then pressed him again to answer their questions." Id. 105 S. Ct. at 491-492. Smith then made some incriminating statements. The state court had held that these statements were admissible on the ground that Smith's subsequent responses to continued police questioning rendered his initial request for counsel "ambiguous." The Supreme Court disagreed, holding that "an accused's post-request responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself." Id. at 495. Similarly, we find that the defendant Maria Rusbi-Cardona's response to a question at the conclusion of the Miranda warning did not render her earlier request for counsel ambiguous or equivocal. Instead, we conclude that the defendant did clearly and effectively invoke her right to counsel.
We now turn to the second phase of the inquiry; namely, whether the defendant initiated further conversation and knowingly and voluntarily waived the right she had invoked. Smith, supra, at 493. The Government argues that the defendant's statement ("the cocaine is mine, not Liliana's") was not responsive to the agent's question ("what was the purpose of the trip to the Seaman's Institute?"), and therefore was not the "result" of interrogation but was "volunteered." In Miranda, supra, the court stated that "volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Id. 384 U.S. at 478. As noted above, however, the Edwards Court cautioned that special protections must be afforded a person who has invoked his right to counsel, and that statements made after a request for counsel are only admissible if the accused initiated the statement and voluntarily and knowingly waived his right to remain silent. Edwards, supra, at 484-485.
Under the circumstances present in this case, we find that the defendant did not initiate the conversation leading to the incriminating statement, but rather that the statement was the product of interrogation by the federal agent. After the defendant made known her desire to have an attorney present during questioning, the federal agent did not cease the interrogation. Instead, he continued to question her, asking her whether she was willing to make a statement, and whether she knew the purpose of the visit to the Seaman's Institute. While her answer was not directly responsive to the question, it was made in response to the agent's continued interrogation -- interrogation that ought to have ceased when the defendant requested an attorney. Miranda, supra, at 474. Accordingly, we find that the defendant did not freely initiate the statement.
We also find that the defendant did not knowingly and voluntarily waive her constitutional rights in making her statement. The determination of whether a valid waiver occurred depends upon "'the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.'" North Carolina v. Butler, 441 U.S. 369, 374-375, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979), (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938)). From the facts adduced at the evidentiary hearing, we find that the defendant was crying and upset during the reading of the Miranda rights and repeatedly asked for an attorney. The agent did not promise to immediately procure one for her but put off her request (T. 50:17-T. 52:2), and then asked her if she was willing to answer questions. We find that the coercion and pressure inherent in that situation was such that the defendant did not make a knowing and voluntary waiver of her constitutional rights.
The Government has cited several cases in support of its argument that any statement made which is unresponsive to police questioning is admissible as a "volunteered" statement. We agree that such statements are admissible in certain circumstances. In United States v. Castro, 723 F.2d 1527 (11th Cir. 1984), the court held that where the defendant responded to the police officer's question, "What in the world is going on here?" by offering to bribe the officer, the attempted bribe was admissible as a non-responsive, volunteered statement. In the present case, however, as discussed above, we find that the defendant's statement was the involuntary product of wrongful police interrogation and therefore inadmissible under the rules set forth in Miranda and Edwards.
For the foregoing reasons, defendant Maria Rusbi-Cardona's motion to suppress certain post-arrest statements will be granted.
2. Arledt Espinal-Cardona
Defendant Arledt Espinal-Cardona has also moved to suppress certain statements made after his arrest. At the evidentiary hearing held on February 18, 1986, Special Agent John Nolan gave testimony concerning the events leading up to the post-arrest statements. He testified that, prior to advising him of his constitutional rights, he asked the defendant whether he would prefer to have the Miranda warnings read in English or Spanish. The defendant replied that he would prefer Spanish, and Nolan, who is fluent in Spanish, complied. Nolan then asked the defendant whether he understood his rights. The defendant answered that he did, and Nolan asked if he was willing to answer some questions. The defendant agreed. During the resulting conversation, which was conducted in English and Spanish, the defendant made the statements which are the subject of the present motion. At one point during the conversation, the defendant requested an attorney. Nolan then ceased the interrogation. Under cross-examination by the defendant's attorney, Nolan testified that he could recall no use of force or threats of force against the defendant or his family.
Based on Nolan's testimony, we find that the defendant Arledt Espinal-Cardona knowingly and voluntarily waived his constitutional right to remain silent prior to making his statements to the police. We also find that the agent properly ceased interrogation once the defendant invoked his right to counsel. Under these circumstances, we conclude that there was no violation of the defendant's rights as set forth in Miranda, supra. Defendant Arledt Espinal-Cardona's motion to suppress will be denied.
An order consistent with this opinion has been entered.
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