991).
Concurrently, 18 U.S.C. 3501(c) applies to a confession made by a person while
that person was under arrest or other detention in the custody of any law enforcement
officer or law enforcement agency. Id. It provides that voluntary statements obtained
outside a six hour safe harbor and before presentment are subject to suppression if the
court determines that the delay was unreasonable or unnecessary. United States v. Corley,
556 U.S. 303, (2009).
The Government has denied that Dias Kadyrbayev was arrested on April 19,
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2013, for to do so would trigger all of the above protections, and undoubtedly result in a
suppression of the statements given on April 19 and 20
th
, as by their own contention Dias
made the inculpatory statements only at the end of his interrogation the evening of the
19
th
and into the morning of April 20, 2013. The Government asserts that Mr.
Kadyrbayev was not arrested, however, until April 20, 2013, when he was taken into
custody on immigration charges by HSI agents, and that his criminal charges were not
brought until May 1, 2013, at which time he made a first appearance before Magistrate-
Judge Bowler.
The facts adduced at the hearing support a finding that Dias civil detention was
merely a pretext for holding Dias while the FBI continued its investigation of the
obstruction charges established the evening before, and permitting them to use the
immigration arrest to secure additional statements, consent, and evidence, without the
fear of judicial intervention. Detention, however, may be used only to effect the
deportation, and not for the Governments other purposes.
Courts have found that where civil immigration arrests are ruses for the
governments desire to detain for prosecution of criminal charges, the Speedy Trial Act
may be applicable. United States v. Tejada, 255 F.3d 1, 4 (1st Cir. 2001), citing United
States v. Encarnacion, 239 F.3d 395, 399-400 (1st Cir. 2001); United States v. Noel, 231
F.3d 833, 836 (11th Cir. 2000) (Although routine INS detentions incident to deportation
do not trigger the Speedy Trial Act, a contrary result may be warranted when detentions
are used by the government, not to effectuate deportation, but rather as mere ruses to
detain a for later criminal prosecution.) (quoting United States v. Cepdeda-Luna, 989
F.2d 353 (9th Cir.1993); United States v. De La Pena-Juarez, 214 F.3d 594, 598 (5th Cir.
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2000). Similarly, Courts have held that the Government may not evade the application of
Rule 5(a) and other protections accorded criminal defendants where the primary purpose
of detaining a person suspected of a status crimes is in fact the development of criminal
charges. United States v. Valente, 155 F.Supp. 577 (D.Mass.1957); United States v.
Sotoj-Lopez, 603 F.2d 789, 790-91 (9
th
Cir.1979).
That is exactly what is presented by the facts of this case. This was not a case in
which probable cause for a criminal arrest arose only after HSI effected a civil arrest. See
Encarnacion, supra. As SA Walker testified, he believed that he had probable cause to
arrest Dias in the early morning hours of April 20, 2014, but wanted to await
authorization from prosecutors reviewing the case. According to him, the agents sought
prosecutorial decision as to whether or not Dias should be arrested, and the decision did
not come back immediately, prompting them to proceed to the dumpster to secure the
evidence described in the statements. (2:82, Walker). According to Walker, Dias was
kept at the barracks well beyond the time his statement concluded, because he did not ask
to leave. (2:83, Walker). The Court may conclude, however, that Dias was not allowed to
leave until the dumpster search was concluded, and that Agent Walkers decision not to
place his agents in the crosshairs for continuing to detain them past this point was
prompted by Azamats statement that he was beginning to think they were being held
against their will. (2:84). By 4 a.m., Dias had been in custody for almost twelve hours,
but the backpack had not been located, necessitating a second run at interrogating them.
As the Court observed in the hearing, nothing requires the Government to arrest
the moment probable cause to arrest is present. United States v. Hoffa, 385 U.S. 293
(1966). The Government may not, however, use a detention on immigration charges to
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circumvent the procedural protections triggered by a criminal arrest, as was done in this
case.
