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United States v. Cole

United States District Court, D. Nevada

March 16, 2017

ANTWANN COLE, Defendant.


          RICHARD F. BOULWARE, II United States District Judge


         Before this Court for consideration is Defendant Antwann Cole's Motion to Suppress. ECF No. 22. In his Motion, Cole argues that any statements obtained from him by law enforcement following his allegedly defective waiver of his Miranda rights on October 15, 2014 should be suppressed. For the reasons stated below, the Court grants the Motion.[1]


         On November 4, 2014, Antwann Cole was charged in a one-count Indictment with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a). ECF No. 1. On February 16, 2016, Cole filed a Motion to Suppress the statements that were obtained from him after he was taken into custody on October 15, 2014. ECF No. 22. On February 29, 2016, the Government filed a Motion to Vacate Evidentiary Hearing in which it stated that the Government does not contest Cole's factual assertions regarding the circumstances surrounding the Miranda warning that he was given after being taken into custody. ECF No. 25. On April 8, 2016, the Court held a hearing on the motions and confirmed its previous ruling granting the Government's Motion to Vacate the evidentiary hearing. ECF No. 34. At the hearing, the Court also confirmed the parties' intention to stipulate to the following facts: who made the warning, that the warning was made before the statement was given, the content of the warning, and that Cole gave a statement after being given the warning. Tr. 16:3-24, ECF No. 48. Based on those stipulations and its earlier ruling in a case involving an identical warning, see United States v. Chavez, 111 F.Supp.3d 1131 (D. Nev. 2015), the Court granted Cole's Motion to Suppress. Tr. 16:2-25, 17:1-5, ECF No. 48. This Opinion and Order follows that hearing and explains the Court's reasoning for granting the Motion.


         The Court makes the following findings of fact based upon the assertions of fact provided in the parties' briefs and agreed to at the April 8, 2016 hearing and based upon the Court's reasonable factual inferences from the stipulated facts.

         On October 15, 2014, Las Vegas Metropolitan Police Department (“Metro”) officers appeared at the residence of Ketty Dilone in response to a 911 call regarding an alleged domestic disturbance. She accused Cole of slapping her in the face. Cole was inside the residence at the time. After speaking with the officers, Cole agreed to exit the residence. After exiting, he was arrested and taken into custody by officers. Metro officers searched Dilone's residence and found a firearm inside. The officers then summoned Metro firearms detectives to the residence. The detectives obtained a telephonic search warrant, searched the residence again, and recovered the firearm.

         After the firearm was recovered, Detective Bien, one of the Metro detectives summoned to Dilone's residence, conducted a custodial interview of Cole. The interview was recorded and transcribed. Before questioning Cole, Detective Bien read the following warning to Cole: “You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to the presence of an attorney during questioning. If you cannot afford an attorney, one will be appointed before questioning. Do you understand these rights?” Cole answered in the affirmative, and Detective Bien began to question him. Cole proceeded to make incriminating statements to Detective Bien.


         The Court finds that Cole's statement to Detective Bien was obtained in violation of his Miranda rights and must be suppressed, because the Miranda warnings read to Cole were legally deficient and the Government therefore did not meet its burden of showing that Bien obtained a valid waiver of Chavez's rights.

         A. Legal Standard

         The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself . . . .” U.S. Const. amend. V. In Miranda v. Arizona, the Supreme Court established guidelines for the application of the Fifth Amendment's privilege against self-incrimination to the context of custodial interrogations by law enforcement. 384 U.S. 436, 441-42 (1966). The Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id. at 444. The Court defined “custodial interrogation” as any questioning by law enforcement initiated after an individual has been taken into custody or significantly deprived of the freedom to act. Id. “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id.

         While “no talismanic incantation [is] required to satisfy [Miranda's] strictures, ” California v. Prysock, 453 U.S. 355, 359 (1981) (per curiam), it is also the case that a valid waiver requires not only “that one be warned of his right to counsel during questioning, ” but also that he “be warned of his right to consult with an attorney before questioning, ” People of the Territory of Guam v. Snaer, 758 F.2d 1341, 1342 (9th Cir. 1985) (emphases in original). “[I]t is extremely important that a defendant be adequately warned of this right.” Id. In order to comport with the Fifth Amendment, ...

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