Attorneys for a friend of the accused Boston Marathon bomber filed a 68-page memo of law and proposed facts contending his statements to agents were not voluntary.
Attorneys for a friend of the accused Boston Marathon bomber filed a 68-page memo of law and proposed facts contending his statements to agents were not voluntary.
Attorneys for a friend of the accused Boston Marathon bomber filed a 68-page memo of law and proposed facts contending his statements to agents were not voluntary.
DEFENDANT DIAS KADYRBAYEVS POST-SUPPRESSION HEARING MEMORANDUM OF LAW WITH PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
INTRODUCTION
[I]t is under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164-65(2004)
Notwithstanding that the Supreme Court has never wavered from its position that the forcible removal of a person from his home to transport him to a police station for interrogation requires probable cause, the Government now asks this Court to rule that in this case, the FBIs tactical removal of Dias Kadyrbayev was permissible because they had reasonable suspicion to believe that Dzhohkar Tsarnaev might be in that house. The Government also asks this Court to rule against Supreme Court and First Circuit law, and hold that the arrest of a person within his home can be justified on exigent circumstances, but again, premised only on reasonable suspicion that a terrorist was inside the home. In truth, this case demands a more careful and measured approach because of the temptation to invoke exceptions to the rule of law to justify more aggressive government Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 1 of 68 2
intrusions. The exceptions permitted here become the rule of law tomorrow. The Government clearly believes that the gravity of a terror investigation permits it to dispense with probable cause, even for the most intrusive Fourth Amendment seizures and searches, and that its burden of proof in a suppression hearing will be lessened by the exigencies of the war on terror. Respectfully, they are wrong. They are also incorrect with regard to the law on consent, and waiver, and the Government failed to adduce sufficient facts to carry the burden of persuasion that was on the Government, at all times, to meet. Finally, the Governments own evidence demonstrates that the Governments arrest of Dias Kadyrbayev on suspicion of being present in the United States in violation of his student status was a ruse to delay his presentment and provide additional time to build their criminal case, a due process violation recognized by the courts as the basis for suppression of the statement therein obtained.
REQUEST FOR ORAL ARGUMENT PURSUANT TO RULE 7.1(D)
Oral argument is requested to address issues raised herein.
PROPOSED FINDINGS OF FACTS Background 1. On April 15, 2013, at approximately 2:49, a terrorist attack in Boston resulted in the deaths of three people and catastrophic injuries to scores of other bystanders at the Boston Marathon. All members of the FBIs Joint Terrorism Task Force were activated and participated in the subsequent investigation. 1:146; 159 (Walker). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 2 of 68 3
2. Dias Kadyrbayev (Dias) a foreign student attending UMass-Dartmouth through the Navitas Program, was nineteen years old. He had been born and raised in Kazakhstan, and spoke Russian as his primary language, then Kazakh, then English. 4:187-88 (Dias); 2:172 (Azad); 2:19 (Walker). The Arrest at 69 A Carriage Drive 3. On the morning of April 19, 2013, Dias Kadyrbayev spoke to friends, Vova, and Sagr, who told him that law enforcement wanted to speak to him about his friend, Dzhohkar Tsarnaev. 4:216-17 (Kadyrbayev). During the former of the two conversations, around noon, Dias learned that law enforcement was actually at his friends home as they spoke. Dias asked Vova to put the law enforcement agent on the phone, and Dias identified himself and provided his address so that agents could come talk to him. 4:216-217 (Kadyrbayev). 4. Dias remained in the apartment with his girlfriend, Bayan Kumiskali, and his roommate, Azamat Tazahayakov expecting police to arrive within minutes. 4:218 (Kadyrbayev). 5. Shortly after noon, the JTTF team assembled for purposes of the Marathon bombing investigation set up a perimeter of JTTF members from the Boston police department to surround and conduct surveillance of the apartment at 69 A Carriage Drive. 1:101 (Walker). Dias, his roommate, Azamat Tazhayakov, and Bayan Kumiskali became aware of the presence of these vehicles, presuming that they were law enforcement around three p.m. 4:217-218 (Kadyrbayev). 6. Over the next few hours, police made no contact by phone or otherwise with the occupants. 4:217-218 (Kadyrbayev). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 3 of 68 4
7. Close to five p.m. Dias and his girlfriend, Bayan, noticed that the apartment was now completely surrounded by what appeared to be heavily armed SWAT team members and other law enforcement officers. There were more cars, and a tactical vehicle. 4: 219 (Kadyrbayev) 8. Special Agent John Walker testified that law enforcement had targeted the 69 Carriage Drive apartment as a possible location for Jahar Tsarnaev that morning. Tsarnaev was known to law enforcement that morning as the second suspect in the Marathon bombing and the firefight with police late the evening before, in which Tamerlan was left dead. 9. Law enforcement obtained information that Tsarnaev had four cellphones subscribed to him, and that the address used for the bill was 69 Carriage Drive, very early that morning, possibly around 6.a.m. 1:95,147 (Walker). The FBI then gathered every bit of data and toll records from AT&T. 1:149 (Walker). There was no evidence that Tsarnaev received any other mail at that address, nor that he stayed in the apartment or used it as a residence. Further, Walker does not believe that Dias name was linked to any of the phones. (1:149). 10. One of the phones subscribed to Tsarnaev showed connectivity with Dzhohkar Tsarnaev a few hours before the bombing on April 15. That same phone allegedly transmitted a message to Russia, which had bounced off a tower a mile from the UMass Dartmouth Campus at around 10:20 a.m. Friday morning. 1: 96-97 (Walker). There is no testimony, nor any evidence, that this phone had any connectivity then, or at any other time, with Tamerlan Tsarnaev or any other members of that family. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 4 of 68 5
11. Agent Walker later mapped it out after the fact that the location of the cell tower from the defendants apartments as about 900 meters away. 1:97, L. 20-22 (Walker). 1
12. Massachusetts State Police provided information to the FBI that on April 17 and April 18 three Skype calls were made between Dzhohkar and Tamerlan Tsarnaev from an Internet protocol address resolving to Dias Kadyrbayev at 69 A Carriage Drive. 1:100, L. 13-19 (Walker). 13. The FBI also learned that at least one of the phones, that ending with suffix 9049, was emitting a signal from the 69 Carriage Drive Apartment building. This was not the phone which the FBI had determined displayed connectivity with Tamerlan Tsarnaev. (1:95-96). 14. On this basis, the FBI set up a perimeter around apartment in the early afternoon. 1:101, L. 3-20 (Walker). The first surveillance was set up shortly before noon. 1:162, L 19 (Walker). The purpose of the perimeter was to ensure that Tsarnaev did not flee the area, and that the people within the apartment did not leave without the FBI having an opportunity to speak with them. 1:163, L. 19-24 (Walker). 15. There was no evidence adduced at the hearing corroborating the suspicion that Tsarnaev was presently in the apartment on April 19 beyond the signal of one of the four phones subscribed to him. That phone was not the phone which had contact with Tamerlan Tsarnaev, nor with any other Tsarnaev family member.
1 The Government presents the information that the tower distance was within 900 meters of the apartment complex as information possessed by law enforcement at the time the decision was made to enter the apartment when in fact, the evidence does not support this conclusion. Similarly, the Government posits that Tsarnaev received mail at the 69 Carriage Street address when in fact, the only evidence is that the AT & T bill for these four phones was sent to this address. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 5 of 68 6
(1:95-96). Surveillance, which had begun before noon and continued throughout the day, did not confirm his presence. 16. One phone was significant to Agent Walker immediately because it showed significant connectivity with Tamerlan Tsarnaev, especially around the time of the bombings. 1:95, L. 18-22 (Walker). This was not the phone (identified as phone 2) emitting from the apartment, nor connected to the area of the Carriage Drive Apartments by the use of the cell tower within a mile of that apartment, however. 1:95; L.23-25 (Walker). 17. Prior to receiving the information regarding the presence of a phone subscribed to Tsarnaev located and active within the apartment, the FBI has similar information suggesting that another of the phones subscribed to Tsarnaev was active at two locations about a quarter of a mile away within the entire apartment complex. 1:109, 24-25; 1:110, L 1-7 (Walker). 18. The FBIs investigation did not uncover any other evidence, at least none that was adduced at the hearing, which further connected Dias Kadyrbayev to any criminal activity. Witnesses interviewed that morning confirmed that the two were friends, and that Tsarnaev visited the Carriage Drive apartment. 1:99, L. 4-9 (Walker). As early as 9 a.m. that morning, that the State Department had identified Dias through a logical Internet search and suggested that he was closely associated with Tsarnaev; they also informed Agent Walker that a photo of the two of them had been removed from the internet at some point. 1:99-100 (Walker). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 6 of 68 7
19. The FBI also knew at this time that Dias lived at the 69A Carriage Drive apartment with someone called Azamat, and that they two were Kazakhstan nationals. 1:98, L. 22-24 (Walker). 20. SA Walker did not attempt to obtain a warrant to search the apartment 1;155, L. 25; 1:156, L. 6-17 (Walker), though there was certainly hours from the time the FBI first made the connection between the apartment address and phones subscribed to Tsarnaev (6 am); the use of one of the phones to send a message to Russia that day (information received at noon); and the confirmation that one of the subscribed phones was active inside the apartment and that Tsarnaev was friendly with Dias Kadyrbayev, a resident of the 69 A apartment. (by 1:00 pm). 1: 153 (Walker; infra). 21. The Government adduced no evidence that the FBI had an arrest warrant for Tsarnaev or that one had been sought. The first surveillance had started shortly before noon. 1:162, L. 19 (Walker). No testimony was offered to explain why, when law enforcement made contact with Dias around noon, no effort was made to speak to him or to have him exit the apartment on request. 22. SA Walker testified that the FBI Director made the decision to execute an exigent warrantless search. 1:102, L 21-25 (Walker). There was no evidence indicating, beyond the FBIs belief that Tsarnaev was in the apartment, that the apartment contained bombs or bomb making material produced at the hearing. Despite the claims of exigency, based on a danger to the surrounding neighbors and the public from both the presence of a felon and the possibility of bombs or explosives on the premises, there was no effort to move or evacuate the neighbors around 69 A Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 7 of 68 8
Carriage Drive or the surrounding buildings. 1:164, L. 11-19 (Walker) even though the apartment building itself had two apartments on each floor, and was located within a good sized apartment complex that was heavily populated. 1:165 (Walker). 23. HRT and Agent Walker briefed at the library at Dartmouth, and HRT briefed with local SWAT teams that integrated into their team to take perimeter duty, before Walker and HRT deployed to the apartment complex shortly before 5 p.m. 1:104. L. 12-18 (Walker). 24. In addition to HRT members, the Massachusetts State Police SWAT team (or the MSP STOP team) was at 69 Carriage Drive, as well as law enforcement agents who were part of the local JTTF. 2:5 (Walker). There were approximately 50 or 60 or even more tactical operators, and on the periphery, additional uniformed police officers from New Bedford, and ranking officers from the Rhode Island State Police. 2:6, L. 1-11; 1:166, L. 6-9 (Walker). 25. Photographs, introduced into evidence, establish that HRT members were clad in military style uniforms, with ballistic helmets, night vision goggles, and long arm semi-automatic weapons. (Exhibits 2A, B, C). 26. The JTTF team assembled in force outside that day was wearing clothing identifying them as law enforcement: either a police uniform, SWAT uniform, the HRT camouflage, or jackets bearing FBI or other agency insignia. All were armed, and weapons were pointed at the apartment and the occupants inside. Exhibits 2A, B, C; 2:6, 32-33 (Walker); 4:218-19 (Kadyrbayev). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 8 of 68 9
27. The HRT team focused laser-scoped long weapons on the occupants inside the apartment which meant that a laser beam would appear on the target. 2:10 (Walker); 4:219-20 (Kadyrbayev). Dias and Bayan saw these red laser dots appear on their heads and torsos, indicating that they might be shot at any moment within the apartment. 4:219-220 (Kadyrbayev). Dias was terrified, Bayan was crying. 2:220 (Kadyrbayev; Affidavit). 28. Within the apartment, Dias and Azamat put up their arms. 4:219-220, (Kadyrbayev). HRT used a loudspeaker to demand that Jahar Tsarnaev exit, and then, ordered the occupants to exit. 2:14 (Walker); 4:220 (Kadyrbayev). Dias was ordered to come out slowly, to take off his shirt and lower his pants, and to walk backwards with his hands on top of his head, before kneeling, all standard operating procedure for the HRT team call out. 2:14-15 (Walker); 4:220-22 (Kadyrbayev). 29. Dias was then handcuffed with plastic flexi cuffs behind his back. 4:221-222 (Kadyrbayev). He remained shirtless from that point on, from 5 pm that afternoon until nearly twelve hours later, when Walker returned Dias to the apartment, and he pointed out the shirt still lying in the grass outside the apartment. 2:16 (Walker). 30. It is not standard procedure to have a witness invited to assist law enforcement to remain shirtless for twelve hours, and the only other time one of the Government witness recalled such an instance involved an interview conducted in a persons home. 2:175 (Azad); 3:45 (Schiliro). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 9 of 68 10
