Opinion
No. S1 04 Cr. 147 (LTS).
March 29, 2005
MEMORANDUM OPINION AND ORDER
Defendant Brett St. Claire moves, pursuant to Federal Rule of Criminal Procedure 12(b)(3), to suppress physical evidence and statements obtained as the result of a search of two Federal Express packages. St. Claire is charged in a three-count indictment with conspiracy to violate the narcotics laws, attempted possession of a controlled substance with intent to distribute, and possession of a controlled substance with intent to distribute. Co-Defendant Anthony Snyder, who is also charged in counts one and two of the indictment, joins in the motion and also moves to suppress evidence seized from his apartment. The Court held evidentiary hearings on the motions on August 5, 2004, September 21, 2004, December 21, 2004, and January 26, 2005. The Court has considered carefully all of the parties' evidentiary proffers, submissions, and arguments in connection with the motions to suppress.
For the reasons that follow, both motions are denied.
St. Claire's Motion to Suppress
Defendant Brett St. Claire seeks to suppress the contents of two Federal Express packages, both of which were found to contain narcotics, that he sent to Defendant Anthony Snyder on January 29, 2004. In moving to suppress such evidence on the ground that the Federal Express search violated the Fourth Amendment, St. Claire must establish at least a prima facie case that the search was instigated or conducted by a government entity. United States v. Koenig, 856 F.2d 843, 847 (7th Cir. 1988) (citing Nardone v. United States, 308 U.S. 38, 341 (1939)). The Court finds that St. Claire has not proffered sufficient evidence to meet this burden.
In the August 5, 2004, hearing, Douglas Suter, a Federal Express senior security officer based in the main office in Atlanta, Georgia, testified that he regularly conducts profiling of Federal Express packages and that it is company policy to open any suspicious packages. He stated that he found St. Claire's packages to be suspicious because they were sent priority overnight mail, and the shipper paid a large shipping fee of $72.52 in cash. (Aug. 5, 2004 Tr. at 19-24.) Suter notified the Federal Express security officer in New York, Andy Walkerwicz, about the suspicious packages and advised Walkerwicz to intercept them upon their arrival in New York. (Id.) Suter denied having received any kind of "tip" information from any law enforcement authority. (Id.)
Walkerwicz testified that he intercepted the two packages from the sorting belt and took them to his office, where he proceeded to open one of the packages. (Aug. 5, 2004 Tr. at 77-80, 85.) Upon finding jars containing a crystal substance in the packages, he called the Drug Enforcement Agency ("DEA"). (Id.). Walkerwicz then opened the second package, which contained the same substance as the first package, in the presence of the DEA agent. The DEA agent then conducted a field test of the substance in the open packages. (Id.) Thereafter, the DEA conducted a controlled delivery to Defendant Snyder at the hotel address listed on the packages, waited for St. Claire to arrive, and arrested St. Claire upon his arrival at Snyder's hotel room.
St. Claire argues that Federal Express could only have been suspicious of the packages as the result of a law enforcement tip. (See St. Claire Post-Hearing Mem., at 6.) Relying on the testimony of Robert Hooper, an acquaintance of St. Claire who acted as a confidential informant to Inspector John Cagney of the San Francisco Police Department in other drug investigations, and who testified at the suppression hearing that he had informed Cagney about St. Claire's plans to send the Federal Express shipment, St. Claire asserts that the Federal Express searches were prompted by a tip from Cagney. According to credible testimony from both Suter and Walkerwicz of Federal Express, however, their actions were consistent with Federal Express procedures and were not influenced by any government agent. Likewise, Cagney testified credibly that he never contacted any agent at Federal Express about St. Claire's shipment; Cagney was only vaguely familiar with Brett St. Claire, and St. Claire had nothing to do with his investigations. (Dec. 21, 2004 Tr. at 289.) The Court finds that Robert Hooper's testimony to the contrary was not credible and that, even if Hooper's testimony about having told Cagney about the package were to be believed, it would nonetheless be irrelevant to the Fourth Amendment issue because there is no credible evidence or reasonable inference to be drawn that Cagney passed information on to Federal Express.
