UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

UNITED STATES OF AMERICA, )

)
Plaintiff, )
)
v. ) Criminal No. ***********
)
*************, )
)
Defendant. )

MOTION TO SUPPRESS AND DISMISS WITH MEMORANDUM OF LAW

The Defendant, ************, by and through Undersigned Counsel, moves this

Honorable Court to suppress all statements of the Defendant on the following grounds:

1. All statements made by the Defendant were in violation of Miranda rights.

2. All statements made by the Defendant were involuntary.

3. Due to the constitutional infirmities described herein, the statements of the

Defendant, and the evidence seized as a result of the statements of the Defendant are fruit

of the poisonous tree, and must be suppressed.

WHEREFORE, the Defendant moves that all statements of Defendant be

suppressed and excluded as evidence, and that the search and the items found in the

search be suppressed as fruit of the poisonous tree.

MEMORANDUM OF LAW

Counsel presents the following Memorandum of Law to the Court to attempt to

expand on the suppression issues described above.

STATEMENT OF FACTS1

1
The facts underlying this motion are derived from the Indictment, the reports of the officers, and the
audio and video of the interview with Defendant and Law Enforcement Officers from the South Portland

1
 On February 15, 2010, South Portland law enforcement officers responded to a

domestic violence assault call at the residence of Defendant’s wife. ************ was

the alleged assailant, and his wife the alleged victim. Neither Defendant nor his wife

were present when the police arrived.

When the policed arrived, they observed several guns in the residence. They

followed up and the Defendant was interviewed in the South Portland Police Department.

The lead investigator in the case was Detective Steven Webster, although others

participated in the interrogation. The interrogation took place at the South Portland

Police Station on February 15, 2010. The Defendant was read Miranda, and initially

chose to answer questions. ************ attempted to cease questioning, however, and

Detective Webster did not scrupulously honor the Defendant’s attempt to cease

questioning. When Detective Webster questioned ************’s story, the Defendant

stated:

I guess this is where I have to have to stop and ask for a

lawyer

(Interview at 21:34)

Rather then take the Defendant’s demand to cease questioning and stop the

interrogation, Detective Webster interrupted the ************ and stated “I was just

looking for some honesty from you and I was not going to put the screws to you.”

(Interview at 21:35). Detective Webster continued to attempt to convince ************

to waive Miranda, and ultimately succeeded.

Police Department. This audio/video will be made available to the Court by the Defendant in advance of
the hearing if the Court would like to review the interview in advance. When Counsel points out specific
statements in the Memorandum from the interview, Counsel has cited the minute and seconds on the
audio/video where the statement appears, for ease of use by the Court.

2
 On its own, this police questioning is troubling. When it is coupled with promises

of non-prosecution, it becomes even more disturbing.

Detective Webster cajoled ************ into talking again (after he tried to

invoke Miranda), by promising that he would not be charged or prosecuted with

possession of firearms by a prohibited person if Defendant told him where the firearms

were. Detective Webster told the Defendant such falsities as: “If you tell me where the

guns are, we will not charge you with being a prohibited person;” and “We will keep

them here until the protection order stuff is done.” (Interview beginning at 25:21).

On a dozen occasions throughout the interview, law enforcement officers told

************ that he would not be prosecuted if he informed them as to the location of

his firearms and acknowledged that the firearms were his. They promised him that they

would not take this promise back, stating: “This isn’t television guy. We’re not going to

pull some BS because afterwards we need to explain everything.” (Interview at 34:30)

Another officer then piped up as well and said: “I can’t tell you one thing and go do

another. That throws the whole case out and ruins my credibility.” (Interview at 38:40)

Defendant ultimately complied. The promise of the officers was not kept, and

************ is charged before this Court.

ARGUMENT

I. LAW ENFORCEMENT VIOLATED MIRANDA NECESSITATING

SUPPRESSION OF DEFENDANT’S STATEMENTS

A person who is in custody and subject to interrogation must be advised of the

rights referred to in Miranda v. Arizona, 384 U.S. 436 (1966), in order for statements

made during the interrogation to be admissible against him or her at trial. State v.

Bridges, 829 A.2d 247, 254 (Me. 2003). “[A] Miranda warning is necessary only if a

3
defendant is: (1) in custody; and (2) subject to interrogation.” State v. Higgins, 796 A.2d

50, 54 (Me. 2002) (citation and quotation marks omitted).