31. Dias, Bayan and Azamat were placed separately in the back of three different police cars. Dias was still cuffed behind his back. The men were still shirtless. 2:20, L. 6-11 (Walker); 4:224 (Kadyrbayev). 32. Arrestees are normally not placed in vehicles with their hands cuffed in the back, as this particular method of securing a person is painful when in a seated position. 2:206, L. 3-7; 208 (Kelly). 33. There was no testimony that anyone told Dias that he was not under arrest. 34. Agent Walker went from car to car and questioned the three, without first Mirandizing them, at approximately 5:15 for Bayan, 5:20 for Azamat, and 5:25 for Dias. 2:20, L. 16-22 (Walker); 4:224-226 (Kadyrbayev). 35. Dias testified, consistent with his affidavit, that Agent Walker scared him when he approached Dias in the back of the car and began questioning him without Miranda, using profanity and speaking with great intensity. 4:225; (Motion to Suppress, Affidavit). Agent Walker confirmed that he spoke in a very firm voice, and was stern although he does not recall using profanity.(1:115; 2:71, Walker). He told Dias that his friends life was over but that his did not need to be, or something to that effect. 1:115; 2:71 (Walker). He demanded to know where Jahar was. (Id.). He asked Dias whether there was anything that would present a danger like a bomb or explosives to his men, who were entering the apartment. Dias told him that there were none, that Tsarnaev was not there and that he did not know where he was. 1:114 (Walker). Agent Walker perceived these statements as credible. (Id.). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 10 of 68 11
36. By 6 p.m. HRT had confirmed that Tsarnaev was not there. 1:119 (Walker). Walker wanted to continue talking with Dias, and he suggested that they relocate to MSP barracks, citing at the hearing the desire for a more discreet comfortable setting because there was a gathering crowd of media. 1:119 (Walker). He did not testify that safety concerns dictated the relocation, nor did he testify that in suggesting to Dias that they should talk at MSP barracks, he took care to tell Dias that the move was premised on safety concerns and that Dias was not under arrest. Rather, Walker testified that he believed that Dias would prefer not to remain in that location as press were appearing and there was a large crowd of people gathering and that all three students seemed eager to agree. 1:119. Walker testified that had Dias not consented to the transport he would have gotten authorization to arrest him for illegal presence because he wanted to talk to him. 1:40-41 (Walker). 37. Dias was never asked whether he would be willing to go to a discreet and comfortable location to answer more questions. 5:12 (Kadyrbayev). 38. Dias was not told that he was not under arrest. He was still cuffed, quite uncomfortably, with very tight flexi cuffs behind him, and he was still in the back of the car where he had been placed when Walker suggested that they go to another location, which is the police barracks. (Infra; Walker). 39. There is no evidence that Dias was offered the opportunity to make a phone call to alert family or friends where he is going, or to arrange transportation. There is no evidence that he was offered, or given the opportunity, to leave the car to retrieve his shirt, nor was one provided to him from the apartment. Walker Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 11 of 68 12
testified that Dias was not charged, was just a source of information, a witness, and that at all times he was free to leave, despite being cuffed, shirtless, in the back of a car guarded by an armed officer. 1:38-40 (Walker). 40. Walker was ware when questioning the boys after the extraction that they are cuffed 2:20 (Walker) and confirmed that Dias was cuffed and shirtless when he asked him to go to a more comfortable, discreet setting. 2:26 (Walker). Dias was then moved to marked police car, with a shield separating front and back, and with rear doors that do not open from inside. 2:27 (Walker): 4:227-28 (Kadyrbayev). The transport to MSP Barracks began around 6:20, over an hour and half after the occupants were ordered out of their home. 2:28 (Walker); 4:227- 28(Kadyrbayev). 41. En route to the police barracks, the car was turned around at Agent Walkers direction so that he could obtain consent from Dias to search the apartment. 4:228 (Kadyrbayev). 42. Dias was still inside the police car, in the rear seat, cuffed when Walker approached to obtain consent. 2:34 (Walker). Walker did not remove him from the car, nor did he remove his cuffs. 4:229 (Kadyrbayev); 2:34 (Walker). 43. In fact, the cuffs were not removed until after Dias had agreed to the search, and only then because Walker needed Dias to sign the form. 2:35. 79 (Walker). Walker clarified to the Court that he could not recall a discussion about New Bedfords safety protocols for transport, but that it was clear to him, based on what the officer had just witnessed, that the New Bedford police officer would have objected to transporting someone who had just been pulled out of a house by Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 12 of 68 13
HRT, so he simply acquiesced to the handcuffs. 2:81 (Walker). Walker never questioned or objected to the use of cuffs when he initially asked Dias if he would agree to the relocation, or when Dias was put in the car for transport still cuffed. Walker also knew Dias had been in restraints from the time HRT called him out of the house, and that Dias was going to be transported in cuffs to MSP barracks and did not then object or discuss the use of restraints with any officer. 2:89 (Walker). 44. Walker did not Mirandize Dias, nor did he tell Dias that he was not under arrest before asking for consent. SA Walker produced an FBI consent to search form and read it to Dias. 2: 34-35. 45. SA Walker provided Dias with the FBI search consent to search form to read and told him that they needed to check his apartment for safety, because Jahar may have left dangerous items. 4:230-231 (Kadyrbayev). 46. Dias again acceded believing that he did not have any choice. He just wanted to sign after his experience with Walker outside his house and his scary attitude. He could not sign the document, however, because he was still cuffed behind his back. 4:231 (Kadyrbayev). 47. The plastic flexi cuffs had to be cut. Agent Walker did not possess anything which could be used to cut the flexi cuffs, and had to search for something sharp before cutting off the cuffs while Dias remained in the back seat. 4:229 (Kadyrbayev); 2:35 (Walker). 48. Dias heard the officer ask Walker, Hes not under arrest so Im not going to cuff him right? Dias didnt hear what Walker said but the officer then put cuffs back Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 13 of 68 14
on in front and Dias proceeded to MSP barracks cuffed in front. 4:232-233 (Kadyrbayev). 49. At the barracks, Dias, still in cuffs, remained in the back of the car in the parking lot for over two hours. 4:234 (Kadyrbayev). 50. Dias was cold, clad only in shorts, and asked the police officer in the front of the car to turn up the heat. 4:236-237 (Kadyrbayev). 51. While waiting in the vehicle, Dias learned from the radio that police had finally located Jahar in Watertown. He asked the police officer up front whether he would be released now that they found Jahar. The officer told him that he did not know. 4:234-235 (Kadyrbayev); 2:18, 35, 50 (Schiliro). 52. Dias did not believe he could just leave after what happened at the house with the guns and intense questioning, and he never asked to leave because it was clear he couldnt. 4:236 (Kadyrbayev). 53. Finally, Dias was removed from the car and escorted into the building by multiple law enforcement officers. His cuffs were still on. 4:237 (Kadyrbayev). 54. At the point that he is led into police barracks, Dias had been in custody for four hours. 55. The cuffs were not removed until Dias was inside the building. He held up arms up to have them taken off but was told he had to wait and they came off only after he was secured in a room beyond the public area. Agents asked if he needed to go to the bathroom. 4:237-238 (Kadyrbayev). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 14 of 68 15
56. Dias was not permitted to use the bathroom on his own. He was led to the bathroom door, which Agent Schiliro kept propped open once Dias was inside. 4:239 (Kadyrbayev); 3:40 (Schiliro). 57. When he was finished, Dias was then escorted to the interior of police barracks, through a secure door that required an officer inside the reception area to first buzz open. The testimony was unclear whether this door was locked from both the inside and outside requiring a buzzer for egress and ingress. 3:38 (Schiliro); 2:165 (Azad) The Waiver Massachusetts State Police Barracks 58. Agent Azad testified that he told Dias that they wanted to speak to him, that he wasnt under arrest, and that he would need to sign a form for them. (2:128). 59. That form, (Exhibit 4, 2:129) appears to be a standard FBI form, and it bears signatures and times indicating that the form was presented at 9:08 p.m. and signed at 9:14 p.m.. 60. Agent Schiliro read from start to finish, without stopping after each right. (2:130; 3:22, L.21-24) He did not explain each right or confirm after reading each right that Dias understood. (Id.) 61. Agent Azad testified that he also provided some ground rules to Dias that would go along with the interview should Dias sign the waiver; it was not clear whether this preceded or followed Agent Schiliros reading. (2:130). 62. Dias asked if he needed a lawyer. (3:22, L.24; 3:44, L. 22; 3:45, L. 7-8.)(4:240). He was told that he was not under arrest that he was just helping out and that he did not need a lawyer. 2:240-1 (Kadyrbayev). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 15 of 68 16
63. Agent Azad testified that he would not be able to give him any legal advice. 2:130 (Azad). 64. Agent Schiliro did not ask Dias if he understood the rights. (3:23). 65. Agent Schiliro testified after he gave Dias the form, Dias appeared to read the form, and that he agreed to speak and signed the Advice of Rights (3:23). He did not confirm that Dias had in fact read each right, nor did he ask Dias if he understood his rights then. (3:45). He only asked Dias again, if he had any questions. (Id.). 66. Dias did not understand that he had the right to refuse to speak with the Agents and was never informed of this right. 5:15 (Kadyrbayev). 67. Dias conversed with the agents in English. Dias English proficiency level was Low Intermediate on the ACTFL Proficiency Guidelines at the time of the interrogation. 4:24 (Pavlenko). This corresponds generally to Dias combined score on his IELTS testing was 5.5, indicating that he should not have been enrolled in any academic or linguistically demanding language classes, and which qualified him only for low level ESL, or English as a Second Language classes, and would have precluded him from performing in an academic setting where only English was spoken. 4:17, 19 (Pavlenko). 68. Someone at the Intermediate level of proficiency would be able to participate in a wide range of conversational exchanges, and exchange information on topics that are familiar, using high frequency words and relatively simple structures. (4:25). Low Intermediate users can appear proficient, especially if they are younger individuals using colloquial English. 4:25 (Pavlenko). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 16 of 68 17
69. The Advice of Rights form corresponds in structural and lexical complexity to Distinguished on the ACTFL Guidelines. 4:33 (Pavlenko). A Distinguished level of proficiency enables a person to process information that is dense, highly abstract, contains low-frequency words, and relies on cultural knowledge and framework. (4:34). 70. Dias did not have the necessary level of language proficiency to understand the Miranda warning; his proficiency was level Low Intermediate and the level of proficiency required to comprehend the Advice of Rights is Distinguished. (4:34-35). 71.The agents encountered objective evidence of Dias proficiency level. Dias had trouble with certain words, and could not find the words for certain things in his conversation with agents. (2:181). Agent Azad would, at times, try and work around Dias lack of ability to communicate certain words, and would suggest words to him. (2:181). 72.When attempting to work around these difficulties, Dias used drawings, and hand gestures, and noises, such as when describing fireworks. 2:185, 186, 189 (Azad). (Id). Words like dumpster, fireworks and fuse could have been examples of words Azad or Schiliro used in the 302 after discussion with Dias about what he meant, as opposed to repeating words that Dias himself used. 2:190 (Azad). 73.During the interrogation, Dias mentioned that he was cold because he was still shirtless, but none was provided. 4:242 (Kadyrbayev). Dias was also exhausted from lack of sleep, and visibly nodded off putting his head on the table and later asking if he could sleep. 2:175 (Azad). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 17 of 68 18
74.Dias repeatedly asked if he could see Bayan, but was refused to see or speak with her. 75.Dias had no phone, wallet, or any means to independently leave the barracks. 2:86 (Walker). 76.Dias did not believe that he could leave as he was closely monitored at all times, and could not leave the room. 4:254 (Kadyrbayev). 77.Dias was questioned from roughly 9:14 pm until shortly after midnight. 78.According to Azad, the interview lasted approximately three-and-a-half (3 ) hours after the advisement process and concluded around 12:30a.m., whereas Dias recalls the interview concluding closer to 1:00a.m., which Agent Schiliro does not dispute. 2:135, 139 (Azad); 3:23-24 (Schiliro); 4:251 (Kadyrbayev). During the interview, after being advised of safety concerns by the agents, Kadyrbayev consented to the search of his vehicle, a BMW, his Macbook Air laptop, and an external hard drive. See Exs. 5 & 6; 2:134, 137-138 (Azad); 4:250 (Kadyrbayev); 3:26-27 (Schiliro). 79.During this interrogation, Dias was presented with and asked to sign a consent form for a search of his computer and car; again, he was told that agents had to make sure that Jahar did not leave anything dangerous behind. 80.Even after the interrogation, Dias was not permitted to leave. Agents were searching for the backpack. When agents returned, Walker decided that he had to release Dias even though he had probable cause for arrest for obstruction because he had not yet heard back from the prosecutors and he did not want to expose his agents. 2:82 (Walker). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 18 of 68 19
