Opinion
1:19-CR-00155 EAW
2022-04-25
UNITED STATES of America, v. Deshema CLARK, Defendant.
Brendan T. Cullinane, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Brendan T. Cullinane, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Defendant Deshema Clark ("Defendant") has filed a motion seeking to suppress statements made to law enforcement and evidence seized from her cellphone on October 9, 2019. (Dkt. 189; see Dkt. 189-1 at 10-11). For the reasons set forth below, the motion is denied. BACKGROUND
Defendant is charged in three counts of a 24-count second superseding indictment with narcotics conspiracy in violation of 21 U.S.C. § 846 (Count 1), maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (Count 23), and possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D), and 18 U.S.C. § 2 (Count 24). (Dkt. 106). During the search of Defendant's home at 164 Parkridge Avenue in Buffalo, New York ("164 Parkridge"), on October 9, 2019, law enforcement obtained statements from Defendant and searched her cellphone allegedly with her consent, and additional statements were obtained from Defendant later that same day at the police station. In support of the motion, Defendant submitted an affirmation stating that she was questioned without the proper administration of warnings pursuant to Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that any statements she made were involuntary. (Dkt. 189-2).
By Decision and Order entered October 4, 2021, the Court denied Defendant's separate motion to suppress evidence recovered from the search of 164 Parkridge on October 9, 2019. (Dkt. 310).
Oral argument was initially held on May 20, 2021 (Dkt. 229; Dkt. 230), and an evidentiary hearing was conducted on August 3, 2021 (Dkt. 279; Dkt. 317) and continued on September 13, 2021 (Dkt. 297; Dkt. 314). FBI Special Agent Christopher Dailey ("Agent Dailey"), Buffalo Police Department Homicide Detective Timothy Rooney ("Detective Rooney"), and two of Defendant's children (Tenaj Trotter and Semir Smith) testified at the hearing. (Dkt. 314; Dkt. 317). Defendant and the government submitted post-hearing briefing (Dkt. 337; Dkt. 338; Dkt. 341; Dkt. 342), and oral argument was held before the undersigned on March 24, 2022 (Dkt. 350), at which time the Court reserved decision.
DISCUSSION
I. Testimony at Evidentiary Hearing
A. Agent Dailey
Agent Dailey began working for the FBI in 2008 as a professional staff employee and became a special agent in approximately July 2015. (Dkt. 317 at 7-8). He is assigned to the "Safe Streets" Task Force, which is involved in the investigation of violent gangs and drug trafficking in the Western District of New York. (Id. at 9). Agent Dailey has received training on interview techniques, including the administration of Miranda rights, which he testified are "rights that we give to somebody that we're interviewing to advise them that they don't have to talk to us; that they have a right to an attorney; and they can stop questioning or stop talking to us at any point," and confirmed they are given to "somebody ... in custody." (Id. at 10-12). Agent Dailey also testified to his knowledge of the use of a Special Weapons and Tactics, or "SWAT" team, during the execution of a search warrant. (Id. at 12-14). The SWAT team enters a residence first to make it safe for search personnel to come to the scene and execute the search warrant. (Id. at 13). Agent Dailey testified that SWAT teams are typically used in investigations of crimes of violence, and normally entail occupants at the search location being handcuffed while the house is cleared by the SWAT team for safety reasons. (Id. at 14). Agent Dailey has been involved in the execution of approximately 200 search warrants over the course of his six-year career as a special agent. (Id. at 19).
In September 2019 Agent Dailey became aware of a triple homicide that occurred in the City of Buffalo. (Id. at 19-20). The Buffalo Police Department ("BPD") reached out to the FBI, which was involved in a long-term narcotics investigation involving two possible suspects for the homicide—Jariel Cobb and James Reed. (Id. at 21). A third suspect in the homicides, Deandre Wilson, was also identified based on the review of surveillance camera footage. (Id. at 22). Wilson was on parole after serving a lengthy sentence for committing a murder. (Id. at 22-23). Law enforcement began surveilling Wilson and learned the vehicle he drove was frequently in the area of a residence located at 164 Parkridge, and law enforcement observed Wilson coming and going from the area of that residence. (Id. at 23-24). Law enforcement determined that Defendant resided at 164 Parkridge and suspected she and Wilson were romantic partners. (Id. at 24).
Agent Dailey testified at the suppression hearing that he became aware of a triple homicide that occurred in the City of Buffalo in September 2018. (Dkt. 317 at 19-20). Given that the second superseding indictment alleges that the homicides occurred in September 2019 (see Dkt. 106), the Court assumes that Agent Dailey meant to state that he became aware of the homicides in September 2019.
Law enforcement executed a search warrant at 164 Parkridge on October 9, 2019. (Id. at 24-25). Agent Dailey participated in the search (id. at 34, 79), as did an Evidence Response Team (ERT), which is a specialized search team specifically trained in processing fingerprints, DNA recovery, photography, and collecting and securing blood evidence or suspended blood residue (id. at 16). Agent Dailey testified that prior to the search there was an operational briefing with members of the search and SWAT teams, and at approximately 6:00 a.m. the SWAT team drove to 164 Parkridge and secured the residence for the search team. (Id. at 34-35). Agent Dailey testified that the SWAT team dresses in camouflage gear with helmets, and they carry long guns, some of which have lasers. (Id. at 156-57). Law enforcement anticipated that Wilson would be at 164 Parkridge when they made entry. (Id. at 35).
Agent Dailey testified he was not present when the SWAT team made entry at 164 Parkridge because the SWAT team acts autonomously for safety reasons (id. at 36), but the SWAT team communicated they had secured Wilson and that an adult female with four minor children was also present at the residence (id. at 37). Because he was not at 164 Parkridge when the SWAT team made entry, Agent Dailey did not have information as to whether Defendant was placed in handcuffs at that time (id. at 38), but testified that it was possible given that was the SWAT team's general practice, both for safety reasons and to preserve the integrity of the search site (id. at 38, 41; see also id. at 49 ("Everybody was detained temporarily until we could figure out who everybody was, so until we could figure that out, normally we do not let anybody leave until we verify who they are.")). Other family members arrived at 164 Parkridge during the search, and they were not permitted inside the home. (Id. at 206-07).
Agent Dailey made entry into 164 Parkridge 20 to 25 minutes after the SWAT team arrived on scene. (Id. at 41). At that time members of the SWAT team left but some of those officers were assigned to the search as well and would have stayed. (Id. at 42). Agent Dailey served as the search team leader, meaning he answered any questions from other team members, ensured all rooms were searched and evidence secured, and filled out property receipts. (Id. ). Agent Dailey was advised of the presence of Defendant and her four children, but then left the residence to conduct an interview at another location around the corner from 164 Parkridge—94 Pultney, which was the residence belonging to Wilson's sister, to which Wilson was paroled. (Id. at 43, 160). Agent Dailey returned to 164 Parkridge approximately a half hour later. (Id. at 44). He testified that Wilson was not on scene as he had been placed into custody and transported to police headquarters. (Id. at 43).
