IN THE UNITED STATES DISTRICT COURT 


FOR THE WESTERN DISTRICT OF PENNSYLVANIA 


UNITED STATES OF AMERICA, ) 


) 

v. ) CR 10-49 Erie 

) 

HUGO LOPEZ, ) 

) 

Defendant. ) 

OPINION 

On August 17,2010, Defendant Hugo Lopez was charged in a two-count Indictment with 

possession of ammunition by a convicted felon, in violation of 18 U .S.C. § 922(g)(1) (Count I), 

and possession of ammunition by a drug user or addict, in violation of 18 U.S.c. § 922(g)(3) 

(Count II). Presently before the Court is Defendant's "Motion to Suppress Evidence" (Doc. No. 

34). On October 4,2011, we held a hearing on the motion and took the matter under advisement. 

A transcript ofthe suppression hearing was prepared. 

For the reasons that follow, said motion is denied. 

I. BACKGROUND 

Unless otherwise noted, the following facts are undisputed. 

On August 2,2010, Special Agent Kirk R. Brace of the Federal Bureau ofInvestigation 

obtained a Search and Seizure Warrant approved by U.S. Magistrate Judge Susan Paradise 

Baxter which authorized the search of an apartment located at 702 West 16th Street in Erie, 

Pennsylvania. The basis for the search warrant was evidence obtained by the FBI while 

investigating a bank robbery and armed bank robbery, in violation of 18 U.S.c. §§ 2113 (a) and 

(d). 

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A. Affidavit in Support of Search Warrant 

The affidavit supporting the search warrant (Defendant's Motion to Suppress Exhibit e), 

(Doc. 34-4) stated the following. On June 24, 2010, the Northwest Savings Bank located at 

2256 West Eighth Street in Erie, Pennsylvania was robbed by a man brandishing a handgun, who 

was later described as Hispanic or Puerto Rican in his thirties, with a thin to medium build 

standing 5'5" or 5'6", with slightly graying, black, close-cut hair. Several days later, an 

anonymous caller told the Millcreek Police Department that the robber was "Hugo." The 

anonymous caller explained that Hugo had been bragging about plans to rob another bank on 

Peach Street, and after stating this intention, on June 1, 2010, a bank on Peach Street was robbed. 

The caller further explained that after the Peach Street robbery, Hugo also bragged that he was 

going to rob another bank, and shortly after bragging thus, the Northwest Savings Bank robbery 

occurred on June 24, 2010. 

After the Northwest Savings Bank robbery, Special Agent Brace circulated bank 

surveillance photographs ofthe robbery to law enforcement agencies, and on June 28, 2010, 

Agent Heather Dunkle ofthe Pennsylvania Attorney General's Bureau ofNarcotics Investigation 

showed the photos to a confidential informant (eI), who has a prior felony drug conviction and 

had provided information leading to successful undercover drug purchases by law enforcement, 

as well as information, confirmed to be truthful, concerning hislher own illegal activity relevant 

to a pending investigation. The eI identified the person in the surveillance photographs as 

"Juice," later explaining that slhe remembered that Juice's real name is Hugo, and that he was 

called "Juice" because "Hugo" is the Spanish word for "juice." 

Upon receipt ofthis information, Special Agent Brace shared it with the Erie Police 

Department, who checked law enforcement databases and determined that defendant herein, 

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Hugo Lopez, has the nickname "Juice." Special Agent Brace gave a copy of Hugo Lopez's 

Pennsylvania Identification Card photograph to Agent Dunkle, who in tum showed the 

photograph to the CI. The CI said the photograph ofHugo Lopez was the person s/he knew as 

"Juice", and the same person he had identified in the bank robbery surveillance photographs the 

previous day. Agent Dunkle had indicated to Special Agent Brace that she believed the CI to be 

a reliable source because the CI (who had a previous felony drug conviction) had provided 

infonnation which had led to a number of successful undercover drug purchases. 