Evidence adduced at the hearing supports the conclusion that the immigration
arrest was a pretext. HSI Agent Valentine testified that he had received a call from
another agent on the 19
th
alerting him to Dias possible student status violation, and his
friendship with Tsarnaev. When he brought this information to his group supervisor, later
that morning or early afternoon, he was essentially told to stand down. His supervisor
made inquiries, and got back to him later that day telling him that no investigation was
needed on his part, as it was all set, just do what youre doing. (3:208-09) The next
day, on the 20
th
, HSI agents were notified to convene for purposes of arresting Dias, and
Agent Valentine recognized Dias name as that of the person from the day before.
(3:209). Agents met at the JFK building, and then later, convened at a local Dunkin
Donuts for an overview of how the arrest would be effected, a meeting at which Agent
Walker was present.
Earlier that day SA Walker had been instructed by his own supervisor to meet up
the HSI agents and the FBI surveillance team. (2:64). He updated his Special Agent in
Charge that two males had left the apartment, and that MST (FBI surveillance) will put
them in placewill hook there meaning that Dias and Azamat would be arrested in the
region, and that FBI and HSI integrated. (2:66). Agent Walker also communicated
with his supervisor that It will be fine because theyll probably think that Im just there
for a follow-up from yesterdays interview. (2:66). Of course, later that day HSI went
into the apartment to take Dias into custody, but not before Agent Walker questioned
them about the backpack, which could not be located in the dumpster.
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Agent Wiroll testified that Dias was arrested on April 20 at the apartment. By his
own testimony, however, as well as that of Agents Kelly and Valentine, Dias arrest for a
status violation would not have been automatic or immediate. (2:204, 209; 3:77).
According to their testimony, agents first question the suspect as to the status violation, to
confirm (and obtain the probable cause required for the warrantless administrative arrest)
that the person has not taken steps to restore his status, or has some other basis upon
which to remain legally. (2:204, 209). Only then is one arrested. (3:77). Thus when Dias
was returned to HSI agents for processing, he had either been confirmed as being here
illegally (which is the only way he could have been arrested at the home without a
warrant) or, Agent Wirolls transport of Dias to headquarters was for the purpose of
confirming the basis for arrest. Testimony as to this was unclear as no one told Dias that
he was under arrest, and Wiroll, Kelly and Valentine all confirm that Dias was told only
that he had to come back with them to answer questions about his status. (2:209, 204,
215; 3:61).
Warrantless arrests are permitted, if the immigration officer demonstrates that the
alien is otherwise likely to escape before a warrant can be obtained, and probable cause
for the administrative arrest. See 8 U.S.C. Section 1357(a)(2). Here, Wiroll offered no
testimony that established the predicate for a warrantless arrest under Section 1357; he
did not demonstrate that Dias, who was then under constant surveillance, was likely to
escape before a warrant could be obtained. There was obviously time for such a warrant,
as his status had been flagged the prior day, and the decision to make a warrantless
administrative arrest was made hours before the actual trip to Carriage Drive.
The testimony was not clear as to whether or not Wiroll confirmed that Dias was
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in fact out of status while they were still at Carriage Drive. The A-file indicates that
Dias presented with an arrest warrant at HSI for his civil arrest on April 20, 2013 at 10:00
p.m., a little over six hours after the HSI detention at the house and after FBI agents had
been given access to him for purposes of interrogation and obtaining a consent to search.
Wiroll did not begin his examination until shortly after midnight.
The primary purpose of the administrative arrest was not to secure Dias
deportation, which is the only legal basis for detention in these circumstances, but to
provide the Government more time for the investigation and substantiation of the
criminal charges that the prosecution was about to lodge. Once they arrived at the
building, and before Agent Wiroll completed Dias processing, FBI agents Azad and
Quinn requested that they be provided access to interview Dias (3:62) at roughly five
oclock or later. The agents did not read him his Miranda rights but showed him an
Advice of Rights form, which indicates it was presented and signed at the same time, and
indicated that it was identical to the one the day before. (4:271; 2:152; 3:8). The FBI had
told Dias that he was again, just helping them out, that he was not in their custody but
that of HSI related to his school status. (4:272). They then proceeded to interrogate him
regarding the previous days statements, and obtained a consent to search, which Azad
testified was one of the primary purposes or goals he was instructed to accomplish with
this second interrogation.