Agent Dailey testified that when he first encountered Defendant in the living room of 164 Parkridge, which was prior to his temporarily leaving the residence, he did not remember seeing her in handcuffs and she did not appear to be handcuffed. (Id. at 44). He believed one of the older children was handcuffed, because there was a question of whether he had an outstanding warrant from Hamburg. (Id. at 44, 177). Agent Dailey testified that he did not threaten Defendant with deadly force, nor did he hear anyone else threaten her with deadly force. (Id. at 45).
Agent Dailey spoke with Defendant when he returned to 164 Parkridge. (Id. at 46). He identified himself, showed her a copy of the warrant, and offered to explain "what was going on, why we were there, and what we were looking for." (Id. at 46-47). They moved to the dining room table area and went over paperwork, and they were sitting at the dining room table across from each other. (Id. at 47, 50). Agent Dailey told Defendant that she and her children were free to leave and they were not required to remain at the residence during the search, but if they elected to stay they were required to remain in rooms that had already been searched. (Id. at 47). He offered to call Defendant if she wanted to leave to let her know when the search concluded. (Id. at 48). Agent Dailey testified that he did not view Defendant as in custody, but rather "as a witness that may be able to assist in our investigation." (Id. ). She was not in handcuffs at the time and her movement was not restricted, so long as she did not try to make entry into a room that had not been searched. (Id. at 49).
Agent Dailey testified that Defendant appeared to be "confused" and "kind of distraught," and became upset when he explained they were at 164 Parkridge to search for DNA and blood evidence related to victims of a triple homicide. (Id. at 51). Agent Dailey gave Defendant time to calm down before continuing to speak with her. (Id. at 51-52). While both she and Agent Dailey remained seated at the dining room table, Defendant provided information about September 15, 2019, as well as information about Wilson, her relationship with Wilson, and his relationship with the residence. (Id. at 52). Agent Dailey had his firearm on him at that time, but it was holstered on his side, covered by his shirt, and not visible, and he testified that he never unholstered the firearm or showed it to Defendant. (Id. at 53-54). Agent Dailey took notes during his conversation with Defendant, which he estimated lasted "maybe about a half hour." (Id. at 59-60, 179). Defendant was not read Miranda warnings before speaking with Agent Dailey. (Id. at 180).
Agent Dailey testified that towards the end of the interview or after the interview he was informed that suspected marijuana was recovered from a bedroom located off the kitchen. (Id. at 64). The suspected drugs, which were found near Wilson's driver's license and what the officers believed was Wilson's wallet, appeared to be packaged for distribution. (Id. at 64, 69-70). Agent Dailey approached Defendant and asked her if the marijuana belonged to her, to which she said yes. (Id. at 71). Agent Dailey asked if "all of the marijuana was hers," and Defendant asked what he meant by "all of it," and Agent Dailey and his supervisor walked her down the hall to see the marijuana. (Id. ). Defendant informed the officers that someone gave her the marijuana and she had smoked some of it, thought it was bad, and Wilson was going to help her get rid of it. (Id. at 72). Agent Dailey testified that he informed Defendant it was against the law to lie to a federal agent, but he did not administer Miranda warnings at that time. (Id. at 182). The information relating to Agent Dailey's exchange with Defendant about her ownership and plans for the marijuana was included in his FBI 302 report of the search, but it was not included in his notes from the date of the search. (Id. at 190-91).
The search team concluded its search, and Agent Dailey and another agent spoke with Defendant. (Id. at 73). They went over the seized property and explained they were going to take the mobile devices in the house, enter them into evidence, and apply for search warrants for the devices. (Id. ). Defendant was not happy that law enforcement was taking her cellphone, and Agent Dailey offered that if she wanted to grant them consent to search the cellphone, he could have it returned to her as soon as possible. (Id. ). Defendant agreed to allow law enforcement to search her cellphone, provided the password, and signed a consent to search form provided to her by another agent. (Id. at 74). Defendant's consent to search her phone was also executed in the presence of FBI Special Agent Steve Donnelly, who was assisting with the search. (Id. at 75). Defendant was not handcuffed at the time she provided consent to search, nor was she threatened with deadly force. (Id. at 74). Agent Dailey testified that from the time he encountered Defendant during his second entry into 164 Parkridge, he never handcuffed her, never threatened her with deadly force, and never threatened any of her family members with deadly force. (Id. at 74-75).
The search concluded and the officers departed 164 Parkridge around 10:40 a.m. (Id. at 173, 229). As the search was concluding, Agent Dailey told Defendant there were other officers working on the investigation and they were interested in speaking with her. (Id. at 88). He asked Defendant if "she would be willing to come down and talk to investigators." (Id. ). Defendant was not in handcuffs at this time, and Agent Dailey testified that Defendant could have refused to speak with them. (Id. ). Defendant initially was hesitant to continue speaking with the officers, but Agent Dailey informed her she was not in any trouble, and she agreed to speak with them. (Id. at 89). Agent Dailey gave Defendant the option of traveling with him to the police station or getting her own transportation; he testified that he was not sure how Defendant traveled to the police station but thought she had a friend or family member drive her. (Id. ). He was not aware if FBI Special Agent Clint Winters drove Defendant to the police station. (Id. at 208).
Agent Dailey later learned that Defendant arrived at BPD headquarters. (Id. at 90). At that time, Agent Dailey and Detective Rooney interviewed her further about what occurred on September 15, 2019. (Id. ). Defendant was not in handcuffs during this time, nor was she threatened with deadly force. (Id. at 90-91). Agent Dailey testified that he again viewed her as someone who was not in custody and not under arrest, but rather as a witness who could help them solve the triple homicide. (Id. at 91). He further testified that he did not administer Defendant Miranda warnings because they viewed her as a witness, rather than as someone involved in the crimes they were investigating. (Id. at 93). Two other individuals—Agent Winters and BPD Detective Adam Stephany—arrived to interview Defendant. (Id. at 94). Agent Dailey left the interview room at that time, but testified he was able to watch Defendant's interview with Agent Winters and Detective Stephany from a separate monitoring station, where he could observe the ongoing interview. (Id. ). The interview of Defendant was recorded. (Id. at 95-96; see also Government Exhibit ("Gov. Exh.") 10).
During the interview Defendant provided law enforcement with information about Wilson's whereabouts on September 15 and 16, 2019, and they also discussed some of the content on her cellphone. (Dkt. 317 at 100). Detective Dailey summarized the interview:
she told us that on the day of the homicide, that she remembers Deandre going to church, coming back home and then he was gone for a period of time until I believe approximately 4 p.m. and then he was gone again and they had tickets to go to the Meek Mill concert at Darien Lake and she was trying to get ahold of him because he was running late and he ended up coming back and picking her up and they went to the concert and then afterwards they returned home.
