United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Defendant Tyrone Coriz's
Motion to Suppress Statement (ECF No. 31). The Court held
hearings on the motion on June 14, 2018 and August 21, 2018.
Defendant asserts that his statement must be suppressed
because he invoked his Fifth Amendment right to remain silent
and terminate the interrogation, yet Special Agent Jennifer
Sullivan failed to honor his rights. Defendant additionally
contends that his statement must be suppressed because the
Government cannot meet its burden to show his confession was
voluntary because Special Agent Sullivan misrepresented
material facts, promised treatment in lieu of incarceration,
threatened him, and ignored his attempts to end the
questioning and make a phone call, resulting in psychological
coercion that overbore his will. The Court, having considered
the motion, briefs, evidence, argument, and otherwise being
fully advised, concludes that the motion to suppress must be
granted on the grounds that Special Agent Sullivan violated
Defendant Coriz's Fifth Amendment right to end the
interrogation when she failed to scrupulously honor Defendant
Coriz's unequivocal right to remain silent, and the
resulting confession, based on the totality of the
circumstances, was not voluntary.
purposes of the motion before the Court, the Court finds the
facts as follows:
time of the interview in question, Tyrone Coriz
(“Coriz” or “Defendant”) was a
45-year old man who completed the 11th grade and was
previously a tribal official whose duties included assistant
to the war chief with San Felipe Pueblo. See June
14, 2018 Hr'g Tr. 12:25-13:11 & 26:7-14;
compare Gov.'s Hr'g Ex. 9, with
Def.'s Mot. 15, ECF No. 31.
2002, a Bureau of Indian Affairs (“BIA”) agent
investigated Mr. Coriz regarding an allegation of sexual
assault, and after giving a couple of statements, Mr. Coriz
said he did not want to participate in the interview further.
See June 14, 2018 Hr'g Tr. 11:10-12:19. Special
Agent Bourgeois investigated another allegation of sexual
assault in 2006 against Coriz. See June 14, 2018
Hr'g Tr. 12:23-17:9. Special Agent Bourgeois interviewed
Coriz after his arrest and read him an FD-395 Advice of
Rights form, which Mr. Coriz appeared to understand.
Id. 14:7-15:6. Coriz spoke to Special Agent
Bourgeois, but then discontinued the interview by saying he
no longer wished to talk. See Id. 15:14-17:9.
Accordingly, Coriz was familiar and understood his
Miranda rights based on his prior experience with
the criminal justice system.
Agent James Jojola (“Jojola”) conducted an
investigation of Coriz regarding new allegations against
Coriz of sexual assault, and arranged a date for Coriz to
come to the Federal Bureau of Investigations
(“FBI”) office in Albuquerque to undergo a
polygraph test. See June 14, 2018 Hr'g Tr.
22:23-23:25; Gov.'s Hr'g Ex. 1. On May 24, 2016,
Coriz came to the Albuquerque FBI office voluntarily on or
around 9:00 a.m. after getting a ride with his girlfriend
See June 14, 2018 Hr'g Tr. 23:10-24:21,
35:13-15; Gov.'s Hr'g Ex. 6 (Consent to Interview
Form). Special Agent Jennifer Sullivan
(“Sullivan”) conducted the test. June 14, 2018
Hr'g Tr. 22:18-20. Sullivan met Coriz and Jojola in the
lobby and walked them back to the polygraph room where she
gave Coriz an overview of what they were going to do that
day. See June 14, 2018 Hr'g Tr. 23:24-24:7.
left, and then Sullivan discussed with Coriz a consent form
to give her written permission to take the polygraph and a
second form advising him of his Miranda rights.
Id. 24:6-25:7. Coriz signed the “Consent to
Interview with Polygraph” form at 9:19 a.m. and the
“Advice of Rights” form at 9:29 a.m. prior to the
test. Id. 25:12-17; Gov.'s Hr'g Ex. 5 &
6. Sullivan then asked personal history information of Coriz.
June 14, 2018 Hr'g Tr. 25:20-26:4. She explained the
questions she was going to ask to ensure he understood the
vocabulary she would use, the testing equipment and devices
she would use, and what the polygraph test monitors and
records. Id. 29:2-30:4, 31:23-32:12. Sullivan then
placed Coriz in a chair and put the equipment on him,
re-explaining as she went what each piece of equipment did.
See Id. 32:13-15. The pre-test took about 90
minutes. See Id. 83:16-85:8.
was trained in and used the FBI MGQT polygraph test, a
variant of the federally approved Air Force MGQT. See
Id. 21:25-22:3, 156:11-21. The FBI MGQT test is designed
to be more conservative to increase the likelihood that an
innocent person may be deemed inconclusive in order to
minimize the likelihood of a guilty person passing the test.