Wiroll then spoke with Dias, ostensibly to provide him the immigration packet
dockets and the 1-213 Notice to Appear. Agent Wiroll had been given two pages of a
draft 302 by the FBI agents of the previous days interview of Dias. (3:80-81). Wiroll
admitted that in the six years he had been at HSI, picking up students for potential
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violations, this was the first time FBI shared information in this fashion; it was not the
usual practice. (3:81-82). Wiroll denied that he interrogated the students, but his
questions, all related to Dias conduct in the days after the bombing, and particularly
questions about why Dias did not immediately call the police, were notable for the simple
fact they did not pertain his status, or the administrative violation for which he was
allegedly arrested. Wiroll himself admitted that the information in the draft 302 had
nothing to do with a student visa violation. (3:82-83). According to him, the information
from the draft 302 was nevertheless included on the Notice to Appear as background
information about how I encountered the individual and how they are out of status.
(3:83). However, if Wirroll had in fact confirmed Dias status at the house, which would
have been the basis for the probable cause, then little was required of him in terms of
obtaining additional information beyond that required for the civil violation, and certainly
the interrogation that proceeded went beyond the subject of whether Dias had done
anything that would have brought him back into status as a lawfully present
nonimmigrant.
The sole and only legitimate purpose of a detention is to provide time to effect a
deportation. The Government has not demonstrated that Dias was detained in order to
accomplish his deportation for having violated the terms of his student visa, producing no
evidence that HSI began making arrangements to secure the necessary documents and
paper work for travel back to Kazakhstan. The Government had already made a decision
that criminal charges would be brought.
The FBI is not precluded from investigating a crime that comes to light when an
alien is arrested on immigration charges under Section 1357(a)(2). When a person is
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arrested and is to be charged for an offense that has nothing to do with his immigration
status, however, he is entitled to a prompt hearing before a magistrate judge, under 5(a),
even if he is also detained for the purpose of effecting deportation. United States v. Sotoj-
Lopez, 603 F.2d 789, 790-91 (9th Cir. 1979); United States v. Valente. Because the
primary or principal purpose for Dias detention on the immigration charges was to
enable the FBI, and then Agent Wiroll, to interrogate him with regard to a criminal
investigation that had already begun, and where charges were going to be lodged, the
immigration arrest was a ruse, and Dias due process rights were violated. Rule 5(a) is
applicable. Because the detention was federal (whether criminal or civil) 18 U.S.C.
3501 also applies to render statements made outside the six hour window (those given to
Wiroll after 10 p.m.) inadmissible. Accordingly, the products of the Governments
illegal conduct should be suppressed. See United States v. Ramirez, 696 F.Supp.2d 246
(E.D.N.Y. 2010) (finding that principal purpose of detention was to investigate potential
criminal charges, statement suppressed).

FIFTH PROPOSED CONCLUSION

THE ADVICE OF RIGHTS PROVIDED TO DIAS KADYRBAYEV WAS
INEFFECTIVE, AND THERE WAS NO KNOWING, INTELLIGENT AND
VOLUNTARY WAIVER OF HIS CONSTITUTIONAL RIGHTS

Dias Kadyrbayevs statements to investigators must be suppressed as
inadmissible. He was not properly warned under Miranda v. Arizona, 384 U.S. 436
(1966), because he could not comprehend and understand the rights provided to him by
the FBI. He did not have the requisite proficiency in English to understand the Advice of
Rights, which linguistically demanded a much higher level of proficiency. The agents
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made no effort to ensure that he understood these rights by explaining them, in plain
English, or having him restate the rights to confirm his understanding. In combination
with his youth, cultural background, lack of familiarity with our legal rights and
procedural rules, and the circumstances under which the Advice was delivered to him,
there is insufficient proof on the record that he understood these rights, and that he
knowingly, intelligently and voluntarily waived them knowing the consequences of
abandoning them. Because the Government has not met the burden of proof, the Court
must find that the waiver was not knowing, intelligent or voluntary.
Dias was in Custody
As a preliminary matter, it is clear that Dias was in custody at police barracks.