The following day, June 30, 2010, a contributor ofinfonnation (COl), who had pending 

theft charges and sought reward money, told Special Agent Brace that on June 24, 2010, the day 

ofthe Northwest Savings Bank robbery, the COl's neighbor, P.N., told COl that ifs/he wanted 

to make some money, s/he should watch who P.N. brings home and then watch the 11 :00 p.m. 

news. Later that day, the COl saw a man s/he knew as "Juice" at P.N.'s residence. Later, s/he 

watched the news and saw the bank robbery surveillance photographs, the COl realized that 

"Juice" was the man in the photographs. Special Agent Brace showed the COl the bank 

surveillance photographs from the Northwest Savings Bank robbery and the COl identified the 

bank robber as "Juice." Special Agent Brace then showed the COl Hugo Lopez's Pennsylvania 

Identification Card photograph and the COl identified Hugo Lopez as "Juice." 

In addition, the COl told Special Agent Brace that P.N. had said that "Juice" had a 

haircut prior to the robbery, that "Juice" was mad at himself for forgetting to put his hat on 

before the entered the bank, that "Juice" was connected to two bank robberies from which he 

obtained roughly $30,000, and that "Juice" was talking about getting out oftown, first to Florida 

and then to Puerto Rico. The COl told Special Agent Brace that "Juice" is a heroin addict, and 

that "Juice" speaks English with a Hispanic accent. 

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On June 30, 2010, a third bank robbery occurred at the PNC Bank at 1914 East 38th Street 

in Erie, Pennsylvania. The robber was described by a bank teller as Hispanic with a heavy 

Hispanic accent, who brandished a handgun, and was seen leaving the area in an older model, 

rusting, green Ford Explorer with "Eddie Bauer" written on the side of the vehicle. 

Minutes after the PNC Bank robbery, K.L. reported to Erie Police Department that her 

green Eddie Bauer edition Ford Explorer had been stolen. After investigating further, law 

enforcement determined that K.L.'s boyfriend, Angel Lebron, a fugitive who had been in control 

ofthe vehicle for the previous two months, had told her to report the vehicle stolen. The 

investigation also disclosed that "Juice" was one of Lebron's associates. K.L. recalled 

witnessing Lebron talking with "Juice" on the phone. 

On August 1,2010, Hugo Lopez's landlord at 702 West 8th Street in Erie, Pennsylvania, 

second floor rear apartment, contacted Special Agent Brace to report that Mr. Lopez had paid 

him $100 toward his August rent after having stated his intention to leave town within the next 

few days. The landlord reported that a man named "Angel", an escaped fugitive who had just 

turned himself into police, had been living with Mr. Lopez. The landlord had been told by 

another tenant that "Angel" had been supplying money to Hugo Lopez for rent and that Angel's 

turning himself into the police was the impetus for Hugo Lopez's decision to move out of his 

apartment, which was one offour apartments in the building. 

The search warrant was obtained and executed the following day, August 2,2010. It 

authorized the search of Mr. Lopez's apartment. 

B. Testimony at Hearing 

At a hearing on the motion to suppress, we heard testimony from three witnesses: the 

defendant, Special Agent Brace, and Special Agent Jason Crouse. 

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At the beginning ofthe search, at approximately 2:45 p.m., Mr. Lopez was not home. As 

he returned home, Mr. Lopez walked toward Special Agent Crouse, who was standing outside 

the residence. Special Agent Crouse asked if he could talk to Lopez, who agreed. Mr. Lopez at 

first assumed that the search was related to suspected drug activity. Special Agent Crouse asked 

Mr. Lopez if he could pat him down, and Mr. Lopez agreed. Special Agent Crouse testified that 

the pat down was conducted out of concern for the safety of the agents executing the search 

warrant Nothing was found during the pat down. Special Agent Crouse explained to Mr. 

Lopez that the case agent in charge of the search was in the apartment and would answer Mr. 

Lopez's questions. 

A few minutes later, Special Agent Brace came out ofthe residence to speak with Mr. 

