The opinion of the court was delivered by: POLLAK
Now to be ruled on are two motions to suppress inculpatory post-arrest statements of the movant defendants, Cesar Sandino Grullon and Virgilio Armando Mejia. These are statements which the Government intends to use as part of its case in chief against Grullon and Mejia at their upcoming trial.
Grullon and Mejia were indicted on July 31, 1979. The indictment charges them with participation in two conspiracies, one to export weapons to Nicaragua without a license, the other to import cocaine from Columbia.
All four defendants were arrested on July 24, a week before they were indicted, the arrest warrants supported by complaints issued in the late afternoon.
Barrientos and Karasik were arrested in Miami where they reside. With their arrests we have no present concern.
Grullon, a citizen of the Dominican Republic, who came to Philadelphia last November as Consul General, was arrested on returning to his home in Cherry Hill from an evening Berlitz class in beginning English. Mejia, a citizen of Honduras, resident in the United States since 1963, was arrested on arrival for the night shift at his work place in Philadelphia.
Upon arrest, Grullon and Mejia were each driven to the Customs House in downtown Philadelphia. Thereafter, their papers and the money on them were examined and inventoried in accordance with customary procedures and each of them was formally interviewed.
The interviews were conducted by federal agents-agents of the Customs Service assisted by agents of ATF and DEA-and by Roberto Rivera-Soto, Esquire, the Assistant United States Attorney who, together with Assistant United States Attorney Cecil Jones, is in charge of this prosecution.
As Grullon and Mejia were advised and as Mejia at least explicitly preferred, the interviews were tape recorded. The interview with Grullon, who was taken into custody at 9:24 p.m., commenced approximately an hour later at 10:25 p.m. and concluded at 12:15 a.m. on the morning of July 25.
The interview with Mejia, who was taken into custody at 10:55 p.m., also commenced approximately an hour after his arrest-to be precise, at 11:42 p.m.-and concluded at 12:59 a.m. on the morning of July 25.
These recorded interviews are the statements Grullon and Mejia have moved to suppress.
The authenticity of the tapes and of the transcriptions made from those tapes is not questioned. I say that noting that there was a minor correction with respect to the identity of one of the interlocutors on one of the tapes, which correction was made without objection and in no way affects any of the issues addressed in these motions.
Not making any claim as to lack of authenticity with respect to the tapes or the transcriptions made from those tapes, what Grullon and Mejia both deny is that the statements were elicited in conformity with the guarantees of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 the landmark decision of the Supreme Court in 1966. Specifically, each one asserts that the fact that he answered questions without a retained or appointed lawyer at his side was not the result of a waiver of his right to remain silent and/or his right to counsel, which waiver was "made voluntarily, knowingly and intelligently," as those words are used in Miranda, 384 U.S. at 444, 86 S. Ct. at 1612.
As the interviews of Grullon and Mejia were separate, so the factual contexts of the two motions are quite distinct. Many facts are common to both. Each man, for example, was apprised of and acknowledged understanding of his Miranda rights more than once. But the lengthy scenarios are very different over-all.
Thus, Mejia, fluent in English and not unfamiliar with the American arrest process, signed a form of waiver of his Miranda rights but thereafter took advantage of Agent O'Connor's invitation to call his retained attorney. Yet when his phone call did not go through because his attorney was not at home, Mejia responded at length and without apparent demurrer to the questions thereafter put to him.
Neither Mejia's signing of a waiver form nor Grullon's refusal to sign accompanied by an announced willingness to talk is of itself conclusive of the legal question posed by each motion to suppress.
As Mr. Justice Stewart recently noted for the Court in North Carolina v. Butler : "An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case." 441 U.S. 369, at 373, 99 S. Ct. 1755, at 1757, 60 L. Ed. 2d 286. So a determination whether either Mejia or Grullon "in fact knowingly and voluntarily waived" his Miranda rights requires a detailed scrutiny of the course of each interview up to the point of substantial inculpation. In undertaking this scrutiny it is important to bear in mind that the Government has the burden of demonstrating waiver and, moreover, that, as Mr. Justice Stewart said for the Court in Brewer v. Williams : "courts indulge in every reasonable presumption against waiver," 430 U.S. 387 at page 404, 97 S. Ct. 1232, at page 1242, 51 L. Ed. 2d 424.