81.After more than six (6) hours in custody, during which the agents were trying to obtain permission to charge the defendants. 2:58-59, (Walker). Azamat remarked to Walker that he feels like they are being held against their will. 1:133, (Walker). The defendants were driven home around 5:00a.m. 2:74 (Walker); 4:258 (Kadyrbayev). 82.Dias was transported back to his apartment around 4:30 am. 83.He was not cuffed. 84.Dias had been in custody for almost twelve hours at this point. 85.Agents returned him to the apartment and went inside to conduct a safety check. 86.While in the apartment, agents retrieved an ashtray and hat. The Government Returns to Carriage Drive with Immigration Agents 87.After Dias was returned, surveillance of the home was set up by the FBI. 88.HSI and the FBI were aware that Dias was out of status. As a nonimmigrant here on a student visa, he was required to maintain his status as a student. HSI agent Valentine was told that he did not need to address Dias possible overstay on the afternoon of Friday, April 18, because it was all set, just do what youre doing. 3:208 (Valentine). The next day, on the morning of the 20 th , HSI agents were notified to convene for purposes of arresting Dias. Id; 2:202 (Kelly). 89.Agent Walker had been instructed to meet up with the agents and the FBI surveillance team. 2:64 (Walker). He advised his supervisor that surveillance had observed two males leaving the apartment, and that MST (FBI surveillance) would put them in place and would arrest them in the region. (2:66); FBI and Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 19 of 68 20
HSI were fully integrated. 2:66 (Walker). 90.HSI Agents met at the JFK building, and then later, convened at a local Dunkin Donuts for an overview of how the arrest would be effected, a meeting at which Agent Walker was present. 2:64 (Walker). Walker also communicated with his supervisor regarding his presence at the arrest planned for later that day that It will be fine because theyll probably think that Im just there for a follow-up from yesterdays interview. (2:66). 91.Agent Valentine obtained consent to enter by asking an occupant who came to the back door if he could come in because of the presence of media. (2:210). Whoever that was let Valentine in and he asked if they would permit his people out front in as well because agents just had to ask some questions. (2:211). 92.The HSI agents were wore jackets and/or bullet proof vests with police markings, and carried guns and cuffs. 2:200 (Kelly); 2:218 (Wiroll). Agents knew that Dias was alleged to be an associate of Tsarnaev. (Id.). 93.Dias, Azamat, Bayan and Dias mother were all told to sit on the couch. 2:203 (Kelly); 2:213 (Valentine). They were not permitted to get up to obtain I dentification but instructed to tell agents where to find the necessary documents. 94.Before Dias could be arrested, HSI agents had to confirm whether or not they were in status. Even if SEVIS states that the person is not in status, it is possible that the persons situation has changed, that the person has filed for a petition or has some other legal basis for remaining in the country. 2:204 (Kelly). HSI agents do not arrest on first encounter, because it is not certain that there is a basis for arrest until there are follow up questions and checks to confirm the SEVIS status. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 20 of 68 21
2:204 (Kelly); 2:209 (Valentine) 95.Dias was arrested administratively after about forty minutes and placed in shackles before being transported. 2:215 (Valentine); 3:59 (Wiroll). No one told Dias that he was under arrest, only that he had to come back and sort out his status. 2:216 (Valentine); 3:61,78 (Wiroll) 96.Dias was therefore surprised he was handcuffed. (Id.). Wiroll told him cuffs were necessary for transport, but he was cuffed in front, with shackles, because back- cuffing is extremely uncomfortable and not appropriate if someone is being seated. 2:215 (Valentine); 2:208 (Kelly); 3:61 (Wiroll). 97.The administrative arrest warrant was issued at 10:00 p.m., that night, after Dias had been transported to HSI offices. 98.Wiroll placed Dias in a room and started paperwork. He had not processed Dias when FBI agents were provided access to Dias around or shortly after 5:00 p.m.. (3:62). 99.Azad and FBI Agent Timothy Quinn (Quinn) interviewed Dias again at the Tip ONeil Federal Building on April 20, 2013, 2:151 (Azad); 3:62 (Wiroll). During that interview, Azad handed Dias the form, indicated it was the same one as yesterday, 4:271 (Kadyrbayev), and then Quinn reviewed the Miranda advisement form and it was signed at 19:11. 2:152-153, (Azad); 3:8 (Quinn); 4:273 (Kadyrbayev). Prior to reviewing the form, however, Dias again asked if he needed a lawyer and, again, Azad told Dias that he was not in their custody. 4:272, (Kadyrbayev). Dias was interviewed for 30-40 minutes. 4:273 (Kadyrbayev). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 21 of 68 22
100.Wiroll himself did not speak with Dias until shortly after midnight the following day. (3:63). 101.During the interview, the consulate officer was present. 3:63 (Wiroll). 102.Wiroll began the meeting with reading a Miranda card as well as the advice of rights in the Notice to Appear. (3:66). 103.Wiroll testified that the counsulate officer, Yerlan Kubahev, translated immigration documents for Dias in his native language. 3:74 (Wiroll, Exhibit 9). The Consulate official translated documents, and provided Russian interpretation to Dias. 3:75 (Wiroll). 104.During their interactions, HIS agents utilized a translator on two separate occasions. First, on April 20 th , the Consular official translated and again when the documents were re-served on April 23 rd in Dias native Russian language. 3:75 92, (Wiroll); 4:274-275 (Kadyrbayev). 105.Agent Wiroll had been given two pages of a draft 302 by the FBI agents from the previous days interview of Dias. (3:80-81). Wiroll admitted that in the six years he had been at HSI, picking up students for potential violations, this was the first time FBI shared information in this fashion; it was not the usual practice. (3:81-82). His job with regard to this arrest was to confirm that there was a violation of the F1 Student visa. (3:83 Wiroll). The information in the draft 302 had nothing to do with a student visa violation. (3:82-83). According to him, the information from the draft 302 was nevertheless included on the Notice to Appear as background information about how I encountered the individual and how they are out of status. (3:83). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 22 of 68 23
PROPOSED CONCLUSIONS OF LAW: FIRST PROPOSED CONCLUSION DIAS KADYRBAYEV WAS ILLEGALLY ARRESTED ON APRIL 19, 2013, AND THE SEARCH OF HIS HOME WAS SIMILARLY UNSUPPORTED BY PROBABLE CAUSE, OR TRUE EXIGENT CIRCUMSTANCES
The Government asks this Court to do what the Supreme Court has never done, which is to apply the less onerous reasonable suspicion standard of Terry v. Ohio, 392 U.S. 1 (1968) to the warrantless entry of a home to conduct a search and to seize Dias Kadyrbayev without probable cause. It does so, perhaps believing that the significance of the crimes being investigated unburdens them of the Fourth Amendments requirements, even when the intrusion is made in the home. However, the forcible removal of a person from his home, and the transportation of this person for interrogation at a police station, by definition is not the kind of minimal intrusion that Terrys balancing test contemplates, and such seizures and searches within the home must rest on probable cause. Indeed, the Governments argument has been made, and rejected, by the Supreme Court on multiple occasions. See, e.g. Dunaway v. New York, 442 U.S. 200, 212 (1979) (rejecting application of Terry and reasonable suspicion standard to removal of suspect from a residence for transport to a police station for questioning, and requiring probable cause); Hayes v. Florida, 470 U.S. 813, 817 (1985) ( recognizing that forcible removal of a person from his home, for transport to a police station for even a brief investigatory detention requires probable cause, not reasonable suspicion); Kaupp v. Texas, 538 U.S. 626, 630 (2003) (forcible removal of 17 year old suspect from his home, without probable cause or warrant, for interrogation at a police station violated the Fourth Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 23 of 68 24
Amendment). As the Supreme Court observed in Kaupp, [a]lthough certain seizures may be justified on something less than probable cause, see, e.g., Terry v. Ohio.we have never sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposesabsent probable cause or judicial authorization. Id. at 630, quoting Hayes, supra, 470 at 815 (emphasis added). A. The Search and Seizure Occurred In the Home, not Outside, and was One Continuous Fourth Amendment Violation
In an attempt to avoid the inevitable conclusion that forcible removal from the home for interrogation can never rest on reasonable suspicion, the Governments Brief and Argument focuses on the stop outside the Carriage Drive apartment, after Dias and the others emerge from their apartment at gunpoint, surrounded by heavily armed tactical operators. It does so because a warrantless search and seizure in the house requires the Government to demonstrate probable cause. Payton v. New York, 455 U.S. 573 (1980) (searches and seizures in home require probable cause). This it cannot do. The Government concedes that at the time of the call-out, there was only reasonable suspicion, as the record does not support a finding of probable cause to believe that Tsarnaev was located within the home at that time, or to believe that Dias Kadyrbayev had committed a felony. The Government has further asserted during the hearing that the FBI always possessed probable cause to arrest Dias because his student visa had been canceled, arguing that illegal presence was a basis for arrest, perhaps hoping for the inference that his status would also provide a basis for entering the home. Even assuming law enforcement had confirmed that Dias was out of status at that Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 24 of 68 25
point, illegal presence is not a crime as the Supreme Court itself has recently held. Arizona v. United States, __ U.S.__, 132 S.Ct. 2492, 2505 (2012), citing, INS v. Lopez- Mendoza, 468 U.S. 1032 (1984); see also, Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir. 2011) (Nor is there any other federal criminal statute making unlawful presence in the United States, alone, a federal crime...) Gonzales v. City of Peoria, 722 F.2d 468, 476-77 (9th Cir. 1983) (illegal presence is only a civil violation.), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037(9th Cir.1999). In fact, the Supreme Court seems to have obviated the Governments argument that Dias student visa problems authorized the police to search his home, or to arrest him, observing in Arizona that if the police stop someone based on nothing more than possible removability, the usual predicate for an arrest, meaning probable cause, is absent. Id.; see also, Ortega-Melendres v. Arpaio, 836 F.Supp.2d 959, 973(D.Ariz. 2011) (actual knowledge...that an alien is illegally present is not sufficient to form a reasonable belief that he has violated federal criminal immigration law). The issue before the Court is thus not whether Dias detention constitutes a permissible investigatory stop because by definition, it is only[w]hen the nature and extent of the detention are minimally intrusive of the individuals Fourth Amendment interests, [that] the opposing law enforcement interests can support a seizure based on less than probable cause. United States v. Place, 462 U.S. 696, 703 (1983) (emphasis added), citing Terry v. Ohio, 392 U.S. at 34. Dias forcible extraction from his home, the circumstances of his detention at the scene and his transport to police barracks for questioning is far from a minimal intrusion. The Terry calculus, which takes into account both the nature of the privacy interest and its quality, simply cannot be applied Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 25 of 68 26
where police have made a warrantless entry and seized a person in his home where a societally sanctioned expectations of privacy are at their strongest. See Lalonde v. Cty of Riverside, 204 F.3d 947 (9th Cir. 2000) citing Arizona v. Hicks, 480 U.S. 321, 327- 328 (1987) (holding that probable cause is necessary for dwelling place searches as well as seizures where officer within home searched stereo in plain view after lawful exigent entry). Understandably, the Supreme Court has defined a minimally intrusive seizure as one that occurs in public, and is brief. United States v. Winsor, 846 F.2d 1569, (9th Cir.1988), citing Terry v. Ohio, supra; United States v. Hensley, 469 U.S. 221, 229 (1985). The Governments position is that the search here was HRTs warrantless sweep of the home after Dias was called out, and that the seizure occurred when he was taken into custody, is not supported by the facts or law. Rather, the Fourth Amendment inquiry begins when the HRT/JTTF team assembles outside the apartment building. The search is the HRT call-out which compelled the occupants to reveal their presence and identity. The seizure is the moment that Dias submitted to the show of authority and force of the tactical team assembled outside and targeted him inside with laser scoped rifles. See California v. Hodari, 499 U.S. 621, 626 (1981) (arrest requires either physical force or a submission to authority); United States v. Smith, 423 F.3d 25, 28 (1st Cir. 2005) (acknowledging that seizure can occur without physical restraint where coercion requires compliance). Under the circumstances presented here, a reasonable person would not feel free to leave, decline the officers requests, or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 435 (1991), quoting Michigan v. Chesternut, 486 U.S. 567, 574 (1988). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 26 of 68 27