Lopez, and advised him that a search was being conducted of his residence pursuant to a search 

warrant. Mr. Lopez was told that he was not under arrest, and Special Agent Brace asked ifhe 

could interview him. Mr. Lopez again agreed but told Special Agent Brace that he had to go to 

work soon. He expressed displeasure and was concerned because the person who was to drive 

him to work had just dropped him off. At Mr. Lopez's request, Special Agent Brace agreed to 

drive Mr. Lopez to work. Mr. Lopez called his employer to tell him he would be late for work. 

During the interview, Mr. Lopez made incriminating statements, including that there was 

a case of.32 caliber ammunition in his bedroom. (The agents found a box, not a case, of 

ammunition.) He told the agents that he had found the ammunition and that he had taken it into 

his apartment and planned to sell it. 

During this initial questioning, Mr. Lopez was never restrained or handcuffed, or told that 

he was not free to leave. Weapons were never drawn, and he was never told that he was under 

arrest. He never asked to ifhe could leave. However, he was not permitted to go into the 

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apartment while the search was conducted. He did not ask if he could stop answering questions. 

According to the agents, during the search, there were anywhere from two to four agents milling 

about. Mr. Lopez was never told that because they had obtained a search warrant Mr. Lopez had 

to answer questions. Mr. Lopez's demeanor was described as coherent. The agents testified that 

he did not appear to be under the influence of any drugs. He was also described as being very 

cooperative. For a period oftime Mr. Lopez sat on the concrete stoop while Special Agent Brace 

squatted in front of him and asked questions. Special Agent Brace testified that had Mr. Lopez 

chosen to leave, he would not have stopped him, even though the bullets had already been 

discovered in his residence. 

Because Mr. Lopez has a prior felony conviction which prohibits him from legally 

possessing ammunition, upon making the statement that he had ammunition under his bed, Mr. 

Lopez was arrested, handcuffed, and transported to the FBI office in Erie, Pennsylvania. While 

there, according to the agents, Mr. Lopez told them that he had used heroin a couple of hours 

prior, but that he nevertheless was aware of what he was saying and doing. Mr. Lopez executed 

the Advice of Rights form (Government's Ex.1) stating that he understood his Miranda rights but 

that he was willing to answer questions without a lawyer present. The Advice of Rights for 

indicates that it was executed at 4:34 p.m. Mr. Lopez continued to give incriminating statements 

during his interview. 

Mr. Lopez's testimony, which we found at times to lack credibility, diverged from the 

agents' testimony in several ways. First, Mr. Lopez testified that he had told the agents at the 

scene ofthe search that he had used heroin earlier that day. Specifically, Mr. Lopez testified 

that he had told them within minutes of arriving at the apartment building that he had used heroin 

a half hour prior. We find this testimony to lack credibility. The agents both convincingly 

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testified that Mr. Lopez told them he had used heroin only after his arrest and arrival at the FBI 

office. Both agents testified that Mr. Lopez was coherent and understood what was happening. 

Furthermore, Mr. Lopez testified that he felt that he was under arrest before he was formally 

arrested, and that he would not have been able to leave the area. However, we find credence in 

the agents' testimony that they did not coerce him or act in any way so as to indicate that his 

freedom was restricted. Mr. Lopez admitted to signing the waiver or rights form, but denied 

having read it. We find this testimony to lack credibility. Mr. Lopez's initials appear to the left 

of each ofthe eight lines on the form. Special Agent Brace credibly testifi ed that he had 

explained his rights and that Mr. Lopez appeared to have understood those rights. 

II. DISCUSSION 

Defendant argues that all physical evidence seized and incriminating statements made by 

him during the search ofhis residence should be suppressed because the affidavit accompanying 

the warrant did not establish probable cause to search the apartment. Defendant argues that the 

information provided by the anonymous source, the CI and the COl was insufficiently reliable to 

establish probable cause, and that the agents did not adequately corroborate the information. The 

Government, in turn, argues not only that the affidavit accompanying the search warrant 

established the requisite probable cause, but also that even if the warrant was improperly issued, 

the evidence seized during the search ofthe his premises should not be suppressed because the 

FBI agents in good faith relied on a facially valid search warrant. Mr. Lopez further argues that 

the search warrant did not authorize a search or interrogation ofthe defendant, and that the FBI 

agents improperly implied that the search warrant authorized them to search his person and 

interrogate him. Finally, he argues that his statements and waiver of Miranda rights were not 

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voluntary because the agents coerced him into making statements while he was under the 

influence of heroin. 

