United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING DEFENDANT'S MOTION TO
SUPPRESS STATEMENTS (DKT. 39) AND DENYING DEFENDANT'S
MOTION TO SUPPRESS RESULTS OF SEARCH WARRANT (DKT.
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
Maria Elena Leyva is charged with (i) conspiracy to possess
heroin with intent to distribute; and (ii) attempted
possession of heroin with intent to distribute, in violation
of 21 U.S.C. § 846. This matter is before the Court on
Leyva's motion to suppress her statements made on October
23, 2016 (Dkt. 39) and Leyva's motion to suppress the
results of a search pursuant to a warrant (Dkt. 40). A
hearing on both motions was held on August 14, 2017, and
supplemental briefing followed. For the reasons that follow,
the Court denies both motions.
October 20, 2016, law enforcement in Amarillo, Texas stopped
a vehicle driven by Leyva's co-defendant, Richard
O'Dell. Def's Br. in Supp. of Mot. to Suppress
Statements at 1 (Dkt. 39); Gov't's Br. in Opp. to
Mot. to Suppress Statements at 4 (Dkt. 49). The vehicle
contained 5.6 kilograms of a substance that tested positive
for the presence of heroin. Def's Br. at 1;
Gov't's Br. at 4. Law enforcement seized the
suspected heroin, and replaced it with “sham”
heroin. Def's Br. at 1; Gov't's Br. at 4. The
officers worked with O'Dell to conduct a controlled
delivery of the sham heroin in the Detroit metropolitan area.
Def's Br. at 1; Gov't's Br. at 4. The sham heroin
was wrapped in eight separate packages and placed into a
brightly colored gift bag. Def's Br. at 1;
Gov't's Br. at 4-5. On October 23, 2016, law
enforcement observed O'Dell deliver the brightly-colored
gift bag to Leyva in Warren, Michigan. Def's Br. at 2;
Gov't's Br. at 5. Officers then followed Leyva to a
hotel in St. Clair Shores, Michigan. Gov't's Br. at
approximately 1:29 p.m. on October 23, Drug Enforcement
Agency (“DEA”) Group Supervisor
(“GS”) Sam Rahi and Special Agent
(“SA”) Shane Reese approached Leyva at the hotel
and identified themselves as police. Def's Br. at 2-3;
Gov't's Br. at 5. GS Rahi had his gun in his hand,
but was not pointing it at Leyva; SA Reese did not draw his
gun. Def's Br. at 3; Gov't's Br. at 5. The
officers instructed Leyva to stay where she was,
Gov't's Br. at 5, and asked if she knew why the
police were there, Def's Br. at 3; Gov't's Br. at
6. Leyva responded, “I'm in big trouble, ”
and when asked to clarify, she said, “It's about
the package I picked up from the old man.” Def's
Br. at 3; Gov't's Br. at 6. GS Rahi asked her where
the package was, and she told him that it was still in the
car. Def's Br. at 3; Gov't's Br. at 6. At that
point, GS Rahi handcuffed Leyva and asked if she wanted to
cooperate; she said yes. Def's Br. at 3; Gov't's
Br. at 6.
then questioned Leyva about the person to whom she was
supposed to take the package; she responded, “[a]
man.” Def's Br. at 3; Gov't's Br. at 6. GS
Rahi asked her if the delivery would take place in a hotel
room, and whether she had a room at the hotel. Def's Br.
at 3; Gov't's Br. at 6. She said “No.”
