Opinion
No. 04 Cr. 1174 (LMM).
October 20, 2005
MEMORANDUM AND ORDER
1.
Defendant moves for an order suppressing evidence seized on October 4, 2004 from an apartment in which he resided with Miriam Almonte and their children. Ms. Almonte consented to the search of the apartment, as reflected in a written consent to search signed by her on October 4, 2004 (Gov't Ex. 1); defendant contends however that Ms. Almonte "did not voluntarily consent. She only did so in an environment of overbearing intimidation." (Def. Mem. at 2.) A hearing was held at which John Eisert, an agent with Immigration and Customs Enforcement, Joseph Almedina, a detective with the Kings County District Attorney's Office, Ms. Almonte, and Gyselle Perez, a next-door neighbor of defendant and Ms. Almonte, testified.
2.
It is by now well established that while a warrantless search of a home is generally unreasonable and therefore violates the Fourth Amendment, which proscribes "unreasonable searches," an individual may consent to a search, thereby rendering it reasonable. To ascertain whether consent is valid, courts examine the "`totality of all the circumstances'" to determine whether the consent was "a product of that individual's free and unconstrained choice, rather than a mere acquiescence in a show of authority."United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995) (quoting United States v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973))). "The government has the burden of proving, by a preponderance of the evidence, that a consent to search was voluntary. Voluntariness is a question of fact determined by a `totality of all the circumstances.' `[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. Isiofia, 370 F.3d 226, 230-31 (2d Cir. 2004) (quotingSchneckloth, 412 U.S. at 227, and Garcia, 56 F.3d at 423). InSchneckloth, the Supreme Court indicated some of the relevant "surrounding circumstances":
both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused; his lack of education; or his low intelligence; the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep.412 U.S. at 226 (citations omitted).
In Schneckloth, the Court looked to case law relating to the voluntariness of confessions for "initial guidance on the meaning of `voluntariness' in the [consent to search] context."Id. at 223-24 (footnote omitted). The Court concluded that "there is no reason for us to depart in the area of consent searches, from the traditional definition of `voluntariness.'"Id. at 229.
3.
On October 4, 2004, between about 9:00 A.M. and 9:30 A.M., Agent Eisert and Detective Almedina went to 99 Marble Hill Avenue in the Bronx, an apartment building in which they thought defendant might reside, although they did not know in which apartment. It was their intention to speak to defendant in relation to an ongoing drug money laundering investigation. In the building's lobby, Agent Eisert recognized defendant with a woman (now known to be Ms. Almonte) entering the building from the street (having left a little earlier after their children had left for school, and returned because defendant had forgotten a cell phone); Agent Eisert and Detective Almedina approached, identified themselves as police officers, and asked for identification, and, as the officers followed defendant and Ms. Almonte toward their apartment (which was on the first floor), Agent Eisert indicated that he wanted to speak to defendant in relation to an investigation, and asked that they speak inside.Defendant and Ms. Almonte allowed the officers into the apartment. Agent Eisert questioned defendant, who supplied no incriminating information. At some point, but shortly after the entry into the apartment, Ms. Almonte went into the kitchen and Detective Almedina (who speaks Spanish) followed her, after Agent Eisert had given him a signal to seek consent to search the apartment, and spoke to her, in Spanish and out of the full hearing of defendant. He asked her whether there were any weapons, drugs or money in the apartment, to which she responded in the negative, and then asked her to give consent to search the apartment; she agreed, and Detective Almedina then obtained a consent form from Agent Eisert, which he gave to Ms. Almonte, who signed it on the Spanish language side, after she had said, in response to Detective Almedina's question, that she understood it. Defendant has not disputed that, if Ms. Almonte did voluntarily consent to the search, then the search would not violate the Fourth Amendment.
The consent form (Gov't Ex. 1) has an English text on one side and a Spanish on the other. Ms. Almonte wrote her name and address on, and signed, the form; Agent Eisert filled in his name as the officer authorized to search and the word "residence" indicating the area to be searched. In her testimony, Ms. Almonte acknowledged a full understanding of the meaning of the form, but said she did not sign it voluntarily but was ordered to do so.
See Illinois v. Rodriguez, 497 U.S. 177, 179 (1990) (citing United States v. Matlock, 415 U.S. 164 (1974)).