(Id. at 100-01). Investigators also questioned Defendant about the contents of her cellphone. (Id. at 106). She was questioned specifically about communications on the date Wilson's co-defendants were taken into custody, as well as communications from the date of the murders on September 15, 2019. (Id. at 107). Agent Donnelly drafted a report memorializing the text messages on the cellphone. (Id. ). The cellphone was returned to Defendant at the conclusion of the interview. (Id. at 119).
The interview lasted approximately two hours. (Id. at 214). Agent Dailey testified he reviewed the entirety of the videotaped interview, and Defendant was never threatened with deadly force, her family was never threatened, she was never in handcuffs, and no one showed her a firearm. (Id. at 104). The interview ended "amicably" and "on a good note," and Defendant told investigators she would call them if she thought of anything else. (Id. at 105). Agent Dailey attempted to interview Defendant when a warrant was issued for her arrest, but Defendant refused to speak with him at that time. (Id. at 125).
B. Detective Rooney
Detective Rooney is a detective in the BPD's homicide unit. (Dkt. 314 at 5-6). He has worked for the BPD for 24 years, and he has served in the role of detective for 14 years. (Id. at 6). He is also a member of the BPD's SWAT team. (Id. at 9-10). Detective Rooney explained that when the SWAT team arrives at a residence, they generally surround the house and then make entry to search the house for any dangerous persons. (Id. at 10). SWAT team members generally have their guns unholstered and pointed at subjects in the home to ensure they are not armed and not injured. (Id. at 10-11). The SWAT team may also handcuff individuals in the home for the safety reasons. (Id. at 12). Detective Rooney testified he has participated in "hundreds" of entries with the BPD SWAT team, and in well over 500 search warrants. (Id. ).
Detective Rooney participated in the execution of the search warrant at 164 Parkridge on October 9, 2019. (Id. at 15). He was not on the SWAT team—rather, he participated in the search of the residence—but he testified that it was "very possible" that Defendant was handcuffed following the SWAT team's entry into 164 Parkridge given that it was a normal practice to handcuff individuals when securing a residence. (Id. at 15-16). Officers from four different law enforcement agencies participated in the execution of the search warrant. (Id. at 48). Detective Rooney was assigned to search a room on the first floor, and he testified he could not recall if he collected any evidence from the room. (Id. at 52-53).
Detective Rooney entered the home after it was cleared by the SWAT team and witnessed Defendant in the residence. (Id. at 17-18). She was not in handcuffs. (Id. at 18). Detective Rooney was aware that Agent Dailey was speaking with Defendant on the lower level of the residence at a dining room table (id. ), and although he could not hear the entire conversation, Detective Rooney could observe them and did not recall seeing Defendant in handcuffs, nor did he see Agent Dailey pointing his gun at her or hear any threats made to her in his presence. (Id. at 19). Detective Rooney further testified that Defendant was not under arrest at that time because she was not a target of the investigation and he viewed her as a witness, and it was his understanding that Defendant was free to leave during the search of 164 Parkridge. (Id. at 20).
Following completion of the search warrant Detective Rooney returned to BPD headquarters at 68 Court Street, and he became aware that Defendant was going to come to police headquarters for an interview. (Id. at 23). He was not aware of how Defendant arrived at that location but encountered her in an interview room, used for interviews of suspects and witnesses with recording equipment. (Id. at 24, 58). The interview with Defendant was recorded. (Id. at 25). Detective Rooney testified that he removed his firearm prior to the interview and it was his understanding that Defendant was not under arrest. (Id. at 26). He further testified that upon entering the interview room he "wanted to be clear that we were not threatening her, that everything was smooth at her house, we handled her property as kindly as possible, and also that she knew that she was not being forced to be there with me." (Id. at 28). Detective Rooney testified that Defendant was "pleasant" during the interview, and that "[t]here didn't seem to be too much hesitation or lack of cooperation," but that his "overall feeling when [he] left the interview room was [he] did not get a full and complete accurate story," and he thought "more information still needed to be gathered." (Id. at 29). He testified that Defendant could have ended the interview at "any time she deemed necessary." (Id. ).
Detective Rooney and Agent Dailey interviewed Defendant for approximately one hour. (Id. at 30-31). During that time, neither he nor Agent Dailey threatened her or showed any type of deadly force. (Id. at 31). During the interview Defendant asked if she needed a lawyer, to which Detective Rooney responded that she did not. (Id. at 63). Defendant also asked Agent Winters and Detective Stephany if she needed a lawyer, to which they also responded that she did not. (Id. ).
After Agent Dailey and Detective Rooney finished speaking with Defendant, two other law enforcement officers—Detective Stephany and Agent Winters—also interviewed her. (Id. at 32). Agent Rooney introduced Detective Stephany and Agent Winters to Defendant and explained their role in the case, and Defendant "seemed to be okay with it." (Id. at 33). Detective Rooney was able to view this interview in real time from a separate viewing room. (Id. at 32). Detective Rooney testified that neither Agent Winters nor Detective Stephany threated Defendant with deadly force or threated to arrest her. (Id. ). Defendant's interview with Agent Winters and Detective Stephany concluded, and Detective Rooney released her to be escorted out of the building. (Id. at 34). He offered to give her a ride home, but Defendant had a ride waiting for her. (Id. at 36). Detective Rooney did not hear anyone threaten Defendant with deadly force or harassment, or see anyone handcuff Defendant, in his presence on October 9, 2019. (Id. at 46).
C. Tenaj Trotter
Tenaj is Defendant's 13-year-old daughter. (Id. at 75). She lives with Defendant and was present at 164 Parkridge on the morning of October 9, 2019. (Id. at 76). Tenaj was sleeping on the couch when she was awakened by yelling. (Id. ). She observed flashlights and lasers coming through the windows, and went upstairs to her siblings. (Id. at 77). Police officers called Tenaj and her siblings downstairs, and she observed them wearing camouflage and carrying guns. (Id. at 78). Tenaj went outside into the backyard where she observed her brothers Kari and Semir, as well as Wilson and Defendant, in handcuffs. (Id. at 78-79). Tenaj estimated that she was outside for about two minutes. (Id. at 79). Thereafter, she went into the kitchen with her family, where there were also five officers present. (Id. at 79-80). Kari, Semir, and Defendant were still in handcuffs at that time. (Id. at 80). Tenaj testified that Defendant was taken to the dining room with another police officer, and Defendant sat at the end of the table and remained handcuffed behind her back. (Id. at 80-81). Tenaj remained in the kitchen when this occurred. (Id. ).