Even if the Court were to reject that Dias was arrested within his own home when the
HRT raid occurred, or find that he consented to go to police barracks, once Dias
arrived at the barracks, the Courts analysis must begin again. Unlike his co-defendants,
Dias was not taken immediately to the barracks. He was returned to provide consent, and
his cuffs taken off just to sign, then put back on again, and then he was driven to the
barracks but left cuffed, now in front of his body rather than from behind, in the car for
almost two hours before he was brought in to speak with investigators.
In the absence of a formal arrest, custody depends on whether there is a
restraint on freedom of movement of the degree associated with a formal arrest.
Stansbury v. California, 511 U.S. 318, 322 (1994). The custody determination requires
the Court do determine the circumstances of the interrogation, and ask whether a
reasonable person in those circumstances would believe that he had the ability to leave or
otherwise terminate the encounter with police. Thompson v. Keohane, 516 U.S. 99, 112
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(1995). The custody determination depends on the objective circumstances of the
interrogation, and not on the subjective views of either the officers, or the suspect.
Stansbury, supra, 511 U.S. at 322.
Although cast as a witness in whom law enforcement was interested because of
a friendship with the target, Dias was not accorded the freedom of movement, and
autonomy that such a person possesses if his or her appearance at the barracks was not
compelled, as explained more fully in Point III infra.
This was not an interrogation conducted in neutral surroundings with no
restrictions on movement as previously described. See United States v. Hughes, 640 F.3d
428, 435 (1st Cir.2011). The fact that he was told at the beginning of his statement by
Azad that he was not under arrest, Did anyone tell you that you were under arrest?
does not undermine the Courts determination of custody when viewed in the context of
all the other facts and circumstances. See United States v. Newton, 369 F.3d 659 (2d
Cir.2004)(suspect being advised that he was not being placed under arrest and that
restraints for safety only not determinative of custody determination, citing United States
v. Henley, 984 F.2d 1040, 1042 (9th Cir.1993)(holding that handcuffed suspect in back of
a squad car in custody even though officers told him he was not under arrest). Agent
Azads statement is merely a fact which must be considered in assessing whether, under
all the circumstances, a reasonable person would believe that his situation was akin to a
formal arrest.
Similarly, the objective reasonableness of law enforcements actions, such as
evidence of the reason for delay, or the safety purpose served by cuffs, is not part of the
Miranda inquiry, which focuses on the facts known to the seized person and whether a
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reasonable person would understand that his situation is comparable to an arrest. Dias
was not told the reason for his continued restraints in cuffs secured in a police car;
moreover, when the cuffs were removed, it was only after he had been brought through a
secure door and thereafter, he could not move about freely.
The Waiver
Agent Azad testified that he told Dias that they wanted to speak to him, that he
wasnt under arrest, and that he would need to sign a form for them. (2:128). That form,
introduced into evidence at the suppression hearing (Exhibit 4, 2:129) appears to be a
standard FBI form. It states:
Before we ask you any questions, you must understand your rights
You have the right to remain silent
Anything you say can be used against you in court
You have the right to talk to a lawyer for advice before we ask you any questions
You have the right to have a lawyer with you during questioning.
If you cannot afford a lawyer, one will be appointed for you before any
questioning if you wish.
If you decide to answer questions now without a lawyer present, you have the
right to stop. (emphasis added).

The area for the waiver is separated from the rights above by a line, demarcating
a separation of the form into two parts. The time at the top of the form is 9:08; at the
bottom, by the signatures, the time is listed as 9:14 p.m., only six minutes later.
Agent Azad testified that after filling out the top of the Advice of Rights, Agent
Schiliro then read the advice of rights; Agent Schiliro read from start to finish, without
stopping after each right. (2:130; 3:22, L.21-24) (I then read him the form from
beginning to end.). Agent Azad testified that he also provided some ground rules to
Dias that would go along with the interview should Dias sign the waiver; it was not clear
whether this preceded or followed Agent Schiliros reading. (2:130).
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After Agent Schiliro finished reading the form, Dias asked if he needed a lawyer.