If there could be any doubts, a summary of the facts will dispel them. Agent Walker confirmed that a large tactical force of over fifty HRT and SWAT team members along with additional local and state police officers and FBI agents established a perimeter surrounding Dias apartment, hardening the soft perimeter in place since sometime around noon that day. These operators were outfitted in tactical gear, which included ballistic helmets, night vision goggles, bullet proof vests and semi-automatic long arm weapons. (2:6, Walker); (4:220, Kadyrbayev). Exhibits 2A, B, and C confirmed the visual appearance of the SWAT/HRT members, described by Dias in his affidavit and later by Agent Walker. (1:166, 2:32, Walker; 4:219-20, Kadyrbayev). In addition to the presence of multiple armed law enforcement officers and the tactical force, there were numerous police vehicles, unmarked SUVs, and an armored tactical vehicle outside the apartment building. (1:166, 2:6, Walker). There was no possibility of egress or flight. In addition to this display of authority, the occupants of the apartment building also faced another significant threat. The tactical team aimed the laser scopes on their rifles at Dias and Bayan inside the apartment, which resulted in visible red laser dots appearing where the weapon is pointed. (2:11, Walker; 4:220, Kadyrbayev). Just as these red laser dots were apparent to the operators outside the apartment, they were also apparent to the occupants, who observed the dots on each others heads and torsos. (Id). Aware that they were being targeted, and that the laser sighting was the equivalent of being in the crosshairs of a semi-automatic weapon within their own home, Dias was justifiably terrified and afraid to move. Bayan began to cry. Azamat, and then Dias and Bayan put their hands in the air.(4:219-20, Kadybayev). The tactical operators outside Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 27 of 68 28
screamed at the occupants to keep still and not to move; Dias was afraid that they might shoot at any moment, as it was raining and dark that day, so he tried to be still. (4:220, Kadyrbayev). The operators ordered Jahar out of the apartment, with words to the effect that he was surrounded, and to exit and no one would get hurt. (2:12, Walker; 4:221-22, Kadyrbayev). Then the operators ordered out the occupants using a bullhorn, or loudspeaker one by one. ( Id.; 1:221, Kadyrbayev; 2:14,Walker). They complied, following each and every instruction. Dias feared that at any moment, he could be shot. (4:220, Kadyrbayev). Dias testified that he was forced to take his shirt off, drop his pants, and he was brought to the ground on his knees so that he could be cuffed, as questions were shouted at him. (4:222-23, Kadyrbayev). The terrifying display of overwhelming force outside the apartment, the targeting of its occupants, and the command to exit over a loudspeaker would compel any reasonable person, in similar circumstances, to believe that he was not at liberty to disregard the police. United States v. Mendenhall, 446 U.S. 544, 554 (1980) (citing, as examples, the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen or the use of language or tone of voice indicating that compliance with the officers request might be compelled.). It does not matter that HRT had not yet crossed the threshold of the apartment; forcing the lawful residents of a home to leave, under threat of laser directed, high-powered rifles and an overwhelming show of force, is the equivalent of a forcible entry by the officers themselves. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 28 of 68 29
Indeed, as a practical matter, Dias was already under arrest when he emerged from his home in submission to the show of force and the verbal commands of the tactical team. United States v. Morgan, 743 F.2d 1158, 1164, quoting Florida v. Royer, 460 U.S. 491, 503 (1983) (rejecting description of encounter between defendant and police as investigatory stop where nine police officers and several patrol cars surrounded his residence in the dark, blocked his car and ordered him out on bullhorn); see also, Sharrar v. Felsing, 128 F.3d 810, 819-20 (3d Cir. 1997) ([W]hen a SWAT team surrounds a residence with machine guns pointed at the windows and the persons inside are ordered to leave the house backwards with their hands raised, an arrest has undoubtedly occurred.), abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir. 2007); United States v. Saari, 272 F.3d 804, 808-09 ( 6th Cir. 2001) (defendant under arrest from the inception of his encounter with police officers where multiple armed officers positioned themselves in front of the only exit from the apartment with guns drawn, knocked and announced their presence, and ordered him outside when he opened the door); United States v. Al-Azzaway, 784 F.2d 890, 893 (9th Cir. 1985) (defendant arrested where officers surrounded trailer with weapons drawn and ordered through a bullhorn to leave and drop to his knees); United States v. Maez, 872 F.2d 1444, 1450-2 (10th Cir. 1989) (Presence of ten officers, drawn weapons of SWAT team surrounding the residence, use of loudspeakers ordering occupants out constituted invasion of privacy interest in home and resulted in arrest). This was, pure and simple, a warrantless search and arrest within the home, without probable cause, trespassing the most basic and longstanding rule of the Supreme Court with regard to the Fourth Amendment and the home. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 29 of 68 30
B. The Government Failed to Demonstrate Exigent Circumstances Where It Has Not Proven the Necessary Probable Cause
The Government describes Dias extraction as a summoning from the apartment, and addresses only the physical search of the apartment after Dias is in custody outside, asserting that the warrantless search was justified under the exigent circumstances. The Government does not assert that there was probable cause, conceding that the extraction and search was premised only on reasonable suspicion that Dzhokhar Tsarnaev was there. Even with an arrest warrant for Tsarnaev, the Government would have needed probable cause to believe that he was in the house, because it was not his residence, as well as either a search warrant for the house, or exigent circumstances. United States v. Steagald, 457 U.S. 204, 123 (1981). Here, the Government had no arrest warrant, no search warrant for the 69 A Carriage Drive residence, and most importantly, produced no evidence at the hearing to establish that probable cause existed that Tsarnaev was present, that bombs or other dangerous materials were present, or that the occupants were engaged in the commission of a felony. Clearly, warrantless searches and seizures inside a home are presumptively unreasonable, see Payton, supra, 445 U.S. at 586, and thus the Government must demonstrate the existence of probable cause, and some exception to the warrant requirement. One without the other will not permit the intrusion into the home. Probable cause, alone, is not sufficient to search or seize within the home. Even where there is probable cause to believe that evidence of a crime, or in this case, a person, will be found within a private dwelling, the constitutional protections afforded to an individuals privacy interest in his own home outweighs the governments interest in crime prevention. United States v. Samboy, 433 F.3d ,153, 158 (1 st Cir.2005), citing, Payton, Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 30 of 68 31
supra, at 588-89. Similarly, the Government cannot rely on exigent circumstances to justify a warrantless search or seizure within the home, without demonstrating probable cause as well. See United States v. DAndrea, 648 F.3d 1. 11 (1st Cir.)(exigent circumstances is an exception to the warrant, not probable cause requirement. ) citing Brigham City v. Stuart, 547 U.S. 398, 403 (2006); United States v. Wilson, 36 F.3d 205, 2908 (1st Cir. 1994). To cross the apartments threshold, [the agents] needed (1) probable cause to believe that contraband or evidence would be found inside, and (2) exigent circumstances justifying an exception to the warrant requirement, allowing him to enter without first obtaining a warrant. Wilson, supra, 36 F.3d at 208; see also, Kirk v. Louisiana, 536 U.S. 635, 636 (2002) (warrantless entry unlawful unless both probable cause and exigent circumstances exist); United States v. Tibolt, 72 F.2d 965, 969 (1st Cir. 1995) (holding warrantless entries of private residences barred in the absence of exigent circumstances and probable cause), citing United States v. Curzi, 867 F.2d 36, 41 (1st Cir. 1989). The Government bears the burden of proving exigent circumstances. United States v. Baldacchino, 762 F.2d 170, 176 (1st Cir.1985). Exigent circumstances does not redeem the Fourth Amendment violation that began here inside the home when HRT commands the residents to exit a private dwelling because the Government did not demonstrate probable cause. The Governments only asserted basis for probable cause adduced at the hearing was Dias alleged illegal presence by way of his student visa problems, which is a civil, not criminal, violation that would not provide probable cause for an arrest on criminal charges, or, in this case, the probable cause necessary to make a warrantless arrest and search within the home. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 31 of 68 32
Arizona v. United States, supra, 132 S.Ct. at 2505. As for the warrantless entry and search of the home after Dias was detained outside, the police had only a suspicion that Tsarnaev was in that home, as the Government again concedes. This suspicion was not confirmed by the surveillance that spanned well over five hours. No one saw Tsarnaev flee into the home, and police did not chase him into that residence in hot pursuit. United States v. Santana, 427 U.S. 38, 42 (1976)(recognizing the right of police, who had probable cause to believe that an armed robber entered a house a few minutes before, to make a warrantless entry to arrest the robber and search for weapons under exigent circumstances exception). Their suspicion of his presence instead rested on the information they had begun gathering as early as 10 a.m., and collated by 1 p.m. that afternoon about the cellphones, the friendship between Dias and Jahar, and Jahars visits to the apartment. Notably, Agent Walker and his team were simultaneously in possession of information that undercut the inference that Tsarnaev was in that location at that time. First, surveillance of the apartment from noon on had not confirmed Tsarnaevs presence or any other suspicious activity. Dias was aware that police wanted to speak to him about Tsarnaev, and had given police his address earlier that afternoon. (4:216-17, Kadyrbayev). No one attempted to flee, or leave the apartment. Although one of the phones subscribed to Tsarnaev was emitting a signal from the house, it was not the phone that had substantial communication with Tamerlan Tsarnaev immediately before the bombing, and its connectivity with Jahar was hours before the bombing. (1:95-6 Walker) Moreover, although the FBI had obtained every piece of data available regarding the phones, the Government adduced no evidence that this phone had connectivity with Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 32 of 68 33
Tamerlan at any point, nor did they demonstrate that this phone showed connectivity with Tamerlans wife sister, or parents, which one would expect if the phone were in fact a phone used by Jahar (1:149, Walker). The Government also failed to present evidence that gave rise to the suspicion that there were bombs, bomb making materials, or anything dangerous within the home. Agent Walker did not provide any specific, articulable facts establishing the basis for such a suspicion. Indeed, the belief that such items might be within the home was premised solely on the belief that Tsarnaev was in the home, (1:102, Walker). And as there was no probable cause for this belief, there was no probable cause that would justify a search of the apartment on the basis that there were bombs, guns or other dangers that put police, the residents and the public in immediate danger. C. The Government Failed to Demonstrate True Exigence Exigency involves a compelling necessity for immediate action as w[ould] not brook the delay of obtaining a warrant. United States v. Wilson, 36 F.3d at 209. (citation omitted). In the Hearing, the Government thus had the burden of demonstrating the existence of the compelling necessity for immediate action. They did not. When the Director of the FBI gave authorization at 4:39 p.m. for an exigent search, it was on the basis of the same information possessed at 1 pm; no new information or development created an exigency at that time for immediate action. Many hours had passed from the time the FBI developed the information and set up a perimeter. There was ample time to present the information to a neutral and detached magistrate to obtain a search warrant as AUSAs were assigned to the JTTF and the entire system was on alert and available. Notably, that very afternoon, the Government secured warrants Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 33 of 68 34
for the search of the Tsarnaev brothers social media accounts to search the two cars associated with the family, and the Tsarnaev home 2 . Walker testified that HRT had been flown up specifically for the investigation, and that he met with HRT and other participants in the JTTF off site to develop a plan of assault and coordinate the outer perimeter of local police who had created a soft perimeter early that day. Although he stated that the continued presence of Jahar would present a danger to neighbors, the agents had not confirmed that he was in fact, present, nor had any attempt been made to evacuate or clear the surrounding apartments or any occupants over the course of the afternoon. Further, agents had the opportunity to speak with Dias at noon, when he identified himself, and gave his location and phone number, to the officer interviewing his friends, which itself would have alerted Tsarnaev, had he been there, to the interest of the police in Dias and the probability the FBI would be coming to the apartment. It would be more likely at this point that there would be a danger presented, because Tsarnaev would likely flee, knowing the FBI was coming to him. Thus there was no urgency to the Governments actions five hours later. See United States v. Curzi, supra. Here, there was a span of hours before the exigent search was authorized. Agent Walker and his team met off site to plan the raid, and assign positions and discuss the logistics. The legitimacy of law enforcements desire to neutralize a roaming threat to the security of the citizens of Boston who had already killed multiple people and engaged police in a firefight is not questioned, nor is the dedication of those seeking to protect and serve. The burden of proof, however, of justifying an intrusive search without a warrant rested on the Government, and in this respect the Government did not adduce sufficient