Def's Br. at 3; Gov't's Br. at 6. He then asked
if the man would be coming to the hotel to pick up the
package, and Leyva said “Yes.” Def's Br. at
3; Gov't's Br. at 6.
point, approximately 1:35 p.m., GS Rahi removed Leyva's
handcuffs and instructed his surveillance team to resume
their covert roles. Def's Br. at 3; Gov't's Br.
at 6-7. GS Rahi asked Leyva to explain how the heroin deal
was supposed to take place. Def's Br. at 3;
Gov't's Br. at 7. Leyva informed him that she had met
a man that morning who had told her to pick up the package
and bring it to St. Clair Shores. Def's Br. at 3;
Gov't's Br. at 7. GS Rahi then attempted to ask
additional questions about this man, but Leyva gave
non-responsive answers (“These are very intelligent
people you are dealing with”; “Did you see me
with the old man?”). Def's Br. at 3-4;
Gov't's Br. at 7. Leyva asked, “What if they
don't come, what happens next?” Def's Br. at 4;
Gov't's Br. at 7. Upon being told that she would go
to jail, Leyva said, “I want to cooperate. I want to
cooperate. I will tell you everything.” Def's Br.
at 4; Gov't's Br. at 7.
asked again about the man who was supposed to pick up the
sham heroin and what type of vehicle he would be driving.
Def's Br. at 4; Gov't's Br. at 7. Leyva said that
she did not know, but said that she would make a call.
Def's Br. at 4; Gov't's Br. at 7. GS Rahi and SA
Reese allowed Leyva to make two unrecorded phone calls in
Spanish. Def's Br. at 4; Gov't's Br. at 7-8. SA
Reese, who has limited Spanish proficiency, advised GS Rahi
that Leyva had told the person on the phone that
“everything was good.” Def's Br. at 4;
Gov't's Br. at 8. Following the calls, GS Rahi asked
again for a description of the man, and Leyva told him that
the man “may not come until tomorrow.” Def's
Br. at 4; Gov't's Br. at 8. At this point, GS Rahi
turned Leyva over to the Warren police for transportation to
the Warren police station. Def's Br. at 4;
Gov't's Br. at 8.
the police vehicle, Leyva asked if she could call her
daughter. Def's Br. at 4; Gov't's Br. at 8. GS
Rahi dialed three numbers for Leyva, but no one answered.
Def's Br. at 4; Gov't's Br. at 8. GS Rahi then
advised Leyva that she could try to call again once at the
police station. Def's Br. at 4; Gov't's Br. at 8.
The Government states that the conversation between the
agents and Leyva likely concluded around 1:45 or 1:50 pm.
Gov't's Br. at 8.
Miranda warning and post-Miranda
her arrival to the Warren police station, Leyva was left
alone in an interview room. Gov't's Br. at 9. At
approximately 2:30 p.m., DEA Task Force Officer
(“TFO”) Ryan Pylak and SA Brandon Kushel entered
the room to interview her. Id. Both TFO Pylak and SA
Kushel were present at the St. Clair Shores hotel earlier
that day, but neither had participated in the conversation
between Leyva, GS Rahi, and SA Reese. Id.
the agents entered the room, Leyva was speaking on her cell
phone in Spanish. 10/23/2016 Tr., Ex. A. to Def's Mot. to
Suppress Statements at 1 (Dkt. 39-1). She ended her call, and
then asked the agents if she could make another. Id.
They allowed her to do so; she made two more calls, which
both went to voicemail. Id. at 1-2. After Leyva
typed a text message to whomever she was attempting to reach,
SA Kushel asked how her English was. Id. at 2. Leyva
responded, “A little.” Id. SA Kushel
followed up and asked, “Are you comfortable speaking
and communicating in English language, or no?”
Id. Leyva told him, “I needed a, somebody who
speaks, somebody speak Spanish?” Id. SA Kushel
and TFO Pylak conferred with one another and, upon realizing
that they did not have an interpreter available, determined
that Leyva had a strong enough command of English for them to
proceed. Id. SA Kushel told Leyva that they would
proceed in English, and told her to let him know if she did
not understand something. Id. at 3. Leyva agreed.
Kushel and TFO Pylak then spent approximately four minutes
explaining Leyva's rights under Miranda v.
Arizona, 384 U.S. 436 (1966). Id. at 3-8.