(3:22, L.24; 3:44, L. 22; 3:45, L. 7-8.) Agent Azad testified that he would not be able to
give him any legal advice. (2:130). According to Azad, the colloquy about the lawyer
came after Azad had told Dias that he was not under arrest. (2:131). Dias response was
Im under arrest? and the agents again told him he was not under arrest. (2:131).
Agent Schiliro, on the other hand, testified to a somewhat different progression
of events. He testified that when he finished reading the form to Dias, Dias asked whether
or not he needed a lawyer, then Agent Azad told him he was not going to give him legal
advice, and at that point Azad then asked Dias whether anyone had told Dias that he was
under arrest, prompting Dias to ask, I am under arrest?. (3:22-23; 3:45.). Agent Schiliro
and Azad laughed at the confusion, and both physically waived and said, No, you are
not, in fact, under arrest and it was after that explanation that Dias said he wished to
speak to them, and Schiliro gave him the form and asked him to read it, and if he wished
to speak, to sign it. (3:23).
Notably neither Agent Azad nor Agent Schiliro re-read the Advice of Rights
form, nor did anyone explain any of the rights after Dias questions. Agent Schiliro did
not ask him if he understood the rights. (3:23). Agent Schiliro testified after he gave Dias
the form, Dias appeared to read the form, and that he agreed to speak and signed the
Advice of Rights (3:23). He did not confirm that Dias had in fact read each right, nor did
he ask Dias if he understood his rights then. (3:45). He only asked Dias again, if he had
any questions. (Id.)
Dr. Aneta Pavlenko, an Applied Linguistics professor at Temple University with
two decades of experimental research on information processing in a second language,
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testified that decades of research and testing demonstrates that non-native speakers of
English process information differently. (4:14). In addition to her research, and teaching
duties, Dr. Pavlenko has published more than a hundred peer-reviewed articles, including
one of Miranda comprehension, and eight books. In addition she has delivered lectures
and written articles specifically on the difficulties Miranda warnings present to a non-
native, or ESL speaker, which has been the subject of research within the field of forensic
linguistics for many years. (4:11,12).
In addition to her research, Dr. Pavlenko is also a Professor of TESOL, or
Teaching English to Speakers of Other Languages, and in that capacity conducts research
with Russian speakers and their acquisition of English. (4:10). She also teaches ESL
teachers how to use the methods she herself uses in her research, which is the analysis of
a writing sample to determine a students level of proficiency, the students needs, and
then the design of instruction that suits those needs. (4:10-11). The field of applied
linguistics utilizes qualitative methods such as text analysis, in which the linguist
analyzes a text, and finds linguistic patterns for the purpose of authorship or proficiency
determinations. (4:13-14). Dr. Pavlenko performed a textual analysis of Dias known
writing samples, discounting those that were in her opinion, authored by another
individual. The parameters of her analysis were, as a baseline, the IELTs scores Mr.
Kadyrbayev received prior to arriving in the United States, which indicated the bottom
level below which his proficiency level could not have been (4:16), and at the top, the
language proficiency learning profile she asked him to create, which provided his current
level of proficiency. (Id.).
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Dr. Pavlenko testified that Dias combined score on his IELTS testing was 5.5,
indicating that he should not have been enrolled in any academic or linguistically
demanding language classes, and which qualified him only for low level ESL, or English
as a Second Language classes. (4:17). This means that objectively, at the time Dias
entered the States, his proficiency level as determined by testing designed to provide an
assessment of the persons ability to perform certain tasks in English at that point in time,
was insufficient for him to be able to function in an academic setting where only English
was spoken. (Id.; 4:19). This was seemingly confirmed by his academic performance and
his compensation strategies.
With these parameters, Dr. Pavlenko analyzed Dias known writing samples as
well as the Advice of Rights. Her first task was to determine Dias level of proficiency at
the time of the interrogation, using writing samples authored by him in this time period.
She looked at the level of structural complexity, including the type of sentence, simple or
complex, and whether there are embedded clauses. Dias writing samples displayed
simple sentences throughout, with the use of dependent clause preceded by because
which was in fact a transfer from Russian language structure. (3:21). She also examined
these texts for another language pattern, which is the type of words used. (3:22). In her
field, there is a language corpora which determine with what frequency words circulate in
everyday speech and the likelihood that someone would have been exposed to the word.