Tenaj estimated she was at 164 Parkridge for about 30 minutes after the police arrived that morning. (Id. at 89). She left the house with her aunt and testified that Defendant was still handcuffed at that time. (Id. at 81-82). Tenaj went to school later that day. (Id. at 82). She testified that when she arrived home from school, "the house was a wreck." (Id. at 83). At times during her testimony Tenaj put up the wrong hand when requested, and she confirmed she sometimes has trouble understanding right from left. (Id. at 85-87).
D. Semir Smith
Semir is Defendant's 22-year-old son. (Id. at 96-97). He was also living with Defendant at 164 Parkridge on October 9, 2019. (Id. at 97). Semir was in bed sleeping when the police arrived that morning, which was before 7:00 a.m. (Id. ). He went downstairs and at the doorway were officers "aiming guns at [them] to come outside." (Id. ). Semir was handcuffed and taken outside, where Defendant, Wilson, his brother, and Tenaj were also present. (Id. at 98). Defendant was also handcuffed at that time, and there were about ten officers around him. (Id. ). Semir testified that he stood outside for 15 to 20 minutes, after which he was taken to the kitchen, where four or five officers also were present. (Id. at 98-99). Semir did not recall Wilson being brought back into the house with him and his family. (Id. at 118). He was unhandcuffed in the kitchen. (Id. at 128-29). There were about 10 officers in the house and they were not displaying their firearms, unlike the SWAT team members who initially made entry into the home. (Id. at 129-30)
Semir testified that Defendant was taken into the dining room where she was still handcuffed behind her back. (Id. at 99-100). An officer was talking to Defendant at the dining room table. (Id. at 100). He could not hear the conversation but testified Defendant was in the dining room for 20 to 30 minutes. (Id. ). Semir eventually went into the living room, where he heard the police tell Defendant that "we will be back." (Id. at 101). He also testified that before Defendant signed paperwork the officers told her not to go anywhere. (Id. ). Semir testified that Defendant was unhandcuffed to sign the paperwork and that occurred about ten minutes before the police left 164 Parkridge. (Id. at 101-02).
Semir began getting ready for work after the police left and testified that the house was damaged, and that the officers had "flipped a lot of things." (Id. at 102). With regard to his going to work that day, Semir initially testified he had to be at work in Hamburg at 7:00 a.m. to start work at 7:30 a.m. (id. at 110), and he had to pick up his friend on the way (id. at 111-12). He could not recall exactly what time he left for work that day but was "pretty sure" he was late and remembered texting his boss to inform him he would be late. (Id. at 112). Semir estimated he arrived at work between 7:30 a.m. and 9:00 a.m., and further testified that by the time he left 164 Parkridge to go to work the police had already left. (Id. at 114-16). However, after taking a break in testimony, Semir testified that after looking through his phone he did not go to work on that date and he had communicated the same to his boss. (Id. at 140). Semir also testified that he did not have a recollection of the times certain things happened on the date of the search. (Id. at 148).
II. Arguments Raised by the Parties
Defendant contends that the government has "failed to meet its heavy burden of establishing Defendant: was not in custody; voluntarily waived her right to counsel; and voluntarily consented to having her cellphone searched." (Dkt. 337 at 6). As to custody, Defendant argues she was "in custody" for purposes of Miranda during her interview with Agent Dailey at 164 Parkridge, and the custodial nature of her primary interaction with police did not dissipate during her subsequent interactions with police. (Id. at 6-8). She argues that her freedom was curtailed consistent with a formal arrest, including because "she was handcuffed; subjected to a large police presence before and during her questioning; the encounter lasted at least 6 hours; she has no prior criminal history or interaction with police; law enforcement pointed guns at her and her family; her family members were handcuffed; she was subject to hostile questioning; she was accused of crimes by law enforcement; her movements within her home were restricted; and she was separated from her family." (Id. at 7).
Defendant next argues that the government failed to meet its burden of establishing that she was not in custody during questioning at police headquarters because the interview "occurred within an hour or two of her house being raided; she was never told she was free to leave; she was interviewed by 4 different officers 2 at a time; the interview lasted approximately 2 hours; she was still shaken up and upset as a result of her house being raided; and officers accused her of crimes including lying to a Federal Agent and murder." (Id. at 8).
Defendant also argues that she did not waive her right to counsel. (Id. at 8-9). She contends she asked twice if she needed an attorney and rather than advising her of her rights or clarifying whether she wanted an attorney, law enforcement told her it was not necessary and continued questioning her, which resulted in a violation of her right to remain silent and her right to counsel under the Fifth and Fourteenth Amendments. (Id. at 9). Finally, Defendant argues she did not voluntarily consent to the search of her cellphone because she was handcuffed when she allegedly gave consent, guns were pointed at her prior to giving consent, there was a large law enforcement presence, she was never advised of her constitutional rights, she appeared upset throughout the interview, and there is no evidence that officers told her she had the right to refuse consent. (Id. at 9-10).
The government argues that the testimony and evidence establish that Defendant was not in custody on October 9, 2019 following law enforcement's entry into 164 Parkridge, and therefore they were not required to provide Defendant Miranda warnings. (Dkt. 338 at 25). In support of that argument, the government argues that the objective circumstances of the interrogation indicate that Defendant was not in custody—including because she was not formally arrested, she was advised she could leave, the interview occurred in her residence, she was not restrained, and she was not threatened—and support the conclusion that Defendant made a series of voluntary statements to law enforcement. (Id. at 25-27). The government further argues that Defendant voluntarily met with law enforcement at BPD headquarters, and she did not, at any point, indicate that she did not want to answer questions. (Id. at 27).
In response to Defendant's argument relating to counsel, the government argues that while Defendant may have questioned whether she needed an attorney, such questioning does not equate to an invocation of the right to an attorney, and had Defendant invoked her right to counsel, all questioning would have ceased. (Id. at 27-28). The government further argues that Defendant voluntarily consented to the search of her cellphone and there is no evidence that law enforcement used coercion or threats to obtain consent. (Id. at 29-30). Finally, the government contends that the Court should give little weight to Defendant's affirmation because she did not testify at the evidentiary hearing, and the costs of applying the exclusionary rule far outweigh the benefits given that law enforcement's conduct was constitutionally appropriate and no deliberate misconduct occurred. (Id. at 30-33).
In responding to the government's arguments, Defendant contends that the testimony offered by law enforcement at the hearing was not credible and "bordered on perjury," Defendant was not free to leave during her interviews, and the deterrent effect of applying the exclusionary rule in this case far outweighs the costs. (See Dkt. 341 at 2-4, 6). The Court addresses each of the issues raised below.