2 Tsarnaev filed Document #303, 1:13-cr-10200-GAO; warrants under seal Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 34 of 68 35
proof either of probable cause or imminent danger. The Courts decision that under the facts in this case, the burden to demonstrate exigent circumstances has not been met will not and cannot create a slippery slope that will hinder police action in response to a similar situation in the future. The Governments position has been that the Court may find that the probable cause and exigency prongs of the exigent circumstances doctrine are satisfied merely upon a showing that the FBI had reasonable suspicion to believe that Tsarnaev was in the Carriage Drive Apartment. In fact, the Fourth Amendments protection of the home requires much more than this, and in this case, the Governments concession that there was only reasonable suspicion, combined with an objective absence of probable cause on the record the Government, compels this Court to suppress all statements and evidence derived from the illegal search and seizure that resulted from the call out. SECOND PROPOSED CONCLUSION
DIAS KADYRBAYEVS DETENTION CONSTITUTED A DE FACTO INVESTIGATORY ARRREST
Assuming for purpose of argument that this Court accepts the Governments factual and legal positions with regard to the search and seizure within the home, the Court is left to determine whether the detention outside the home was a proper investigatory stop. Even under the Governments investigatory detention after compelled extraction from the home gloss of the Fourth Amendment and the probable cause requirement, the circumstances of Dias detention outside the apartment, and his transport to the police barracks, nevertheless transcended the boundaries of any reasonable investigatory detention under Terry. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 35 of 68 36
While no scientifically precise formula can determine whether a Terry stop rises to the level of a formal arrest, United States v. Trueber, 238 F.3d 79, 93 (1st Cir. 2001) (internal quotation marks omitted), the Courts ultimate inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Thompson v. Keohane, 516 U.S. 99, 112 (1995) (internal quotation marks omitted). It is true, as the Government asserts repeatedly, that neither handcuffing nor other restraints will automatically convert a Terry stop into a de facto arrest. United States v. Quinn, 815 F.2d 153, n.2 (1 st Cir. 1987). Similarly, the use of weapons, without more, will not automatically elevate a stop to a de facto arrest. United States v. Trullo, 809 F.2d 108, 113 (1st Cir.), cert. denied, 482 U.S. 916 (1987). In this case, however, we are not talking about the use of weapons and handcuffs, without more. The something more here is the use of a variety of coercive measures, for a significant time period, and in a manner that is simply not indicative of a minimal intrusion. The cases the Government cites in support of the claim that the intrusive protective measures utilized to detain Dias amounted to nothing more than an investigatory stop are not persuasive because none evidence the confluence of highly intrusive and coercive elements here, for the period of time that these measures were put in place. This was not a brief stop, nor was the intrusion into Dias liberty interests minimal or limited. Dunaway, 443 U.S. at 210-11 (distinguishing the de minimis intrusions of Terry stop). First, forcible removal from the home that signals the detention was not in a public place, and Dias relocation to a police station was not a removal to a neutral location for purposes of safety; it was a police barracks, and the Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 36 of 68 37
purpose was to interrogate him. Dunaway, supra; Kaupp, supra. Second, the use of protective measures here, even if reasonable, were not temporary, or brief in duration. See United States v. Rabbia, 699 F.3d 85 (1st Cir. 2012) (officer who drew his weapon as he approached drug suspect seated in car with lower half of body hidden alone, and used cuffs only temporarily to effect a weapons frisk, did not convert Terry stop into an arrest); United States v. Meadows (officers use of cuffs to conduct Terry stop where he had reasonable concerns for safety coupled with short duration of investigatory stop five minutesprecluded finding of arrest). While United States v. Sharpe, 470 U.S. 675, 685-86 (1985), expresses the Courts reluctance to put in place an artificial time limit on what is a reasonable detention, its determination that the ninety minute detention in Place is a patently unreasonable detention ([t]he length of the detention of respondents luggage alone precludes the conclusion that the seizure was reasonable) remains the law. United States v. Place, 462 U.S. 696, 709-710 (1983). More importantly, the duration cases cited by the Government as proof that a lengthy detention does not require a finding of arrest do not involve a detention of this length under such coercive conditions, and without anything to ameliorate a suspects reasonable conclusion that he is, in fact, not free to go. The Governments claim that the intrusions of Dias liberty were justified by the need for officer safety, and reasonable because the FBI were investigating a serious crime, also falls short. By the time Dias was placed into the police unit, HRT had already confirmed that he was not armed: they forced him to remove his shirt, to lower his pants, and then thoroughly frisked him and cuffed him before placing him in a police vehicle. Any reasonable suspicion that he might have been armed when he came out of the Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 37 of 68 38
apartment was thus extinguished even before he was placed in the vehicle. See United States v. Mohammed, 630 F.3d 1 (1st Cir. 2010) (use of cuffs and drawn weapons to effect Terry weapons frisk of shooting suspect did not constitute arrest where measures warranted by suspicion involved in shooting and defendant detained briefly before gun found). Nevertheless, Dias was kept, shirtless, cuffed and secured in a police vehicle by heavily armed agents when SA Walker questioned him, and thereafter, even after the investigatory questions had ceased and no additional information supporting probable cause of a criminal violation was to be had. The only time the cuffs were removed, albeit temporarily, was when Dias signed the Consent to Search form. Once that was done, the cuffs were once again put back on. The reasonableness test applicable in a Terry stop analysis is irrelevant because that test presupposes that the seizure under scrutiny was, on the whole, a less intrusive measure than an actual arrest. United States v. Acosta-Colon, supra, 157 F.3d at 14, citing United States v. Quinn, 815 F.2d at 156. The Government brushes away the extremely intrusive and coercive measures to effect and maintain the detention on the proposition that the use of these protective measures to effect the purposes of the intrusion, which was, at that time, the determination of whether Tsarnaev (or any other danger) was present in the house, was reasonable. Yet the Government concedes that by approximately 6 pm, HRT had confirmed what Dias, Bayan, and Azamat had told SA Walker in response to his interrogations of each, conducted from 5:05 until roughly 5:25, namely, that Tsarnaev was not in the Carriage Drive apartment and neither were there any bombs or other dangers. The interrogation produced no other additional information which supplied the basis for further detention of Dias on the grounds that he had Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 38 of 68 39
committed a criminal offense. As Agent Walker testified, he believed that Dias could provide additional information about Tsarnaev, and that the FBI was very interested in obtaining this information. He did not provide any facts supporting a reasonable suspicion warranting continued detention. What the court is left with is SA Walkers desire to interrogate Dias. Dias had been in custody, cuffed in a police vehicle, guarded by an armed officer, and isolated from his friends after having been forcibly removed from his home by a tactical force, for an hour. During this time, no one explained to Dias that he was not under arrest. He was not told that his detention in the back of a police cruiser in cuffs was solely for safety purposes, that the cuffs were temporary, or that he was not under arrest. Further, since the Courts analysis is an objective one, the agents subjective reasons for utilizing the cuffs is irrelevant. Kaupp, 538 U. S. at 632(further citation omitted). The legitimacy of his continued detention, then, turns on the Governments claim that Dias consented to his removal and transportation to police barracks for interrogation, as relocation for purposes of interrogation at a police station is the very factual scenario which the Supreme Court has repeatedly stressed can never constitute a reasonable Terry detention, and requires probable cause. See Kaupp, supra; Dunaway, supra, and Hayes, supra. 3 Here, there was no consent, only compliance. Dias ability to provide consent, in the true meaning of the word, cannot be divorced from the events that led to his finding himself cuffed and in the back of a police
3 This court, in Shah v. Czellecz, cited First Circuit case law that interprets the Supreme Court case law to permit relocation in very circumscribed circumstances. 2010 WL 5376362 (D.Mass. Dec. 12, 2010). citing Acosta-Colon, supra; United States v. Le, 377 F.Supp. 2d 245, 255 (D. Me. 2005). In Shah, the defendant was relocated from a public space, not his home, to a station for fingerprinting not questioning, and under different, less coercive circumstances than those presented here. Notwithstanding the First Circuits position on removal, the Supreme Court has specifically addressed removal from a suspects residence for purposes of interrogation and held that it requires probable cause. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 39 of 68 40
car being asked to agree to continue the conversation elsewhere. Even if this Court does not find that his initial removal was an illegal arrest made without probable cause, it is respectfully submitted that the Court cannot conclude that Dias consented to being taken to police barracks for questioning under the coercive circumstances present. Dias was never informed that he was free to go nor was it at all conceivable that had he declined to speak with Agent Walker or any of the other agents, or to go to the barracks, he would have simply been permitted to go on his way. See Kaupp,538 U.S. at 631-2; Dunaway, supra, 442 U.S. at 207 (where suspect told he was not under arrest, he was also never told he was free to go, and would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody.). More to the point, no reasonable person would believe that he was free to decline Walkers invitation, a request delivered to the cuffed recipient in the back of a guarded car, surrounded by a massive tactical force, after a forcible removal from ones home under threat of semi-automatic weapons that visibly targeted the heads and torsos of everyone in that apartment. The Governments burden of proving that consent was freely and voluntarily given cannot be discharged by showing no more than acquiescence to a claim of lawful authority) Kaupp, 538 U.S. at 631, citing Royer, 460 U.S. at 497. (footnotes omitted). When Agent Walker requests whether Dias will agree to talk to him further in a more comfortable location, Dias is still in cuffs, seated in the back of a guarded vehicle, shirtless, and isolated from his friends. The benefit of conducting an interrogation in private does not shed any light on whether Dias consent to the removal was voluntary, an act of free will, or anything more Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 40 of 68 41
than a submission to authority. Other facts, however, do. Nothing distinguishes this case from that presented to Kaupp, where the Court dismissed the notion that a young mans okay was consent under the circumstances present there---three police appeared in his bedroom at night and stated we need to go and talk ---except perhaps that the factors supporting the conclusion that Dias agreement was not a product of free will are stunningly more convincing. 538 U.S. at 528, 531. The search of the apartment corroborated what Dias had told Walker: Tsarnaev was not there. SA Walker did not then explain to Dias that he was free to go, nor did he clarify that Dias was not under arrest. He did not remove the cuffs, permit Dias to exit the car, or otherwise indicate that Dias could simply go back home, nor had he released, to Dias knowledge, Bayan or Azamat. Walker did not, in obtaining this consent, inform Dias that he could meet them at the location, secure a ride with friends, or even that he could dress or gather his personal belongings. In fact, no one even grabbed a shirt for Dias, the voluntary witness, to put on for his consensual interview. Although Walker testified that at this time, he was not aware of and did not consider whether any police regulations or otherwise required cuffing for transport 4 , the subjective reasons for the use of such cuffs, such as for officer safety, or because of regulation, does not operate to ameliorate the coercive effect of those cuffs from the perspective of the person wearing them. The Supreme Courts dismissal of this type of rationale in Kaupp makes this clear: Nor is it significant, as the state court thought, that the sheriff's department "routinely" transported individuals, including Kaupp on one prior occasion, while handcuffed for safety of the officers, or
4 In point of fact, Walker was never concerned about a potential witness being restrained as he allowed the original transport to occur with Dias cuffed. It was only after having Dias returned to the scene to obtain a consent to search that the issue of cuffs arose. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 41 of 68 42
that Kaupp "did not resist the use of handcuffs or act in a manner consistent with anything other than full cooperation."[ ] The test is an objective one [ ] and stressing the officers' motivation of self- protection does not speak to how their actions would reasonably be understood. As for the lack of resistance [to the use of cuffs] failure to struggle with a cohort of deputy sheriffs is not a waiver of Fourth Amendment protection, which does not require the perversity of resisting arrest or assaulting a police officer.
Kaupp, 538 U.S. at 632, citing Chesternut, supra, 486 U.S. at 574.
