Government violated Defendant’s 5th Amendment Rights – Suppression of Statements Granted

Miranda warnings come from the seminal Miranda v. Arizona case. We often hear these warnings on television series, such as Cops. The right to remain silent and to speak with an attorney should always be exercised. Here, “Tony Pritchette is charged in a one-count indictment with Hobbs Act robbery under 18 U.S.C. § 1951, in connection with a March 2016 air-rifle robbery of a MetroPCS store in the Bronx.” It is alleged that there were two interrogations, one where the client confessed and one where, subsequently, he was read his rights as documented by the government and gave incriminating statements. The Court delves into an interesting situation, the two-step interrogation, and suppresses the statements obtained in violation of Mr. Pritchette’s 5th Amendment Rights.

The 5th Amendment Right against Self-Incrimination has been cited often, from television series to, here, the Southern District Court of New York, United States District Court:

The Fifth Amendment guarantees that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. It bars the use of any statements at trial by a criminal defendant. See, e.g., United States v. Patane, 542 U.S. 630, 637 (2004) (“[T]he core protection afforded by the Self-Incrimination Clause is a prohibition on compelling a criminal defendant to testify against himself at trial.”). “In light of the inherently coercive nature of police custody, and in order to safeguard these Fifth Amendment rights, individuals questioned in custody must be told that they have the right to remain silent, that anything they say may be used against them in court, that they are entitled to the presence of an attorney during questioning, and if they cannot afford an attorney, one will be provided.” United States v. Calix, No. 13-cr-582 (RPP), 2014 WL 2084098, at *7 (S.D.N.Y. May 13, 2014) (quoting Miranda v. Arizona, 384 U.S. 436, 478 (1966)).

The statements of the defendant were recorded. The Court here notes the very interesting nuances that occur prior to the recording. Not the first time that this has happened, the Court notes that tactics to evade the constitutional requirements of Miranda v. Arizona is impermissible. Specifically, the Court notes that

Law enforcement may not circumvent Miranda by engaging in a two-step interrogation process whereby a person is questioned without the proper warnings, made to confess, Mirandized, and then questioned again. See Missouri v. Seibert, 542 U.S. 600, 609 (2004). Such a “strategy is based on the assumption that Miranda warnings will tend to mean less when recited midinterrogation, after inculpatory statements have already been obtained.” Seibert, 542 U.S. at 620 (Kennedy, J., concurring). Under Seibert and Second Circuit precedent, a post-warning confession will generally be excluded if the Government “engage[d] in a deliberate two-step process calculated to undermine the defendant’s Miranda rights…unless curative measures (designed to ensure that a reasonable person in the defendant’s position would understand the import and effect of the Miranda warnings and waiver) were taken before the defendant’s post-warning statement.” United States v. Moore, 670 F.3d 222, 229 (2d Cir. 2012).

So what law enforcement wrongdoing could occur midinterrogation? Although interrogations differ, here “the Government argues that if a prior interrogation had occurred, [the detective] would not have left the interrogation room to retrieve a lighter…Pritchette had a new bottle of water during the videotaped interview…[the detective] would not have asked how to pronounce Pritchette’s name if there had been a prior interaction, which assumes that he cared how Pritchette’s name was pronounced during off-video questioning…” Maybe not the third degree (physical abuse) but the circumstances are suspect at best. In analyzing this case as to whether…

a later-Mirandized interview is tainted by such a two-step process, courts look to the “totality of the objective and subjective evidence surrounding the interrogations.” Moore, 670 F.3d at 229. The Second Circuit has “indicated helpful indicia for whether an alleged two-step interrogation was intended to circumvent Miranda.” Moore, 670 F.3d at 230. These factors, taken from Seibert, are: “[1] the completeness and detail of the questions and answers in the first round of interrogation, [2] the overlapping content of the two statements, [3] the timing and setting of the first and the second, [4] the continuity of police personnel, and [5] the degree to which the interrogator’s questions treated the second round as continuous with the first.” Seibert, 542 U.S. at 615. Ultimately, “the prosecution bears the burden of disproving by a preponderance of the evidence that the government employed a deliberate two-step strategy to deprive the defendant of the protections afforded by the Fifth Amendment.” Moore, 670 F.3d at 229.

In suppressing the statements, the Court notes that “[t]he hearing evidence corroborates the statements in Pritchette’s Declaration, which is credited by this Court.” It looks like there were two interrogations. The video and audio undermine the story offered by law enforcement. The violation of the Defendant’s constitutional rights results in suppression of not only the statements made at the time but statements made at a later date. “[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag.” United States v. Bayer, 331 U.S. 532, 540 (1947).

The case is USA v. Pritchette, 16cr331, NYLJ 1202772251637, at *1 (SDNY, Decided November 9, 2016).

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