Id. 157:7-24; August 21, 2018 Hr'g Tr.
went over each of the eight questions on the test: two
relevant questions, two control questions, three irrelevant
questions, and a sacrifice relevant question. Id.
32:24-33:4. Sullivan asked two relevant questions during the
testing: “In the last year did you ever touch [Jane
Doe's] vagina?” and “In the last year did you
ever touch [Jane Doe's] vagina inside Albert's
house?” Id. 30:22-31:14; Gov.'s Hr'g
Ex. 7 (Polygraph Examination Report) at 4 of 4. The questions
Sullivan used met the standards of the polygraph profession.
See June 14, 2018 Hr'g Tr. 161:8-162:12,
164:23-165:13; August 21, 2018 Hr'g Tr. 33:16-23.
the polygraph test, Sullivan conducted three separate charts
using the exact same questions moved around in different
ways. See June 14, 2018 Hr'g Tr. 31:15-22. The
polygraph test, including the three charts and practice test,
took approximately 30-35 minutes. See Id. 33:11-14.
Sullivan began Chart 1 at about 11:02 a.m. and finished Chart
3, ending the polygraph test, at about 11:14 a.m. See
Id. 85:7-8, 98:7-17.
scored the test after each chart. See Id. 96:6-9.
The cardiovascular reading in Coriz's polygraph chart
revealed that he had premature ventricular contractions
(“PVCs”) during the test, which are defects in
the heart rhythm, and it is best practice not to consider the
cardio measure on a polygraph chart when PVCs are present.
See Id. 66:22-68:8, 69:20-74:19, 186:17-21,
187:24-188:17; August 21, 2018 Hr'g Tr. 24:16-26:1.
Sullivan scored the cardiovascular reading, despite the
presence of PVCs, and scored the test as deception indicated.
Compare June 14, 2018 Hr'g Tr. 69:20-74:19,
93:25-94:5, with Def.'s Ex. A, C-E. Numeric
scoring of Coriz's charts would not result in accurate
results in light of the presence of PVCs and “messy,
” poor quality physiological data. See June
14, 2018 Hr'g Tr. 178:17-179:7, 180:7-15, 186:14-16;
August 21, 2018 Hr'g Tr. 23:11-18. Numerical analysis is
preferred when possible, and FBI policy is typically not to
use a global analysis, which is a subjective test that is not
scientifically valid. See June 14, 2018 Hr'g Tr.
186:8-13; August 21, 2018 Hr'g Tr. 22:23-23:6. If
Sullivan's cardio scores were not factored into her
analysis, the numeric score from her results using her
scoring method would have resulted in an inconclusive score.
See August 21, 2018 Hr'g Tr. 37:10-38:16,
48:14-18. See also Def.'s Ex. N ¶ 23
(“Had SA Sullivan followed current Federal scoring
practices and not scored the PVC recoveries as responses her
outcome, then even with the biased FBI decision practices the
Coriz Examination would have resulted in an inconclusive
outcome.”). Accordingly, Sullivan's conclusion of
deception indicated was inaccurate using her numeric scoring
system; a more accurate conclusion from her results and
scoring method should have been inconclusive.
Compare June 14, 2018 Hr'g Tr. 94:18-94:23, with
August 21, 2018 Hr'g Tr. 37:10-38:16. Even with an
inconclusive test result, FBI procedure is to conduct a
post-test interview. See June 14, 2018 Hr'g Tr.
94:24-95:11, 160:15-161:2, 194:6-14.
the polygraph test results being inconclusive under her
scoring method, at the end of the test, Sullivan got up and
told Coriz that he failed the test, so she took off the
equipment and started the post-test interview. June 14, 2018
Hr'g Tr. 33:23-34:12, 104:12-17. Sullivan video and audio
recorded only the post-polygraph interview. June 14, 2018
Hr'g Tr. 35:25-36:12; Gov.'s Hr'g Ex. 1 (Video
Recording (“Video”)) & Hr'g Ex. 2
(Enhanced Audio Recording (“Enhanced Audio”)).
Coriz had water and Sullivan offered him food during the
test. Video 1:23-2:10; Gov.'s Ex. 4 (“Interview
Tr.”) at 2. Sullivan confronted Coriz with the results
of the polygraph, telling Coriz he failed the test, he was
not even close, and the polygraph says what is inside his
body. See Video 1:23-4:55; Interview Tr. 2:6-4:6.
