Cd.) At no time during the three hours at the police station did either Cammiso or Fragomeli

read Patel her Miranda rights. (Id. at 210.)

B. Patel’s Testimony

In addition to denying that she confessed to participating in the robbery, Patel’s
testimony regarding the events at the police station significantly differed from Cammiso’s
testimony. Patel testified that the officers never told her she was free to leave and that as soon as
she entered the interview room, Agent Fragomeli told her that Angelo Berdicean was at the
state’s attomey’s office giving a statement that Patel planned the robbery. (Id.at 472.) Patel
then stated that she wanted to go home to talk with her father. (Id. at 473.) Ignoring her request
to leave, Agent Fragomeli stated that she needed to cooperate and that she could help herself by
calling Berdicean to get him to implicate himself in the robbery. (Id.) In response, Patel began
to cry and stated that she did not “know anything about the bank robbery.” (Id.) Patel stated that
at that time she wanted to leave but felt like she could not do so because she would “get in
trouble.” (Id. at 474.) After several more hours of this type of questioning, the officers finally let
Patel leave after she made her third request to do so. (Id, at 476.)

Cc. Credibility of Patel and Cammiso

Because Patel and Cammiso have completely different versions of her three hours spent
at the police station, the Court will assess the credibility of each of their testimonies in
determining which series of events this Court will apply in ruling on the instant motion.

After examining Cammiso’s testimony, this Court finds several factors of his version of
the interrogation troubling. First, Cammiso initially denied that Patel asked to speak to her
father, but after he was confronted with his notes of the interview, he admitted that Patel did ask
to speak to her father. Second, as Patel contends in her motion, it is somewhat suspect that the

4


“totality of the circumstances” to ensure that the confession “was not secured through
psychological or physical intimidation but rather was the product of a rational intellect and free

will.” United:States v. Montgomery, 14 F.3d 1189, 1194 (7th Cir. 1994). The crucial question

is whether “the defendant’s will was overborne at the time he confessed” or if the police
obtained the statement through coercive means. Id.

Statements made during a “non-custodial interrogation are not viewed with suspicion.”
Fazio, 914 F.2d at 956. In examining coercion, courts examine the perspective of a reasonable
person in the defendant’s position at the time of the statement. United States v. Cichon, 48 F.3d
at 276. Court should look to “the characteristics of the accused and the details of the
interrogation” to determine whether a reasonable person would feel coerced. Montgomery, 14
F.3d at 1194. Specifically, courts should consider “the age of the defendant, her education, the
nature of the questioning, the use of physical punishment, whether the defendant was read her
rights, the duration of the questioning, the defendant's prior experience with police, and whether

the defendant was under the influence of drugs or alcohol.” Cichon, 48 F.3d at 276.

Here, as detailed above, examining the totality of the circumstance, this Court finds that
Patel voluntarily agreed to go to the police station, was told that she was not under arrest and
could leave at any time, and was not physically restrained or threatened. Moreover, this incident
was not Patel’s first interaction with the police. This Court thus finds that while the police might
have used some deceptive interrogation techniques, Patel’s free will was not overborne at the
time she confessed and the police did not obtain her statement through coercive means.

Accordingly, this Court finds that Patel voluntarily confessed to the police.


DISCUSSION

Patel contends that this Court should suppress her confession because: (I) at the time she
was interrogated, she was in custody and therefore required to be read her Miranda warnings;
and (II) the confession was involuntary. The Court wiil discuss each of these contentions in
turn.

L Lack of Miranda Warnings

To protect the Fifth Amendment’s privilege against self-incrimination, the United States
Supreme Court in Miranda v. Arizona, 384 U.S. 436, 444 (1966), established a prophylactic rule
requiring the government to issue specific warnings to individuals subject to custodial
interrogation. See also Moran v. Burbine, 475 U.S. 412, 420 (1986).? The Court in Miranda
explained that custodial interrogation occurs when the government initiates questioning after a
person is in custody or “otherwise significantly deprived of his freedom in any significant way.”
384 US. at 444,