III. Findings of Fact and Legal Conclusions
A. Credibility Determinations
As an initial matter, the motion papers submitted by Defendant and the government recount vastly different versions of the events occurring on October 9, 2019, which raises credibility issues the Court must resolve. (Compare Dkt. 337 at 7 (Defendant arguing that she was handcuffed, subject to hostile questioning, accused of crimes, and her movements were restricted) with Dkt. 338 at 25-26 (government arguing that Defendant made voluntary statements to law enforcement while unhandcuffed, she was not threatened, and she was free to leave)).
Having observed the testimony firsthand, including the witnesses’ demeanor and the content of the testimony, the Court finds the testimony by Agent Dailey and Detective Rooney regarding the events of October 9, 2019 to be credible and consistent, and as further explained below, their testimony supports the conclusion that Defendant was not in custody, either at the time of her interview at 164 Parkridge or during her interview at BPD headquarters. Both Agent Dailey and Detective Rooney testified that while Defendant was likely handcuffed when the SWAT team entered her home, they did not see her handcuffed at any other time that day. Likewise, both Agent Dailey and Detective Rooney testified that Defendant was not threatened with deadly force or with a firearm. They described Defendant as cooperative and their interviews with her as "pleasant" and "amicable." Based on both their training and experience, as well as their consistent and credible testimony, the Court credits Agent Dailey's and Detective Rooney's testimony relating to the events of October 9, 2019.
In her response brief, Defendant argues that Agent Dailey's and Detective Rooney's testimony was "inconsistent and conflicting" and that Agent Dailey's testimony "bordered on perjury." (Dkt. 341 at 2-3). Those statements plainly mischaracterize the record before the Court. The portions of the testimony highlighted by Defendant are not inconsistent or conflicting, but rather focus on facts she contends Detective Rooney testified he could not recall. Simply because one officer does not recall a particular fact does not make his testimony "inconsistent" with the testimony of another officer. Likewise, the Court does not find that Agent Dailey's statements relating to his testimony in grand jury amount to perjury. At the hearing, defense counsel asked Agent Dailey if he "testified in grand jury," and then clarified, "about any of this," and Agent Dailey answered "no" in response to both questions. (Dkt. 317 at 84). Thereafter, the government sought to clarify with Agent Dailey that he did testify in grand jury relating to the "larger investigation," but not "about what we are talking about today." (Id. at 84-85). At the Court's request, the government provided to the Court for in camera , ex parte review a copy of Agent Dailey's grand jury testimony. (Id. at 137, 216; see also Dkt. 359). As explained at the hearing, the Court has reviewed Agent Dailey's grand jury testimony, and the matters to which he testified have no relation to the search of 164 Parkridge. (Dkt. 317 at 231-32). Based on these exchanges, the Court does not believe Agent Dailey intended to intentionally misrepresent whether he testified before the grand jury. Nor does the Court believe that Agent Dailey's failure to document in his notes that he found a quantity of marijuana in 164 Parkridge—which was documented in his formal FBI 302 report—amounts to perjury. Not every statement contained in an investigator's notes will match up perfectly with what is contained in his formal report. For those reasons, the Court does not find persuasive Defendant's arguments relating to the credibility of the testimony offered by Agent Dailey and Detective Rooney.
By contrast, the Court does not credit the testimony offered by Defendant's children that Defendant was handcuffed while interviewed by Agent Dailey, she was not permitted to leave, and that she was not unhandcuffed until shortly before the officers left the residence. Aside from the fact that both Tenaj and Semir are motivated to give testimony favorable to Defendant, Semir admitted during his testimony that he could not recall the timing of certain events, and he also changed his testimony relating to his going to work on that date. Likewise, Tenaj appeared confused, admitting that she sometimes has trouble distinguishing between right and left. More significantly, their testimony conflicts with the credible testimony offered by Agent Dailey and Detective Rooney. Accordingly, the Court finds the testimony offered by Defendant's children is entitled to little weight.
Similarly, the Court does not credit Defendant's affirmation submitted in connection with her motion to suppress (see Dkt. 189-2), wherein she states that during the search she was threatened with deadly force and handcuffed; she was questioned by police and/or the FBI both during and shortly after the search; the questioning occurred absent proper administration of Miranda warnings; and any statements she made to the police or to the FBI were involuntary. (Id. ). "[T]he self-serving affidavit of the moving defendant is usually disregarded if [s]he declines to testify at the hearing." United States v. Polanco , 37 F. Supp. 2d 262, 264 n. 4 (S.D.N.Y. 1999) ; see also DiMattina v. United States , 949 F. Supp. 2d 387, 411 (E.D.N.Y. 2013) ("Without the threat of cross-examination, [the defendant's] affidavits are viewed as self-serving and given little weight."). Here, the Court does not credit Defendant's assertions that she was questioned absent proper administration of Miranda warnings and that her statements were involuntary, both because they amount to legal conclusions that are not supported by the record, and also because the affirmation is self-serving and was left untested by cross-examination.
B. Defendant Was Not "In Custody"
" Miranda ’s warning requirements apply only to ‘custodial interrogation.’ " United States v. Newton , 369 F.3d 659, 669 (2d Cir. 2004). The Supreme Court has explained:
"Two discrete inquiries are essential to the [custody] determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest."
J.D.B. v. North Carolina , 564 U.S. 261, 270, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011) (citation omitted). "[T]he overarching ‘custody’ question is whether ‘a reasonable [person] in the suspect's position would have understood’ herself to be " ‘subjected to restraints comparable to those associated with a formal arrest.’ " " United States v. FNU LNU , 653 F.3d 144, 153 (2d Cir. 2011) (second alteration in original) (citations omitted). The Second Circuit has described the test for determining custody status as asking "(1) ‘whether a reasonable person would have thought he was free to leave the police encounter at issue,’ and (2) whether ‘a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest.’ " United States v. Faux , 828 F.3d 130, 135 (2d Cir. 2016) (citation omitted). While both parts of the test must be satisfied to conclude that an individual is in custody, the second question is the "ultimate inquiry" because the first question only reveals whether the individual was seized and "[n]ot all seizures amount to ‘custody’; a seizure is a necessary, but not sufficient, condition." Id.