With these general postulates in mind, I would then turn to an examination of the factual context of each of the two motions. Before turning to each, I would simply interpolate that a line of challenge much elaborated in the testimony taken which I have found in no way compelling and, therefore, am giving no attention to, is one which I will mention simply to explain my reason for not pursuing it. The line of challenge pursued by both defendants is that which suggests that the arrests in the cases of Messrs. Grullon and Mejia were both timed in such a way as to come as late in the day as possible with a view, so the presentation seemed designed to suggest, of making extremely unlikely any effective communication between Grullon or Mejia with counsel or anyone else who could be of assistance while in custody at the Customs House.
I simply would note that I find nothing fruitful in the suggestion that the federal agents in charge of the arrest of Mejia and Grullon were in any way avoiding their appropriate obligations to the two persons whom they were taking into custody. Indeed, I might go beyond that in saying that, as I read the transcripts of the tape recorded interviews and as I have listened to the testimony which has elaborated upon the interviews and the pre-interview processes, I find that I have no ground for criticism of the treatment which I believe was accorded Mejia and Grullon respectively by those agents and by the Assistant United States Attorney who interrogated each.
To the extent that what is said in the balance of my opinion suggests deficiencies with respect to the ultimate vindication of the Miranda rights of Grullon or Mejia, I want it clearly understood that these are not to be viewed as deficiencies which reflect on the good faith or the sense of professional responsibility of any of the persons involved.
First I turn to the setting surrounding the interrogation of defendant Mejia. As already noted, Mejia had signed a form waiving his Miranda rights before his interview began. Also before the interview, he advised Agent Frysiek that his lawyer was at the Philadelphia firm of Jiminez and Arzon, whose card was among the papers he had on his person when his belongings were inventoried on arrival at the Customs House. At the start of Mejia's interview, Assistant United States Attorney Rivera-Soto noted that Mejia had already been twice advised of his rights, had signed a waiver "and has expressed his willingness to give a statement. Before the statement will be given, I will, however, again advise Mr. Mejia of his rights and make sure that he is waiving these rights and advise him that he also has the right to make a telephone call and that this conversation will be on tape."
Thereafter, Mejia acknowledged that he had signed the waiver form and said "yes, sir," when Mr. Rivera-Soto, having read aloud the Miranda rights appearing on the form above Mejia's signature, inquired, "Do you understand all these rights?"
Thereupon the following ensued-and at this point I must ask your indulgence for reading at some length some part of a colloquy-and it was Mr. Rivera-Soto who was questioning at this point:
"Q. Now, it says here, there's a checkmark that you have read this statement of your rights shown above and you understand what your rights are and you elect to waiver. You are willing to answer questions and make a statement, you do not want a lawyer. You understand and know what you are doing. No promises or threats have been made to you and no pressure of any kind has been used against you. You've been taken into custody at 10:55 p.m. on July 24, 1979, and you signed a document at 11:20 p.m. on July 24, 1979. Is that correct?
"A. Do you mind if you read again about the lawyer? What it say about the lawyer?
"Q. What about the lawyer? What exactly do you want to know?
"A. If I have a right to have my lawyer?
"Q. You have a right to have a lawyer present, here. If you cannot afford one, you will have one appointed for you, but that cannot be done until tomorrow morning. Understand that? All right, you have signed this form saying that you are willing to waive all those rights and to speak to us now.
"Q. Do you understand that?
"Q. Did you sign that form of your own free will?
"Q. Are you still willing to make the statement?
"Q. And are you willing to answer all the questions posed to you by these gentlemen?
"Q. Okay, do you understand that if you-at some time you get to a question that you do not want to answer, you don't have to answer it?
"Q. Okay. Do you understand that you have the right to make a telephone call?
"Q. Okay, and you can, we'll provide you with the phone?
"Q. All right. Are you willing to answer these men's questions?
"Q. Okay. Shall we commence then, as soon as-Agent Frysiek is here, we can commence the interview and I will be outside.