The “in custody” determination hinges on whether after examining “the totality of the
circumstances,” the court determines whether the government restrained “the defendant’s
freedom of movement [to] the degree associated with formal arrest.” California v. Beheler, 463
USS. 1121, 1125 (1983). The Court in Stansbury y. California, 511 U.S. 318, 323-24 (1994)
noted that the “in custody” determination depends upon the objective circumstances of the
interrogation not the subjective views of the interrogating officers or the person being
questioned. “[T]he only relevant inquiry is how a reasonable man in the suspect’s shoes would

have understood his situation.” Id. The Stansbury Court, however, held that an officer's

2 The parties do not contest that the officers interrogated Patel, only whether she was in

custody. Therefore, for the purposes of this motion, the Court will assume that the police
“Gnterrogated” Patel as required under Miranda,
6



police would let Patel leave the station after she admitted to planning and participating in the
tobbery. Moreover, on cross-examination, Patei’s counsel got Cammiso to admit that he did not
include in his report many of the circumstances surrounding the interview about which he
testified to at trial.

Although this Court has some concerns with the credibility of Cammiso’s testimony, it
has even greater concems with the veracity of Patel’s testimony. Before the trial, Patel pled
guilty to bank fraud (Count II). On cross-examination, Patel admitted that among the customer’s
she stole from was a 77 year old man who came into the bank for help with his ATM card. (Id.
at 484.) While assisting the gentleman, Patel made a duplicate ATM card which she then used to
take money out of the elderly man’s account. (Id. at 484-85.) In all, Patel used unauthorized
ATM cards to steal more than $11,000 from three of the bank’s customers. (Id. at 490.)
Additionally, Patel stole checks from at least one of the bank’s customers. (Id. at 492.) She then
passed these checks on to third parties who forged the customer’s name and cashed the checks.
(Id.) In all, more than $30,000 worth of bad checks were written on these stolen checks. (Id.)
Moreover, when the police searched Patel’s bedroom, they found that she improperly had
“computer records and personal information from Fifth Third Bank customers.” (Id. at 493.)
Additionally, Patel testified that as early as April of 2001, she attempted to pass bad checks in an
attempt to purchase a $4,000 watch. (Id. at 495.) Accordingly, given the above conduct which
Patel has admitted to, this Court finds that her testimony lacked credibility.

Therefore, although this Court has concerns over the credibility of Cammiso’s testimony,
it has much greater concems over Patel’s veracity. As such, this Court finds that the testimony
of Cammiso, an 11 year police veternen, more credible than Patel’s testimony and will thus
adopt Cammiso’s version of the interrogation for the purposes of this motion.

5


custody” during the three hours she spent at the Naperville police station on August 13, 2001.
Patel voluntarily agreed to go to the police station and drove herself there in her own car at a
time which she set. Once she arrived at the station, Cammiso told Patel that she was not under
arrest and could leave at any time. The doors to the interview room were not locked. During the
three hours, the officers did not physically restrain Patel in anyway. Moreover, at the end of the
interrogation, the officer let Patel leave. The fact that Patel asked to speak to her father is not
determinative to the custody determination. Patel is an adult and did not have a legal right to
consult with her father. Consequently, although the questioning took place in the station house,
Patel was the focus of the police investigation, and the police might have used false statements
and/or deception during the interrogation, the totality of the circumstances indicate that Patel
was not significantly “deprived of her freedom in any significant way” or that the government
restrained Patel’s “freedom of movement [to] the degree associated with formal arrest.”
Accordingly, this Court finds that Patel was not in custody, and thus, the officers were not

required to give Patel Miranda warnings.

I. Voluntary Determination

Patel additionally contends that her confession was not “voluntary.” Although neither
Patel or the Government addressed this issue in any detail, the Court will briefly discuss whether
Patel’s alleged confession was voluntary.

Determining whether a defendant's pre-Miranda oral statements were voluntary is a
separate and distinct inquiry from determining whether defendant was “in custody.” See e.g.,
United States v. Hocking, 860 F.2d 769 (7th Cir. 1988) (court found no custodial interrogation
and that the defendant’s statement was voluntary).

In determining the voluntariness of a confession or statement, district courts examine the

8


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

igned J i Sitting Judge if Oth

Name ot ane sae Blanche M. Manning ting ud ee a Sodee

CASE NUMBER 01 CR 716 DATE November 18, 2002
CASE United States v. Nirali Patel
TITLE

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

nature of the motion being presented. ]

MOTION: '

DOCKET ENTRY:

ql) Oo Filed motion of [ use listing in “Motion” box above.]