A. Probable Cause Supporting Issuance of Warrant 

Under the Fourth Amendment, the government must obtain a warrant prior to searching 

areas in which an individual possesses a reasonable expectation of privacy. Katz v. United 

States, 389 U.S. 347, 360, (1967); United States v. Herrold, 962 F.2d 1131, 1136-37 (3d Cir. 

1992). It is well-established that "the Fourth Amendment has drawn a firm line at the entrance to 

the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a 

warrant." Payton v. New York, 445 U.S. 573, 590 (1980); see also Sharrar v. Felsing, 128 F.3d 

810, 819 (3d Cir. 1997). A search warrant, in tum, may only be issued if there is probable cause 

to believe that evidence of criminal activity will be found on the premises or person to be 

searched. United States v. Harris, 482 F.2d 1115,1119 (3d Cir. 1973). The defendant bears the 

burden of establishing by a preponderance of the evidence that his Fourth Amendment rights 

were violated. United States v. Acosta, 965 F.2d 1248, 1257 n. 9 (3d Cir. 1992). 

It is well established that before issuing a search warrant, the state or magistrate judge 

must determine that "there is a fair probability that ... evidence of a crime will be found in a 

particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). The issuing judge's determination 

that probable cause existed is to be accorded great deference. Id. at 236; see also United States 

v. Conley, 4 F.3d 1200,1205-06 (3d Cir. 1993). Accordingly, "[a] reviewing court must 

determine only that the [issuing] judge had a 'substantial basis' for concluding that probable 

cause existed to uphold the warrant." United States v. Whitner, 219 F.3d 289,296 (3d Cir. 2000). 

In making this determination, the reviewing court may consider only "the facts that were before 

the magistrate judge, i.e., the affidavit, and not consider information from other portions of the 

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record." United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993). The warrant's supporting 

affidavit must be considered as a whole and read in a common sense and nontechnical manner. 

United States v. Williams, 124 F.3d 411, 420 (3d Cir. 1997). 

1. Anonymous source 

Defendant argues that the affidavit submitted in support ofthe warrant application did not 

establish probable cause to issue a warrant for the search of his apartment because the 

information provided by the anonymous source contained insufficient indicia ofreliability, and 

the investigating officers did not adequately corroborate the anonymous tip. The Government 

does not dispute that the information provided by the anonymous source alone does not support a 

determination of probable cause. The Government argues, and we agree, that the investigating 

agents gathered sufficient corroborating information, including information from the CI and 

COl, as well as other information contained in the affidavit, reasonably permitted the Magistrate 

Judge to conclude that the information relevant to the bank: robberies could be found at the 

apartment. The task ofthe issuing magistrate is to make a practical, commonsense decision 

whether, given all the circumstances set forth in the affidavit there is a fair probability that 

contraband or evidence of a crime will be found in a particular place. Gates, 462 U.S. at 238-39. 

Given the totality ofthe circumstances test set forth in Gates, the anonymous tip (as is true ofthe 

information supplied by the CI and COl) was but one piece ofthe overall puzzle, and there was 

sufficient reason to conclude that the veracity and basis of knowledge ofthe person supplying 

the information supported the decision that there was a fair probability that contraband or 

evidence ofthe bank: robbery would be found in Mr. Lopez's residence. 

