DEFENDANT *' MOTION TO SUPPRESS STATEMENTS

AND EVIDENCE OBTAINED IN DEPRIVATION THEREFROM



COMES NOW the defendant, * * *, by his undersigned counsel, pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure, and moves this Honorable Court to suppress from the evidence in this cause all statements Mr * made to the government's informant, Kenneth Pender, including tape recordings of some of the statements, as well as statements made by Mr. * to undercover law enforcement investigators and/or Mr. Pender on February 7 and February 8, 1995, some of which were audio and video recorded, and all evidence derived therefrom. In support thereof, defendant * would show the following:

1. Prior to the making of the statements Mr * was arrested on various state charges on various dates in Jacksonville, Duval County, Florida and Green Cove Springs, Clay County, Florida. At the times of those arrests Mr. * was represented by court appointed counsel, the Public Defender for the Fourth Judicial Circuit of Florida. After each such arrest Mr. * and his counsel invoked his right to remain silent and right to counsel under the Fifth and Sixth amendments to the United States Constitution. Mr. * memorialized his invocation of his constitutional rights in writing, the original of which was filed with the state circuit court in Duval and Clay counties and a copy of which was hand delivered to the State Attorney for the Fourth Judicial Circuit and another copy of which was hand delivered to the Sheriff of each county. A sample copy of one such notice is attached hereto as Exhibit A and by this reference made a part hereof.

2. Thereafter, federal and state investigators, working collaboratively, engaged a civilian friend of Mr. *, Kenneth Pender, to become an informant and agent for the joint federal-state enforcement team investigating the bombing of which Mr. * is now indicted in this case.

3. Mr. Pender, working as a government informant/agent, initiated contact with Mr. * while he was in custody on the above-referenced charges.

4. Mr. Pender met with Mr. * at the jail.

5. Mr. Pender instructed Mr. * to call Mr. Pender.

6. Mr. Pender, tape recorded some, but not all, of Mr. *' calls.

7. Federal and state law enforcement agencies working together arranged for Mr. * to be temporarily released from custody on or about February 7, 1995. He was released on probation with the condition that he remain at a state run Probation-restitution Center. (1) He was picked up by law enforcement officers posing as civilians interested in hiring Mr. * to commit a crime. Mr. Pender had put Mr. * in contact with these law enforcement officers. Their meeting was audio and video recorded, in part. Once the recording was concluded Mr. * was taken back into state custody on or about February 8, 1995, less than 24 hours after law enforcement arranged for his release.

8. The statements made by Mr. * were deceitfully obtained by government agents. Mr. Pender did not disclose the fact that he was working as an agent for law enforcement. The other law

enforcement agents concealed their true identities and law enforcement capacities. Mr. * did not know at any time that he was making statements to law enforcement agents, although in fact his conversations were with government agents.

9. The agents knew, however, that Mr. * was represented by counsel. The agents knew that Mr. * had invoked his right to remain silent and right to counsel. The agents did not request permission from his counsel to interview Mr. *. The agents did not disclose to counsel or to Mr. * who they were and what they were doing. The agents knowingly violated Mr. * rights. (2)

10. The statements that Mr. * made were not freely, voluntarily, knowingly and intelligently made. They were not knowingly and intelligently made because they were obtained by a fraudulent and deceitful violation of his right to counsel and right to remain silent. They were not freely and voluntarily made because the agents induced the statements by false promises of benefit to Mr. *.

MEMORANDUM OF LAW

Once the right to counsel has been invoked, law enforcement officials may not initiate interrogation without counsel present. Minnick v. Mississippi, ___ U.S. ___, 111 S. Ct. 486, 112 L. Ed.2d 489 (1990). See also, Edwards v. Arizona, 451 U.S. 477 (1981). The underlying Constitutional rights implicated are found in the Fifth and Sixth Amendments to the United States Constitution. See also, Arizona v. Roberson, 486 U.S. 675, 681 (1988) and McNeil v. Wisconsin, 111 S.Ct. 2204 (1991).

In order to protect an accused's Fifth Amendment privilege, police must terminate interrogation if the accused requests the assistance of counsel. Miranda v. Arizona, 384 U.S. 436, 474 (1966). Once an accused does request counsel, law enforcement officials may not reinitiate questioning of the accused "until counsel has been made available" to the accused. Edwards v. Arizona, Supra. Edwards held:

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...having expressed his desire to deal with the police only

through counsel, [defendant] 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.

The Supreme Court has repeatedly stated that Edwards is a bright-line rule for law enforcement officers. See Arizona v. Roberson, supra. and cases cited therein.

Even where an accused has consulted an attorney, and thus counsel "has been made available to him", police may not thereafter reinitiate questioning. Minnick v. Mississippi, supra. held:

Whatever the ambiguities of our earlier cases on this point,

we now hold that when counsel is requested, interrogation

must cease, and officials may not reinitiate interrogation

without counsel present, whether or not the accused has

consulted with his attorney.