(4:22). Table or cup would be a high frequency word, while a word like afford or
ascertain would be considered a low frequency word because it is not likely to be used
in everyday speech. (4:22). The significance of a low or high-frequency word is in
determining that a person at a particular level of proficiency would be familiar with the
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word because decades of research shows that frequency of the words is one of the best
predictors of levels of proficiency. (4:22). People at lower proficiency levels use high-
frequency words while those at higher levels begin using lower frequency words. (4:22-
23). The patterns in the samples permit a linguist to determine authorship, and
proficiency level. (4:100).
Dr. Pavlenko analyzed the linguistic patterns in Dias samples, such as structural
and lexical complexity, and looked for a match between the linguistic patterns collected
in the table, and the proficiency guidelines, or ACTFL, which are guidelines created by
the American Council on Teaching of Foreign Languages and based on guidelines
created by the U.S. Government. Utilizing those Guidelines, she assessed Dias as
Intermediate overall and Low Intermediate in his writing in particular. (4:24). Someone at
the Intermediate level of proficiency would be able to participate in a wide range of
conversational exchanges, and exchange information on topics that are familiar, using
high frequency words and relatively simple structures. (4:25). Dr. Pavlenko confirmed
that Low Intermediate users can appear proficient, especially if they are younger
individuals using colloquial English, which she found in much of Dias samples. (4:25).
Dias was also comfortable using swear and taboo words, which would similarly give an
illusion of fluency at a higher level. (Id.).
Skills among writing, listening, and speaking might vary within a level of
proficiency which explains the .5 difference in Dias listening score compared to his
writing and reading scores on his IELTS exam. (4:27). For purposes of Miranda,
however, she was concerned with his reading and listening skills only (and thus not
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speaking) because the Miranda form was presented to him in the spoken and written
English. (4:27).
Dr. Pavlenko also analyzed the Advice of Rights forms (Exhibits 4 and 7)(4:29).
She employed the identical methodology used in her research and her analysis of Dias
writing to determine the proficiency level required to understand the Advice of Rights
forms. (4:30). The advice of rights displayed several linguistic patterns: use of many low
frequency words; use of words with polysemy, or different meanings (such as right,
before advice) and structural complexity in sentences (4:31-3). She looked to the
ACTFL Guidelines again to match the linguistic patterns, and the descriptor, or level, in
the Guidelines that matched those patterns was Distinguished. (4:33). At the
Distinguished level, the person has both the linguistic resources to understand
something, as well as cultural familiarity. (4:33). A Distinguished level of proficiency
enables a person to process information that is dense, highly abstract, contains low-
frequency words, and relies on cultural knowledge and framework. (4:34).
She concluded that in her professional opinion it was highly unlikely that at the
time of his interrogation, Dias had the necessary level of language proficiency to
understand the Miranda warning; his proficiency was level Low Intermediate and the
level of proficiency required to comprehend the Advice of Rights is Distinguished.
(4:34-35)
The only direct evidence that is useful in determining proficiency are language
samples. (4:57). Her analysis of structural and lexical complexity, is widely used and
accepted within the linguistics community and in language testing. (4:37). Linguists
prefer analyzing language texts as was done in this case because they are written
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spontaneously, and are not influenced by any kind of attempt to perform at a certain level
of proficiency. (4:93). The writing samples she used in this case (texts, emails, essays,
paragraph responses) are the real reflection of Dias language on an everyday basis at the
relevant time period. (4:94). Dias ability to converse with other students, or the agents,
about marijuana or other conversational subjects was totally irrelevant to the
determination of whether or not he had the ability required for processing the highly
abstract and complex information and structure of the Advice of Rights. (4:95). The
Government did not present its own expert, nor challenge the admission of Dr.
Pavlenkos testimony or her report.
