he wanted "to tell the officers what had happened." In response, the officers told him to wait for his attorney before giving a statement. Defendant, however, testified that during the ride to the PAB, the police spoke among themselves of defendant's lack of cooperation and of their intention to handcuff him. Upon hearing this, defendant claims he interjected that he merely was following the instructions of his attorney. Mr. Spivak also went to the PAB, but upon being informed that the arraignment would not take place for two to three hours went to dinner.
At the PAB, defendant was placed in a room at a desk. He neither was handcuffed nor restrained in any fashion. He was free to walk around that area of the building and did so. From 7:30 P.M. to approximately 9:30 P.M., while Mr. Spivak was eating, defendant was not asked any questions. When Mr. Spivak returned to the PAB, he was met outside by Sergeant Burke. At that time, Mr. Spivak and Sergeant Burke engaged in a discussion regarding defendant's situation and the amount of bail to be requested. Essentially, Sergeant Burke stated that because of the value of the art involved, they would ask for bail to be set between $500,000 and $1,000,000, defendant would be incarcerated over the weekend with "animals," and defendant should make a statement. Mr. Spivak told defendant of the substance of the conversation with Sergeant Burke. At this time, defendant expressed his fear of incarceration, discussed the California incidents, and informed Mr. Spivak of the location of the Rodin hand which had not yet been found by the police. Because of defendant's fear of going to jail, Sergeant Burke's characterization of the conditions therein, and an opinion that defendant would not harm his position by speaking, Mr. Spivak advised defendant to give a statement. In return for no recommendation regarding bail and a statement to the judge that defendant was cooperating, Mr. Spivak told the police where the Rodin hand was located and promised defendant would give a full statement afer being arraigned.
Just prior to the arraignment, defendant again was advised of his constitutional rights. After bail was set at $50,000, defendant was returned to the custody of Detectives Gallo and Riggio and Sergeant Burke. While Mr. Spivak left defendant's presence to arrange for the posting of bail, defendant, at 12:37 A.M. on April 3, 1982, submitted to interrogation. During the questioning, which lasted until 3:15 A.M., defendant was advised of his constitutional rights numerous times. He was told when his bail was posted. Defendant confessed to the Los Angeles thefts, to one theft in New York, and disclosed the manner and from whom he had purchased the bulk of his art collection. Though defendant contends that during the questioning Agent Bazin threatened him with re-arrest for each item of stolen art, no such threat is reflected in the transcript of the interrogation.
Lurking in the background on the day of the search and defendant's arrest, but unknown to law enforcement authorities, was defendant's drug addiction problem and borderline personality disorder. Defendant testified he has ingested tranquilizers and sleeping pills on a daily basis for almost 20 years and that for the past five to eight years, he had ingested amphetamines each morning to combat the effects of the previous day's tranquilizers. Apparently, defendant relied on these medications to overcome intense feelings of anxiety and depression. Richard F. Limoges, M.D., an expert in additions and psychiatry, testified that defendant also suffers from a borderline personality disorder characterized by impulsivity, suicidal tendencies, an inability to tolerate loneliness, and poor judgment. Dr. Limoges further stated that while defendant appears to be able to function in society well, he really does so on a superficial basis. Other characteristics of his illness include an intense fear of crowding, confinement, and an expectation that all people intend him harm. Defendant and Dr. Limoges testified that the morning he learned the police were in his residence executing a search warrant, defendant became flooded with anxiety and began ingesting inordinate amounts of his medications. Throughout the day, until his supply was exhausted that evening, defendant consumed large quantities of tranquilizers. In fact, he claimed he never had taken more medication on any day in his life.
While defendant stated he was not intoxicated from his drug ingestion and understood the events going on around him, Dr. Limoges opined that the drugs affected defendant internally, all of his conduct was motivated by a desire to avoid incarceration, and he did not understand what was happening to him. Thus, Dr. Limoges stated that the combination of defendant's drug intake and personality disorder and the anxiety ridden situation in which he found himself, rendered defendant incapable of making a reasoned decision. In fact, Dr. Limoges stated that to avoid incarceration and custody, defendant would have told the police anything they wanted to hear.
