SDNY Judge Suppresses Statements as Product of Functional Equivalent of Interrogation

Guest contributor Brian Larkin, Esq., writes:

The judicial deconstruction of police encounters with defendants has produced a notable decision in the case of United States v. Brito, 2008 WL 53781122 (S.D.N.Y. December 22, 2008).  Addressing such questions as when a defendant is deemed to have implicitly waived his right to remain silent, and when a police officer has engaged in the “functional equivalent” of interrogation, SDNY Judge Stephen Robinson ruled that statements made by the defendant prior to an explicit waiver of his Miranda rights were admissible against him, but he suppressed later statements made after an invocation of the right to remain silent and in response to an officer’s comments that were designed to elicit an incriminating response.

Bargaining or Just Talking

Yonkers police officers assigned to a DEA Task Force arrested Jose Brito in March of last year and charged him with crack distribution.  Three kilograms of alleged cocaine were seized at the time of his arrest, although field testing suggested a portion of the drugs was beat.  In custody, after being read his Miranda warnings, and confirming he understood them, Brito asked police about the charges against him.  When advised he was being charged with delivering three kilograms of cocaine to an undercover police officer, Brito reportedly responded: “Well, that’s now, but how about after the drugs are analyzed?”  When informed that he was being charged in the federal system, and faced significant penalties, Brito allegedly responded: “Federal, I know the federal system.  My attorneys will take care of this.”  Asked if he would cooperate with the investigation, Brito responded: “I ain’t like that.  I don’t give … up people,” and then refused to sign a Miranda warning card.

Implicit vs. Explicit Waiver

The defense argued that Brito had not waived his right to remain silent in this dialogue.  While a defendant may waive his Miranda rights explicitly or implicitly, the defense argued that Brito’s remarks were not an implicit waiver, but rather a “negotiation of sorts, in which [Brito] was seeking additional information prior to deciding whether to waive his rights.”  Judge Robinson didn’t buy that argument, holding that Brito implicitly – by his conduct – waived his right not to speak with the police.  Referring to Brito’s statements about “after the drugs are analyzed” the court commented: “a more realistic assessment is that Mr. Brito thought he had outwitted law enforcement authorities,” not that he was attempting to solicit additional information.  “Mr. Brito’s conduct . . . demonstrates that he was choosing not to exercise any of his Miranda rights but was willing to engage [the detective] in a dialogue about the investigation.” 

“Functional Equivalent” of Questioning

On the day of Brito’s arrest, following the initial questioning, a detective approached Brito from outside his holding cell and told him that a criminal history search had revealed that Brito had serious prior charges, including one for robbery.  Brito responded, in part: “[Y]ou know, I’m not a bad guy. I only robbed drug dealers. I don’t rob good people.”

These statements, the court held, would be suppressed.  Unlike the first set of statements, these were not the product of an implicit waiver of Brito’s rights.  He had invoked his right to remain silent and the police had initiated this new conversation.  Brito’s statements were responses to the “functional equivalent” of continued questioning by police: “In this case, Detective Pina told Mr. Brito that a criminal history search had revealed that Mr. Brito had a serious criminal history, including a robbery charge. Plainly, Detective Pina intended his comment about Mr. Brito's criminal history to elicit a response or cooperation from Mr. Brito after Mr. Brito already had indicated that he was unwilling to cooperate further.”