In short, nothing diminished the extremely coercive environment in which Dias was asked for his consent and the events that followed only affirms that Dias was a prisoner, and that consent was just compliance. As the Supreme Court wryly observed in Kaupp, finding that Kaupps consent was no more than a submission to authority: if reasonable doubt were possible on this point, ensuing events would resolve it: removal from ones house in handcuffs on a January night with nothing on but underwear for a trip to a crime scene on the way to an interview room at law enforcement headquarters. 538 U.S. at 632. Here the facts are not so dissimilar. The coercive environment continued at the MSP barracks. Dias was not immediately brought into barracks, but was kept restrained and guarded in the back of the police car, in the parking lot, for almost two hours. Again, the reasons for the delay in bringing him in, namely that Agent Schiliro was on his way and that the FBI was shorthanded, is similarly irrelevant to the analysis, as the test is an objective one. Kaupp, 538 U.S. at 632, citing Chesternut, 486 U.S. at 574. Dias was not informed that of the reasons for this delay, and objectively, it defies reason to presume that police would have kept someone who was not under arrest confined, shirtless and in cuffs, in a car outside police barracks simply because there was no room to put him in for the interview. Someone who was not in custody and under arrest would simply be taken into the lobby, Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 42 of 68 43
unrestrained, and asked to wait. If thought necessary, the New Bedford officer could have sat with Dias in the lobby. Dias further testified that he asked the officer in the front seat over and over whether he could leave, now that Jahar had been caught, and over and over when they were going inside; the answer was only, we have to wait or I dont know. (1:235-36). Eventually Dias was escorted, still in cuffs, to the police barracks, and was led inside to a room within the secure, non-public area of the barracks. Only then was he un- cuffed. Although not physically restrained by cuffs, Dias was nonetheless still subject to the officers custody and control. When Dias was asked if he had to use the bathroom, he was not thereafter permitted to leave the secure area to go to the lobby to do so. Agents accompanied him to the bathroom, and the door was propped open so that Agent Schiliro could keep an eye on things. The fact that he was not permitted to go the bathroom without monitoring would indicate to a reasonable person that he was not free to leave. Dias was confined to a room in the barracks off a locked corridor as an officer patrolled the hallway, from the time of his arrival, around 9 pm, until he was finally driven home after four in the morning. During this time he was interrogated, and for periods at time, left alone. He was not given anything to wear, even after asking. He was not given the opportunity to speak to his girlfriend, or told he could call his mother, a lawyer or his embassy, and after hours of interrogation, was left alone in the room, and told to lie on the floor if he was tired. Nothing in the words or conduct of the agents communicated that he was free to leave, or to make any decisions of his own. Unlike his roommate, Dias did not have his phone. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 43 of 68 44
There is little doubt that the physical restraint, isolation, and limitation of movement indicated that Dias Kadyrbayev was under arrest. See Florida v. Royer, at 499, 503 (finding that defendant was under arrest as a practical matter where he was removed from public concourse area of airport, and taken to small room by officers who held his plane ticket, ID, and luggage). In Royer, the defendants seizure began as a consensual encounter between police, and did not involve the use of multiple armed law enforcement agents. Id. Here, by contrast, there was nothing consensual about Dias first contact with law enforcement. Dias was ordered from his apartment under threat of being shot if he did not comply. He emerged to an overwhelming force of heavily armed law enforcement. He was stripped and cuffed at gunpoint, placed in a car, detained for an hour or more, then transported, still cuffed and restrained in the back of a police car, to State Police Barracks where he again was detained in a tightly controlled environment until his release the next morning. He was under arrest. See Dunaway v. New York, supra, 442 U.S. at 212 (probable cause required to support arrest where defendant was taken involuntarily to police station, placed in interrogation room and questioned under conditions in which he was not free to go). Accordingly, the Court must suppress the statements, as well as the consents to search, obtained as a result of the constitutional violation
THIRD PROPOSED CONCLUSION THE ILLEGAL ARREST TAINTS THE STATEMENTS GIVEN BY DIAS ON APRIL 19
The illegal arrest not only taints the consent to search, but it also requires suppression of the statements at the police barracks as the statements were the product of Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 44 of 68 45
Dias continued illegal detention. The fact that Miranda warnings may have preceded the statements does not win the day for the Government, even if this Court finds that the advice and waiver were sufficient. As the Supreme Court held in Brown v. Illinois, Miranda warnings, alone and per se, cannotalways break, for Fourth Amendment purposes, the causal connection between the illegality and the confession. 422 U.S. at 603, see also, Taylor v. Alabama, 457 U.S. 687, 699 (1982) (O'CONNOR, J., dissenting) (noting that, although Miranda warnings are an important factor, they are, standing alone, insufficient.). Every other factor utilized in the taint analysis points to the opposite conclusion. Because the Governments continued stance is that Dias Fourth Amendment seizure was based on reasonable suspicion, not probable cause, his statements at the police barracks must be suppressed unless the Government meets its burden of persuasion and demonstrates an act of free will [sufficient] to purge the primary taint of the unlawful invasion. Kaupp, supra, 538 U.S. at 633, citing Wong Sun v. United States, 371 U.S. 471 (1963); Brown, supra, 422 U.S. at 604. Under this analysis, the Court must suppress. The Miranda warnings given, even if comprehended did not purge the taint where, as here, the purpose of the Fourth Amendment violation was to detain Dias Kadyrbayev for purposes of custodial interrogation. Temporally, the statement is the product of custodial interrogation that followed the arrest, with no intervening factors such as a probable cause hearing to dissipate that coercion. Dias was not released; there was no significant break in his custody; and the circumstances warrant finding that the seizure, beginning in the apartment, continued uninterrupted and as part of the Governments original attempt to supersede the Fourth Amendment prohibition against removal of a suspect from his home Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 45 of 68 46
without probable cause, for purposes of custodial interrogation. The Governments flagrant disregard for the interests protected by the Fourth Amendment, as delineated by the case law drawing the permissible contours of a Terry stop, require the Court to deny them the bounty and suppress the consent searches and statement.
FOURTH PROPOSED CONCLUSION DIAS STATEMENT ON APRIL 20 MUST BE SUPPRESSED ON DUE PROCESS GROUNDS, BECAUSE THE IMMIGRATION ARREST WAS IMPROPERLY USED AS A RUSE TO CONTINUE INTERROGATION FOR PURPOSES OF INVESTIGATING THE CRIMINAL OFFENSE AND VIOLATED RULE 5a
The ordinary rule applicable to criminal arrests is that a defendant must be brought before a magistrate without unnecessary delay. Fed. Rules. Crim. Proc. Rule 5(a)(1)(A). The Fourth Amendment further requires a fair and reliable determination of probable cause as condition for any significant pretrial restraint of liberty a determination that must be made by a judicial officer before or promptly after arrest. Gerstein v. Pugh, 420 U.S. 103, 125 (1975). This constitutional requirement generally requires that a defendant be brought before a magistrate within 48 hours of arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991). Concurrently, 18 U.S.C. 3501(c) applies to a confession made by a person while that person was under arrest or other detention in the custody of any law enforcement officer or law enforcement agency. Id. It provides that voluntary statements obtained outside a six hour safe harbor and before presentment are subject to suppression if the court determines that the delay was unreasonable or unnecessary. United States v. Corley, 556 U.S. 303, (2009). The Government has denied that Dias Kadyrbayev was arrested on April 19, Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 46 of 68 47
2013, for to do so would trigger all of the above protections, and undoubtedly result in a suppression of the statements given on April 19 and 20 th , as by their own contention Dias made the inculpatory statements only at the end of his interrogation the evening of the 19 th and into the morning of April 20, 2013. The Government asserts that Mr. Kadyrbayev was not arrested, however, until April 20, 2013, when he was taken into custody on immigration charges by HSI agents, and that his criminal charges were not brought until May 1, 2013, at which time he made a first appearance before Magistrate- Judge Bowler. The facts adduced at the hearing support a finding that Dias civil detention was merely a pretext for holding Dias while the FBI continued its investigation of the obstruction charges established the evening before, and permitting them to use the immigration arrest to secure additional statements, consent, and evidence, without the fear of judicial intervention. Detention, however, may be used only to effect the deportation, and not for the Governments other purposes. Courts have found that where civil immigration arrests are ruses for the governments desire to detain for prosecution of criminal charges, the Speedy Trial Act may be applicable. United States v. Tejada, 255 F.3d 1, 4 (1st Cir. 2001), citing United States v. Encarnacion, 239 F.3d 395, 399-400 (1st Cir. 2001); United States v. Noel, 231 F.3d 833, 836 (11th Cir. 2000) (Although routine INS detentions incident to deportation do not trigger the Speedy Trial Act, a contrary result may be warranted when detentions are used by the government, not to effectuate deportation, but rather as mere ruses to detain a for later criminal prosecution.) (quoting United States v. Cepdeda-Luna, 989 F.2d 353 (9th Cir.1993); United States v. De La Pena-Juarez, 214 F.3d 594, 598 (5th Cir. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 47 of 68 48
2000). Similarly, Courts have held that the Government may not evade the application of Rule 5(a) and other protections accorded criminal defendants where the primary purpose of detaining a person suspected of a status crimes is in fact the development of criminal charges. United States v. Valente, 155 F.Supp. 577 (D.Mass.1957); United States v. Sotoj-Lopez, 603 F.2d 789, 790-91 (9 th Cir.1979). That is exactly what is presented by the facts of this case. This was not a case in which probable cause for a criminal arrest arose only after HSI effected a civil arrest. See Encarnacion, supra. As SA Walker testified, he believed that he had probable cause to arrest Dias in the early morning hours of April 20, 2014, but wanted to await authorization from prosecutors reviewing the case. According to him, the agents sought prosecutorial decision as to whether or not Dias should be arrested, and the decision did not come back immediately, prompting them to proceed to the dumpster to secure the evidence described in the statements. (2:82, Walker). According to Walker, Dias was kept at the barracks well beyond the time his statement concluded, because he did not ask to leave. (2:83, Walker). The Court may conclude, however, that Dias was not allowed to leave until the dumpster search was concluded, and that Agent Walkers decision not to place his agents in the crosshairs for continuing to detain them past this point was prompted by Azamats statement that he was beginning to think they were being held against their will. (2:84). By 4 a.m., Dias had been in custody for almost twelve hours, but the backpack had not been located, necessitating a second run at interrogating them. As the Court observed in the hearing, nothing requires the Government to arrest the moment probable cause to arrest is present. United States v. Hoffa, 385 U.S. 293 (1966). The Government may not, however, use a detention on immigration charges to Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 48 of 68 49
circumvent the procedural protections triggered by a criminal arrest, as was done in this case. Evidence adduced at the hearing supports the conclusion that the immigration arrest was a pretext. HSI Agent Valentine testified that he had received a call from another agent on the 19 th alerting him to Dias possible student status violation, and his friendship with Tsarnaev. When he brought this information to his group supervisor, later that morning or early afternoon, he was essentially told to stand down. His supervisor made inquiries, and got back to him later that day telling him that no investigation was needed on his part, as it was all set, just do what youre doing. (3:208-09) The next day, on the 20 th , HSI agents were notified to convene for purposes of arresting Dias, and Agent Valentine recognized Dias name as that of the person from the day before. (3:209). Agents met at the JFK building, and then later, convened at a local Dunkin Donuts for an overview of how the arrest would be effected, a meeting at which Agent Walker was present. Earlier that day SA Walker had been instructed by his own supervisor to meet up the HSI agents and the FBI surveillance team. (2:64). He updated his Special Agent in Charge that two males had left the apartment, and that MST (FBI surveillance) will put them in placewill hook there meaning that Dias and Azamat would be arrested in the region, and that FBI and HSI integrated. (2:66). Agent Walker also communicated with his supervisor that It will be fine because theyll probably think that Im just there for a follow-up from yesterdays interview. (2:66). Of course, later that day HSI went into the apartment to take Dias into custody, but not before Agent Walker questioned them about the backpack, which could not be located in the dumpster. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 49 of 68 50
Agent Wiroll testified that Dias was arrested on April 20 at the apartment. By his own testimony, however, as well as that of Agents Kelly and Valentine, Dias arrest for a status violation would not have been automatic or immediate. (2:204, 209; 3:77). According to their testimony, agents first question the suspect as to the status violation, to confirm (and obtain the probable cause required for the warrantless administrative arrest) that the person has not taken steps to restore his status, or has some other basis upon which to remain legally. (2:204, 209). Only then is one arrested. (3:77). Thus when Dias was returned to HSI agents for processing, he had either been confirmed as being here illegally (which is the only way he could have been arrested at the home without a warrant) or, Agent Wirolls transport of Dias to headquarters was for the purpose of confirming the basis for arrest. Testimony as to this was unclear as no one told Dias that he was under arrest, and Wiroll, Kelly and Valentine all confirm that Dias was told only that he had to come back with them to answer questions about his status. (2:209, 204, 215; 3:61). Warrantless arrests are permitted, if the immigration officer demonstrates that the alien is otherwise likely to escape before a warrant can be obtained, and probable cause for the administrative arrest. See 8 U.S.C. Section 1357(a)(2). Here, Wiroll offered no testimony that established the predicate for a warrantless arrest under Section 1357; he did not demonstrate that Dias, who was then under constant surveillance, was likely to escape before a warrant could be obtained. There was obviously time for such a warrant, as his status had been flagged the prior day, and the decision to make a warrantless administrative arrest was made hours before the actual trip to Carriage Drive. The testimony was not clear as to whether or not Wiroll confirmed that Dias was Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 50 of 68 51