A. Custodial Determination

************ was in custody when he was being interview by law enforcement.

He was handcuffed and taken to the police station. Custody exists for Miranda purposes

when there is a “restraint on freedom of movement of the degree associated with a formal

arrest.” State v. Holloway, 760 A.2d 223, 228 (Me. 2000) (citation and quotation marks

omitted). This test is an objective one, and the Maine Law Court has stated that in

analyzing whether a defendant is in custody, a trial court may consider the following

factors:

(1) the locale where the defendant made the statements:

(2) the party who initiated the contact;

(3) the existence or non-existence of probable cause to arrest (to the extent
communicated to the defendant);

(4) subjective views, beliefs, or intent that the police manifested to the
defendant to the extent that they would affect how a reasonable person in
the defendant’s position would perceive his or her freedom to leave;

(5) Subjective views or beliefs that the defendant manifested to the police, to
the extent the officer’s response would affect how a reasonable person in
the defendant’s position would perceive his or her freedom to leave;

(6) the focus of the investigation (as a reasonable person in the defendant’s
position would perceive it);

(7) whether the suspect was questioned in familiar surroundings;

(8) the number of law enforcement officers present;

(9) the degree of physical restraint placed upon the suspect; and

(10) the duration and character of the interrogation.

4
Id.

************ was clearly in custody upon consideration of all the factors. He

was involuntarily taken to the police station. He was handcuffed. He was not free to

leave. Certainly, the custodial standard has been met.

B. Interrogation and Invocation of Miranda.

The interrogation should have ceased when ************ invoked his right to

have counsel present during the interrogation. When a subject requests that an attorney

be present during the interrogation, all questioning must cease until the lawyer is present.

Davis v. U.S., 512, 548 (1994). It is an objective inquiry in determining whether the

suspect has invoked his right to counsel. Id. at 459. An objective inquiry “requires, at a

minimum, some statement that can reasonably be construed to be an expression of a

desire for the assistance of an attorney.” McNeil v. Wisconsin, 501 U.S. 171, 178 (1991).

Court’s in the State of Maine have recently indicated that the procedure after the

invocation of the right to remain silent is crystal clear:

Once warnings have been given, the subsequent procedure is clear.

If the individual indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the interrogation
must cease.

State v. Grant, 939 A.2d 93, 104 (Me. 2008) (emphasis added) (citing Miranda v.

Arizona, 384 U.S. 436, 473-86 S.Ct. 1602, 16 L. Ed.2d 694 (1996)). Any statement to

law enforcement after ************ invoked Miranda must be suppressed because the

prior invocation of his right to remain silent was not scrupulously honored. See, Id.

(citing Michigan v. Mosley, 423, U.S. 96, 101-02, 96 S. Ct 321, 46 L.Ed.2d 313 (1975)).

The South Portland Police failed to stop the interrogation of ************ when

he indicated he wanted to have an attorney present. ************ told Detective

5
Webster “I guess this is where I have to stop and ask for a lawyer.” (Interview at 21:34).

Before ************ could say anything else, Detective Webster interrupted and stated

“I was just looking for some honesty from you and I was not going to put the screws to

you.” (Interview 21:35). Following the standard set forth in Davis and Mosley,

************’s statement about wanting to stop and get an attorney should have been

taken as an unequivocal demand to cease questioning.

The United States Supreme Court has made it absolutely clear that the

interrogation must cease immediately when the individual indicates he wishes to stop the

questioning and talk with an attorney. Michigan v. Mosley, 423, U.S. 96, 101-02, 96 S.

Ct 321, 46 L.Ed.2d 313 (1975). Instead of ceasing the interview, the detective

reformulated the questioning to persuade ************ to talk with him. He told

************ that “if you were going to be honest, I was going to just take the guns

(and not charge you).” This trickery worked, and ************ began to talk. This lead

to a confession and a consent to search for weapons. These fruits are all from the poison

tree of the detective’s failure to cease the interrogation at the time ************

requested an attorney. As a result, any statement made after the request to cease

questioning must be suppressed.

II. LAW ENFORCEMENT VIOLATED MIRANDA BY TRICKING

THE DEFENDANT INTO SPEAKING BY THE USE OF FALSE
PROMISES OF LENIENCY

The South Portland Police Department tricked the Defendant into waiving his

right to remain silent. In establishing waiver, the Government bears the burden of

demonstrating "that the defendant knowingly and intelligently waived his privilege

against self-incrimination and his right to retained or appointed counsel." Burbine v.

6
Moran, 753 F.2d 178, 182-183 (1st Cir 1985) (Cited Miranda v. Arizona, 384 U.S. 436,

175 (1966). "Moreover, any evidence that the accused was . . . tricked . . . into waiver

will, of course, show that the defendant did not voluntarily waive his privilege." Id. at

183. In determining whether a person voluntarily and knowingly waived his or her right

to counsel, the Government must show based on the preponderance of the evidence that:

1. The relinquishment of the right must have been voluntary in the sense
that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception; and

2. The waiver [also] must have been made with a full awareness of both
the nature of the right being abandoned and the consequences of the
decision to abandon it.

Moran v. Burbine, 475 U.S. 412, 421 (1986) (citation omitted)

The South Portland Police Department intimated, coerced and deceived the

Defendant by promising him that he would not be charged with a crime if the Defendant

told the police where the guns were.