To determine whether a confession was voluntary, all the circumstances surrounding it must be examined. Davis v. North Carolina, 384 U.S. 737, 740-42, 16 L. Ed. 2d 895, 86 S. Ct. 1761 (1966). See Mincey v. Arizona, 437 U.S. 385, 394-97, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) (consent to search); Lynumn v. Illinois, 372 U.S. 528, 9 L. Ed. 2d 922, 83 S. Ct. 917 (1963); Rogers v. Richmond, 365 U.S. 534, 540, 5 L. Ed. 2d 760, 81 S. Ct. 735 (1961). Some significant factors to consider are: 1) whether defendant was advised of his Miranda rights; 2) his age and level of intelligence; 3) whether defendant was beaten or threatened with harm; 4) the conditions of defendant's confinement; 5) the types of meals and comforts afforded to defendant; and 6) the length of the interrogation. Davis v. North Carolina, supra, 384 U.S. at 740-46. The focus of the inquiry must not be the truth or falsity of the confession, Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), but "whether the behavior of the . . . law enforcement officials was such as to overbear . . . [defendant's] will to resist and bring about confessions not freely self-determined . . . ." Rogers v. Richmond, supra, 365 U.S. at 544. Additionally, statements by law enforcement officials to defendant that his cooperation would be communicated to the court or be exchanged for reduced bail do not, standing alone, render subsequent incriminating statements involuntary. United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir. 1978); United States v. Reed, 572 F.2d 412, 426 (2d Cir.), cert. denied, 439 U.S. 913, 58 L. Ed. 2d 259, 99 S. Ct. 283 (1978); United States v. Curtis, 562 F.2d 1153, 1154 (9th Cir. 1977), cert. denied, 439 U.S. 910, 58 L. Ed. 2d 256, 99 S. Ct. 279 (1978); United States v. Springer, 460 F.2d 1344 (7th Cir.), cert. denied, 409 U.S. 873, 34 L. Ed. 2d 125, 93 S. Ct. 205 (1972); United States v. Ferrara, 377 F.2d 16 (2d Cir. 1967); United States v. Morris, 491 F. Supp. 226 (S.D. Ga. 1980). See United States v. Fisher, 700 F.2d 780, 782-83 (2d Cir. 1983); United States v. Traficant, 558 F. Supp. 993, 995-96 (N.D. Ohio 1983).
After careful consideration of the circumstances, I conclude defendant's statement was voluntary. First, the police officers read defendant his Miranda rights numerous times when he was in custody and each time, defendant stated he understood them. Defendant is a man of above average intelligence, was represented by counsel at the time, and despite his drug ingestion and Dr. Limoges' opinion of defendant's then condition, defendant and his attorney stated defendant was aware of the situation and was able to function. In fact, defendant stated he was not intoxicated. Because he had been taking drugs for 20 years, he was able "to tolerate very high dosages of medication." Having listened to the recording of the confession I conclude defendant's tone of voice was strong and conversational, his responses clear and coherent, his memory for detail remarkable, and he was not in fear. He was not abused verbally, physically, or otherwise. The atmosphere was not coercive. While the interrogation was lengthy and went on into the early morning hours of April 3, defendant repeatedly was told he could stop at any time, and when he made that request, the interrogation ceased immediately. Additionally, defendant submitted to questioning for approximately two hours after he knew his bail had been posted. Finally, defendant was not handcuffed during the interrogation and even was given the opportunity to speak with his family. Thus, the objective circumstances of defendant's interrogation lead me to conclude his statement was voluntary.
Additionally, I conclude defendant's drug ingestion and personality disorder did not affect the voluntariness of his statement. While I do not question either that defendant consumed a large quantity of tranquilizers on April 2, or that he suffers from a personality disorder as described by Dr. Limoges, I conclude those factors did not play a significant part in defendant's decision to confess. Mr. Spivak, who spoke extensively with him, said the defendant's responses were intelligent, coherent, and relevant. Dr. Waxman himself said he was able to function and that he did not feel he was intoxicated. He had the presence of mind to be both truthful and to be untruthful in answering the questions put to him. He testified he understood what was going on and responded accordingly.
Most people fear incarceration. If the conditions of confinement are contemplated as dangerous and unsanitary, this fear will be enhanced. The more vulnerable a man may be, the more anxious he may be to avoid jail. Dr. Waxman may have been more fearful than some, many, or even most, but he did not panic at the prospect of prison. Dread did not deprive him of the ability to understand advice and make decisions. Terror did not overbear his will. While Mr. Spivak's advice was motivated in part by the defendant's anxiety about spending time in jail, it was equally the result of Mr. Spivak's belief that a statement would not adversely affect the defendant's legal position and that cooperation then would put him in a better position to plead guilty to lesser charges later. In short, defendant's statement was the result of reasoned legal advice, not fright. As defendant himself explained, he submitted to interrogation first, because the evidence against him was overwhelming, and second, because he did not want to go to jail. He also testified he was not intoxicated and was aware of the circumstances presented to him. For these reasons, I conclude that Dr. Waxman's confession resulted from an informed and intelligent appraisal of the benefits of making a statement and the benefits of remaining silent. It was not the result of his ingestion of drugs, his personality problems, or any coercion by the police. His confession was voluntary.
Defendant's final contention that his statement was the product of an unlawful search and seizure also is without merit. While, by this opinion and order, I have suppressed some of the objects seized, I also concluded the initial entry to the residence and seizure of certain objects was lawful. Therefore, there was no poisonous tree here from which the statement could have resulted. The fact remains that the focus of the interrogation was on the California thefts and the manner in which defendant acquired the art objects. Furthermore, it was the evidence against him on the California charges, and the Philadelphia charges which stemmed from the California thefts, which prompted defendant to speak. Thus, there was a nexus between the objects lawfully seized and the confession and my suppression of other art objects had no effect on the voluntariness of defendant's statement.
For the above reasons, defendant's motion to suppress was granted in part and denied in part by the order which I signed on August 31, 1983.