in fact out of status while they were still at Carriage Drive. The A-file indicates that Dias presented with an arrest warrant at HSI for his civil arrest on April 20, 2013 at 10:00 p.m., a little over six hours after the HSI detention at the house and after FBI agents had been given access to him for purposes of interrogation and obtaining a consent to search. Wiroll did not begin his examination until shortly after midnight. The primary purpose of the administrative arrest was not to secure Dias deportation, which is the only legal basis for detention in these circumstances, but to provide the Government more time for the investigation and substantiation of the criminal charges that the prosecution was about to lodge. Once they arrived at the building, and before Agent Wiroll completed Dias processing, FBI agents Azad and Quinn requested that they be provided access to interview Dias (3:62) at roughly five oclock or later. The agents did not read him his Miranda rights but showed him an Advice of Rights form, which indicates it was presented and signed at the same time, and indicated that it was identical to the one the day before. (4:271; 2:152; 3:8). The FBI had told Dias that he was again, just helping them out, that he was not in their custody but that of HSI related to his school status. (4:272). They then proceeded to interrogate him regarding the previous days statements, and obtained a consent to search, which Azad testified was one of the primary purposes or goals he was instructed to accomplish with this second interrogation. Wiroll then spoke with Dias, ostensibly to provide him the immigration packet dockets and the 1-213 Notice to Appear. Agent Wiroll had been given two pages of a draft 302 by the FBI agents of the previous days interview of Dias. (3:80-81). Wiroll admitted that in the six years he had been at HSI, picking up students for potential Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 51 of 68 52
violations, this was the first time FBI shared information in this fashion; it was not the usual practice. (3:81-82). Wiroll denied that he interrogated the students, but his questions, all related to Dias conduct in the days after the bombing, and particularly questions about why Dias did not immediately call the police, were notable for the simple fact they did not pertain his status, or the administrative violation for which he was allegedly arrested. Wiroll himself admitted that the information in the draft 302 had nothing to do with a student visa violation. (3:82-83). According to him, the information from the draft 302 was nevertheless included on the Notice to Appear as background information about how I encountered the individual and how they are out of status. (3:83). However, if Wirroll had in fact confirmed Dias status at the house, which would have been the basis for the probable cause, then little was required of him in terms of obtaining additional information beyond that required for the civil violation, and certainly the interrogation that proceeded went beyond the subject of whether Dias had done anything that would have brought him back into status as a lawfully present nonimmigrant. The sole and only legitimate purpose of a detention is to provide time to effect a deportation. The Government has not demonstrated that Dias was detained in order to accomplish his deportation for having violated the terms of his student visa, producing no evidence that HSI began making arrangements to secure the necessary documents and paper work for travel back to Kazakhstan. The Government had already made a decision that criminal charges would be brought. The FBI is not precluded from investigating a crime that comes to light when an alien is arrested on immigration charges under Section 1357(a)(2). When a person is Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 52 of 68 53
arrested and is to be charged for an offense that has nothing to do with his immigration status, however, he is entitled to a prompt hearing before a magistrate judge, under 5(a), even if he is also detained for the purpose of effecting deportation. United States v. Sotoj- Lopez, 603 F.2d 789, 790-91 (9th Cir. 1979); United States v. Valente. Because the primary or principal purpose for Dias detention on the immigration charges was to enable the FBI, and then Agent Wiroll, to interrogate him with regard to a criminal investigation that had already begun, and where charges were going to be lodged, the immigration arrest was a ruse, and Dias due process rights were violated. Rule 5(a) is applicable. Because the detention was federal (whether criminal or civil) 18 U.S.C. 3501 also applies to render statements made outside the six hour window (those given to Wiroll after 10 p.m.) inadmissible. Accordingly, the products of the Governments illegal conduct should be suppressed. See United States v. Ramirez, 696 F.Supp.2d 246 (E.D.N.Y. 2010) (finding that principal purpose of detention was to investigate potential criminal charges, statement suppressed).
FIFTH PROPOSED CONCLUSION
THE ADVICE OF RIGHTS PROVIDED TO DIAS KADYRBAYEV WAS INEFFECTIVE, AND THERE WAS NO KNOWING, INTELLIGENT AND VOLUNTARY WAIVER OF HIS CONSTITUTIONAL RIGHTS
Dias Kadyrbayevs statements to investigators must be suppressed as inadmissible. He was not properly warned under Miranda v. Arizona, 384 U.S. 436 (1966), because he could not comprehend and understand the rights provided to him by the FBI. He did not have the requisite proficiency in English to understand the Advice of Rights, which linguistically demanded a much higher level of proficiency. The agents Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 53 of 68 54
made no effort to ensure that he understood these rights by explaining them, in plain English, or having him restate the rights to confirm his understanding. In combination with his youth, cultural background, lack of familiarity with our legal rights and procedural rules, and the circumstances under which the Advice was delivered to him, there is insufficient proof on the record that he understood these rights, and that he knowingly, intelligently and voluntarily waived them knowing the consequences of abandoning them. Because the Government has not met the burden of proof, the Court must find that the waiver was not knowing, intelligent or voluntary. Dias was in Custody As a preliminary matter, it is clear that Dias was in custody at police barracks. Even if the Court were to reject that Dias was arrested within his own home when the HRT raid occurred, or find that he consented to go to police barracks, once Dias arrived at the barracks, the Courts analysis must begin again. Unlike his co-defendants, Dias was not taken immediately to the barracks. He was returned to provide consent, and his cuffs taken off just to sign, then put back on again, and then he was driven to the barracks but left cuffed, now in front of his body rather than from behind, in the car for almost two hours before he was brought in to speak with investigators. In the absence of a formal arrest, custody depends on whether there is a restraint on freedom of movement of the degree associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 322 (1994). The custody determination requires the Court do determine the circumstances of the interrogation, and ask whether a reasonable person in those circumstances would believe that he had the ability to leave or otherwise terminate the encounter with police. Thompson v. Keohane, 516 U.S. 99, 112 Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 54 of 68 55
(1995). The custody determination depends on the objective circumstances of the interrogation, and not on the subjective views of either the officers, or the suspect. Stansbury, supra, 511 U.S. at 322. Although cast as a witness in whom law enforcement was interested because of a friendship with the target, Dias was not accorded the freedom of movement, and autonomy that such a person possesses if his or her appearance at the barracks was not compelled, as explained more fully in Point III infra. This was not an interrogation conducted in neutral surroundings with no restrictions on movement as previously described. See United States v. Hughes, 640 F.3d 428, 435 (1st Cir.2011). The fact that he was told at the beginning of his statement by Azad that he was not under arrest, Did anyone tell you that you were under arrest? does not undermine the Courts determination of custody when viewed in the context of all the other facts and circumstances. See United States v. Newton, 369 F.3d 659 (2d Cir.2004)(suspect being advised that he was not being placed under arrest and that restraints for safety only not determinative of custody determination, citing United States v. Henley, 984 F.2d 1040, 1042 (9th Cir.1993)(holding that handcuffed suspect in back of a squad car in custody even though officers told him he was not under arrest). Agent Azads statement is merely a fact which must be considered in assessing whether, under all the circumstances, a reasonable person would believe that his situation was akin to a formal arrest. Similarly, the objective reasonableness of law enforcements actions, such as evidence of the reason for delay, or the safety purpose served by cuffs, is not part of the Miranda inquiry, which focuses on the facts known to the seized person and whether a Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 55 of 68 56
reasonable person would understand that his situation is comparable to an arrest. Dias was not told the reason for his continued restraints in cuffs secured in a police car; moreover, when the cuffs were removed, it was only after he had been brought through a secure door and thereafter, he could not move about freely. The Waiver Agent Azad testified that he told Dias that they wanted to speak to him, that he wasnt under arrest, and that he would need to sign a form for them. (2:128). That form, introduced into evidence at the suppression hearing (Exhibit 4, 2:129) appears to be a standard FBI form. It states: Before we ask you any questions, you must understand your rights You have the right to remain silent Anything you say can be used against you in court You have the right to talk to a lawyer for advice before we ask you any questions You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop. (emphasis added).
The area for the waiver is separated from the rights above by a line, demarcating a separation of the form into two parts. The time at the top of the form is 9:08; at the bottom, by the signatures, the time is listed as 9:14 p.m., only six minutes later. Agent Azad testified that after filling out the top of the Advice of Rights, Agent Schiliro then read the advice of rights; Agent Schiliro read from start to finish, without stopping after each right. (2:130; 3:22, L.21-24) (I then read him the form from beginning to end.). Agent Azad testified that he also provided some ground rules to Dias that would go along with the interview should Dias sign the waiver; it was not clear whether this preceded or followed Agent Schiliros reading. (2:130). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 56 of 68 57
After Agent Schiliro finished reading the form, Dias asked if he needed a lawyer. (3:22, L.24; 3:44, L. 22; 3:45, L. 7-8.) Agent Azad testified that he would not be able to give him any legal advice. (2:130). According to Azad, the colloquy about the lawyer came after Azad had told Dias that he was not under arrest. (2:131). Dias response was Im under arrest? and the agents again told him he was not under arrest. (2:131). Agent Schiliro, on the other hand, testified to a somewhat different progression of events. He testified that when he finished reading the form to Dias, Dias asked whether or not he needed a lawyer, then Agent Azad told him he was not going to give him legal advice, and at that point Azad then asked Dias whether anyone had told Dias that he was under arrest, prompting Dias to ask, I am under arrest?. (3:22-23; 3:45.). Agent Schiliro and Azad laughed at the confusion, and both physically waived and said, No, you are not, in fact, under arrest and it was after that explanation that Dias said he wished to speak to them, and Schiliro gave him the form and asked him to read it, and if he wished to speak, to sign it. (3:23). Notably neither Agent Azad nor Agent Schiliro re-read the Advice of Rights form, nor did anyone explain any of the rights after Dias questions. Agent Schiliro did not ask him if he understood the rights. (3:23). Agent Schiliro testified after he gave Dias the form, Dias appeared to read the form, and that he agreed to speak and signed the Advice of Rights (3:23). He did not confirm that Dias had in fact read each right, nor did he ask Dias if he understood his rights then. (3:45). He only asked Dias again, if he had any questions. (Id.) Dr. Aneta Pavlenko, an Applied Linguistics professor at Temple University with two decades of experimental research on information processing in a second language, Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 57 of 68 58
testified that decades of research and testing demonstrates that non-native speakers of English process information differently. (4:14). In addition to her research, and teaching duties, Dr. Pavlenko has published more than a hundred peer-reviewed articles, including one of Miranda comprehension, and eight books. In addition she has delivered lectures and written articles specifically on the difficulties Miranda warnings present to a non- native, or ESL speaker, which has been the subject of research within the field of forensic linguistics for many years. (4:11,12). In addition to her research, Dr. Pavlenko is also a Professor of TESOL, or Teaching English to Speakers of Other Languages, and in that capacity conducts research with Russian speakers and their acquisition of English. (4:10). She also teaches ESL teachers how to use the methods she herself uses in her research, which is the analysis of a writing sample to determine a students level of proficiency, the students needs, and then the design of instruction that suits those needs. (4:10-11). The field of applied linguistics utilizes qualitative methods such as text analysis, in which the linguist analyzes a text, and finds linguistic patterns for the purpose of authorship or proficiency determinations. (4:13-14). Dr. Pavlenko performed a textual analysis of Dias known writing samples, discounting those that were in her opinion, authored by another individual. The parameters of her analysis were, as a baseline, the IELTs scores Mr. Kadyrbayev received prior to arriving in the United States, which indicated the bottom level below which his proficiency level could not have been (4:16), and at the top, the language proficiency learning profile she asked him to create, which provided his current level of proficiency. (Id.). Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 58 of 68 59
Dr. Pavlenko testified that Dias combined score on his IELTS testing was 5.5, indicating that he should not have been enrolled in any academic or linguistically demanding language classes, and which qualified him only for low level ESL, or English as a Second Language classes. (4:17). This means that objectively, at the time Dias entered the States, his proficiency level as determined by testing designed to provide an assessment of the persons ability to perform certain tasks in English at that point in time, was insufficient for him to be able to function in an academic setting where only English was spoken. (Id.; 4:19). This was seemingly confirmed by his academic performance and his compensation strategies. With these parameters, Dr. Pavlenko analyzed Dias known writing samples as well as the Advice of Rights. Her first task was to determine Dias level of proficiency at the time of the interrogation, using writing samples authored by him in this time period. She looked at the level of structural complexity, including the type of sentence, simple or complex, and whether there are embedded clauses. Dias writing samples displayed simple sentences throughout, with the use of dependent clause preceded by because which was in fact a transfer from Russian language structure. (3:21). She also examined these texts for another language pattern, which is the type of words used. (3:22). In her field, there is a language corpora which determine with what frequency words circulate in everyday speech and the likelihood that someone would have been exposed to the word. (4:22). Table or cup would be a high frequency word, while a word like afford or ascertain would be considered a low frequency word because it is not likely to be used in everyday speech. (4:22). The significance of a low or high-frequency word is in determining that a person at a particular level of proficiency would be familiar with the Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 59 of 68 60