St. Claire also argues that, because Walkerwicz waited to open the second package until after the DEA agent arrived, Walkerwicz was acting as an agent of the government when he searched that package. On the contrary, the Second Circuit has held that a government officer's mere presence during a search, where the officer neither requests nor participates in the search, does not transform a private search into a government search. United States v. Keuylian, 602 F.2d 1033, 1040 (2d Cir. 1979) (officer's presence during airline search of luggage and officer opening lock on luggage found to be insufficient to render personnel instruments or agents of government). Nor did the fact that the DEA agent field tested the contents of the first package create a government search, because Mr. Walkerwicz had already placed the contents of the package in plain view of the DEA agent. Koenig, 856 F.2d at 847. Therefore neither search was violative of St. Claire's Fourth Amendment rights.Id. at 846-47. Accordingly, St. Claire's motion to suppress the physical evidence found in the search and later statements resulting therefrom is denied.
Snyder's Motion to Suppress
Defendant Anthony Snyder moves to suppress physical evidence based on several grounds. As the addressee listed on the packages, he joins Defendant St. Claire's motion to suppress the contents of the Federal Express packages; he moves to suppress evidence recovered as a result of a security sweep of the hotel room to which the Federal Express packages were delivered, as well as evidence recovered after a later search of the hotel room pursuant to a search warrant; he moves to suppress evidence obtained during a search of his apartment, claiming that he consented involuntarily and/or that officers began the search before he gave consent; and he moves to suppress evidence obtained as a result of a later search of his apartment pursuant to a search warrant. Snyder also argues that his Fifth Amendment rights were violated because his consent was requested after he had received Miranda warnings and invoked his right to counsel.
Snyder's motion to suppress the contents of the Federal Express packages is denied for the reasons explained above. Moreover, because the initial search of the Federal Express packages did not violate the Fourth Amendment, the security sweep search of the hotel room at the time of the controlled delivery of the packages was not tainted as fruit of the poisonous tree. See generally Wong Sun v. United States, 371 U.S. 471 (1963). Neither is the subsequent search of the hotel room pursuant to a search warrant, which yielded additional evidence, so tainted.
With regard to the February 16, 2004, apartment search, Snyder argues that, to the extent he consented, such consent was tainted by the prior illegal search of the Federal Express packages, and that in any event, his consent was given involuntarily. Because the initial search of the Federal Express packages was legal, Snyder's consent was not tainted by a prior illegality, and the motion to suppress on that basis is denied.
"A search conducted pursuant to a voluntary consent is constitutionally valid." United States v. Adarkor, No. 92 Cr. 235 (KMW), 1992 WL 320590, at *2 (S.D.N.Y. Oct. 23, 1992) (citingSchneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). In order to determine whether consent was voluntarily given, the Court considers the totality of the circumstances surrounding the search. The government bears the burden of proving, by a preponderance of the evidence, that the consent was "freely and voluntarily given." Id. (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).
Snyder does not deny that he gave law enforcement officers explicit permission to search his apartment. He contends, however, that his consent was involuntary because of improper police coercion. At the suppression hearing, Officer Justin Meadows testified that agents knocked on the apartment door and announced their arrival loudly enough that a neighbor heard them and came out into the hallway and that the officers called Snyder's cellular telephone twice, both times allowing the telephone to ring several times. (Sept. 21, 2004 Tr. at 119-124.) Snyder has proffered an affidavit asserting that he was abruptly awoken from a nap when officers forcibly entered the apartment, and that officers stated, in soliciting his consent, that they could search "the easy way or the hard way." (Aff. of Anthony Snyder ¶¶ 7-8). Snyder also notes that the officers forcibly moved him from his apartment to the hallway and that they handcuffed him. (Snyder Aff. ¶ 10.)
Snyder explains: "According to [the officers], the easy way was if I cooperated and consented to the search, and the hard way consisted of obtaining a search warrant and searching the premise[s] with dogs and causing significant disruption to my apartment and personal effects." (Snyder Aff. ¶ 12.)