During this time, Leyva made two references to an attorney,
id. at 5, 7, which she argues were invocations of
her right to counsel, Def's Br. at 9-11. She also stated
once again that she needed someone who spoke Spanish.
10/23/2016 Tr. at 8. Nonetheless, when TFO Pylak asked,
“[S]o do you wish to cooperate with us and talk to
us?” she responded, “Yes, I'll
cooperate.” Id. at 7-8. SA Kushel then asked,
“So you don't wish to have your lawyer present
then, ” and she said “No.” Id. at
8. The agents provided Leyva with a form indicating that she
understood and was waiving her Miranda rights, which
Leyva signed. Id. at 9; Warren Police Dep't
Const'l Rights Cert. of Notification, Ex. C to Def's
Reply (Dkt. 57-3).
agents then questioned Leyva regarding her involvement in and
knowledge of the sham heroin transaction. 10/23/2016 Tr. at
11-27. Leyva told the agents that she had traveled from
Kansas City to Chicago, and then on to Detroit, at the
request of a person from Mexico. Id. at 14-17. She
was told that she would receive $5, 000 for transporting a
package in Detroit. Id. at 20. Leyva further claimed
that she was given a phone by a man she met at K-Mart earlier
on October 23, and that this man told her to destroy her own
phone. Id. at 21-24.
the end of the conversation, the agents asked Leyva if she
would give them permission to look at her cell phone.
Id. at 27. At this point, Leyva said “No,
” and said she needed her lawyer. Id. at 29.
The agents ended the conversation and seized Leyva's cell
phone as they left. Id. at 30.
Kushel filed an application for a warrant to search the cell
phone on November 2, 2016. App. For Search Warrant, Ex. A to
Def's Mot. to Suppress Results of Search Warrant (Dkt.
40-1). In support of his application, SA Kushel included
statements from Leyva's post-Miranda interview.
Def's Mot. to Suppress Results at 2 (Dkt. 40). The search
warrant was issued, and the Government was able to recover
text messages. Id. Leyva now seeks to suppress (i)
the statements she made in both her pre- and
post-Miranda interviews; and (ii) the results of the
argues that the statements she made to police both before and
after receiving Miranda warnings should be
suppressed. First, she argues that her pre-Miranda
statements should be excluded even for impeachment
purposes. Second, she argues that the
Miranda warnings she received were ineffective due
to the police's use of a two-pronged interrogation.
Finally, she argues that her Miranda waiver was
invalid, due to her limited English proficiency, her ignored
invocations of the right to counsel, or because her
statements were involuntary due to police coercion. The Court
will address each argument in turn.
Voluntariness of Pre-Miranda Statements
argues that her statements made to GS Rahi at the hotel in
St. Clair Shores should be suppressed for any purpose because
she was not given Miranda warnings. Def's Br. at
6-7. She contends that the situation “was a custodial
interrogation in which coercion is inherent, and as such
distinguishes the line between voluntary and involuntary
statements.” Id. at 6.
Government responds that Leyva's statements are still
admissible for purposes of impeachment because they were made
voluntarily. Gov't's Br. at 17. In reply, Leyva
contends that the question of voluntariness is “at
best academic” as she did not receive a
Miranda warning, and all of her statements are
therefore inadmissible. Def's Reply Br. at 6 (Dkt. 57).
Additionally, Leyva raises for the first time an allegation
that SA Reese threatened her in Spanish while at the hotel.
Id. at 2, 6. She claims that he told her that if she
did not cooperate, she would not see her grandchildren again.
Id. Leyva also testified at the suppression hearing
that SA Reese told her that she would never see her children
or grandchildren again. 8/14/2017 Hr'g Tr. at 83 (Dkt.
statements that are inadmissible due to the government's
failure to provide Miranda warnings are nonetheless
admissible for impeachment purposes. Oregon v.
Elstad, 470 U.S. 298, 307 (1985) (citing Harris v.
