Order Denying Motion to Suppress — No. 3:23-cr-00049 (Dkt. 42, D. Conn.)

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Order Denying Motion to Suppress, Document 42 filed January 2, 2024 in United States v. Jerrard Santiago, No. 3:23-cr-49 (JAM) in the District of Connecticut. Santiago, charged with distributing narcotics, moved (Doc. #22) to suppress statements he made to DEA agents on March 21, 2022, attesting that he was under the influence of PCP at the time. After an evidentiary hearing the court finds the DEA, investigating a May 18, 2021 overdose death at the Mohegan Sun casino, interviewed him in a DEA vehicle after his arrest on a tribal police trespassing warrant, and that DEA Special Agent Keith Warzecha read him his Miranda rights from a wallet card. Jeffrey Alker Meyer, United States District Judge, weighs the absence of a written waiver against the government but concludes the statements were voluntary and the waiver knowing, and denies the motion.

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“Order Denying Motion to Suppress — No. 3:23-cr-00049 (Dkt. 42, D. Conn.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/order-denying-motion-to-suppress-no-3-23-cr-00049-dkt-42-d-conn-9e8074e7d7/, SHA-256 41ed9c095ab185141105127d72f397d9eea2d4b9823a7c92004b6b2ec9a3795a.

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Case 3:23-cr-00049-JAM Document 42 Filed 01/02/24 Page 1 of 9

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA

v.
No. 3:23-cr-49 (JAM)
JERRARD SANTIAGO,
Defendant.

ORDER DENYING MOTION TO SUPPRESS

Defendant Jerrard Santiago has moved to suppress statements he made to law

enforcement officers on the ground that they were involuntary and that they were elicited without

a knowing and voluntary waiver of his Miranda rights. Following an evidentiary hearing, I will

deny the motion to suppress.

BACKGROUND

A federal grand jury has charged Santiago with unlawfully distributing narcotics

including fentanyl, heroin, and cocaine on various dates in May 2021 and February 2023.1

Santiago has now moved to suppress statements he made on March 21, 2022 to agents of the

Drug Enforcement Administration (DEA).2

In an affidavit accompanying his motion to suppress, Santiago attests that he is a “long-

time user of the drug, Phencyclidine (PCP)” and that he was “under the influence of

Phencyclidine (PCP) on March 21, 2022.”3 Santiago’s motion to suppress contends that, because

1
Doc. #1 at 1-2.
2
Doc. #22 at 1. Santiago’s motion to suppress also seeks suppression of statements he made to law enforcement on
a later date (March 13, 2023). But in view of the government’s position that it will not seek to introduce in its case-
in-chief Santiago’s statements that he made on that later date, there is no need for me to resolve the admissibility of
those statements at this time. If the government believes at trial that it has grounds to use such statements for
purposes of cross-examination or its rebuttal case, the government shall advise the Court prior to doing so in order
for the Court to determine whether such statements may be properly used. In addition, to the extent that there was
testimony and evidence at the suppression hearing about the later interview of Santiago on March 13, 2023, I
disregard it for purposes of this ruling and base this ruling solely on the evidence concerning the events of March 21,
2022.
3
Doc. #22-1 at 1 (¶¶ 3-4).

1
Case 3:23-cr-00049-JAM Document 42 Filed 01/02/24 Page 2 of 9

he was under the influence of PCP when he made statements to the DEA, his statements were

involuntary and that he did not knowingly and voluntarily waive his Miranda rights.

I conducted an evidentiary hearing and make the following factual findings. The DEA

was conducting an investigation of a drug overdose death that occurred at the Mohegan Sun

casino in Uncasville, Connecticut on May 18, 2021. The DEA’s investigation focused on

Santiago, in part because of video surveillance from the casino that showed Santiago in

proximity to the overdose victim. Because the casino had previously barred Santiago from its

property, the Mohegan Tribal Police eventually secured an arrest warrant against Santiago for

trespassing on the property of the casino.