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2. Confidential Informant 

Mr. Lopez also argues that the information provided by the CI cannot be used to support 

probable cause because the veracity of the information was not verified, and the affidavit did not 

sufficiently state whether the Cl's information had proven reliable in the past. Again, under the 

totality of circumstances standard for evaluating informants' tips when determining if there was 

probable cause to search, Gates, 462 U.S. at 233, we reject the defendant's arguments. The Cl's 

credibility, reliability, and basis of knowledge were adequately established in the affidavit. The 

Cl's identity was known to the law enforcement at the time s/he proffered the information. The 

CI had provided information leading to successful undercover drug purchases by law 

enforcement, as well as information, confirmed to be truthful, concerning his own illegal activity 

relevant to a pending investigation. The CI was motivated to aid law enforcement agents during 

the pendency of his/her own criminal prosecution. The information s/he provided was 

corroborated by the check of law enforcement databases (concerning the defendant's use ofthe 

name "Juice"), by the anonymous tip that a man named "Hugo" had robbed the banks, and the 

Cl's confirmation that the photograph ofMr. Lopez was the man the CI knew as "Juice." 

3. Contributor of Information 

Mr. Lopez further argues that the information provided by the COl did not support 

probable cause because Special Agent Brace did not verify the truth of the information with P.N. 

We find that the information provided by the COl was consistent with what the FBI had learned 

from the anonymous source and the CI. The COl told Special Agent Brace that P.N. told the 

COl that if s/he wanted to get reward money, the COl should watch who P.N. brings home and 

then watch the 11 :00 news. The COl saw a man s/he knows as "Juice" at P.N.'s residence, and 

when the COl saw the bank robbery surveillance photographs on the evening news, the COl 

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realized that "Juice" was the man in the photographs. When Special Agent Brace showed the 

COl Mr. Lopez's photograph, the COl identified Mr. Lopez as "Juice." Special Agent Brace 

need not have verified the information with P.N. because it was consistent with the information 

Special Agent had obtained from other sources. P.N. had told the COl that "Juice" had a haircut 

prior to the robbery and was mad at himself because he forgot to put his hat on before he entered 

the bank, that "Juice" was talking about leaving Erie, and that "Juice" was connected to two bank 

robberies. The COl told Agent Brace that "Juice" was a heroin addict with a Hispanic accent. 

The bank robber was described by witnesses as a Hispanic man with a Hispanic accent who was 

not wearing a hat. 

4. Landlord and Vehicle 

Finally, the defendant argues that the information provided by the defendant's landlord 

and the owner ofthe Green Ford Explorer was exculpatory as to the defendant and therefore, 

fails to establish probable cause that the defendant committed a crime. In particular, the landlord 

had informed police that Mr. Lopez was moving out of his apartment not to flee detection after 

robbing the banks but because Angel Lebron, who had been providing money to Mr. Lopez for 

rent, had been arrested after turning himself in to police less than twelve hours after the final 

bank robbery. Defendant argues that a reasonable person would conclude that it was Angel 

Lebron, not Mr. Lopez, who had robbed the banks. We find that the information, albeit 

exculpatory, corroborates the information from the COl that "Juice" was planning to leave town, 

and is inculpatory insofar as it established a connection between Mr. Lopez and Angel Lebron. 

Moreover, the defendant argues that the owner of the Ford Explorer asserted that Angel 

Lebron was in possession of the vehicle used in the final bank robbery for roughly two months 

prior to that crime, and that Angel Lebron had induced the owner to file a police report that the 

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vehicle was stolen shortly after the robbery occurred. However, the agents determined that Mr. 

Lopez and Angel Lebron were associates. 

Considering the totality of the circumstances, there was probable cause to search Mr. 

Lopez's residence. Magistrate Judge Baxter had a "'substantial basis' for concluding that 

probable cause existed." Whitner, 219 F.3d at 296. Accordingly, the Court concludes that the 

issuance of a search warrant for the residence did not violate Mr. Lopez's Fourth Amendment 

rights. 