New York, 401 U.S. 222 (1971)). A statement is
involuntary if it is “not ‘the product of a
rational intellect and a free will.'” United
States v. Delaney, 443 Fed.Appx. 122, 128 (6th Cir. Nov.
21, 2011) (quoting Medeiros v. Shimoda, 889 F.2d
819, 823 (9th Cir. 1989)). “A ‘necessary
predicate' to finding a confession involuntary is that
was produced through ‘coercive police
activity.'” Id. (quoting Colorado v.
Connelly, 479 U.S. 157, 167 (1986)). The Sixth Circuit
has established three requirements for finding that a
statement was involuntary as a result of police coercion:
“(i) the police activity was objectively coercive; (ii)
the coercion in question was sufficient to overbear the
defendant's will; and (iii) the alleged police misconduct
was the crucial motivating factor in the defendant's
decision to offer the statement.” United States v.
Mahan, 190 F.3d 416, 422 (6th Cir. 1999). The Government
bears the burden of proving by a preponderance of the
evidence that a statement was made voluntarily. Id.
has not pointed to any police activity at the hotel, where
she made her unwarned statements, that was “objectively
coercive.” She notes that when the police approached
her, “GS Rahi's gun was at the ready, although SA
Reese did not draw his weapon.” Def's Br. at 6. The
mere presence of a police weapon does not render a statement
involuntary, particularly where, as here, “the display
of weapons was not intended to ‘extort' a
confession by coercive means.” McCall v.
Dutton, 863 F.2d 454, 459-460 (6th Cir. 1988) (upholding
district court's determination that there was no coercive
police activity even where the petitioner “had been
handcuffed, placed on the ground, and surrounded by numerous
police officers who ‘yelled' and pointed weapons at
him”). Leyva later mentions that she was
“threatened” that if someone did not arrive at
the hotel to pick up the package, she would go to jail.
Def's Br. at 18. But a threat to arrest is only coercive
where the threat could not have been “lawfully
executed.” See United States v. Johnson, 351
F.3d 254, 263 (6th Cir. 2003) (holding that a threat to
arrest defendant's half-sister was not coercive because
the police had probable cause to believe that the half-sister
had committed a crime). Here, there is no dispute that GS
Rahi could and did lawfully arrest Leyva.
also raises in her reply and supplemental briefs an
allegation that SA Reese threatened her in Spanish at the
hotel. See Def's Reply Br. at 6; Def's Supp.
Br. at 17 (Dkt. 82). The Court does not find Leyva's
allegation credible. She testified at the suppression hearing
that SA Reese threatened her in Spanish, telling her she
would never see her children or grandchildren again, and then
asked if she wanted to cooperate. 8/14/2017 Hr'g Tr. at
83. However, GS Rahi testified that he did not hear SA Reese
speak to Leyva in Spanish. Id. at 20-21. He also
stated that SA Reese was never alone with Leyva for any
significant period of time; the only time that SA Reese and
Leyva were alone together was for about a thirty-second
period where GS Rahi was still within earshot. Id.
at 21. GS Rahi testified that this thirty-second period was
after Leyva had agreed to cooperate. Id.
also neglected to mention this alleged threat in her initial
motion - where she spent several pages detailing the facts
surrounding her arrest at the hotel - which suggests that
such threat either did not happen or did not have quite the
effect on Leyva as she would like the Court to believe.
Additionally, when she was interrogated at the police
station, Leyva made no mention of her desire to see her
children or grandchildren. See generally 10/23/2016
Tr. She did not appear to be frightened as a result of a
threat made by SA Reese. On the contrary, she was quite calm
and again was permitted to use her cell phone several times
to make phone calls and to attempt to send text messages.
Therefore, even if SA Reese made such a threat, and such
threat was objectively coercive, it was not “sufficient
to overbear [Leyva's] will.” Mahan, 190
F.3d at 422.
as there was no police coercion at the hotel, Leyva's
statements were made voluntarily and thus may be used ...