The DEA came up with a plan to interview Santiago on the morning of March 21, 2022

by means of participating in the execution of the trespassing arrest warrant. Santiago was

arrested outside his home in New Haven and then transferred in handcuffs to the backseat of a

DEA vehicle for transport to the Mohegan police department to be booked on the warrant.

DEA Special Agent Keith Warzecha was in the driver’s seat of the vehicle, and DEA Special

Agent Peter Borysevicz was in the front passenger seat.

Soon after Santiago was transferred to the DEA vehicle, Agent Warzecha read him his

full Miranda rights from a standardized DEA wallet card and asked him: “Do you understand?”

and “Are you willing to answer some questions?”4 Both Agents Warzecha and Borysevicz

credibly testified that Santiago responded that he understood his rights and that he wished to

answer questions. They also credibly testified that Santiago appeared to understand them and not

to be under the influence of any substances.

Specifically, Agent Warzecha testified that Santiago was walking normally (albeit with a

4
Govt. Ex. #1 (wallet card).

2
Case 3:23-cr-00049-JAM Document 42 Filed 01/02/24 Page 3 of 9

limp) and had no difficulty getting into the DEA vehicle. He further testified that during the car

ride Santiago was lucid and articulate, that he responded to questions in a logical fashion, and

that he did not fall asleep or drift off. According to Agent Warzecha, Santiago did not claim that

he was under the influence of drugs, and there was no indication from his demeanor that he was

under the influence of drugs.

Agent Warzecha further testified that when they arrived at the Mohegan police

department, Santiago said he was willing to be interviewed in a department interview room.

According to Agent Warzecha, Santiago continued to be responsive to questions, articulate, and

very detailed. Near the end of the interview Santiago signed a form consenting to the search of

his cellphone.5

Agent Borysevicz credibly testified to the same effect as Agent Warzecha. He testified

that Santiago’s demeanor in the vehicle was cooperative, coherent, and normal, that his answers

to questions were responsive, that he did not fall asleep or drift off, and that there was no

indication that he was under the influence of drugs.

Detective Cody Floyd of the Mohegan police credibly testified that when the DEA

arrived at the police department, Santiago appeared to be fine, was walking without difficulty,

and did not seem to be disoriented or stumbling. The DEA agents believed that the interview of

Santiago at the Mohegan police department would be video-recorded, but the police

department’s recording equipment did not properly work to produce a video or audio of the

interview. Subsequent efforts to recover a useable recording of the interview were unsuccessful.

DISCUSSION

The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal

5
Govt. Ex. 2 (consent to search form).

3
Case 3:23-cr-00049-JAM Document 42 Filed 01/02/24 Page 4 of 9

case to be a witness against himself.” U.S. Const., amend. V.6 “The right bars police from

coercing involuntary statements from individuals, and applies without regard to whether the

person is in custody when statements are so coerced.” Mara v. Rilling, 921 F.3d 48, 77 (2d Cir.

2019). “When a person is unconscious or drugged or otherwise lacks capacity for conscious

choice, a confession cannot be voluntary.” United States v. Taylor, 745 F.3d 15, 24 (2d Cir.

2014).

Moreover, in Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court famously

ruled that the prosecution may not use a defendant’s statements against him at trial if the

statements were the result of custodial interrogation and if the police did not employ appropriate

procedural safeguards to protect the privilege against compelled self-incrimination. In particular,

the police must warn a suspect in custody of the following rights before subjecting the suspect to

interrogation: “[1] that he has the right to remain silent, [2] that anything he says can be used

against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that

if he cannot afford an attorney one will be appointed for him prior to any questioning if he so

desires.” Florida v. Powell, 559 U.S. 50, 59-60 (2010) (quoting Miranda, 384 U.S. at 479).

A waiver of Miranda rights may be express or implied by a defendant’s course of

conduct. “[A] suspect who has received and understood the Miranda warnings, and has not

invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement

to the police.” Berghuis v. Thompkins, 560 U.S. 370, 388-89 (2010)

The prosecution bears the burden of proving that proper Miranda warnings were given

and that the defendant knowingly and voluntarily waived his Miranda rights. See United States v.