Defendant — relying largely on the testimony of Ms. Almonte and Ms. Perez — urges that the "purported consent . . . was not voluntary nor the product of free will. Rather, it was caused by the intimidating and overbearing conduct of the law enforcement officers who instilled fear by the use of their authority." (Def. Letter Mem., June 27, 2005, at 1.) According to defendant
virtually every one of the . . . factors that are present in this case militate in favor of the granting of this motion. Entry into Ms. Almonte's apartment was gained through intimidation; she was a novice to criminal justice; she is not an educated or otherwise knowledgeable person; she was held incommunicado, not permitted to answer her own telephone; she was essentially in custody in her own apartment being followed by gun-carrying law enforcement officers who expressed disbelief at her answers; she could not even go to the bathroom without asking permission and only after she emptied her pockets; and she was threatened with arrest and the loss of her children-unless-under rushed circumstances — which were accompanied by loud and insistent voices — she signed a paper she barely understood.
(Id. at 3.) Defendant's argument, however, and some of the testimony on which it is based, is not persuasive.
The Court finds that the officers' entry into the apartment was not obtained by intimidation. That they wanted to gain entry is clear, but not at all sinister. Common sense suggests that it is preferable that a discussion between law enforcement officers and a suspect or witness be conducted in reasonable privacy, if possible, not only for the officers' sake, but for that of the suspect or witness, particularly when, as was the case here, the officers were seeking to engage defendant as a cooperator. The Court finds that defendant did not request counsel when approached by the officers in the lobby.
"[I]t is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes." People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852, 854 (Cal. 1955), quoted in Schneckloth, 412 U.S. 230-31.
While the Court assumes (even in the absence of evidence) that Ms. Almonte "was a novice to criminal justice [and not] an educated or otherwise knowledgeable person," as defendant asserts (id.), neither is she a "youth" — she is 40 — nor was there, in her testimony, any suggestion of "low intelligence." See Schneckloth, 412 U.S. at 226.
The evidence supports defendant's assertion that Ms. Almonte was "not permitted to answer her own phone" (Def. Letter Mem., June 27, 2005, at 3), to the extent that Ms. Perez, sometime after the officers had entered the apartment, called Ms. Almonte, who was told by one of them not to answer. It is not completely clear whether this event took place before or after the consent form was signed, but, assuming that it occurred before the form was signed, it does not amount to holding Ms. Almonte "incommunicado," and it does not negate the voluntariness of Ms. Almonte's consent. "[T]he fact of custody alone is not enough to demonstrate involuntariness of consent." United States v. Vasquez-Santiago, 602 F.2d 1069, 1073 (2d Cir. 1979) (per curiam). That a person is "under arrest and in custody, or even handcuffed, does not as a matter of law require a finding of coercion." United States v. Crespo, 834 F.2d 267, 271 (2d Cir. 1987) (citations omitted). See also United States v. Ansaldi, 372 F.3d 118, 129 (2d Cir. 2004). A fortiori, a refusal to allow a person to answer a phone call does not amount to coercion of the sort that would overcome a reasonable person's ability to come to a free and unconstrained choice.
Ms. Perez testified that she called again twice, after she had left home and gotten to work. The very strong probability, however, is that these two calls took place after Ms. Almonte signed the consent form, and so did not affect her state of mind at the time she did so. On the totality of the evidence, the Court finds that the consent form was signed not more than about 15 minutes after the officers entered the apartment.
Neither of the officers were in uniform, and both carried firearms in holsters under their jackets. Although Ms. Almonte testified that the officers did not identify themselves as such at the initial encounter in the apartment building's lobby, she nevertheless recognized that they were law enforcement officers. There is no evidence that either officer drew his weapon at any time. It is probably the fact that Ms. Almonte noticed the weapon of one the officers, as she said she did. That fact, in the Court's estimation, does not mean much. Most people in New York City (perhaps throughout the country) expect that law enforcement officers, even in plain clothes, will have weapons, and the Court does not believe that a reasonable person would feel threatened or coerced in speaking to a law enforcement officer in possession of a weapon which is not drawn.
Ms. Almonte was, upon request, allowed to go to the bathroom unaccompanied, but after, upon instruction, turning her pockets inside out. Again, it is not completely clear whether this event took place before or after the form was signed, but, assuming it occurred before the form was signed, it does not of itself amount to coercion, but represents simply a technique to avoid the possibility of evidence being discarded.
Defendant was allowed to go to the bathroom with the bathroom door left open and there attempted to discard a cell phone computer chip. This event occurred after the consent form was signed and possibly after Ms. Almonte's visit to the bathroom, so that defendant's conduct cannot be shown to be the cause of the inside out pocket instruction to Ms. Almonte. It does, however, illustrate a legitimate law enforcement concern.