12:40 running time, when Sullivan was asking Coriz about a
report involving allegations against him, Coriz said that he
does not want to talk anymore. See Video
12:40-12:46. Sullivan asked why they would make it up.
Id. 12:46-12:50. Sullivan continued to interrogate
Coriz. See Id. 12:50-13:49.
13:49 running time, Coriz said, “I don't want to
argue no more. If they really want me that bad and they want
to throw away the key at me, fine.” Video 13:49-13:54.
Sullivan responded, “Are you telling me that when James
or the BIA or whoever…” Id. 13:54-58.
Upon review of the Video and Enhanced Audio, the Court finds
that the audio is not inaudible and that Coriz interrupted
her and said: “I have nothing more to say.”
Id. 13:58-14:01. Sullivan replied, “OK.”
Id. 14:01-14:02. Coriz continued talking, saying,
that he knows in his heart he is telling the truth. See
Id. 14:02-14:13. Sullivan stated, “You realize
it's not going away. I mean, you get that, right.”
Id. 14:13-14:16. Coriz said that is fine, if they
want him gone that bad, my own family, and he continued to
talk. See Id. 14:17-15:09. The interview resumed
with Sullivan responding and asking more questions. See
had Coriz read a paragraph in one of the reports of prior
incidents, which he did aloud, and she asked why she would
make it up. Id. at 17:49-18:40. Upon review of the
Video and Enhanced Audio, the Court finds that the audio is
not inaudible and that Coriz said, “I don't need to
say anymore.” Video at 18:46. Sullivan replied,
“All right.” Video 18:46. She tossed the report
down on the floor, and continued, “Just so you know,
it's not going away.” Id. 18:46-18:48.
Coriz responded, “Yeah. But.” Id. 18:50.
Sullivan then said, “That's the thing. So once the
community learns that you failed the polygraph test, they
probably are not going to be that impressed with what's
going on.” Id. at 18:47-18:58. Defendant said
that's their opinion. Id. at 18:58-19:01.
Sullivan replied the “BIA is going to have to really
continue enforcing their investigation.” Id.
at 19:03-19:08. Coriz responded, “Well, that's
fine” and said something else inaudible. See
Id. at 19:08-19:13. Sullivan said, “Well,
here's the deal. You came here to clear your name and
your name is not cleared. That's what I'm telling
you.” Id. at 19:12-19:16. Coriz started to say
something and Sullivan continued, “Well, let me talk.
So I don't have to ask you any questions. You don't
have to talk. If you're done talking, quit talking.
That's fine.” Id. 19:16-19:26. Sullivan
understood that Coriz had expressed his desire not to talk to
then discussed how there were seven people saying this.
See Id. 19:26-19:37. Coriz said that he wanted to
see the victim's polygraph results. Id.
19:54-:56. Sullivan asked why he should see her polygraph,
stating that she would not look at his. See Id. at
19:27-20:12. Sullivan then stated: “It doesn't
really matter because, remember, you're done with this.
You don't have anything more to say. You don't know
why you failed the polygraph. You got nothing to say.”
then discussed his problem is when the victim gets on the
stand and the other witnesses get on the stand. See
Id. at 20:20-20:59. She then talked about his new
family, how he had his own daughter, that if this was a
sickness or behavior he can't help, then he needed to
prove to these people that he wanted help. See Id.
at 20:59-22:59. Sullivan warned that Jojola is going to sit
down with his wife and tell her about all the victims in the
past, unless he has a problem and wanted to fix it, then that
is a different story. See Id. at 22:57-23:30. She
stated that she is going to get Jojola, tell him he failed,
and it can go one of two ways - he can continue to deny it or
he can take responsibility, get help, cooperate, and try to
stay out of prison, if he can. See Id. at
then said it's a pattern and discussed how people get
help, get therapy and counseling, that there are resources
and programs for getting help. See Id. at
24:15-29:59. Coriz remained silent after Sullivan told him to
let her talk, and he began re-engaging in the conversation at
29:19 in the Video. See Id. Sullivan continued to
urge him to get help by admitting to his shortcomings, and
Coriz began responding to Sullivan's questions. See
around 48:16 into the recording, the Court finds that Coriz
said, “I just want to talk to my girlfriend.”
Compare Id. 48:16-23, with Enhanced Audio
48:16-23. In response, Sullivan stated: “Here's the
only thing I have to say about that … I understand why
you need to call Rolanna. I get it.” Id.
48:14-48:40. Coriz responded that he wanted to talk to her,
but Sullivan replied that once he walks out of here, she
can't help him, she can't defend him, and she
can't sit next to him. See Id. 48:40-48:52. He
again expressed wanting to call her, Sullivan responded that
he is just going to worry ...