O'Brien, 926 F.3d 57, 73 (2d Cir. 2019). The “waiver must be voluntary in the sense that it was

6
Unless otherwise indicated, this ruling omits internal quotation marks, alterations, citations, and footnotes in text
quoted from court decisions.

4
Case 3:23-cr-00049-JAM Document 42 Filed 01/02/24 Page 5 of 9

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

must be knowing in the sense that it was made with a full awareness of both the nature of the

right being abandoned and the consequences of the decision to abandon it.” Ibid.

The Second Circuit has instructed that a court should “look at the totality of

circumstances surrounding a Miranda waiver and any subsequent statements to determine

knowledge and voluntariness.” United States v. Mendonca, 88 F.4th 144, 164 (2d Cir. 2023).

“Those circumstances generally fall into three categories: (1) the characteristics of the accused,

(2) the conditions of interrogation, and (3) the conduct of law enforcement officials.” Ibid.

Santiago’s argument for suppression focuses on the first of these three categories: the

characteristics of the accused. He argues that, because he was under the influence of PCP, his

statements on March 21, 2022 were involuntary and his Miranda waiver was not knowing and

voluntary. But the government persuasively established by means of the testimony of Agents

Warzecha and Boysevicz that Santiago was alert and responsive throughout their encounter with

him on March 21, 2022, and that there was no indication that by reason of any use of PCP he was

unable to understand what was happening or that his will was overborne. The agents’ testimony

was corroborated in part by the testimony of Detective Floyd with respect to his observations of

Santiago’s demeanor after he arrived at the police department.

The only evidence that Santiago was under the influence of PCP on March 21, 2022 is

Santiago’s affidavit. But the affidavit is conclusory, stating only in the most general terms that

Santiago was a “long-term user” of PCP and that he was “under the influence” of PCP on March

21, 2022. It does not describe how much PCP he may have taken on that day or what effect the

dosage he took had on his ability to understand and to control his actions. Without such

particular timing and dosage details, Santiago’s claim to have been under the influence is not

5
Case 3:23-cr-00049-JAM Document 42 Filed 01/02/24 Page 6 of 9

plausible even if I were to credit his general claims about the duration of a PCP high and about

how the effects of PCP vary with dosage.7

Santiago points to evidence that the DEA attempted a controlled purchase transaction

from him in January 2023 that Santiago could not complete due to his level of intoxication.8 But

the fact that Santiago was not in his right mind on one day in January 2023 says little about

whether he was in his right mind when he was interviewed by the DEA agents several months

earlier on the morning of March 21, 2022.

The facts of this case bear no resemblance to the facts in United States v. Taylor, supra.

The defendant in Taylor “was largely stupefied when he made his post-arrest statements, as

confirmed by the testimony of the law enforcement agents and the pretrial services officer who

interviewed him, and by the evaluations of staff psychologists at the Metropolitan Correctional

Center.” 745 F.3d at 20. The “agents and officer testified that Taylor fell asleep repeatedly

during questioning and was only intermittently alert.” Ibid.

Santiago further complains that there was no audio or video of his interrogation at the

Mohegan police department. But the evidence showed that the recording equipment

malfunctioned through no fault or design of the DEA agents who conducted the interview.

Moreover, Santiago does not cite any precedent that requires an audio or video recording of a

defendant’s statement in order for the statement to be admissible at trial.

Santiago faults the DEA for failing to have him sign a form to acknowledge the waiver of

his Miranda rights. But a waiver of Miranda rights may be valid even if it has not been reduced

7
Doc. #22 at 12 (citing an internet source, healthline.com, for the proposition that “PCP effects ‘last from 6 to 24
hours but linger up to 48 hours in some people’” and that “[a]n individual on PCP may ‘feel euphoric, floaty, and
disconnected from [their] body and surroundings’” and that “‘[a]s users increase the dose, the effects get more
intense, leading to hallucinations and erratic behavior’”).
8
Doc. #22 at 11-12.