"[T]he ‘subjective views harbored by either the interrogating officers or the person being questioned’ are irrelevant." J.D.B. , 564 U.S. at 271, 131 S.Ct. 2394 (citation omitted). However, "an officer's knowledge or beliefs ‘may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned,’ but ‘only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.’ " Faux , 828 F.3d at 135 (citation omitted). Among the relevant factors to consider in making the custody determination are "the interrogation's duration; its location (e.g., at the suspect's home, in public, in a police station, or at the border); whether the suspect volunteered for the interview; whether the officers used restraints; whether weapons were present and especially whether they were drawn; whether officers told the suspect [s]he was free to leave or under suspicion...." Id. (quotations, citation, and numbering omitted). "[A]bsent an arrest, interrogation in the familiar surroundings of one's own home is generally not deemed custodial." Newton , 369 F.3d at 675. "Only in extreme or unusual circumstances have courts held that suspects interrogated in their homes were restricted to a degree comparable to that of an individual placed under formal arrest." United States v. Vado , 87 F. Supp. 3d 472, 479 (S.D.N.Y. 2015) (collecting cases, ranging from suspect being told he was under arrest and not free to leave to suspect being handcuffed). Cf. Faux , 828 F.3d at 135-36 ("The home is ‘the most constitutionally protected place on earth’; thus, the right to terminate the interrogation and be ‘free to leave’ is ‘hollow’ if the one place that the individual cannot retreat to, or exclude law enforcement from, is her home. At the same time, courts rarely conclude, absent a formal arrest, that a suspect questioned in her home is ‘in custody.’ " (internal citation omitted)); United States v. Valerio , 765 F. Appx 562, 565-66 (2d Cir. 2019) (defendant not in custody when questioned while a dozen officers were executing search warrant in his home because defendant was asked, not directed, to sit for interview in dining room; he was not threatened nor told he was not free to leave; he was not handcuffed and remained calm throughout the interview).
"The Second Circuit cases considering the question [of whether a reasonable person would have understood his freedom of action to be curtailed to a degree associated with formal arrest] rely on one or more of the following circumstances to find that a defendant questioned in his home was restricted to a degree comparable to a formal arrest: the defendant was handcuffed, the defendant was explicitly told he was not free to leave, or the agents showed their firearms or otherwise threatened or used physical force." United States v. Belitz , 21-cr-693(JSR), 2022 WL 205585, at *5-6 (S.D.N.Y. Jan. 24, 2022) (discussing Second Circuit case law). Moreover, the fact that handcuffs were initially used for officer safety purposes upon execution of the search warrant, does not determine custody status at the time of a later interview if the handcuffs have been removed. See United States v. Familetti , 878 F.3d 53, 61 (2d Cir. 2017) ("[The defendant's] initial restraints cannot establish a state of custody for the duration of his interactions with the police.").
The Court turns first to the interview conducted at 164 Parkridge. As explained above, in evaluating whether a person is "in custody" the Court considers the duration and location of the interrogation, whether the suspect volunteered for the interview, and whether the officers used restraints, had weapons, or told the suspect she was free to leave, see Faux , 828 F.3d at 135, and concludes that the evidence supports that Defendant was not in custody at the time of her interview with Agent Dailey at 164 Parkridge, and therefore Miranda warnings were not required. The interview took place at Defendant's home, in the familiar surroundings of her dining room, and lasted approximately 30 minutes. See, e.g., United States v. Simmonds , 641 F. Appx 99, 102 (2d Cir. 2016) ("the fact that the interview then took place in the living room supports a conclusion that it was not a custodial setting"). Approximately 10 officers were present in the residence but were searching the house at that time. The credible testimony offered by both Agent Dailey and Detective Rooney support the conclusion that while Defendant was likely initially handcuffed for safety reasons when the SWAT team made entry, she was not handcuffed when Agent Dailey first encountered her, nor was she handcuffed during her interview at 164 Parkridge. Both Agent Dailey and Detective Rooney testified that, to their knowledge, once the search commenced no officer ever threatened Defendant, such as by displaying a firearm during questioning or otherwise, and Agent Dailey testified that while he had his firearm on him during the interview, it was holstered and obscured by his shirt. Agent Dailey expressly told Defendant she was not required to stay at 164 Parkridge during the search—rather, she was free to leave—and he would call her when the search was completed. These facts support a conclusion that a reasonable person in Defendant's situation would have thought she was free to leave the police encounter at issue, and more importantly, a reasonable person in Defendant's situation would not have understood her freedom of action to have been curtailed to a degree associated with formal arrest—in other words, Defendant was not in custody during the search at 164 Parkridge. See, e.g., United States v. Palase , No. 11-CR-413 (SLT), 2014 WL 6802560, at *6-10 (E.D.N.Y. Dec. 2, 2014) (finding defendants were not in custody; although they were placed in flexible handcuffs and held until police confirmed no one had outstanding warrants, defendants were advised they were not under arrest and were free to leave, the interviews took place in the familiar setting at the defendants’ place of business, the interviews were "calm, polite, and non-confrontational," and defendants were not arrested until one month later).
In her response brief, Defendant contends that she was "guarded by approximately 10 officers during the interrogation," and "held at her home." (Dkt. 341 at 3). Again, the record before the Court does not support Defendant's interpretation of her ability to leave 164 Parkridge. The evidence does not support that Defendant was guarded by 10 officers, but rather that she was interviewed by Agent Dailey while other officers searched her home. Likewise, Agent Dailey testified that he told Defendant she was not required to remain at 164 Parkridge during the search, and Defendant has failed to offer any credible evidence contradicting Agent Dailey's testimony in this regard.
The Court turns next to Defendant's interview at the BPD headquarters, which took place after the search at 164 Parkridge. The fact that an interview takes place at a police station does not, standing alone, demonstrate that an individual is "in custody." "Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him ‘in custody,’ " and "police 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 questioning takes place in the station house, or because the questioned person is one whom the police suspect." Oregon v. Mathiason , 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). See also United States v. Wallace , 178 F. Appx 76, 79-80 (2d Cir. 2006) (explaining that "there is no requirement that the Miranda warning be given merely because the interview takes place at the police station," and finding that the defendant, who had not been arrested or searched, and was questioned in a room with an open door and told he was free to leave at any time, was not in custody); United States v. Rogers , 99 Cr. 710, 2000 WL 101235, at *12 (S.D.N.Y. Jan. 27, 2000) ("In the context of determining whether an individual is in custody under the Fifth Amendment, the courts have long recognized that the setting of a police station or a police interrogation room, without more, is not so coercive as to preclude a reasonable person from feeling free to leave."), aff'd , 225 F.3d 647 (2d Cir. 2000).
Bearing these considerations in mind, the Court concludes that Defendant was not in custody when she was interviewed at the police station. The testimony supports that Defendant went voluntarily to BPD headquarters to speak with investigators. She was interviewed by four officers—first by Agent Dailey and Detective Rooney, and next by Agent Winters and Detective Stephany—and she was not handcuffed or threatened during the interview, and she never asked to terminate the interview or to leave. The interview lasted approximately two hours and ended "amicably." Like the interview at 164 Parkridge, a reasonable person in Defendant's situation at BPD's headquarters would have thought she was free to leave the police encounter at issue, and more importantly, a reasonable person in Defendant's situation would not have understood her freedom of action to have been curtailed to a degree associated with formal arrest.