Minnick continued the Edwards rule that a defendant may waive his Fifth Amendment right to counsel only by initiating the discussions with authorities. Id., page 492.

The rule in Edwards is not offense-specific. That is, defendant's Fifth amendment right to counsel attaches not only for the crime for which defendant is accused at the moment, but for any crimes for which he may come under suspicion and be questioned. Arizona v. Roberson, supra. at 683 stated:

As a matter of law, the presumption raised by a suspect's

that he considers himself unable to deal with the pressures

of custodial interrogation without legal assistance - does

not disappear simply because the police have approached

the suspect, still in custody, still without counsel, about a

separate investigation.



More recently, McNeil v. Wisconsin, 111 S.Ct. 2204 stated:





The Edwards rule, more over, is not offense- specific:

once a suspect invokes the Miranda right to counsel

interrogation regarding one offense, he may not be

re-approached regarding any offense unless counsel

is present.



Edwards does require defendant to affirmatively invoke his Fifth Amendment right to



counsel. As McNeil v. Wisconsin, supra. at 2209 stated:



It requires, at a minimum, some statement that can

reasonably be construed to be an expression of a

desire for the assistance of an attorney in dealing

with custodial interrogation by the police. Requesting

the assistance of an attorney at a bail hearing does

not bear that construction. "[T]o find that [the defen-

dant] invoked his Fifth Amendment right to counsel

on the present charges merely by requesting the

appointment of counsel at his arraignment on the

unrelated charge is to disregard the ordinary meaning

of that request." (Citation omitted).



Here, defendant's Exhibit A constitutes a clear and sufficient invocation of defendant's rights. The form was executed by Mr. * and his attorney. Mr. * requested more than merely appointment of counsel, he asserted his desire for counsel at all subsequent interview. Mr. * attorney hand delivered the written notice to representatives of both the State Attorney's Office and the Jacksonville Sheriff's Office. Finally, the notice was place in the public court file of Mr. *' case.

In this case it is clear that Mr. * was in continuous custody (3)

and/or subject to court supervision, had asserted both a Fifth and Sixth Amendment right to counsel prior to the statements at issue, had not initiated any such statements, and was induced to make the statements in violation of the Edwards line of cases. Therefore, Mr. *' statements must be suppressed.



Whether the officers knew that Mr. * had invoked his Edwards right to counsel is not relevant. Arizona v. Roberson, supra. at 2209 stated:

Finally, we attach no significance to the fact that the officer

who conducted the second interrogation did not know that

respondent had made a request for counsel. In addition to

the fact that Edwards focuses on the state of mind of the

suspect and not of the police, custodial interrogation must be

conducted pursuant to established procedures, and those pro-

cedures in turn must enable an officer who proposes to ini-

tiate an interrogation to determine whether the suspect has

previously requested counsel. In this case respondent's re-

quest had been properly memorialized in a written report but

the officer failed to examine that report. Whether a contem-

plated reinterrogation concerns the same or a different offense,

or whether the same or different law enforcement authorities

are involved in the second investigation, the same need to de-

termine whether the suspect has requested counsel exists. The

police department's failure to honor that request cannot be jus-

tified be the lack of diligence of a particular officer. (footnote omitted)



Similarly, in the Sixth Amendment context, the Supreme Court has rejected the argument that a request for counsel at a court proceeding may not be known to the police who later interrogate defendant on that charge and therefore should not be imputed to them. In Michigan v. Jackson, 475 U.S. 625, 634 (1986) the Court stated; "one set of state actors (the police) may not claim ignorance of defendants' unequivocal request for counsel to another state actor (the court)." A clear and unequivocal request for counsel made in a court proceeding has been imputed to law enforcement

officers despite a lack of actual knowledge by the individual officers. Cervi v. Kemp, 855 F.2d 702, 705-707 (11thCir. 1988).











WHEREFORE, the defendant, * * *, respectfully requests this Honorable Court suppress from evidence in this cause, the statements made by Mr. * from and after his first invocation of his right to remain silent and right to counsel, including all recordings of such statements, both audio and video, and any evidence obtained in derivation therefrom.



Respectfully submitted,



































C:\wwwfpd\stateme1.wpd









1. We believe he also was released on bond as to other charges and the government agents were the source of that bond money.

2. Presumably this investigation was being supervised by counsel in both the State Attorney and United States Attorney's offices. If so, it was a violation of Florida Bar ethical rules for counsel to allow his investigators to contact a criminal defendant who was represented by counsel.

3. And his release for less that twenty-four hours, while under court supervision, was arranged by law enforcement, in what amounted to a fraud on the court.