Insofar as defendant argues that Ms. Almonte was threatened with arrest and the consequent loss of her children if she did not sign the consent form, it is not completely clear that that is what she actually testified happened. Her direct testimony is ambiguous in this regard: she was "spoken to by one of the officers in connection with this paper [i.e., the consent form] that [she] later signed," "[b]ut first . . . told . . . that [she] was going to be arrested as well;" she was told "that [she] would be arrested and that they were going to take [her] children from [her] and that since [she] was going to . . . jail did I have somebody that could take care of my children." Asked whether this statement was "in connection with the instruction to sign that paper," she answered "[i]t appeared so." Asked "[d]id anyone tell you that if you didn't sign the paper — if you signed the paper that you would not be arrested?" She responded "[n]o." (Transcript at 156.) On cross-examination, she testified as follows:
Q. What did he say to you in the course of asking you to sign the form?
A. Why I had to sign the form he told me that they had to search the apartment.
Q. Did he threaten you in any way if you didn't sign the form?
A. No. He just told me that I would be arrested as well.
Q. Did they say anything about your children if you didn't sign the form?
A. They asked me if I had anyone that could take care of my children if I was going to be arrested.
(Transcript at 196.) While Ms. Almonte was no doubt "worried about being arrested" (Transcript at 156-157), her testimony does not unambiguously support the argument that Ms. Almonte was threatened with any loss, even temporary, of her children depending on whether or not she consented to a search or to sign the consent form. In any event, the Court finds that such a threat was not made by any officer present in the apartment.
Defendant was taken into custody on an alleged immigration violation and subsequently arrested on the present charges. The record does not indicate or even suggest that Ms. Almonte was arrested.
Ms. Almonte's testimony is not clear as to who requested her to consent to a search and to sign the consent form. The Court finds by a preponderance of the evidence that Detective Almedina both requested consent to search and the execution of the form, not some other Hispanic law enforcement officer who arrived later.
Ms. Almonte was not advised of the right to refuse consent to the search of the apartment and to decline to sign the consent form, and that is relevant, but not dispositive. "[K]nowledge of the right to refuse consent is not a requirement to a finding of voluntariness, although it may be a factor in ascertaining whether the consent was coerced." Garcia, 56 F.3d at 422-23 (citations omitted).
Ms. Almonte described the officers' conversation in the lobby as "shouting" and "ordering" that the apartment be opened for them, and the officer's demeanor in asking for consent to search and that she sign the consent form as "aggressive" and that he "ordered" her to sign it. The officers both described their manner as quiet. While precise knowledge of tones of voice cannot be derived from witnesses' characterizations, the Court finds that the officers' tones of voice, demeanor and what they actually said either in the lobby or in requesting Ms. Almonte's consent to search and signature of the consent form did not exceed the normal and the polite if businesslike, and were not such as reasonably to cause a person' voluntariness to be questioned.
Ms. Perez, Ms. Almonte's next door neighbor, testified that, on the morning of October 4, 2004, she heard "[s]everal people talking outside the door in a loud voice ordering someone else to open the door." (Transcript at 205.) While the Court does not doubt that Ms. Perez heard some sort of discussion through her door, which she did not open, the Court is not convinced that she could hear enough through the door to credit her characterization that someone was "ordering" the door to be opened. The officers were not attempting to speak to someone inside the apartment.
At no time was Ms. Almonte handcuffed, and she "was not subjected to the kind of intensive interrogation over many hours or days which would overwhelm the frightened prisoner and vitiate consent." United States v. Arango-Correa, 851 F.2d 54, 57 (2d Cir. 1988) (citations omitted).
Ms. Almonte described herself a number of times as "nervous and frightened" or "scared and nervous" (Transcript at 149, 155), and as feeling she had "no choice" but to sign the consent form (id. at 157), but there is no evidence that she communicated her subjective state of mind to the officers (or to defendant, in their presence). While descriptions such as these of the subjective state of mind of a person who has objectively, both orally and in writing, given consent, are not irrelevant, they do not alone answer the objective issue whether the officers had a reasonable basis for believing that there was consent to a search. See Garcia, 56 F.3d at 424.
* * *
On the basis of all of the evidence adduced at the hearing, the Court finds that the government has sustained its burden of proving by a preponderance of the evidence that Ms. Almonte's consent to search was voluntary and that the officers had a reasonable basis for believing so. The motion for suppression of evidence seized during the search is therefore denied.
SO ORDERED.