Defendant states that the record is unclear as to how she was transported to BPD headquarters. (See Dkt. 337 at 4). The hearing testimony established that Agent Dailey believed Defendant obtained her own ride to headquarters. There is no evidence before the Court that Defendant rode with law enforcement to headquarters. However, regardless of what occurred, in light of the voluntary nature of the interview, the Court does not find the means by which Defendant arrived at BPD headquarters to meaningfully change the custody analysis.
Defendant contends she was not told she was free to leave at BPD headquarters. (See Dkt. 337 at 4). As explained above, whether a defendant was informed she was free to leave is only one factor to be considered by the Court when making the custody determination. Here, the record establishes that Defendant was not required to go to BPD headquarters—indeed, she went there to speak with investigators voluntarily—and she was in fact free to leave when she finished speaking with investigators. Accordingly, the fact that the officers did not specifically inform Defendant she was free to leave during the interview at BPD headquarters does not alter the Court's determination that she was not in custody at that time.
Defendant attempts to use the SWAT team's initial entry into 164 Parkridge—during which SWAT team members had long guns drawn and Defendant was handcuffed—in support of her contention that she was in custody and should have been read her Miranda warnings before any questioning. (See, e.g. , Dkt. 337 at 7 ("Any allegation that the initial interaction with police was followed by a second less custodial interaction during which the Defendant made incriminating statements is without merit. The custodial nature of the primary interaction did not dissipate during subsequent interactions with the police.")). As explained above, the Second Circuit has held that a defendant's initial restraints "cannot establish a state of custody for the duration of h[er] interactions with the police." See Familetti , 878 F.3d at 61 ; Simmonds , 641 F. Appx at 102 ("Although the use of firearms is generally an important factor in our analysis of the totality of the circumstances, the fact that the officers initially used firearms and briefly searched [defendant] does not compel a conclusion that the ensuing interrogation was custodial, especially where the use of firearms was ‘necessitated by the officers’ safety concerns’ and ended ‘as soon as ... the perceived security threat abated.’ " (citation omitted)); United States v. Cota , 953 F.2d 753, 758-59 (2d Cir. 1992) (concluding that defendant not in custody where "the initial use of guns and handcuffs [was] necessitated by the officers’ safety concerns, but the handcuffs were removed as soon as the car was examined and the perceived security threat abated"); United States v. Bershchansky , 958 F. Supp. 2d 354, 383 (E.D.N.Y. 2013) ("Even the use of handcuffs prior to an interrogation, however, does not automatically render the interrogation custodial."), aff'd , 788 F.3d 102 (2d Cir. 2015).
The testimony at the hearing established that the SWAT team's entry—during which Defendant was likely handcuffed—occurred prior to the search of 164 Parkridge, and the custodial nature of the SWAT team's entry had dissipated by the time Defendant decided to remain at her residence and to speak with Agent Dailey. Further, while Defendant was initially confused and upset about the search of her residence, Agent Dailey testified that he gave her time to calm down before continuing with the interview. Accordingly, the Court does not find that the SWAT team's initial entry into the home impacts the custody determination.
C. Defendant's Statements Were Voluntary
Having determined that Defendant's statements were non-custodial, the Court next assesses whether her statements were voluntary. "When ... a defendant seeks to suppress non-custodial statements made to law enforcement authorities, the single issue before the court is whether the statements were voluntary, i.e. , the ‘product of an essentially free and unconstrained choice by [their] maker,’ or coerced by police activity in violation of constitutional rights not to incriminate oneself and due process...." United States v. Haak , 884 F.3d 400, 409 (2d Cir. 2018) (alteration in original) (citations omitted). " ‘[C]oercive police activity’ is a ‘necessary predicate’ to holding a confession constitutionally involuntary," and a court is required to "make ‘specific findings ... that under the totality of the circumstances ... the defendant's will was overborne by the [police] conduct.’ " Id. (second alteration in original) (citations omitted). "[T]hose factors that a court should consider to determine whether an accused's confession is voluntary center around three sets of circumstances: (1) the characteristics of the accused, (2) the conditions of interrogation, and (3) the conduct of law enforcement officials." Green v. Scully , 850 F.2d 894, 901-02 (2d Cir. 1988). The government bears the burden of demonstrating by a preponderance of the evidence that a defendant's statement was voluntary. Missouri v. Seibert , 542 U.S. 600, 608 n.1, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).
With these considerations in mind, the Court concludes that Plaintiff's statements to law enforcement on October 9, 2019, when viewed in the totality of the circumstances, were voluntary. As for the conduct of law enforcement, other than the SWAT team's initial entry into 164 Parkridge, the evidence supports that Defendant was not threatened, with a firearm or otherwise, before, during, or following the interviews, and she was not handcuffed. Defendant was free to terminate the interviews and Agent Dailey specifically informed her that she was not required to remain at 164 Parkridge. While Defendant points out that she has no prior criminal history or experience interacting with the police (see Dkt. 337 at 7), she is an adult and there is no indication that she did not understand that she was not required to speak to law enforcement, or that she was free to leave. Despite those facts, Defendant elected to stay at 164 Parkridge and speak with investigators, and she went to BDP headquarters later in the day to continue the interview—even though it is clear from the record that she was not required to do so. As for the nature of the interviews, Agent Dailey first interviewed Defendant for only 30 minutes in her home. Detective Rooney described Defendant as "pleasant" and said she was cooperative during the interview at BPD headquarters, which lasted approximately two hours. Agent Dailey testified that the interview ended "amicably," and Defendant said she would call if she thought of anything else. Defendant was not arrested or otherwise detained and was permitted to leave BPD headquarters on her own accord. See United States v. Shteyman , No. 10 CR 347(SJ), 2011 WL 2006291, at *18 (E.D.N.Y. May 23, 2011) (concluding that defendant's statements were voluntary where, among other things, the interview was brief, the defendant was permitted to get up when she requested, she never indicated she wanted to cease questioning, and the agents did not engage in coercive conduct); United States v. Connelly , No. 05-CR-6166 CJS, 2007 WL 3124538, at *9 (W.D.N.Y. Oct. 25, 2007) (determining that statements were voluntary where they were not obtained by physical or psychological coercion or improper inducement, the officers did not threaten defendant or make him any promises, the defendant did not appear to be under the influence of alcohol or drugs, and the defendant did not indicate that he did not want to speak to the officers, but was rather cooperative and responsive). Put simply, there is no evidence supporting that Defendant's statements to law enforcement on October 9, 2019 were anything other than the product free and unconstrained choice, and the government has sustained its burden in demonstrating that Defendant's statements on October 9, 2019 were voluntary.