The First Circuit has stated that some types of “trickery” can cause coercion.

U.S. v Byram, 145 F.3d 405, 408 (1st Cir. 1998). Additionally in Byram, the Court stated

“a false assurance might undercut the gist of a warning, raising questions whether

Miranda [is] satisfied.” Id. at 408. In the present case, the Defendant, after invoking his

right to counsel, was interrupted immediately by Detective Webster from the South

Portland Police Department stating:

“I was just looking for some honesty and I was not going to
put the screws to you. . . I don’t want to put the screws to
you. If you were going to be honest, I was just going to
take the guns. I could tell you were not going to be honest.

(Interview at 21:34).

7
 After the initial statement made above, Detective Webster continued to pressure
the Defendant by stating:

“If you tell me where the guns are, we will not charge you
with being a prohibited person. . .We will keep them here
until the protection order stuff is done. . . When you have
the right to have the guns back, we will give them to you.”

(Interview at 25:21).

Once these initial promises were made to the Defendant, the Defendant than

began discussing where the guns were.

The Detective knew the Defendant did not want to speak once he indicated he

wanted an attorney; however, the Detective used intimidation by attacking the

Defendant’s credibility by calling him a liar and tricked the Defendant by using coercive

and deceitful tactics, such as falsely promising the Defendant that he would not be

charged if he spoke; therefore, the Government will be unable to show that the statements

were free from intimidation, coercion or deceit.

The Government will not be able to prove that the Defendant was fully aware of

giving up his right to remain silent and the consequences of that right. The Defendant

had acknowledged the deal after he had told the police where the guns were by stating

“you guys gave me a deal that all you had to do is give you the guns, it’s a great deal.”

(Interview at 37:48). Shortly thereafter, an officer states “I can’t tell you one thing and

then go do another. That throws the whole case out and ruins my credibility.” (Interview

at 38:30). As the interview progressed, the Defendant stated “you’ve already given me a

deal” and an officer replies “I have.” (Interview at 49:50). Shortly thereafter, an officer

states there is “no reason not to turn them in. I can’t tell you that I am not going to charge

you then go ahead and charge you.” (Interview at 55:30). These statements would lead

8
any person to believe that anything that was said was not going to be used against them,

specifically, not going to be used against the Defendant in any potential firearm violation.

The Defendant was not fully aware of his right to remain silent and as a result did

not understand the consequences that result from waiving that right. The officers

repeatedly asked the Defendant to tell them where the guns were with the promise of not

charging the Defendant. Even if the Officer did not have the authority to make such a

promise, the Defendant believed that the promise was valid; resulting in confession

related to the guns and a consent to search. This is the specific situation Miranda was

trying to protect against.

III. DEFENDANT’S STATEMENT WAS COERCED AND NOT

VOLUNTARY

The facts outlined above also establish a cogent argument that the Defendant’s

confession and consent to search was involuntary. U.S. v. Byram, 145 F.3d 405 (1st. Cir.

1998) indicates that, while police trickery is not automatically coercion, it can be. 2 Here,

the police trickery and coercion is enough to render ************’s confession and

consent to search involuntary.

CONCLUSION

The police trickery in this case, coupled with a failure to acknowledge

************’s attempt to invoke Miranda, makes this a case where Defendant’s

statements should be suppressed. His consent to search, for example, is tainted by the

fact that law enforcement promised him he would not be charged in order to gain that

consent. The statements and the search are the fruit of the poisonous tree, and they must

2
In Byram, the issue was voluntariness only, and Miranda was not implicated. Here Miranda was read to
the Defendant. In Byram, the First Circuit said: “Of course, a false assurance might undercut the gist of
the warning, raising questions if Miranda had been satisfied…” Byram supra at 408.

9
be suppressed as justice and the Constitution requires. Wong Sun v. United States, 371

U.S. 471, 484-88 (1963).

Dated this 9th day of June, 2010 in Portland, Maine.

Respectfully submitted,

/s/ Timothy E. Zerillo

Attorney for Defendant
ZERILLO LAW, LLC
103 Exchange Street
P.O. Box 17721
Portland, ME 04112
(207) 347-6063

10
 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

)
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Case No. 10-82-P-H
)
)
ROY B. CLARK, )
)
Defendant )

CERTIFICATE OF SERVICE

I, Timothy E. Zerillo, Esq., hereby certify that I have caused to be served via ECF
the Defendant’s Motion to Suppress on the following individuals:

1. Darcie McElwee at Darcie.McElwee@usdoj.gov

Dated this 9th day of June, 2010 in Portland, Maine.

Respectfully submitted,

/s/ Timothy E. Zerillo

Attorney for Defendant
ZERILLO LAW, LLC
103 Exchange Street
P.O. Box 17721
Portland, ME 04112
(207) 347-6063

11