The opinion of the court was delivered by: GERRY
Presently before this court are motions by defendants Maria Rusbi-Cardona and Arledt Espinal-Cardona to suppress certain post-arrest statements that were allegedly taken in violation of their constitutional rights. The two defendants (who are mother and son) were arrested on November 5, 1985, along with Arledt Espinal-Cardona's wife, Liliana Espinal-Pinzon, at Port Newark, New Jersey. On November 8, 1985, the federal grand jury sitting in Newark returned a four count indictment naming the three defendants. Count 1 of the indictment charges all three defendants with conspiracy to violate the federal controlled substances law, 21 U.S.C. § 846. Count 2 charges all three defendants with importation of cocaine in excess of one kilogram, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and 18 U.S.C. § 2 (aiding and abetting). Count 3 charges defendant Arledt Espinal-Cardona with use of a telephone to facilitate a drug conspiracy in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. Finally, Count 4 charges all three defendants with travel in interstate commerce to facilitate a drug conspiracy, in violation of 18 U.S.C. §§ 1952 and 2.
After their arrests, both Arledt Espinal-Cardona and Maria Rusbi-Cardona made verbal statements to federal agents which are the subject of these motions. Defendant Liliana Espinal-Pinzon also allegedly made certain non-verbal responses to the agent's questions, which the Government has agreed not to introduce at trial. The defendants moved for an order suppressing the verbal statements on the ground that they were taken in violation of the defendant's constitutional rights, as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). On February 18, 1986, this court held an evidentiary hearing to determine whether the defendants were deprived of their constitutional rights by the manner in which the statements were taken. After the hearing, the parties were invited to submit further briefs on the issue. We will now address the defendants' motions individually.
After her arrest on November 5, 1985, Maria Rusbi-Cardona allegedly told federal agents "the cocaine is mine, not Liliana's." She has moved to suppress that statement on the ground that the questioning that elicited it violated her Fifth Amendment rights.
The agent's testimony is somewhat unclear, however, as to what occurred next. At some point, either during the reading of the Miranda rights or immediately afterwards, Maria Rusbi-Cardona stated that if the agent "was going to ask her any question [sic] she would rather have an attorney present." (T. 28:5-7.) However, at another point, according to the agent, Maria Rusbi-Cardona indicated that she was willing to answer some questions. Cordero further testified that after the defendant indicated her willingness to talk without an attorney present, he asked her whether she knew the purpose of her trip to the Seaman's Institute. She responded, "the cocaine is mine, not Liliana's" and made several other incriminating statements. (T. 7:1-20.)
In Miranda, supra, the Supreme Court set forth the now familiar rule that, prior to custodial interrogation, an accused must be informed of his or her right to remain silent and his or her right to have an attorney present during questioning. Furthermore, if "the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Miranda, supra, at 474. The Court also stated that "if the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id. at 475.
Several recent cases have reaffirmed the holding in Miranda that once a person in custody requests counsel, all interrogation must cease unless and until the accused voluntarily waives this right and agrees to be questioned. In Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), the Supreme Court held that the defendant's constitutional rights were violated when police officers returned to question him a day after he invoked his right to counsel. As the Court explained,
. . . additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
Edwards, supra, at 484-485.
Similarly, in Smith v. Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984), the Court emphasized that the evaluation of the propriety of custodial interrogation is essentially a two-step process:
First, courts must determine whether the accused actually invoked his right to counsel. (Citations omitted.) . . . Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) ...