In addition, Snyder offered the testimony of Brandon Pietro, who was in the apartment at the time the law enforcement officers arrived. Pietro disclaimed knowledge as to whether Snyder was awake or asleep at the time the officers entered the apartment, stating that Snyder was "pretty much at the front door" when they entered; Pietro further stated that he did not recall whether there were warning knocks and telephone calls before the entry. (Sept. 21, 2004 Tr. at 191-92.)
The Court finds Snyder's self-serving, uncross-examined, conclusory assertion that he was abruptly awoken insufficient to overcome the Government's credible evidence that Snyder was coherent and responsive to questions at the time of the encounter with the officers. Nor are the fact that Snyder was handcuffed when the officers entered the apartment and Snyder's assertions regarding the alleged "easy way or hard way" statement sufficient to support a reasonable inference that Snyder's consent was given involuntarily. The credible testimony established that Snyder was moved from the apartment and handcuffed as a routine safety measure; there is nothing in the record to suggest that it was done in an unusual or coercive manner. It bears noting in this connection that the officers were executing a warrant for Snyder's arrest. Furthermore, the alleged statement contrasting consent search with a search pursuant to a warrant does not vitiate the voluntariness of Snyder's consent. "It is well-settled that [an] agent's statements to the effect that he would obtain a warrant if [defendant] did not consent to the search does not taint [defendant's] consent to the search."United States v. Salvo, 133 F.3d 943, 953-54 (6th Cir. 1998) (citing, e.g., United States v. Vasquez, 638 F.2d 507, 528-29 (2d Cir. 1980)). In this case, the officers' assertion was not baseless because the officers could have obtained a search warrant and in fact did return to the apartment with a warrant two days later. (See Aff. of Glenn A. Garber, Ex. 3 (search warrant for Snyder premises).) The Court therefore finds, upon consideration of the totality of the circumstances, that the government has met its burden of proving that Snyder's consent was voluntarily given.
Insofar as Snyder seeks to suppress the fruits of the apartment search on the grounds that the search was commenced before he gave his consent, that aspect of the motion is also denied, as the credible evidence established that only a protective sweep was undertaken before Snyder's consent was obtained. "[A]s an incident to [an] arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could immediately be launched."Maryland v. Buie, 494 U.S. 325, 334 (1990). The government proffered credible testimony from Officer Meadows and Officer A1 Gynnes that their colleagues conducted a protective sweep when they first entered the apartment, then brought Snyder back into the apartment after securing the area and requested his consent to search, which he voluntarily provided. (Sept. 21, 2004 Tr. at 174-77.) The testimony of Snyder's friend, Brandon Pietro, to the contrary was neither internally consistent nor credible.
Finally, Snyder argues that the evidence seized from the apartment should be suppressed insofar as his right to counsel was violated because officers requested his consent to search the apartment after had he invoked that right upon being read hisMiranda rights. Because a request for consent to search does not constitute an interrogation within the meaning of Miranda insofar as it does not seek to elicit a self-incriminating statement, however, there was no Fifth Amendment violation in this regard. United States v. McClellan, 165 F.3d 535, 544 (7th Cir. 1999); United States v. Rodriguez-Garcia, 983 F.2d 1563, 1568 (10th Cir. 1993) ("Every federal circuit court which has addressed the Miranda issue presented here has reached the conclusion that a consent to search is not an incriminating statement.") (collecting cases). Snyder's motion to suppress based on a violation of his right to counsel is therefore denied. Finally, because the motion to suppress evidence recovered during the initial search of Snyder's apartment is denied, the motion to suppress evidence recovered pursuant to the search warrant is also denied as it is not fruit of the poisonous tree.
Because Snyder did not have a right to consult with counsel before giving consent, and in light of the Court's earlier conclusions as to the voluntariness of Snyder's consent, the Court also rejects Snyder's argument that his consent to search was involuntary because he had not consulted with counsel. (See Snyder Post-Hearing Supplemental Mem., at 15-16.)
CONCLUSION
For the foregoing reasons, the motions to suppress by Defendants Brett St. Claire and Anthony Snyder are denied in their entirety.SO ORDERED.