Q) oO Brief in support of motion due

@) mi Answer brief to motion due___. Reply to answer briefdue__.

(4) Oo Ruling/Hearingon___—ssetfor_— att

(5) oO Status hearing[held/continued to] [set for/re-set for]on__—ssetfor__—S_at

©) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—_ssetfor_——sat_—S

(7) Oo Trial[set for/re-set for]on_ at

(8) a [Bench/Jury trial] [Hearing] held/continuedto___at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O General Rule 21 OO FRCP41(a)(1) © FRCP41(a)(2).

(10) @ [Other docket entry] For the reasons set forth in the attached Memorandum and Order, the Court

DENIES Defendant Patel’s Motion to Suppress [66-1]. It is so ordered.

ql) a [For further detail see order on the reverse side of the original minute order.]
No notices required, advised in open court,
No notices required.
number of notices.
Notices mailed by judge’s staff.

A NOV 20 2002
Notified counsel by telephone. diate deci
Docketing to mail notices.

Mail AO 450 form Lunas Peery sn ol Sek
Copy to judge/magistrate judge. AGS
t aN
1aeL WY Ge ACNZO ac net note
courtroom
RTS deputy’s
ina OT 03-0914
Date/time received in
central Clerk's Office availing depury initials



CONCLUSION
For the reasons set forth above, the Court DENIES Defendant Patel’s Motion to

Suppress [66-1]. It is so ordered.

— Caacl W Maassiy

BLANCHE M. MANNING
U.S. DISTRICT COURT ae

DATE: //-/f-02-

10



knowledge or beliefs if conveyed to the suspect bear on the custody issue in so far as the effect
those statements may have on how a reasonable person in the suspect's position would gauge the
breadth of his freedom. Id. at 324.

In looking at the totality of the circumstances, the district court must keep in mind that

the Miranda warnings are not automatically implicated because: (1) the questioning takes place

in the station house; (2) the defendant was the focus of the police investigation; or (3) the police
used false statements and/or deception during the interrogation to get the suspect to confess.

Oregon v. Mathiason, 429 U.S. 492, 495 (1977); Beheler, 463 U.S. at 1125.

Relying on Mathiason and Beheler, the Seventh Circuit in United States v. Jones, 21 F.3d
165, 170 (7th Cir. 1994), held that a defendant who voluntarily accompanied the police to the

station and was questioned for several hours was not “in custody” for Miranda purposes. The

Jones court noted that the Supreme Court does not require Miranda warnings because the

questioning took place at the police station and that the defendant was the “focus of [the]
criminal investigation. Id, Affirming the district court’s denial of the defendant’s motion to
suppress, the court noted that the defendant “was not handcuffed or otherwise physically
restrained and was told that he was not under arrest,” was told that he “was free to leave,” and
“{tJhere [was] no evidence that the officers made any threatening gestures or statements, or
otherwise engaged in strong arm tactics justifying a belief by [the defendant] that he was in

custody.” Id. See also United States v. Fazio, 914 F.2d 950, 955-56 (7th Cir. 1990) (defendant

not “in custody” because he voluntarily agreed to drive himself to the police station, told that he
was not under arrest and free to leave any time, and eventually agreed to cooperate).

Here, examining the totality of the circumstance, this Court finds that Patel was not “in



Cammiso and Fragomeli told Patel that she was a suspect in the robbery. (Id. at 178.)
According to Cammiso, Patel did not deny that she was not involved in the robbery. (Id.) The
officers then began to explain their reasons for why they believed she was a suspect. (Id.) They
explained that because of her job at the bank she was in a perfect position to set up the robbery.
(id. at 179.) As the officers explained their reasons, Patel did not verbally respond to the officers
but allegedly began to nod her head affirmatively as if in agreement with the accusations. (Id.)
At one point, Patel stated that she wanted to talk to her father. (Id. at 227-28, 263.) In response,
Agent Fragomeli stated that he believed that her father would want her to tell the truth. (Id. at
263.)

After an hour and a half of asking questions and Patel nodding her head, the officers took
a fifteen minute break. (Id. 179-80) During the break, Cammiso asked Patel if she wanted to
use the restroom or a glass of water. (Id.) Patel refused this offer (id.) and testified that she was
left alone in the room during the break. (Id, at 475.)