6
Case 3:23-cr-00049-JAM Document 42 Filed 01/02/24 Page 7 of 9

to writing. See United States v. Spencer, 995 F.2d 10, 12 (2d Cir. 1993) (per curiam); United

States v. Booth, 583 F. Supp. 3d 545, 553 (S.D.N.Y. 2022); United States v. Chavez, 2015 WL

1650838, at *7 (D. Conn. 2015).

Yet a court may certainly consider the absence of a written waiver form. The fact that law

enforcement agents might easily have sought to obtain a written waiver but strategically chose

not to do so may be good reason to treat with skepticism a law enforcement agent’s claim that

proper oral Miranda warnings were given and that there was a knowing and voluntary oral

waiver of Miranda rights.

Multiple federal appeals courts have recognized that written Miranda waiver forms

provide “strong” evidence that a defendant has voluntarily waived his Miranda rights. See, e.g.,

United States v. Smith, 21 F.4th 510, 517 (8th Cir. 2021); United States v. Carpentino, 948 F.3d

10, 26 (1st Cir. 2020); United States v. Crumpton, 824 F.3d 593, 608 (6th Cir. 2016); United

States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009).

The two seasoned DEA agents who testified at the suppression hearing had no coherent

answer when I asked them why they did not seek to obtain a written Miranda waiver. After all,

this is not a case where it would have been impracticable for the DEA agents to seek a written

waiver. To the contrary, the agents hatched a careful plan to stage an interview of Santiago and

knew well in advance that they would be taking him into their custody and asking him to waive

his Miranda rights. Indeed, when the agents wanted to search Santiago’s cellphone, they

produced a written form for him to review and sign. It makes no sense why they did not present a

similar written form for Santiago to be advised of and to waive his Miranda rights.

The agents attested to a longstanding practice of the DEA (at least in Connecticut) not to

seek written Miranda waivers. But this appears to be an archaic practice that needlessly

7
Case 3:23-cr-00049-JAM Document 42 Filed 01/02/24 Page 8 of 9

encourages the litigation of suppression motions to contest the validity of Miranda waivers and

that tends to undermine confidence in the integrity of law enforcement. As another judge has

observed in a similar context, “the best practice would have been to execute a Miranda form

with Defendant,” because “[t]his can, in some circumstances, prevent the need for unnecessary

motion practice and disputes concerning whether Miranda rights were given or waived.” United

States v. Williams, 635 F. Supp. 3d 333, 338 (D.N.J. 2022). Indeed, “the preferred practice would

include both an oral recitation of the required Miranda warnings coupled with the delivery of a

written explanation thereof to the accused and the request that he execute a legally sufficient

waiver prior to the commencement of custodial interrogation.” United States v. Sledge, 546 F.2d

1120, 1122 (4th Cir. 1977) (per curiam).

So far as I know, the FBI has long instructed its agents to present Miranda forms in

writing and to seek a suspect’s written acknowledgement of his understanding and choice to

speak with law enforcement agents. See, e.g., North Carolina v. Butler, 441 U.S. 369, 370-71

(1979). More generally, “[n]ot long after the Supreme Court decided Miranda v. Arizona, written

waivers of constitutional rights became a standard part of law enforcement practice,” and

“waiver forms are common in the context of custodial interrogations,” and “[m]ost police

departments use them.” Nancy Leong & Kira Suyeishi, Consent Forms and Consent Formalism,

2013 Wis. L. Rev. 751, 768 (2013). It is hard to believe that what has long been good enough for

the FBI and most police departments nationwide is not good enough for the DEA.

In any event, I have fully considered the fact that the DEA agents chose not to seek a

written Miranda waiver. Although this weighs against the government, I conclude in light of the

other evidence that the government has carried its burden to prove that Santiago’s statements to

DEA agents on March 21, 2022 were voluntary and that he knowingly and voluntarily waived

8
Case 3:23-cr-00049-JAM Document 42 Filed 01/02/24 Page 9 of 9

his Miranda rights. Accordingly, I will deny the motion to suppress.

CONCLUSION

For the reasons set forth in this ruling, the Court DENIES defendant Jerrard Santiago’s

motion to suppress (Doc. #22).

It is so ordered.

Dated at New Haven this 2d day of January 2024.

/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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