word because decades of research shows that frequency of the words is one of the best predictors of levels of proficiency. (4:22). People at lower proficiency levels use high- frequency words while those at higher levels begin using lower frequency words. (4:22- 23). The patterns in the samples permit a linguist to determine authorship, and proficiency level. (4:100). Dr. Pavlenko analyzed the linguistic patterns in Dias samples, such as structural and lexical complexity, and looked for a match between the linguistic patterns collected in the table, and the proficiency guidelines, or ACTFL, which are guidelines created by the American Council on Teaching of Foreign Languages and based on guidelines created by the U.S. Government. Utilizing those Guidelines, she assessed Dias as Intermediate overall and Low Intermediate in his writing in particular. (4:24). Someone at the Intermediate level of proficiency would be able to participate in a wide range of conversational exchanges, and exchange information on topics that are familiar, using high frequency words and relatively simple structures. (4:25). Dr. Pavlenko confirmed that Low Intermediate users can appear proficient, especially if they are younger individuals using colloquial English, which she found in much of Dias samples. (4:25). Dias was also comfortable using swear and taboo words, which would similarly give an illusion of fluency at a higher level. (Id.). Skills among writing, listening, and speaking might vary within a level of proficiency which explains the .5 difference in Dias listening score compared to his writing and reading scores on his IELTS exam. (4:27). For purposes of Miranda, however, she was concerned with his reading and listening skills only (and thus not Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 60 of 68 61
speaking) because the Miranda form was presented to him in the spoken and written English. (4:27). Dr. Pavlenko also analyzed the Advice of Rights forms (Exhibits 4 and 7)(4:29). She employed the identical methodology used in her research and her analysis of Dias writing to determine the proficiency level required to understand the Advice of Rights forms. (4:30). The advice of rights displayed several linguistic patterns: use of many low frequency words; use of words with polysemy, or different meanings (such as right, before advice) and structural complexity in sentences (4:31-3). She looked to the ACTFL Guidelines again to match the linguistic patterns, and the descriptor, or level, in the Guidelines that matched those patterns was Distinguished. (4:33). At the Distinguished level, the person has both the linguistic resources to understand something, as well as cultural familiarity. (4:33). A Distinguished level of proficiency enables a person to process information that is dense, highly abstract, contains low- frequency words, and relies on cultural knowledge and framework. (4:34). She concluded that in her professional opinion it was highly unlikely that at the time of his interrogation, Dias had the necessary level of language proficiency to understand the Miranda warning; his proficiency was level Low Intermediate and the level of proficiency required to comprehend the Advice of Rights is Distinguished. (4:34-35) The only direct evidence that is useful in determining proficiency are language samples. (4:57). Her analysis of structural and lexical complexity, is widely used and accepted within the linguistics community and in language testing. (4:37). Linguists prefer analyzing language texts as was done in this case because they are written Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 61 of 68 62
spontaneously, and are not influenced by any kind of attempt to perform at a certain level of proficiency. (4:93). The writing samples she used in this case (texts, emails, essays, paragraph responses) are the real reflection of Dias language on an everyday basis at the relevant time period. (4:94). Dias ability to converse with other students, or the agents, about marijuana or other conversational subjects was totally irrelevant to the determination of whether or not he had the ability required for processing the highly abstract and complex information and structure of the Advice of Rights. (4:95). The Government did not present its own expert, nor challenge the admission of Dr. Pavlenkos testimony or her report. Dr. Pavlenko testified that to ensure comprehension, non-native speakers should be provided an translation or an interpreter, and absent that, the Advice of Rights given to non-native speakers of English should be a standardized translation, followed by the best practice of restatement of rights in plain English, meaning that the agents should have had Dias restate the rights read to him in his own words. (4:82-83.). The agents were not competent to make a conclusion about proficiency, even if they were experienced in conducting interviews. (4:106). They did not request that Dias restate the Miranda warnings in plain English, or his own words, and this would be the only evidence of understanding of the warnings that a forensic linguist would accept under these circumstances. (4:106). The Government Did Not Sufficiently Demonstrate Comprehension and Waiver
The Government has the burden of proving that Dias made an uncoerced choice and that he possessed the requisite level of comprehension for a knowing, and intelligent waiver. Moran 475 at 421. That burden was not met here. Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 62 of 68 63
The Advice of Rights in this case required a Distinguished level of proficiency, which would permit someone performing at that level to understand the abstract language, the low frequency words, the complex sentence structure and the use of words that require a degree of cultural awareness and context. Dias level of proficiency at the time of the interview, as opposed to his testimony at the hearing after some 14 months in jail speaking and reading English daily, which was based on an objective and scientifically reliable assessment using widely accepted methods and analysis, was Low Intermediate. Given his level of proficiency, it was highly unlikely that Dias could have comprehended the Advice of Rights administered to him. Further, the agents did not explain those rights in plain English, and they never asked Dias to confirm his understanding by restating the rights in his own words. The agents in this case did not read the AOR line by line. Both agents testified that Agent Schiliro read the form from start to finish, without pausing or stopping to confirm that Dias understood each line, and thus right, conveyed. The six minutes between when the AOR was first dated, and Dias signature, covered multiple events, only one of which was the actually oral recitation of the rights, and Dias reading of the form himself. This limited period of time was not sufficient. The agents were aware that Dias was not American, and by his accent alone, that he was not a native speaker. Agent Azad, who is a second language speaker and as part of his duties with the NY JTTF, conducts interviews of suspects who speak English as a second language, and agreed that while listening to English, a non-native speaker is simultaneously translating the words into his or her native language. (2:173-74). He Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 63 of 68 64
further agreed that when such speakers cannot translate a word, they will try to understand the word within the context. (T:174). With this in mind, there was objective indicia that Dias was not grasping the meaning of what was being said to him. He heard the agents to say that he was under arrest, interpreting did anyone tell you that you were under arrest or you are not under arrest as meaning that he was under arrest. (I am under arrest?). When he heard the word lawyer Dias asked Do I need a lawyer? which signaled potential confusion on his part, not simply a request for legal advice, particularly when it was asked directly after Schiliro concluded reading his rights. The agents knew that he was a Kazakhstan national, and that English was not his first language, as was apparent not only from his accent, but from the fact that throughout the interview there were objective indications of a lack of knowledge of low frequency words, and an inability to communicate effectively. Agent Azad agreed that Dias had trouble with certain words, and could not find the words for certain things. (2:181). He agreed that he would, at times, try and work around Dias lack of ability to communicate certain words, and suggest words to him. (2:181). But always if we could, where we could, it was letting him speak, and then where we would work together on things it was to the point of, We dont want to put words in your mouth . . . Is this right? Is this what you mean? Make sure youre comfortable saying that. (2:181). Azad also agreed that when that would not work, Dias would do drawings. (Id). These were of the fireworks he saw, and directions to a dumpster. (2:185, 186). Azad did not recall whether or not Dias remembered the word fireworks but he did state that he recalled Dias using hand gestures and a reference to Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 64 of 68 65
the time or the year, to try to explain what he was talking about. (2:189). He further admitted that although he could not recall whether Dias knew the word for fuse or dumpster, the word as it appears in his report could have been a word he or Schiliro had put in after some discussion with Dias. (2:190). The Court can and must also consider that in addition to linguistic difficulties, Dias lacked a cultural background and context to the interrogation and the rights being read to him. He was not from America, and although he had spent time here as a student, he had grown up in Kazakhstan, where there was no Miranda rights or its equivalent. Indeed, Miranda rights in Russian is translated as the Miranda Rule. Other than the traffic stop, Dias had no prior history of dealing with law enforcement and specifically, no prior understanding of Miranda rights or the American judicial system. It is true that successful challenges to waivers by non-native speakers are few to be found. Respectfully, most of these decisions seem to rest on the exact misconception that the Government labored through in its cross examination of Dr. Pavlenko, which is that the apparent ability of a person to speak English is sufficient proof of his or her ability to understand Miranda rights read to them, or by them. This Court has the benefit of the testimony of Dr. Pavlenko and her report to examine the evidence with an understanding that scientifically, language proficiency has stages, or levels, that can be determined, and that predict, with reliability, what a person is able to do, and not able to do, across different real world contexts. In conjunction with this deeper and more nuanced understanding of the significance of proficiency levels with regard to the specific text, here the Advice of rights, the Court must consider Agent Azads testimony, Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 65 of 68 66
the lack of accommodations that would have assisted Dias in understanding his rights, and the cultural differences that made his contextual knowledge impossible. Further, in terms of voluntariness, the Court may consider the coercive aspects of the interrogation. Although Dias was uncuffed at this point, he had been in cuffs and restrained without relief since at least five p.m.. Moreover, his freedom of movement was significantly limited even after he was uncuffed, indicating that he was not free to leave. United States v. Mittel-Carey, 493 F.3d 36, 39-40 (1st Cir.2007). He was cold, but given no clothes or blankets. He was hungry, but not given any food until Agent Azad offered donuts shortly after two in the morning. Dias had not slept in over a day, and was visibly exhausted. The agents interrogated him for over three hours until he made an inculpatory statement, rejecting each of his prior statements and demanding that he try again. He was kept in a room behind the secure door, and within the barracks private offices. Although the door was open, an armed officer patrolled the hallway. When Dias was left alone, the officer remained, looking in whenever he sensed movement from within by Dias. Dias was not permitted to make a call, and did not have a phone or access to one. He was not provided consular notice by the officers, nor was he provided the opportunity to speak with his roommate or girlfriend. He was not a citizen of the United States, having come from a country where no one challenges authority and where Miranda rights did not even exist. He could not have understood that his encounter with police was consensual. Although the MSP Barracks which were equipped to provide recording of interviews, no effort was made to secure this benefit. These agents knew that Dias was a Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 66 of 68 67
young man who had just been forcibly removed from his home, and left in cuffs in the back of a police car for hours. They knew that he was not a native speaker, and that he was not familiar with the legal system. Even under the FBIs own policy describing the factors that would warrant recording a statement, the particular facts of this case warranted careful explanations of the Miranda rights, and confirmation that the defendant understood what he heard, and affirmative effort to dispel the extreme coercive effects of his detention. This Court may take judicial notice of the rule of law in Massachusetts that the failure to record requires the provision of a jury instruction to this effect, permitting a jury to infer from this failure that the statement is to be viewed with particular caution. Commonwealth v. Di Giambattista, 813 N.E.2d 516 (Mass. 2004), 2004 Mass. LEXIS 504. The facts of this case demonstrate why.
CONCLUSION The Governments burden here was not met. In addition to the Fourth Amendment violations, the Government failed to demonstrate that it obtained valid consent and knowing and intelligent waivers of Miranda, requiring suppression of statements, as well as evidence. There is no independent source for the information that was derived from the illegal arrest, and accordingly, the Government should not be permitted to profit by introducing the statements of April 19 or April 20, or the evidence seized pursuant to consent.
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Respectfully submitted,
/s/ Robert G. Stahl Rober t G. St ahl Laura K. Gasiorowski on the brief Joshua F. McMahon Attorneys for Defendant Dias Kadyrbayev
Dated: August 13, 2014
CERTIFICATE OF SERVICE
I hereby certify that on the 13th day of August, 2014, this document filed through ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).
s/ Robert G. Stahl _________________________ ROBERT G. STAHL, ESQ.
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United States v. Delwright T. Dyman, Cosimo Mezzapella, A/K/A Joe Cosimo, A/K/A Joseph Rusello, Richard D. Spainhower and Joseph A. Valentino, 739 F.2d 762, 2d Cir. (1984)
United States v. Thomas Allen Burnside, A/K/A "Blue" A/K/A "Big Boy", United States of America v. Leonard McDowell United States of America v. Bruce Perkins, United States of America v. Frank Sullivan, United States of America v. Billy Byrd, United States of America v. James Sligh, 800 F.2d 260, 4th Cir. (1986)