Dr. Pavlenko testified that to ensure comprehension, non-native speakers should
be provided an translation or an interpreter, and absent that, the Advice of Rights given to
non-native speakers of English should be a standardized translation, followed by the best
practice of restatement of rights in plain English, meaning that the agents should have
had Dias restate the rights read to him in his own words. (4:82-83.). The agents were
not competent to make a conclusion about proficiency, even if they were experienced in
conducting interviews. (4:106). They did not request that Dias restate the Miranda
warnings in plain English, or his own words, and this would be the only evidence of
understanding of the warnings that a forensic linguist would accept under these
circumstances. (4:106).
The Government Did Not Sufficiently Demonstrate Comprehension and Waiver

The Government has the burden of proving that Dias made an uncoerced choice
and that he possessed the requisite level of comprehension for a knowing, and
intelligent waiver. Moran 475 at 421. That burden was not met here.
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The Advice of Rights in this case required a Distinguished level of proficiency,
which would permit someone performing at that level to understand the abstract
language, the low frequency words, the complex sentence structure and the use of words
that require a degree of cultural awareness and context. Dias level of proficiency at the
time of the interview, as opposed to his testimony at the hearing after some 14 months in
jail speaking and reading English daily, which was based on an objective and
scientifically reliable assessment using widely accepted methods and analysis, was Low
Intermediate. Given his level of proficiency, it was highly unlikely that Dias could have
comprehended the Advice of Rights administered to him. Further, the agents did not
explain those rights in plain English, and they never asked Dias to confirm his
understanding by restating the rights in his own words. The agents in this case did not
read the AOR line by line. Both agents testified that Agent Schiliro read the form from
start to finish, without pausing or stopping to confirm that Dias understood each line, and
thus right, conveyed. The six minutes between when the AOR was first dated, and Dias
signature, covered multiple events, only one of which was the actually oral recitation of
the rights, and Dias reading of the form himself. This limited period of time was not
sufficient.
The agents were aware that Dias was not American, and by his accent alone, that
he was not a native speaker. Agent Azad, who is a second language speaker and as part of
his duties with the NY JTTF, conducts interviews of suspects who speak English as a
second language, and agreed that while listening to English, a non-native speaker is
simultaneously translating the words into his or her native language. (2:173-74). He
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further agreed that when such speakers cannot translate a word, they will try to
understand the word within the context. (T:174).
With this in mind, there was objective indicia that Dias was not grasping the
meaning of what was being said to him. He heard the agents to say that he was under
arrest, interpreting did anyone tell you that you were under arrest or you are not under
arrest as meaning that he was under arrest. (I am under arrest?). When he heard the
word lawyer Dias asked Do I need a lawyer? which signaled potential confusion on
his part, not simply a request for legal advice, particularly when it was asked directly
after Schiliro concluded reading his rights. The agents knew that he was a Kazakhstan
national, and that English was not his first language, as was apparent not only from his
accent, but from the fact that throughout the interview there were objective indications of
a lack of knowledge of low frequency words, and an inability to communicate
effectively.
Agent Azad agreed that Dias had trouble with certain words, and could not find
the words for certain things. (2:181). He agreed that he would, at times, try and work
around Dias lack of ability to communicate certain words, and suggest words to him.
(2:181). But always if we could, where we could, it was letting him speak, and then
where we would work together on things it was to the point of, We dont want to put
words in your mouth . . . Is this right? Is this what you mean? Make sure youre
comfortable saying that. (2:181). Azad also agreed that when that would not work, Dias
would do drawings. (Id). These were of the fireworks he saw, and directions to a
dumpster. (2:185, 186). Azad did not recall whether or not Dias remembered the word
fireworks but he did state that he recalled Dias using hand gestures and a reference to
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the time or the year, to try to explain what he was talking about. (2:189). He further
admitted that although he could not recall whether Dias knew the word for fuse or
dumpster, the word as it appears in his report could have been a word he or Schiliro
had put in after some discussion with Dias. (2:190).
The Court can and must also consider that in addition to linguistic difficulties,
Dias lacked a cultural background and context to the interrogation and the rights being
read to him. He was not from America, and although he had spent time here as a student,
he had grown up in Kazakhstan, where there was no Miranda rights or its equivalent.