Even if the she had not had a substantial basis for concluding that probable cause existed 

to search the premises, the Court finds that the agents nonetheless acted in good faith reliance on 

a facially valid search warrant. Evidence that is seized pursuant to a search warrant issued 

without probable cause may nonetheless be admissible if the warrant is facially valid and the 

police officers executing the search relied on it in objective good faith. United States v. Leon, 

468 U.S. 897,922 (1984). "[S]earches pursuant to a warrant will rarely require any deep inquiry 

into reasonableness, ... for a warrant issued by a magistrate [or state judge] normally suffices to 

establish that a law enforcement officer has acted in good faith in conducting the search." Id. The 

United States Court of Appeals for the Third Circuit has concluded that an officer's reliance on a 

facially valid warrant is unreasonable only in the following four narrow situations: 

(1) when the [issuing] judge issued the warrant in reliance on a deliberately or recklessly 

false affidavit; 

(2) when the magistrate judge abandoned his judicial role and failed to perform his 

neutral and detached function; 

(3) when the warrant was based on an affidavit so lacking in indicia of probable cause as 

to render official belief in its existence entirely unreasonable; or 

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(4) when the warrant was so facially deficient that it failed to particularize the place to be 

searched or the things to be seized. 

United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars. 307 F.3d 137, 146 

(3d Cir. 2002), quoting United States v. Williams, 3 F.3d 69, 74 n. 4 (3d Cir. 1993). Here, 

Defendant argues that the affidavit accompanying the search warrant was so lacking in indicia of 

probable cause as to render official belief in its existence entirely unreasonable. We find, 

however, that even if the facts on which the warrant was based were insufficient to establish a 

substantial basis for concluding that probable cause existed, the search warrant was not "based 

on an affidavit so lacking in indicia of probable cause as to render official belief in its existence 

entirely unreasonable." Id. 

B. The Pat Down and Statements Made Pre-Miranda 

The admissibility of the statements made to the agents prior to the administration of any 

Miranda warnings turns on whether Mr. Lopez was in custody at the time he made those 

statements. 

Ordinarily, in determining whether an individual is in custody, the ultimate inquiry is 

''whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated 

with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983), quoting Oregon v. 

Mathiason, 429 U.S. 492, 495 (1977) (per curiam). When the individual has not been openly 

arrested when the statements are made, " 'something must be said or done by the authorities, 

either in their manner of approach or in the tone or extent of their questioning, which indicates 

they would not have heeded a request to depart or to allow the suspect to do so.' " Steigler v. 

Anderson, 496 F.2d 793, 799 (3d Cir.l974), quoting United States v. Hall, 421 F.2d 540,545 (2d 

Cir.1969). 

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We find that the interrogation which occurred outside Mr. Lopez's apartment building 

was not custodial. He was free to leave and voluntarily answered questions and therefore, no 

Miranda warning was necessary prior to his statement that he had ammunition in his apartment. 

See Mathiason, 429 U.S. at 495, 97 S.Ct. 711 C'"[P]olice officers are not required to administer 

Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be 

imposed simply because ... the questioned person is one whom the police suspect.") 

Mr. Lopez was patted down and questioned prior to being arrested, and his consent was 

freely given. It is well settled that a search conducted pursuant to consent is one of the 

specifically established exceptions to the search warrant requirement. Schneckloth v. 

Bustamonte, 412 U.S. 218, 219, (1973). In Schneckloth the Supreme Court stated that 

voluntariness ""is a question offact to be determined from the totality of all of the 

circumstances." Id. at 227. Mr. Lopez did not have his freedom of movement restricted in any 

way. Special Agent Crouse first asked ifhe could talk to Mr. Lopez and when he agreed, Special 

Agent Crouse asked ifhe could pat Mr. Lopez down. Again, Mr. Lopez agreed. Mr. Lopez 

asked Special Agent Crouse what was happening to which Special Agent Crouse replied that the 

case agent would explain it to him. Special Agent Brace came out of the residence and advised 

Mr. Lopez that a search ofhis residence, pursuant to a warrant, was being conducted. Special 

Agent Brace told Mr. Lopez that he was not under arrest, and he asked if he could interview him. 