D. Defendant Voluntarily Consented to the Search of Her Cellphone
The Court concludes that Defendant voluntarily consented to the search of her cellphone, and therefore suppression of the evidence seized from her cellphone is not required. A voluntary consent search is one of the well-recognized exceptions to the warrant requirement. See , e.g. , Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ("[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent."). "The government has the burden of proving consent voluntarily given by a preponderance of the evidence." United States v. Calvente , 722 F.2d 1019, 1023 (2d Cir. 1983). "[T]he ultimate question presented is whether the officer had a reasonable basis for believing that there had been consent to the search." United States v. Garcia , 56 F.3d 418, 423 (2d Cir. 1995) (quotation and citation omitted). Resolution of that question is an issue of fact based upon a totality of the circumstances, including the "age, education, [and] intelligence [of the defendant], [the] length of detention, [the] use of physical punishments or deprivations, and whether the alleged consenting person was advised of h[er] constitutional rights[.]" United States v. Puglisi , 790 F.2d 240, 243 (2d Cir. 1986) ; see also Florida v. Jimeno , 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ("The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?").
The Court concludes the government has sustained its burden of demonstrating that Defendant voluntarily consented to the search of her cellphone. Agent Dailey testified that when going over the seized property with Defendant, he explained they were going to take the mobile devices in the home, enter them into evidence, and apply for search warrants to search the devices. Defendant was unhappy about law enforcement taking her cellphone, and Agent Dailey offered her the option to grant consent to search the phone and he could return it to her as soon as possible. Defendant is an adult and there is no indication from the record that she did not understand these options, or that she believed her consent was required. Defendant agreed to provide consent to search the cellphone, gave the officers the password, and signed a consent to search form provided to her by another agent. Defendant was not detained at the time she consented to the search of her cellphone, and none of the testimony at the evidentiary hearing supports the notion that Defendant was punished or deprived of anything at the time she gave consent to search her cellphone. Defendant was not handcuffed at the time she provided consent to search, nor was she threatened with force or with a gun.
The testimony at the hearing did not establish that Defendant was advised of her rights prior to consenting to the search of her cellphone and, as explained above, this is one factor the Court must consider when evaluating whether a consent to search was voluntary. However, the law does not require that law enforcement advise someone of their constitutional rights before consenting to a search or advise them of their right to refuse consent. See United States v. Schaefer , 859 F. Supp. 2d 397, 407 (E.D.N.Y. 2012) ("the government has no affirmative obligation to advise the defendant of his right to refuse consent to search; rather, that is one factor to be taken into account in determining voluntariness"), aff'd , 519 F. Appx 71 (2d Cir. 2013) (citing United States v. Drayton , 536 U.S. 194, 206-07, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) ("The Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search.")).
Defendant argues that her consent was not voluntary because she was handcuffed when she gave consent, guns were pointed at her prior to giving consent, there was a large police presence in her home, and she was upset during her interview. (See Dkt. 337 at 10). As explained above, the Court credits Agent Dailey's testimony that Defendant was not handcuffed when she gave consent. Further, although guns were pointed at the occupants of 164 Parkridge when the SWAT team made entry and Defendant was upset when Agent Dailey informed her that officers were there to search for evidence of a triple homicide, these events transpired before Defendant's agreement to give officers consent to search her cellphone, and under the circumstances here they do not vitiate the otherwise voluntary consent. See, e.g., United States v. Snype , 441 F.3d 119, 131 (2d Cir. 2006) (finding voluntary consent to search where home was forcibly entered by heavily armed SWAT team that initially secured the occupants and there was possibility of taking them into custody, because time had passed and coercive circumstances had dissipated by the time occupant provided consent to search).
In sum, Defendant signed a valid consent to search form and the totality of the circumstances surrounding her consenting to the search of her cellphone, which did not involve her being restrained or threatened, do not indicate that her consent was coerced or otherwise involuntarily given. Accordingly, Defendant's motion to suppress evidence seized from the search of her cellphone on the basis that her consent was not voluntarily given is denied.
E. The Officers Did Not Violate Defendant's Right to Counsel
Defendant contends the officers violated her right to counsel when they did not stop the interview at BPD headquarters and provide her with an attorney when she asked if she needed a lawyer. The Court rejects this argument for two reasons.
First, the Court previously found that Defendant was not in custody at the time of her interview, and therefore her Fifth Amendment right to counsel under Miranda was not triggered. See United States v. Zaleski , 559 F. Supp. 2d 178, 189 (D. Conn. 2008) ("[Defendant] could not, under the circumstances of his encounter with the officers at the traffic post, have invoked his Fifth Amendment right to counsel. Miranda rights cannot be asserted outside the context of custodial interrogation.... An individual cannot, therefore, assert his or her Miranda right to counsel before he or she is in custody." (internal citations omitted)); see also United States v. Smith , No. 5:12-cr-52, 2012 WL 5187922, at *7 (D. Vt. Oct. 18, 2012) (denying defendant's motion to suppress statements made on the basis that he invoked his right to counsel, and explaining that "any invocation of the right to counsel occurred when Defendant was not in custody, and ... the Second Circuit has held there is no right to an anticipatory invocation of counsel such that any subsequent custodial interrogation would be subject to it").
Second, even if the Court found that Defendant was in custody when she was questioned at BPD headquarters—which it does not—Defendant's mere inquiry as to whether she needed an attorney was not an unambiguous invocation of the right to counsel. "[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.... Rather, the suspect must unambiguously request counsel." Davis v. United States , 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). See also United States v. Medunjanin , 752 F.3d 576, 588 (2d Cir. 2014) ("even assuming that Miranda rights may properly be asserted by a suspect prior to his being in custody and prior to his being questioned, there was no clear and unambiguous invocation of the right to counsel by [defendant] before his arrest"); United States v. Figaro , No. 21 Cr. 132 (AKH), ––– F. Supp. 3d ––––, –––– – ––––, 2021 WL 4949218, at *6-7 (S.D.N.Y. Oct. 25, 2021) (explaining that "[w]here a defendant merely references a lawyer or inquires as to the potential need for one, the law does not require agents to stop their questioning," and finding that defendant's question, "do I need my lawyer?" was "neither unequivocal nor unambiguous"). Accordingly, the Court denies Defendant's motion to suppress on the basis that her statements were obtained in violation of her right to counsel.
Defendant argues, without citing to any case law in support of her position, that Davis is inapplicable because, unlike the defendant in Davis , Defendant was not advised of her Miranda rights, and therefore "the unequivocal requirement of Davis " does not apply. (Dkt. 341 at 4). Defendant's argument in this respect misses the mark. As explained above, because she was not in custody at the time of questioning, even if Defendant had unambiguously and unequivocally asked for an attorney, law enforcement was not required to provide her one.
Having concluded there is no basis for suppression, the Court need not reach the parties’ arguments relating to the exclusionary rule.
CONCLUSION
For the foregoing reasons, the Court denies Defendant's motion to suppress statements made to law enforcement and the evidence seized from her cellphone on October 9, 2019 (Dkt. 189; Dkt. 189-1 at 10-11).
SO ORDERED.