After the break, Cammiso told Patel that if she wished to cooperate, she needed to “start
speaking in her own words.” (Id. at 179.) Thereafter, Patel “started answering questions verbally
.-. and exchanging some dialog with us.” (1d. at 180.) Patel then allegedly admitted that “she
was involved in the planning and execution of the robbery.” (Id. at 181.) She admitted that she
let the robbers into the bank and left the vault doors open so that they could easily access the
bank’s money. (Id.) She also admitted that she participated in the robbery with Angelo
Berdicean, her alleged boyfriend at that time, and that she was to receive $25,000 of the robbery
proceeds. (Id. at 184-85.) This verbal colloquy went on for another hour and a half, until 5:00
p-m., when Patel stated for the first time that she “wished to go home.” (Id. at 189.) The officers
then let Patel leave the station with the understanding that she would return the next morning.

3


“push them [the bank employees] around.” As a result of the scheme, the two robbers threatened
another bank employee with death, kicked him in the stomach and leg, and hit him in the head
with a gun. In all, the robbers made off with $166,000.

On August 13, 2001, two days after the robbery, Detective Cammiso of the Naperville
Police Department contacted Patel by telephone to request that she come into the Naperville
police station to discuss the robbery. (Tr. at 173.) At trial, Cammiso admitted on cross-
examination that he believed at that time that Patel was a suspect but did not tell her that when
he called her to come into the police station. (Id. at 204.) Patel voluntarily drove herself to the
police station that same day around 2:00 p.m. (Id. at 174.) After arriving, Cammiso met Patel in
the lobby and escorted her to the lowest level of the police station to a small windowless room
which had a table and chairs and two doors, neither of which were locked. (Id. at 175.) Waiting
in the room was Special Agent Fragomeli from the FBI. (Id.)

The interview lasted three hours, until 5:00 p.m., at which time Patel asked to and was
permitted to leave the station. (Id. at 188-89.) During these three hours, Patel allegedly
confessed to participating in and planning the robbery. (Id, at 178-88.) Although Patel denied
that she confessed, for the purposes of the present motion only, the Court will assume that she
did confess. Additionally, Cammiso and Patel have widely divergent recollections as to what
transpired during her three hours at the police station. Consequently, the Court will examine the
testimony of Cammiso and Patel regarding the three hours Patel spent at the police station on
August 13, 2001 and then determine whose testimony this Court finds more credible.

A. Detective Cammiso’s Testimony

Cammiso testified that when the interview began he and Agent Fragomeli told Patel that
she was not under arrest and could leave any time “she wished.” (Id. at 175.) Shortly thereafter,

2



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA )
) No. 01 CR 716
Vv. )
) Hon. Blanche M. Manning
NIRALI PATEL ) DOCKE TED

NOV 2 0 2092
MEMORANDUM AND ORDER

A federal grand jury retumed a two count indictment against Defendant Nirali Patel
alleging bank robbery by force, violence and intimidation, in violation of 18 U.S.C. §§ 2113(a)
and 2 (Count I) and bank fraud, in violation of 18 U.S.C. §§ 1344 and 2 (Count II). Patel
subsequently pled guilty to Count I and went to trial on Count I. After the jury was unable to
reach a unanimous verdict, this Court declared a mistrial. The retrial is set for November 18,
2002. The present matter comes before this Court on Patel’s motion to suppress her alleged
confession. For the reasons set forth below, this Court DENIES this motion.

BACKGROUND!

Count One of the Superceding Indictment alleges that on August 11, 2001, Patel
participated in the robbery of Fifth Third Bank in Naperville, Illinois using force, violence, and
intimidation. The Government alleges that Patel, who was a bank employee at the time, helped
plan and execute the robbery, knowing at the time that it would involve violence against a fellow
bank employee. Patel allegedly admitted two men into the bank before it opened and agreed to
leave the vault open with an unusually large amount of cash in it and supply the men with the

surveillance videotape. To make the robbery look “real” Patel agreed that the robbers would

1 The facts in the Background section are taken from the Superceding Indictment, the

parties’ submissions to the Court, and the trial testimony.

a