Mr. Lopez agreed to be interviewed. The questioning lasted a very short period of time, 

involved no threats or intimidation, and the agents expressed willingness to give Mr. Lopez a 

ride to work. Mr. Lopez did not appear disoriented or confused and was calm. 

Furthermore, we find that the pat down ofhis person was not a search conducted pursuant 

to the warrant; rather, it was done for the safety oflaw enforcement and he consented to it. The 

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fact that the agents asked questions about items they were searching for does not transform the 

interview into one conducted pursuant to the authority of the warrant. 

C. Statements Made Post-Miranda 

The admissibility ofthe statements made while at the FBI office after the Miranda 

warning had been given depends on Mr. Lopez's competence at the time to waive his Miranda 

rights. He argues that he was intoxicated and that the agents coerced him into making the 

statements. He argues that the FBI should have known that he used heroin prior to their 

encounter either because - ifwe are to believe Mr. Lopez - he told them he had used when they 

were outside his apartment prior to his arrest, or, because the FBI agents knew him to be a heroin 

addict. 

The Supreme Court has frequently articulated the applicable waiver standard. In 

Miranda v. Arizona, 384 U.S. 436 (1966), the Court held as to waiver and burden: 

The defendant may waive effectuation ofthese rights, provided the waiver is made 

voluntarily, knowingly and intelligently. 

* * * * * * 

Ifthe interrogation continues without the presence of an attorney and a statement is 

taken, a heavy burden rests on the government to demonstrate that the defendant 

knowingly and intelligently waived his privilege against self-incrimination and his right 

to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490, n. 14,84 S.Ct. 

1758, 12 L.Ed.2d 977 [ (1964) ]. This Court has always set high standards of proof for 

the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019,82 

L.Ed. 1461 (1938), and we reassert these standards as applied to in-custody interrogation. 

Id. at 444,475. 

The Court made clear in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135,89 L.Ed.2d 

410, (1986), the two-pronged test for waiver: 

First, the relinquishment ofthe right must have been voluntary in the sense that it was the 

product of a free and deliberate choice rather than intimidation, coercion, or deception. 

Second, the waiver must have been made with a full awareness of both the nature of the 

right being abandoned and the consequences of the decision to abandon it. Only if the 

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totality ofthe circumstances surrounding the interrogation reveal both an uncoerced 

choice and the requisite level of comprehension maya court properly conclude that the 

Miranda rights have been waived. 

Id. at 421 (internal quotations marks and citations omitted). 

The United States Court ofAppeals for the Third Circuit has also explained that: 

This inquiry requires us to consider the totality of the circumstances surrounding the 

interrogation, which includes examining the events that occurred and the background, 

experience, and conduct ofthe defendant. Miranda rights will be deemed waived only 

where the totality ofthe circumstances "reveal[s] both an uncoerced choice and the 

requisite level of comprehension." 

United States v. Sriyuth, 98 F.3d 739, 749 (3d Cir. 1996), Quoting Moran, 475 U.S. at 

421, 106 S.Ct. 1135) (citations omitted). 

We find that the defendant knowingly and voluntary waived his privilege against selfincrimination and right to an attorney. United States v. Swint, 15 F.3d 286,289 (3d Cir. 1994). 

There is nothing in the record to indicate that the authorities coerced the defendant's statements. 

Colorado v. Connelly, 479 U.S. 157,164 (1986). Mr. Lopez told the agents that he had taken 

heroin a couple of hours prior but that regardless ofthe heroin use, he was aware ofwhat he was 

saying and doing. After the waiver form was explained to him, he appeared to understand the 

terms of the waiver form and initialed it line by line. 

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III. CONCLUSION 


As the Court concludes that Defendant's Fourth Amendment rights were not violated by 

the issuance ofa search warrant and the voluntary waiver of Miranda rights, and in all other 

respects was lawful, Defendant's "Motion to Suppress Evidence" is denied. 

An appropriate Order will be entered. 

Date: ;1-'>-.. ;l..IJ" ~i.~'8.:JlI~. Maurice B. Cohill, Jr. 

Senior United States District Court Judge 

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