Indeed, Miranda rights in Russian is translated as the Miranda Rule. Other than the
traffic stop, Dias had no prior history of dealing with law enforcement and specifically,
no prior understanding of Miranda rights or the American judicial system.
It is true that successful challenges to waivers by non-native speakers are few to
be found. Respectfully, most of these decisions seem to rest on the exact misconception
that the Government labored through in its cross examination of Dr. Pavlenko, which is
that the apparent ability of a person to speak English is sufficient proof of his or her
ability to understand Miranda rights read to them, or by them. This Court has the benefit
of the testimony of Dr. Pavlenko and her report to examine the evidence with an
understanding that scientifically, language proficiency has stages, or levels, that can be
determined, and that predict, with reliability, what a person is able to do, and not able to
do, across different real world contexts. In conjunction with this deeper and more
nuanced understanding of the significance of proficiency levels with regard to the
specific text, here the Advice of rights, the Court must consider Agent Azads testimony,
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the lack of accommodations that would have assisted Dias in understanding his rights,
and the cultural differences that made his contextual knowledge impossible.
Further, in terms of voluntariness, the Court may consider the coercive aspects of
the interrogation. Although Dias was uncuffed at this point, he had been in cuffs and
restrained without relief since at least five p.m.. Moreover, his freedom of movement
was significantly limited even after he was uncuffed, indicating that he was not free to
leave. United States v. Mittel-Carey, 493 F.3d 36, 39-40 (1st Cir.2007). He was cold,
but given no clothes or blankets. He was hungry, but not given any food until Agent Azad
offered donuts shortly after two in the morning. Dias had not slept in over a day, and was
visibly exhausted. The agents interrogated him for over three hours until he made an
inculpatory statement, rejecting each of his prior statements and demanding that he try
again.
He was kept in a room behind the secure door, and within the barracks private
offices. Although the door was open, an armed officer patrolled the hallway. When Dias
was left alone, the officer remained, looking in whenever he sensed movement from
within by Dias. Dias was not permitted to make a call, and did not have a phone or
access to one. He was not provided consular notice by the officers, nor was he provided
the opportunity to speak with his roommate or girlfriend. He was not a citizen of the
United States, having come from a country where no one challenges authority and where
Miranda rights did not even exist. He could not have understood that his encounter with
police was consensual.
Although the MSP Barracks which were equipped to provide recording of
interviews, no effort was made to secure this benefit. These agents knew that Dias was a
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young man who had just been forcibly removed from his home, and left in cuffs in the
back of a police car for hours. They knew that he was not a native speaker, and that he
was not familiar with the legal system. Even under the FBIs own policy describing the
factors that would warrant recording a statement, the particular facts of this case
warranted careful explanations of the Miranda rights, and confirmation that the defendant
understood what he heard, and affirmative effort to dispel the extreme coercive effects of
his detention.
This Court may take judicial notice of the rule of law in Massachusetts that the
failure to record requires the provision of a jury instruction to this effect, permitting a
jury to infer from this failure that the statement is to be viewed with particular caution.
Commonwealth v. Di Giambattista, 813 N.E.2d 516 (Mass. 2004), 2004 Mass. LEXIS
504. The facts of this case demonstrate why.


CONCLUSION
The Governments burden here was not met. In addition to the Fourth
Amendment violations, the Government failed to demonstrate that it obtained valid
consent and knowing and intelligent waivers of Miranda, requiring suppression of
statements, as well as evidence. There is no independent source for the information that
was derived from the illegal arrest, and accordingly, the Government should not be
permitted to profit by introducing the statements of April 19 or April 20, or the evidence
seized pursuant to consent.

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Respectfully submitted,


/s/ Robert G. Stahl
Rober t G. St ahl
Laura K. Gasiorowski on the
brief
Joshua F. McMahon
Attorneys for Defendant Dias Kadyrbayev



Dated: August 13, 2014



CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of August, 2014, this document filed through
ECF system will be sent electronically to the registered participants as identified on the
Notice of Electronic Filing (NEF).


s/ Robert G. Stahl
_________________________
ROBERT G. STAHL, ESQ.


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